PUBLIC INTERNATIONAL LAW

NATURE AND SOURCES OF INTERNATIONAL

LAW
A. Law as a Concept
Q: Is International Law considered as true law?
According to Paras: Law may be said
to be the instructions from God.
Law is a reasonable rule of action
promulgated by competent authority
for the common good.
What is Competent Authority?
Superior States whose commands have
to be performed by so- called sovereign
States.
Back to Question #1
If law is to be construed as a superior will
imposed on superior beings, the answer
is no.
Law only in so far as it is premised on the
natural moral law, and is not law insofar
as its basis is the common consent of
equal states.
BUT IF:
Competent Authoirty refers to equal
States, which observe expressly or
implicitly common standards of conduct
in their mutual relations, then Public
International Law is a true law.
Evidence:
Int. Law is discussed by the methods
appropriate to jurisprudence
State officials in arguing for their foreign
policies appeal
Judicial sanctions by int. and municipal
tribunals
International legislation has been
enacted
Public International Law
First, International Law is generally
understood to cover only public
international law.
Before, it was known as Law of
nations
Later, International law (Jeremy
Bentham in 1789)
DEFINITION
The body of rules and principles which
are recognized as legally binding and
which govern the relations of states and
other entities with international legal
personality.
Chinese, Russian and definitions of so
many subjects and authors.
Functions of PIL
Maintenance of International peace and
order
Protection of State rights and of
fundamental human rights
Economic, social, cultural, and
technological development of states
Doctrine of Jus Cogens
Emergence of a new peremptory norm of
general international law which renders
void any existing treaty conflicting with
such norm.
Example of Jus Cogens (Paras)
International agreement on social
security between Australia, United
Kingdom and Northern Ireland.
Australia has terminated the Agreement
because the UK Government refuses to
change its policy of not indexing
pensions in Australia
Australian Government has made
considerable efforts over the last decade
to get the UK to re-negotiate
Agreement was terminated via
impossibility of performance due to UKs
refusal
Concept of Ex Aequo et Bono
Basis for a decision by an international
tribunal on the grounds of justice and
fairness.
Consent of both parties is necessary
before a case can be decided ex aequo
et bono.
Public International Law Distinguished
from other Disciplines
Private International Law
Private International Law is also called
conflict of laws
Private International law is the law of
each State which determines whether, in
dealing with a factual situation involving
a foreign element, the law of some other
State will be recognized.
Private Intl Law is national/municipal in
character
Local courts have jurisdiction in issues
arising from Private International Law
International Comity or Morality
It refers to rules of politeness or courtesy
observed by States in their mutual
intercourse.
Violations do not constitute grounds for
legal actions
Public International Law
It is the body of rules and principles
which are recognized as legally binding
and govern the relations of states.
It is international in natureinternational
courts have jurisdiction on the issues
which arise from violations and conflicts
International Administrative Law
It is a branch of Public international law
which deals with the body of rules laid
down by international convention.
Matters include postal services, aviation,
transportation and communications,
prevention of crime, health and
sanitation, etc.
Legal Force and effect of Public
International Law
Why Public International Law is Observed
1. Belief in the reasonableness of the Law
of Nations
2. Fear of being Unconventional
3. Fear of Reprisals from other States
4. Subtle Influences which make it difficult
to act in defiance of strongly held views
5. That the Law of Nations is morally right
and good
Effect of International Law
Regulation and control of Technological
Advances
Development and regulation of
international collaboration
Advent and growth of international
organizations
Functions of Public International Law
Eliminate the element of unlawful force
in the solution of human conflicts
Provide a legal basis for the orderly
management of international relations
Attainment of social progress and the
advancement of human welfare through
international cooperation
International social justice
Sources of Public International Law
Treaties
An international agreement concluded
between States in written form and
governed by international law
International Customs
The original and earliest source of
international law.
A clear and continuous habit of doing
certain things
General Principles of Law
General Principles of Law which are
derived from the legal experience and
practice of mankind recognized by
civilized legal systems
Equity as a general principle of law
Roman law which are used by
international tribunals include
prescription, estoppel, re judicata and
res inter alios acta
Secondary Sources
Decisions of International Court of Justice
entitled great weight
Writings of jurists and text writers
(experts) of principles of law
Enforcement and Sanctions
How is Public International Law observed?
STATE
1. By guaranteeing the firm adherence to the
principles of natural moral law and to the spirit
and intent of treaty stipulations and
international customs.
Ex. Consenting in Good Faith or by peaceful
means such as Diplomatic negotiation and
arbitration
2. By forcible measures short of war
Ex. The breaking off of diplomatic relations,
boycott, non-intercourse
3. By collective enforcement measures
Ex. UN intervention in Korea, in the Suez Canal,
Congo Crises, Iraq-kuwait and the US-led Allied
Forces, Bosnia, Somalia, Cambodia, Haiti, etc.
PRIVATE INDIVIDUALS
By prompt and willing compliance with
legislative, executive, and judicial acts
specifically affecting their persons, and their
property rights.
Why is Public International Law observed
or enforced?
STATE
a. Belief in the reasonableness of the Law
of Nations
b. Fear of being unconventional
c. Fear of reprisal from other States
PRIVATE INDIVIDUALS
a. Fear of sanctions
b. Belief that it is for their own good
What if there is a conflict between a
Treaty and a Constitution?
From the viewpoint of the world
International Law should prevail!
Reason:
It should prevail in order to avoid international
embarrassment and to prevent charges of
international delinquency.
From the viewpoint of the State
International Law is UNCONSTITUTIONAL!
Reason:
Most constitutions (including the 1987
Philippine Constitution) provide that a treaty
may be declared unconstitutional by a States
own national courts.
Sanctions
It is a penalty imposed for disobedience
of law.
It is a means by which obedience to law
can be imposed upon any given nation
refusing obedience thereto.
Kinds of Sanctions
1. Peaceful remedies
- By means of settlement and
agreement
2. Forcible measures
- By means of violence and
aggression
Peaceful remedies
Diplomatic negotiation
Tender and exercise of good
offices
Mediation
Conciliation
Arbitration
Settlement by International Court
of Justice
Forcible Measures
Reprisal
War
Prometheus
FACTS:
The Norweigan Ship Prometheus was
chartered by the Osaka Shosen Kaisha
(O.S.K.) in Hong Kong.
It had a special stipulation that prohibits
the carrying of any contraband of war.
Thereafter, the Russo-Japanese war
broke out.
The master of the ship declined to load
rice and provisions in Japan since Russia
issued a declaration respecting the
contraband of war including rice,
provisions, etc.
Dispute arose between O.S.K. and the
owners of ship on the performance of the
contract
ISSUE:
Whether or not the Russian Declaration has a
binding effect upon other nations
HELD: No
RATIO:
The Russian declaration including
provisions among the list articles
absolutely contraband and as departing
from the recognized customs of nations
had no binding effect upon other nations
and could not excuse the non
performance of the obligation.
A law may be established and become
international, that is to say binding upon
all nations, by the agreement of such
nations to be bound thereby.
The Nuremberg Judgment
FACTS:
The General Treaty for the Renunciation
of War was signed on August 27, 1928
(Pact of Paris) and was binding on 63
nations, including Germany
The defendants, who are war criminals in
Germany, raised that they there can be
no punishment of crime against them
without a pre-existing law, that ex post
facto punishment is abhorrent to the law
of all civilized nations, that no sovereign
power had made aggressive war a crime
at the time the alleged criminal acts
were committed, that no statute had
defined aggressive war, that no penalty
had been fixed for its commission, and
no court had been created to try and
punish offenders.
They invoke the maxim nullem crimen
sine lege, nulls poena sine lege.
HELD:
The maxim nullem crimen sine lege,
nulla poena sine lege has no application
to the present facts. Occupying the
positions they did in the government of
Germany, the defendants, or at least
some of them must have known of the
treaties signed by Germany, outlawing
recourse to war for the settlement of
international disputes; they must have
known that they were acting in defiance
of all international law when in complete
deliberation they carried out their
designs of invasion and aggression.
The Pact of Paris was binding on 63
nations, including Germany at the
outbreak of war in 1939. The nations who
signed the pact or adhered to it
unconditionally condemned recourse to
war for the future as an instrument of
policy, and expressly renounce it. After
its signing, any nation resorting to war as
an instrument of national policy
necessarily involves the proposition that
such a war is illegal in international law.
Those who plan and wage such a war are
committing a crime in so doing.
International law punishes not only
States but also individuals. This rule has
long been recognized. Crimes against
international law are committed by men,
not by abstract entities, and only by
punishing individuals who commit such
crimes can the provisions of international
law be enforced. The provisions of Article
228 of the Treaty of Versailles illustrate
and enforce this view of individual
responsibility.
West Rand Central Gold Mining Co., VS
The King
FACTS:
Petitioner West Rand Central Gold Mining
Co. LTD had two parcels of gold seized
by officials of the South African Republic.
With the subsequent conquest and
annexation of the South African Republic
by the British Empire. In an effort to
recover the confiscated gold, petitioners
argues, through Lord Robert Cecil,
all contractual obligations of the
conquered State, before war
actually breaks out, pass upon
annexation to the conqueror.
International Law forms part
of the Law of England
Rights and obligations binding
upon the Conquered state must be
protected and enforced by the
courts of the conquering state.
To strengthen their case, the petitioners
cited multiple authorities and scholars
and jurisprudence on International Law.

Primary Issue focusing on International

Law:
What is International Law?
Whether or not International Law
indeed is part of the Law of
England.
Held:
Lord Russel of Killowen said:
International Law is the sum of
the rules of usages which civilized
States have agreed shall be
binding upon them in their
dealings with one another.
When invoking International Law, or any
of its doctrines, it must follow this
requisites:
Must be supported by Evidence
Already have been recognized and
acted upon by our country
[England] OR
Widely and generally accepted by
other International Communities.
The mere opinion of Jurists are not
sufficient to prove International Law.
They must first receive express sanction
of international agreement. OR
Gradually have grown part of
International Law by practice.
Note: Prior to the Great War, the
prevailing doctrines of
International Law came from
Jurists and Scholars of Law.
Indeed, International Law does form part
of English Law but should not include as
part of its law, the opinions of
textwriters where there is no evidence
that Great Britain has agreed too,
specially if it runs contrary to English
Laws.
The Paquete Habana Case
Facts:
Two fishing vessels, The Paquete
Habana and the Lola, both flying the
Spanish Flag, were captured by the
United States Navy during the Spanish-
American War near Cuba.
The US Navy brought both back to
Florida where a District Court declared
them to be Prize of War
Petitioners (owners of the vessels),
brought the case before the Supreme
Court of the US declaring that their
vessels are covered by International Law
protecting fishermen from capture at a
time of war.
Two fishing vessels, The Paquete
Habana and the Lola, both flying the
Spanish Flag, were captured by the
United States Navy during the Spanish-
American War near Cuba.
The US Navy brought both back to
Florida where a District Court declared
them to be Prize of War
Petitioners (owners of the vessels),
brought the case before the Supreme
Court of the US declaring that their
vessel forms part of International Law
regarding the protection of fishermen
and their vessles.
Issue:
Whether or not The Paquete Habana and
the Lola are exempt from seizure by
virtue of International Law.
Whether or not the District Court erred in
declaring both vessels as Prize of War
Held:
The US Supreme Court over turned the
decision of the District Court of Florida
stating that the vessels were protected
by International Law covering the
protection of Fishermen from the horrors
of war.
The Court found it important to go
through 500 years of International
practices and treaties observing the
proper conduct of war in which innocent
fishermen and civilians were exempt
from military actions.
1
st
starting with the decree of King Henry
the IV of England and the King of France
Concerning the safety of Fishermen.,
where both nations will respect the
livelihood of fishermen.
Order of History on International Treaties
regarding the safety of Fishermen.
1400 King Henry IV of England
and the King of France
1500 Emperor Charles V of the
Holy Roman Empire and King
Francis I of France
1600 France passes a general
order to all its Navy Admirals to
conduct fishing truces during
times of war.
1700 Newly formed United
States makes treaties with Prussia
with regards of the safety of
fishermen in the event of war
between both.
1800 France (through Napoleon
Bonaparte) calls out the improper
conduct of England towards
French fishermen despite France
being in good faith when in came
to the proper conduct on English
fishermen
The Paquete case delves deeply into
History from 1405, to the present day
[1900]. And solidifies 2 doctrine in
International Law.
That International Law stems form
treaties and negotiations of
different states that are widely
used and recognized by
international communities.
International Law forms part of the
U.S. Law
It was also declared that, in the absence
of higher and more authoritative
sanctions, ordinances of foreign states,
opinions and writing of learned Jurists
and statesmen should be awarded great
considerations.
By the general consent of civilized
nations of the world, independently of
any express treaty or other public act, it
is an established rule of International law
that unarmed fishing vessels peacefully
calling of catching and bringing of fresh
fish shall be exempt from capture as
prize of war.
Exemptions:
Aiding the enemy through
intelligence
Carrying of preserved fish
and not fresh ones
The reason why fishermen are protected
was reiterated throughout history. They
are protected by international law
because fishing is their livelihood (they
would die without it).
Great Britain vs USA
Facts:
The Eastern Extension, Australasia
and China Telegraph Co., LTD, a
British corporation operated within
the Philippines under the Spanish
Colonial Rule.
When the Spanish-American (1898)
War broke out, before the battle of
Manila Bay, the US Navy cut the
submarine cable linking Manila to
Hongkong (British controlled
territory).
The British Government demands
compensation for the damages that
was incurred when the US Navy
severed the cables.
The United States argues that their
action in cutting the lines were a
Necessity of War and thus cannot
be subject to compensation.
Great Britain argues, however, that
they were not a Belligerent in the war
and that their status as a Neutral
Nation places the action of the US
outside the doctrine of Necessity of
War.
Issue:
Whether or not Great Britain, more
specifically , The Telegraph
Corporation, deserve to be
compensated for the severed
telegraph line.
Held:
No, the actions of the USA were
indeed necessities of war.
Great Britain failed to take into
consideration Article 15 of the
International Convention for the
Protection of Submarine Cables of
1884 which enunciated the Principe of
freedom of Governments in times of
War.
It is also a Principle of International
Law that recognizes the conduct of
naval and sea warfare where
deprivation of enemy communication
is allowed, even between an
enemy state (Spain) and a
neutral state (Britain).
Neutral States does not loose their
neutral status when dealing with one
of the Belligerent States in a time of
war, but their actions looses its
neutrality and will now be subject to
hostile actions.
The Telegraph Company was well
aware of the risk in operating within
Spanish Territory even if its home
state of Britain is not a faction during
the conflict.
Schroeder vs Biscal
Facts:
Under Section 447 of the U.S. Tariff
Act of 1922, it was illegal for any ship
to unload its cargo other than its port
of destination.
An English vessel, en route to the
USA, unloaded its cargo 19 miles
away from its port of destination.
The ship and cargo were
apprehended by the US Coast Guard
on the grounds of violation of the
Tariff Act.
Petitioners alleged that the seizure
violated the tenets of international
law because it had been made
beyond the territorial or maritime of
the United states.
Issue:
Whether or not the seizure of the US
Coast guard was legal.
Held:
Yes, the seizure was valid.
The seizure is valid despite the
alleged violation of international law.
What is important is that a statute of
the United States has been violated.
In justifying its position, the American
Court said that: "International law is
law in so far as we adopt it, and like
all common or statute law, it bends to
will of Congress... [even if] the act
may contravene recognized principles
of international comity.
HISTORY AND DEVELOPMENT
What is international law?
- body of customary and conventional rules
considered legally binding by States in their
intercourse with each other
- can only develop in a community of
independent, separate States
- came into being only when the modern
Western State system emerged out of the
violent impact of the Renaissance and the
Reformation
Antiquity
1 Developed certain usages and practices
in their relations with those of other
lands.
1 Wars were waged because of:
1 Pursuit of power
1 Acquisition of wealth
1 Foisting of one's belief upon
another
1 Struggle for prestige
1 Defense
1 Developed certain usages and practices
in their relations with those of other
lands.
1 Wars were waged because of:
1 Pursuit of power
1 Acquisition of wealth
1 Foisting of one's belief upon
another
1 Struggle for prestige
1 Defense
Treatise of peace and alliance were also
concluded.
First treaty: entered into some 3000 years
before Christ, between victor and
vanguished
Ancient Jews
Monotheist
Passages of the Old Testament show that
with nations that were sworn enemies,
the Jews waged war with extreme
brutality
But with nations that were sworn
enemies, their practices were not cruel
Ambassadors were exchanged and given
due protection
Have given a priceless legacy to the
whole world, which was has became the
main root of modern pacifism Isaiah's
prophecy that, after the advent of the
Messiah
Ancient India
1 Hindu Code of Manu a remarkable
degree of compassion and humaneness
in matters of warfare.
1 An honorable warrior was supposed not
to strike an enemy who was asleep or
naked, or who lost his coat of arms, or
overcome with grief, or has turned to
flight.
1 The farmer, together with his plantation
and home, was to be respected even
during war.
Ancient Greece
1 Aliens were considered barbarians, and
therefore, born enemies appointed by
nature to be their slaves probably due to
the concededly superior civilization of
the Greeks.
1 People lived in small city-states and,
because of their racial and cultural
affinity, developed some practices
among their people closely akin to the
rules governing the relations of
independent states.
1 Citizens was given special protection.
1 Metokol group of aliens; was legally
recognized; permanent resident aliens
who were registered and enjoyed the full
protection of the law.
1 Greek proxenos (or proxenoi) was chosen
from among the prominent residents by
a foreign State to protect the citizens of
the latter and discharge certain
diplomatic functions
1 Arbitration, as a system of settling
disputes, was at times resorted to, with a
third State ordinarily acting as arbitrator.
1 Thru time, it became compulsory in
character.
1 System of reprisals a system that
permitted an individual to employ force
for the protection of his rights against
the property or person of a foreigner and
against the latter's fellow citizens mars
peaceful relations among city-states.
Wars should never begin without a
previous declaration of war.
The idea of natural law, that is, of
universally applicable rules derived from
right reason, is owed to Greek
philosophy, the Stoic philisophers.
Such idea played an important role in the
development of international law.
Ancient Rome
The Romans did not live in a state of
latent hostility with the rest of the world.
Decisions of war and peace and the
negotiation of treatise were entrusted to
the College of Fetials (collegium
fetialum).
Fetials decide whether a foreign nation
had violated its duties toward the
Romans.
1 Once fetials concluded it has violated its
duties to the Romans, the fetials would
certify to the Senate the existence of a
just cause of war.
1 Together with the people, they will make
the ultimate political decision.
1 The war, if declared, would then be just
as well as pious bellum justum et pium
a conception that strengthened the
spirit of the people in waging war.
1 The doctrine of just war constitutes the
foremost Roman contribution to the
history of international law.
1 When Rome grew, a special magistrate,
the praetor peregrinus, was appointed to
take care of suits between foreigners or
between a foreigner or a citizen.
1 Jus gentium was a private law which
governs individuals and not to the
relations among States.
1 Jus gentium cannot be identified as
modern international law.
1 Roman private law was freely resorted to
for solution of analogous problems on an
international level.
1 Such Roman law concepts of dominium
(ownership), servitus (servitude),
occupatio (occupation) and many others
were to be freely employed in deciding
international desputes.
Middle Ages
Contributions to international law:
1. The humanization and restriction of war.
Truces of God - that there were
days, particularly church holidays
during which feuds were
prohibited. Pax Ecclesiae forbade
fighting in the vicinity of churches.
2. Development of diplomatic practices.
- The Popes have dispatched envoys (legati) to
attend Church councils and had regularly
maintained ambassadors (apocrisiarii) at the
Byzantine court at Constantinople and later to
other States.
- A body of diplomatic practices arose.
3. Development of arbitration as a method of
settling disputes.
- Kings submitted their disputes to him and it
was not rare for a Pope to depose kings and
emperors as in the case of Otto IV and
Frederick II, the thoery being that he was the
lord paramount of the world.
- Thru arbitration, Pope Alexander VI undertook
to divide the New World between Spain and
Portugal.
The Slow Growth of International Law; Maritime
Law; and the Just War Doctrine
1 Among countries outside the Holy Roman
Empire, international agreements were
becoming more frequent.
1 The national treatment clause, found in
many commercial treaties, whereby
foreigners enjoyed in certain matters
rights enjoyed by nationals, was
sometimes found in treaties of this
period.
1 As a result, great number of truces,
alliances and peace treaties were made.
1 Venice and Genoa were the first two
Italian communities to raise the issue of
freedom of the seas by claiming
exclusive navigation and fisheries rights
in the Adriatic and Ligurian Seas.
1 In England, a legal system applicable to
merchants was developed called the Law
Merchant.
1 It was administered by special mercantile
courts sitting in the ports.
1 There were several collection of maritime
rules such as the Rolls of Oleron which
was borrowed from the famous Rhodian
Sea Law.
1 Both were incorporated in the Black Book
of the Admiralty.
1 Another example is the Consolato del
Mare which was complied in Bacelona.
1 The latter became the maritime aw of
the littorals of the Mediterranean and
other seas.
1 The early Church fathers, led by
Tertullian, found no justification for
Christian participation in war.
1 St. Augustine taught that Christians
could participate provided the war was
just.
1 St. Thomas Aquinas laid down three
conditions to a just war:
1 1. auctoritas principis that the prince
has authorized war;
2. justa causa the the cause must be just in
that the adverse party deserves to be fought
against because of some guilt of his own; and
3. recta intentio that the intention is to
promote the good or to avoid the evil.
1 Such conditions became great influence
that the just-war doctrine emerge as the
corner-stone of the Roman Catholic
doctrine on war.
MODERN TIMES
The History of International Law
1 Part I: 1492 until The Thirty Years War
A. International Practice
1 Papal power diminished
1 Ambassadors became frequent
1 Spanish Ambassador Mendoza
1 Plotted to dethrone Queen
Elizabeth in Favor of Queen
Mary of Scotland. Mendoza
was not held accountable
due to his immunity as an
Ambassador.
1 Privateers, authorized ships to take
enemy property for profit
1 Letter of the marque
MACHIAVELI
1 Notable Statesman in the Florentine
republic
1 The Prince and The Art of War
1 Set of maxims for the guidance of
rulers seeking power within the
framework of the new Western
State System.
1 Unlimited and Uncontrolled sovereignty
of the teritorrial state
1 Principle of balance of power
1 Checkmate
BODIN
1 French Scholar
1 Six livres de la republique, first
systematic presentation of the concept
of sovereignty.
1 Unlimited power, unrestrained by
law, over citizens and subjects.
Absolute, unqualified, perpetual
and indivisible.
1 Citizenry in a democracy.
1 Nobility in an aristocracy.
1 The king in a monarchy.
Spanish jurist-theologians
Francisco de Vitoria
1 Trade among individuals of various
nations must be permitted influenced
in international law.
1 Freedom of commerce
Balthazar Ayala
1 Law of war
1 Good faith must be kept with
the enemy
ALBERICO GENTILI
1 Italian Reformist lawyer
1 Spanish Ambassador Mendoza case
1 Treaties were binding upon the successor as
well as the people of the signatories.
1 Force or fear could not be projected into the
international sphere.
1 A treaty is binding only as conditions
remained unchanged.
Hugo Grotius
1 founder or The father of internationa law
1 De jure pradeas and De jure belli ac pacis
1 Temperate warfare
1 Moderation of hostility
1 Freedom of the seas
1 Law of emabssies and diplomatic immunities
1 Doctrine of extra-territoriality
Richard Zouche
1 second founder of the law of nations
1 Systematic treatment of the entire field of
international law.
The Peace of Westphalia and the Peace of
Utrecht
1 Dominant event of the 17
th
century:
Thirty Years War (1618 1648)
1 The war was ended by the Peace of
Westphalia
1 Under the Peace of Westphalia:
1 The members of the Holy Roman
Empire acquired the right to enter
into alliances with foreign powers;
to wage wars, thereby lifting them
to an international status
1 Protestantism received
international recognition
1 There was the first attempt at
international organization for the
maintenance of peace
Peace of Westphalia
1 In the event of any violation, the
offended party was to submit the case to
amicable settlement of legal discussion
1 If this procedure did not succeed within 3
years, then all parties to the treaty shall
take up arms with all council and might
in order to subdue the offender
Peace of Utrecht
1 It ended the long war of the Spanish
Succession through the reciprocal
renunciation by the French King of claims
to the Spanish crown
1 England and Netherlands were
signatories of this Peace
1 Just balance of power or justum
potentiae equilibrium
1 The best and most solid
foundation of mutual friendship of
a lasting accord
1 Balance of power (Francisco Guicciardini)
1 A political condition among States
under which none wields a power
so superior as to imperil the
political independence of others
The French Revolution and the rise of the
United States
1 The people accorded international law a
unique position in their Constitution
1 They authorized Congress to define and
punish offenses against the law of
nations and declared treaties made
under the authority of the United States
the supreme law of the land
1 Jay Treaty
1 Revived the idea of arbitration
1 Established a continuing arbitral
tribunal for a whole group of
claims
Maritime Rules
1 Rules adopted by many countries until
the 18
th
century:
1 Free ships, Free goods
1 Enemy goods, except
contraband, on neutral
ships must not be captured,
though neutral goods on
enemy ships were subject to
capture
1 Contraband
1 A concept restricted to
goods directly destined for
warfare
1 Doctrine of continuous voyage
1 The stoppage and seizure of
goods carried by neutral
vessels either out of or
heading toward a neutral
port.
1 If such goods were to be
transhipped to another
belligerent (the enemy) at
some point in the voyage,
the state invoking the
doctrine could claim that,
regardless of the period of
neutral possession, the
voyage was continuously
geared toward trade with
the belligerent power.
1 Armed Neutrality of 1780
1 A declaration joined by Russia,
Denmark, Sweden and other
powers which proclaimed freedom
of navigation for neutral ships,
even along the coast of belligerent
nations
1 Right of angary
1 The right of sovereigns to impress
foreign ships into their service
Naturalism and Positivism
1 Naturalist: Samuel Pufendorf
1 True founder of a secular law of
nature
1 He essayed to prove that every
rule actually observed among
nations is nothing but the law of
nature, and that jural relations
among nations can be found only
in natural law
1 His primary contribution to
international law: his insistence
upon the natural and legal equality
of States
1 Positivists:
1 Cornelius van Bynkershoek (Chief Justice
of the Supreme Court)
1 Known for his two works:
1 Jurisdiction over
Ambassadors
1 Questions of Public Law
1 He ignored the law of nature, and
instead of reasoning from
dogmatic propositions, he
employed common sense in
arriving at the best and most
equitable solution
1 George Friedrich von Martens (German
law professor)
1 Natural rights, now known as the
fundamental rights of States:
1 Territorial sovereignty,
independence, and equal
treatment
1 The Grotians or Eclectics
1 Tended to treat both natural and
positive/ voluntary law as of about equal
importance
1 Christian Wolff (German philosopher)
1 Rights of self preservation and
self - protection
1 Emmerich de Vattel
1 Doctrine of equality of States
1 Right of a part of a State to
secede, under certain
circumstances, from the parent
State
From the Congress of Vienna to World War I
1 The Congress of Vienna met to restore
dynasties in the name of legitimacy, rebuilt
Europe and secure a real balance of power
1 The Final Act was signed by the
representatives of Austria, France, Great
Britain, Portugal, Russia, and Sweden
1 A German Confederation of 38 states was
established
The Aachen Protocol; Swiss Neutralization
1 Diplomatic representatives were classified
according to rank
1 1
st
group: ambassadors and papal
legates or nuncios
1 2
nd
group: envoys extraordinary and
ministers plenipotentiary
1 3
rd
group: resident ministers
1 4
th
group: charge daffaires
Holy Alliance; Monroe doctrine
1 Austria, Prussia and Russia united in the
Holy Alliance
1 Give one another everywhere and on every
occasion assistance and succor in
conformity with the word of the Holy
Scriptures
1 Monroe announced that any attempt on the
part of the European powers to extend their
system to any portion of the Western
Hemisphere would be considered as
dangerous to the safety of the United
States. Any intervention is a manifestation
of an unfriendly disposition towards United
States
Treaty of Paris of 1856;
Declaration of Maritime Law of 1856
1 Treaty of Paris recognized for the first
time the principle of self determination
1 Declaration of Maritime Law:
1 Privateering is and remains
abolished
1 The neutral flag covers enemy
goods with the exception of
contraband of war
1 Neutral goods are not subject to
capture under an enemys flag
except contraband or war
1 Blockade, in order to be binding,
must be effective, that is,
maintained by force sufficient to
actually prevent access to the
coast held by the enemy
Unification of Italy and of Germany
1 Germany became the most influential
continental country during this period
China and Japan
1 China:
1 Developments were taking place so as to
place within the ambit of the law of
nations several Asiatic powers
1 Sino English Treaty of Nanking
1 Chinese seclusion was first
destroyed
1 It opened 5 Chinese ports to
foreign trade and established a
status of equality between Chinese
and British officials of the same
rank
1 Japan:
1 Japan won equal footing with the foreign
treaty powers through the abrogation of
the discriminatory features of the
treatises.
1 Japan rose to the rank of a Great Power
after the victorious peace of Shimonoseki
with China
International Law writers and treatises
1 John Austin:
1 International law is no law at all
1 It becomes law only to the extent
that its principles have been
incorporated into the municipal
law of a given country
International Law writers and treatises
1 Triepel:
1 International law regulates the
relations among States, municipal
law regulates the relations
between private individuals
(private law) or between a private
individual and the State (public
law)
1 International law finds its source in
common will of the states,
municipal law finds its source in
the will of a particular State
1 International law becomes
effective only when transformed
into a rule of municipal law by an
act of national legislation,
municipal law is immediately
effective
Treatise and Conferences
1 Treaty negotiations assumed a more
business like and technical character
1 The conferences sought to promote
world peace by encouraging resort to
arbitration for the settlement of
international disputes and by drawing up
rules and regulations for the conduct of
war
World War I and its Aftermath
Introduction:
1 The first World War saw the weakening
of law of neutrality.
1 Inviolability of envoys and diplomatic
immunities were respected:
1 The Geneva Convention on laws
and customs of war on land.
The Peace Treatises and their effects
1 The treaty of Versailles of June 28, 1919
sealed the defeat of Germany and ended
the war.
1 Fixation of the responsibility for
war.
1 A reparation commission was
appointed to fix Germanys
financial obligations to indemnify
the victors for civilian damages,
pensions and war debts.
1 Furnished a precedent for the war
crimes trials of World War II
1 League of Nations established at the
Paris Peace convention 1919
1 Most ambitious effort thus far
made to extend the method of
international organization into the
sphere of political relations among
state.
1 Not a federal union nor an alliance
but a loose association of
independent state.
1 Objectives:
1 1.) to execute the peace
treaties
1 2.) to achieve international
peace and security.
1 Weakness was the absence
of the organization of the
United States.
1 Mandate system:
1 A novel device in
international law was
institiuted, implying the
delivery of power to the
mandatory state, with the
corresponding duties and
restrictions.
1 The Nassen Passport
1 Official identification certificate for
refugees unable to obtain
passports because of loss of
citizenship or for some other
reasons.
Attempts to preserve peace:
1 Disarmnmet of Germany because of the
Treaty of Versailles.
1 United States invited:
Great Britain
Japan
France
Italy
1 The Washington Treaty on limitation of
Naval Armaments signed on February 6,
1922.
The Washington Treaty on limitation of
Naval Armaments
1 Great Britain, United States and
Japan agreed on a 5:5:3 ratio in
capital ships
1 They also agreed to the scrapping
of 68 ships and to the limitation of
aircraft carriers.
1 France and Italy later accepted a
ratio of 1. 67 each and to a
corresponding limitation of ships
and carriers.
Locarno Pact; the parties collectively and
severally guaranteed the maintenance of the
status quo.
1 Great Britain
1 Belgium
1 France
1 Germany
1 Italy
1 A proposal was made to the US by
France for a bilateral Franco - American
treaty solemnly renouncing war as an
instrument of National Policy.
1 The Kellogg Briand Pact
1 Steps to humanize warfare:
1 Amendment of the Red Cross
convention as to extend the
convention to aircraft when used
as a means of medical transport.
1 Second convention ratified almost
by all states
1 To regulate the treatment of
prisoners of war, thereby
replacing a part of the
Hague Convention
concerning the laws and
customs of war on land.
International disputes and the Permanent Court
of International Justice
1 1921, a Permanent Court of International
Justice was created under a provision of
the Covenant of the League.
1 Had no influence upon the
members of the bench except in
case where the court included on
the bench a judge of the same
nationality as one of the parties in
which event the other party was
allowed to choose its own national
or another suitable person as
judge.
The emergence of totalitarian powers
1 Italy, Germany and Japan
1 Major setback upon the invasion of
Manchuria by Japan, the latter defied the
Leagues stand in favor of China and in
1933 served notice of her withdrawal as
a member.
1 Italian invasion and conquest was a
crucial test.
1 League of Nation considered Italy as the
aggressor and voted to apply the
sanctions authorized in the covenant.
1 The League died an untimely death,
though it was theoretically alive up to
April 19, 1946, when its official extinction
was pronounced.
The rise of the Soviet union
1 Tsarist regime became discredited and
finally collapsed in the revolution of
1917.
1 Real power passed to spontaneously
organized councils or soviets who
pressed upon the end of the war for the
partition of the landed estates, and the
socialization of industry.
1 Soviet Government confiscated foreign
property and private investments in
Russia, along with the holdings of the
Russian Buergeois, and summoned the
workers of the world to overthrow
capitalistic government.
World War II; the aftermath
1 The United Kingdom and France declared
war on Germany on September 3, 1939.
The German military machine captured
Denmark and Norway in April 1940;
Luxenburg, Belgium, Denmark and
Norway were overrun on May 10 and on
May 14 of the same year, the French
defense were pierced.
1 The United States appropriated 3 billion
dollars of the armaments and, though
not at war, gave military aid to Britain
through governmental transfer of arms,
munitions and destroyers.
1 The Lender Lease act of March 11,
1941 pursued the policy of Neutral
Intervention
1 The test of the strength of the Soviet
Union came during World War II, when on
June 22, 1941, the German Army
launched its mighty assault, despite a
Non- Aggression pact concluded in
August, 1939 between the two powers.
1 The USSR attacked by all of Fascist
Europe, found itself allied with and
actively supported by the United States
and Great Britain.
1 In Southeast Asia, Japanese land and
naval forces were decimated by
American forces, aided by local guerrilla
bands.
1 Axis powers had perpetrated acts of
mass murder upon prisoners of war and
non combatants contrary to the
prescriptions of international law.
1 The traditional view that individuals are
protected by the doctrine of state
sovereignity and of the superior orders
from the prosecution for launching war or
for perpetrating or permitting abuses
during hostilities was rejected.
1 Crimes against international law are
committed by men not by abstract
entities and only by the punishing
individuals who commit such crimes can
the provisions of international law be
enforced.
1 Development of International law:
1 First: wartime partnership broke
down after a brief period of high
hopes for collaboration among the
victors. Cold war has emerged as a
result of a bipolar struggle
between the US and the Soviet
union.
1 Second: disintegration of colonial
system. Gave birth to large
number of new States in Asia and
Africa whose peoples were in the
past of peripheral concern to
international law.
1 Red china claimed as
representative of China ousting
the Nationalist China.
1 Thirdly: advent of the hydrogen
bomb and other terrifying
weapons of death has given a new
dimension to the problem of war
and peace.
1 Lastly: successful launching of the
artificial satellites as well as the
sending of manned space flights.

SUBJECTS OF INTERNATIONAL LAW
What is a subject?
O A subject is an entity that possesses
international personality
Rights
Duties
O What does it imply?
Enforcement of rights
Directly accountable
Subjects of International law
O Traditional concept of international law:
(What is the traditional concept?)
ONLY SOVEREIGN STATES!
O This view cannot be maintained
because there are many
entities which cannot be
regarded as sovereign States
have rights and obligations
under international law.
O Kelsens theory of monoism
INDIVIDUALS as well
It is to man that the norms of
international law entrust the
responsibilities of law and order.
O What is the prevailing view?
States are NOT the sole and exclusive
subjects of international rights and
duties.
O e.g. International organizations
and private individuals
SUBJECTS OF INTERNATIONAL LAW
O STATES
O MANDATORIES AND TRUST TERRITORIES
O COLONIES AND DEPENDENCIES
O BELLIGERENTS
O INTERNATIONAL ORGANIZATIONS
O INDIVIDUALS
O What is a state?
Group of people
Living together
Fixed territory
Independent government
Capable of entering into international
relations
O State vs. Nation
State: Legal Concept
Nation: Non-legal concept
O Group of people
O Common racial and ethnic
ties
O Four essential attributes of a State
People
Territory
Government
Independence
Recognition
O PEOPLE
Aggregate of individuals
O Males and females
Lives as a community
They should be sufficient in
number and perpetuate
themselves
O TERRITORY
Portion of the earths surface
where the inhabitants occupy.
It does not matter whether the
territory is small or large.
O BUT if the area is too small
for the population to
survive, the State may
disintegrate.
WHY IS TERRITORY NECESSARY?
O e.g. JEWS
Changes in the area of a state?
O GOVERNMENT
Organized
Exercising control
Manintenance of justice
O Anarchists and pirates = X
State
OCCURRENCE OF AN
UNCONSTITUTIONAL CHANGES IN
THE GOVERNMENT?
O INDEPENDENCE
The State is free from outside
control in the conduct of its
FOREIGN affairs
External aspect of sovereignty
O Absolute and perpetual
power within a state
O Freedom from outside
control in the conduct if
INTERNAL and EXTERNAL
affairs
Independence-freedom from
control by other states.
Classes of States
O Independent States
Simple States
Composite States
O Real Unions
O Personal Unions
O Federal States
O Confederation
O Dependent States
O Neutralized States
Independent States
Freedom
Direct
Control its foreign relations
Full subject of International law
O Simple States
Single central government
Philippines and Japan
O Composite States
Two or more sovereign states are
joined together so as to constitute
one single International Person:
O Real Unions
O Federal States
Composite States that are not
International Persons:
O Confederations and Personal
Unions
O Real Unions
Two sovereign States linked together
under the same head: MERGER
Foreign Relations: Unified Control
Example: Sweden-Norway (1905)
Austria-Hungary (1918)
None (At Present)
O Personal Unions
Two sovereign States linked together
by the accidental fact that they have
the same individual as monarch
Example: Great Britain and Hanover
( 1714-1837), Netherlands-
Luxemberg (1815-1890), None (At
Present)
O Federal Sates
Perpetual union of several sovereign
States
Agreement between the member
States and on a subsequently
accepted constitution of the Federal
State
Example: United States of America -
o MEMBER STATES: USA and
Federal State of Germany
o Who possesses international
personality?
O Confederation
A number of full sovereign States are
linked by treaty for the purpose of
achieving certain specific objectives
Resulting Unions possess certain
power over the member States
o EXCEPTION:
No power over the
citizens of the member
States and Member
States retain a certain
degree of their individual
international personality
NOT a State
Imperfect international Personality
Dependent States
O Semi-sovereign States
O A State subject to the authority of one or
more other States in the conduct of its
external affairs
O Superior States (suzerain, protector) and
inferior States (vassal, protege)
Suzerainty
The vassal State, under international
guardianship, may be absolutely or
mainly represented internationally by
the Suzerian State
ABSOLUTE REPRESENTATION,
although with internal independence?
But to the extent that the vassal State
is allowed to retain a degree of
control over the management of its
foreign relations = International
Person and a subject of International
Law
Protectorate
Weak State surrenders itself by treaty
to a strong State
Transfer of management
Protectorate: ALWAYS reatain its
position of its own in the international
community
Neutralized States
O Its independence and integrity are
guaranteed by an international
convention
CONDITIONS:
O Not to take arm against any
other State with
EXCEPTION
O Not to enter into an
intenational obligations =
war
O No alliance, no military assistance
(military bases, passage of foreign troops
over its territory)
O Why would a State seek neutralization?
O Example: Switzerland, Austria
Neutrality vs. Neutralization
Neutrality
O During war;
O Creation: Under international law,
by means of the States stand not
to side with a ny parties at war;
O Unilateral declaration
Neutralization
O Peace or war
O Creation: Treaty
O Cannot be effected by a unilateral
act; MUST be with recognition by
other States
Mandates and Trust Territories
Launched after the First World War
Problem: What to do with the former
territories of the defeated States?
MANDATORIES: States that are
entrusted to administer the territories
of the MANDATES.
Administration was done on behalf of
the League of Nations
Overriding concept of TRUSTEESHIP
UN Charter:
Art. 75: International Trusteeship
System
Art. 77: Application of the Trusteeship
system
Territories previously held
under a mandate in conformity
with Art. 22 of the Covenant;
Territories detached from the
defeated States as a result of
the Second World War
Other territories voluntarily
placed under Trusteeship
System by States responsible
for their administration
Power of Sovereignty: Administering
Authority
No claim to sovreignty over the
territory
Flies the United Nations flag side by
side with their own and territorial flag
in the trust territories
May exact allegiance from the
inhabitants of the trust territory: NO
ACQUISITION OF NATIONALITY
Any treaties concluded by the AA do
not apply automatically to the trust
territory
EXCEPT: If in the opinion of the
AA, these treaties are
appropriate and conducive to
accomplish the principles of
Trusteeship System
Residual Sovereignty: United Nations
TRUST TERRITORIES HAVE AN
INTERNATIONAL LEGAL STATUTS AND MAY
BE SUBJECTS OF INTERNATIONAL LAW.
COLONIES AND DEPENDENCIES
O POINT OF VIEW OF CLASSIC INTERNATIONAL
LAW
Colonies and dependencies are part
of the territory of the State to which
they belong, no matter how
autonomous they may be in the
conduct of their internal affairs
Only one entity that possesses
international personality, namely
the mother state (metropolitan
power)
O There is nothing, however, to preclude the
international community from considering a
dependent territory as if it had some degree
of international personality.
For instance, they may sign
International Conventions and even
become members of UN
O Example
Situation of Philippines before
independence.
O Member of Universal Postal
Union
O Party to the International Sugar
Agreement
O Adhered to the United Nations
Declarations
O Member of United Nations
O Under the charter of UN, dependent
territories which are self-governing
although they may not be placed under the
trusteeship system are nevertheless
regarded to some extent wards of the
international community.
O Charter XI of the Charter-
Members of the UN which are administering territories
whose peoples have not yet attain a full measure of self-
government recognize the principle that the interests
of the inhabitants of these territories are paramount, and
accept as a sacred trust the obligation to promote to the
outmost the wellbeing of the inhabitants of these
territories
The fulfillment of the objectives is a matter
of legitimate concern for UN
O In this sense it may no longer be said
that the Administering Powers have
complete and absolute sovereignty
over the non-self-governing territories
O Colony
Dependent political community, consisting
of a number of citizens of the same country,
but remain subject to the mother state
O Dependency
Territory distinct from the country in which
the supreme sovereign power resides, but
belonging rightfully to it, and subject to the
laws and regulations which the sovereign
may think proper to prescribe
O Distinction between the two:
Dependencies is not necessarily settled by
the citizens of the sovereign or mother state
Legal status in the international law of the
rebels
1. Status of Insurgents
O Insurgents - organized groups who for
public political purposes are in the state of
armed hostility towards an established
government
O They have no rights under international law
O But if they threaten to interfere with the
autonomy of foreign intercourse and has
assumed such proportions to jeopardize the
sovereignty of the Sate, certain insurgent
rights may be tacitly admitted.
Principles that govern insurgent rights
1. If the acts partake of piracy they are
obviously private in character: ends-not
political, therefore no insurgent rights
arise
2. Even if the foreign state admits the
existence of insurgent rights, the parent
state would still be liable for the acts
committed by the insurgent community
within the jurisdiction of parent state
3. In case of hostile acts by insurgents
against foreign state, the latter may
choose to punish them or turn them over
to the parent state
4. A foreign state ought in general to refrain
from interfering in the hostilities between
the parent state and the insurgent
community
O However for the sake of protecting its
property or nationals, such third State
may, without conceding to the rebellious
forces belligerent status, treat them as
de facto authority in the territory
under their control and maintain
relations with them
O In such event, the rebels would be
deemed to possess, as against the third
state concerned, the status of
insurgents.
Status between them is strictly
one of convenience
Do not acquire international
personality
2. Status of Belligerency
O When insurgency reaches serious
proportions, the rebels instead of being
merely insurgents, may be properly
called belligerents
O Revolutionists are in control of
considerable territory and have
established de facto political organization
which is able to conduct military
operations in conformity of the laws of
war, third states decide to extend to
such rebels the status of belligerency.
conditions
1. The end must be political in character
2. The hostilities must be of the character
of war and must be carried on in
accordance with the laws of war
3. The proportions of the revolt must be
such as to render the issue uncertain and
to make its continuance for a
considerable time possible
4. The conduct of the hostilities and general
government of the revolting community
must be in the hands of a responsible
organization
O Effect: international status, at least for
the purpose of civil conflict, as that
possessed by the legitimate government
International legal personality
Subject of international law
International organizations
O Since the nineteenth century a growing
number of organisations have appeared
and thus raised the issue of international
legal personality.
O In principle it is now well-established that
international organisations may indeed
possess objective international legal
personality
O Whether an organization possesses
personality in international law will hinge
upon its constitutional status, its actual
powers and practice.
O Significant factors in this context will
include the capacity to enter into
relations with states and other
organisations and conclude treaties with
them, and the status it has been given
under municipal law.
O An international organization is one that
is created by international agreement or
which has membership consisting
primary of nations.
O Examples of international organizations:
the United Nations, World Trade
Organization, European Union
INDIVIDUALS
O Traditionally, states were the main
subject of international law.
O However, the growth of positivist
theories, particularly in the nineteenth
century, obscured this and emphasised
the centrality and even exclusivity of the
state in this regard.
O Increasingly, individuals and non-state
international organizations have also
become subject to international
regulation
O The link between the state and the
individual for international law purposes
has historically been the concept of
nationality.
O Individuals as a general rule lack
standing to assert violations of
international treaties in the absence of a
protest by the state of nationality,
O A wide range of treaties have provided
for individuals to have rights directly.
O These treaties have enabled individuals
to have direct access to international
courts and tribunals
O However, the question of the legal
personality of individuals under
international law extends to questions of
direct criminal responsibility.
O It is now established that international
law proscribes certain heinous conduct in
a manner that imports direct individual
criminal responsibility.
O Since the establishment of international
criminal tribunals, individuals are also
proper subjects of international law.
O Other international actors include
transnational corporations, non-state
actors, terrorist groups.
Reparation for Injuries Suffered in the Service
of the United Nations
O FACTS :
Count Bernadotte was murdered
while serving on a United Nations
Commissions in Israel.
The General Assembly transmitted to
the International Court of Justice a
request for an advisory opinion on the
capacity of the United Nations to
bring an international claim against
the responsible de jure or de facto
government w/ a view of obtaining
reparation in the event an agent of
the Organization suffers injury
involving the responsibility of a state.
The ICJ examined the status of the
United nations.
Competence to bring an international
claim is the capacity which a State
actually possesses.
O Capacity to resort to the
customary methods recognized
by international law for the
establishment, the
presentation, and the
settlement of claims.
O Protest, request for an enquiry,
negotiation, request for
submission to an arbitral
tribunal or to the court
O ISSUE: Whether the Organization has the
capacity to bring an international claim.
Whether the Charter has given the
Organization such a position that it
possesses right w/c it is entitled to
ask from its members to respect.
Does the organization possess
international personality?
O Opinion of the Court
YES
Organization is an INTERNATIONAL
PERSON
Not the same as a State nor is it a
super-State
However, it is a SUBJECT OF
INTERNATIONAL LAW and capable of
possessing international rights and
duties, and that it has capacity to
maintain its rights by bringing
international claims.
It was intended to exercise and enjoy
functions and rights which can only
be explained on the basis of
possession of large measure of
international personality and capacity
to operate upon an international
plane.
It could not carry out the intentions of
its founders if it was devoid of
international personality.
The members, by entrusting certain
functions and responsibilities to it,
have clothed it with the competence
required to enable those functions to
be effectively discharged.
O Reparation for Injuries Suffered in the
Service of the United Nations
O ISSUE: What if the defendant state
responsible for the damage caused is not a
member of the Organization? Can the
Organization still bring a claim to recover
reparation with respect to the damage?
YES. 50 states, representing the vast
majority of the international
community, had the power to bring
into being an entity possessing
international personality and not
merely personality recognized by
them alone, together with capacity to
bring international claims
NUREMBERG JUDGMENT
O FACTS: One of the defense raised by the war
criminals in Germany was that they
themselves as mere individuals were not
directly liable for their acts; that they were
merely carrying out the orders of Adolf
Hitler, the German dictator; and that
individuals have no international claims.
O Whether persons who implement an act of
state may be personally liable?
YES. Crimes against international law
are committed by men, not by
abstract entities, and only by
punishing individuals who commit
such crimes can the provisions of
international law be enforced.
O International punishes not only States but
also individuals. This rule has been long
recognized. In the case of Ex Parte Quirin,
persons were charged during the Second
World war of landing on the US for purposes
of spying and sabotage.
Chief Justice Stone speaking for
the court
O from the very beginning of
its history, this court has
applied the law of war as
including that part of the
law of nations which
prescribes for the conduct
of war, the status, rights,
and duties of enemy nations
as well as enemy
individuals.
O Crimes against international law are
committed by MEN, not by abstract
entities, and only by punishing
individuals who commit such crimes can
the provisions of international law be
enforced. Article 228 of the Treaty of
Versailles illustrated and enforced this
view of individual responsibility.
O The principles of international law which
protects the representatives of a state
cannot be applied those acts which are
condemned as criminal by international
law.
O The Charter of the War Crimes
Tribunal specifically provided in
Article 8 the fact that the
defendant acted pursuant to an
order of his Govt or of a superior
shall not be considered as freeing
them from responsibility but may
be considered in mitigating
punishment.
O THE TRUE TEST is not the
existence of the alleged orders
but whether moral choice was
in fact possible
O Individuals have international duties
which transcend to national obligations
of obedience imposed by individual
state. He who violates the laws of war
cannot obtain immunity while acting in
pursuance of State authority that moves
outside its competence in international
law.
RECOGNITION
What is Recognition?
a procedure whereby the governments of
existing states respond to certain changes
in the world community (Grant)
an activity of States as a legal person of
international law
the recognizing state will enter into relations
with the recognized State and let that State
to enjoy usual legal consequences of
recognition such as privileges and
immunities within the domestic legal order
Kinds of Recognition and Legal Effects
A. As to object
Recognition of a new State
- Carries with it the recognition
of the government in control of
the state at the time of the
recognition
- Irrevocable
Recognition of Government
Accepting the government as
possessed of the authority to
represent the State it purports
to govern and to agreeing to
maintain diplomatic relations
with it
May be withheld from a
succeeding government where
the change is brought about
unconstitutional means
Breaking of diplomatic relations
Signifies nothing more than
refusal to deal with the
government in question
Non-Recognition of a government
Government in question has no
authority to represent the State
B. As to Plenitude
de jure
- exists whenever a State is not
prepared to recognize definitely an
entity claiming to be a State or
government
- Yet finds it necessary to have
some sort of official relations with
such entity
- the entity fully satisfies the
applicable legal criteria
De facto
- Provisional
- Modus vivendi
an agreement between
those whose opinions differ
- De facto recognition can be
thought as an attitude of wait and
see, since it includes ambiguity.
- This method gives the recognizing
state the opportunity of acting in
accordance with the political facts
and its interests
C. As to form
Expressed
- by means of a treaty provision
- Formal note
- Formal public announcement
Implied
- May come about as a result of any
act which implies the intention of
recognizing a new State or
government
Conclusion of a bilateral
treaty (regulating the
relations between 2 States)
Formal intention of
diplomatic relations
Issuance of a consular
exequatur
-> In practice the implied recognition is
not preferred since the states want to
have their control of recognition and in
general they use a formal way for it
Conditional
- to recognize an entity as a State
only when it fulfills some
conditions
- first seen in the Berlin Congress of
1878, Great Britain, France, Italy
and Germany marked the
recognition of Bulgaria, Serbia,
Romania and Montenegro with the
condition that these countries
would not impose any religious
disabilities on any of their
subjects.
Unconditional
- to recognize an entity as a State
without the need to fulfill some
conditions
D. As to States participating
Individual
- If accorded by one State
Collective
- If accorded by a group of States
simultaneously and in the same
act or declaration
Recognition of States
Requirements of aState
Territory
Government
People
Schools of Thought
Constitutive
Declaratory
Recognition of Government
Requirements for Recognition of Government
Effective and Stable
Willingness and ability to discharge
international obligations
consent of the people
Kinds of Government
de facto
de jure
Consequences of Recognition and non-
Recognition
Recognition
Capacity to enter
Right to sue
Immunity
Receive Property
Validated acts and decrees
Non-Recognition
Deprivation
inability to sue
Acts and decrees are nullities
Agents do not posses and
diplomatic rank
Recognition of Insurgency and Belligerency
Insurgency - armed rebellion or group of
rebels attempting to overthrow the
existing government of a State
Belligerency:
the term belligerency presupposes
the existence of a state of war
between two or more States, or
actual hostilities amounting to civil
war within a single State
if such hostilities assume
widespread proportions, they may
be treated as belligerents
the status of insurgency may, as it
often does, ripen into one of
belligerency
The rebels have to fulfill certain
conditions before the rights of
belligerency are accorded to them:
1. An organized civil government that
has control and direction over the
armed struggle launched by the
rebels
2. Occupation of a substantial portion
of the national territory
3. Seriousness of the struggle
4. Willingness on the part of the
rebels to observe the rules and
customs of war.
Since there is no purely legal right to be
recognized, the question as to whether
insurgency or belligerency may be
accorded recognition is a matter of policy
on the part of the recognizing State or
government.
Recognition of belligerency may be
accorded by the parent State or by third
States, expressly or impliedly.
A belligerent community has rights and
obligations in international law only for
the purposes of the hostilities.
Recognition is provisional in nature and
limited to the duration of the war from
which it results.
Legal Consequences of Recognition of
Belligerency
1. Legitimate government may no longer be
held responsible for the acts of the rebels
affecting foreign nationals and their
properties. Responsibility shifts to the
rebel government
2. The legitimate government is bound to
observe the laws and customs of war in
conducting the hostilities.
3. Third States are under obligation to
observe strict neutrality and abide by the
consequences arising from that position.
4. Rebels are under responsibility to third
States and to the legitimate government
for all its acts which do not conform to
the laws and customs of war.
Who may recognize?
The municipal law of State decides what
department of the government
possesses the authority to recognize.
But since under the Constitution, the
President is empowered to appoint and
receive ambassadors and public
ministers, it is conceded by implication
that it is the Executive Department that
is primarily endowed with the power to
recognize foreign governments and
States.
Since recognition is a matter within the
discretion of the political department of
the government, the legality and wisdom
of recognition accorded any foreign
entity is not subject to judicial review.
Recognition by International Organizations
In an international organization such as
the United Nations, membership is open
to all other peace-loving states, which
accept the obligations contained in the
Charter and, in the judgment of the
Organization, are able and willing to
carry out those obligations.
Applicant must be a State.
Admission to membership is not
contingent upon prior recognition of the
applicant by the States already members
of the Organization, although of course it
would appear to be obvious that a
Member State would not vote for the
admission of an entity which it did not
regard as being a State.
Guaranty Trust Co. U. U.
After the overthrow of the Russian govt,
The United states government recognized
the provisional government of Russia. After,
the Soviet Government took over. US
entered into an agreement with Russia that
they will be assigned of all amounts
admitted to be due or that may be found to
be due it, as successor of prior governments
of russia or that may be found to be due it,
as successor of prior governments of Russia,
or otherwise, from American nationals
including Corporations.
The very purpose of the recognition by our
government is that our nationals may be
conclusively advised with what government
they may safely carry on business
transactions and who its representatives
are. If those transactions, valid when
entered into, were to be disregarded after
the later recognition of a successor
government, recognition would be but an
idle ceremony, yielding none of the
advantages of established diplomatic
relations in enabling business transactions
to proceed, and affording no protection to
our own nationals in carrying them on.
Wulfsohn vs RSFR
An unrecognized government has immunity
from suit for actions regarding property in
its own territory
If it had been a recognized
government, they would have been
immune but do not extend this
courtesy to unrecognized nations
However, it was within their own
territory. Jurisdiction is absolute and
exclusive, therefore immunity.
Generally, immunity from suit would be
denied since immunity is an act of comity
and there is no comity in the absence of
recognition
In this case, Wulfsohn admitted that there
was a de facto government in actual control
in its territory even if it was not recognized
RSFR vs. Cibrario
Whether such government (Russian SFS
Republic) may itself become a plaintiff in a
US Court
If recognized by the US, it may appear as
plaintiff
May also be permitted but solely because of
comity
Comity:
reciprocal courtesy which one
member of the family of nations owes
to the others; presupposes friendship;
assumes the prevalence of equity and
justice; justice so that justice may be
done in return
formal expression and ultimate result
of the mutual respect accorded
throughout the civilized world by the
representatives of each sovereign
power to those of every other, in
considering the effects of their official
acts; founded on identity of position
and similarity of institutions
Among the rights resulting from comity is
the right to sue in each others courts. It
may, however, not be demanded as a right.
It is yielded as a favor.
Jurisdiction, however, depends upon the law
of the forum. This law depends on public
policy as disclosed by the acts and
declarations of the political departments of
the government.
Held:
There is no precedent that a power not
recognized by the United States may seek
relief in our courts
a recognized government may be a
plaintiff
A foreign power brings an action in US
Courts not as a matter of right but merely as
a result of comity. Until such government is
recognized by the US, no such comity exists
Recognition and the existence of comity is
purely a matter for the determination of the
legislative or executive departments of the
government. The courts are bound by the
decisions reached by those departments.
Public policy must prevail over comity.
Ambrose Light
In 1885, a rebellion was underway in
Columbia, with rebels holding the ports of
Panama, Sabanilla, Santa Maria and
Barranquilla, and U.S. Navy gunboat Alliance
was searching the Caribbean Sea for a
Columbian insurgent named Preston, who
ordered an attack on the city of Colon,
causing loss and injury to Americans. On
April 24, twenty miles west of Cartagena,
Alliance came upon the brigantine Ambrose
Light, flying a strange flag featuring a red
cross on a white field.
After Alliance sent shots across Ambrose
Lights bows, the brigantine raised a
Columbian flag. While Preston was not
aboard, the prize crew discovered a cannon,
ammunition and 60 armed soldiers below
deck. The Ambrose Light had papers
purporting to commission her as a
Columbian man-of-war, which Commander
Clarke of Alliance deemed irregular and
reported her under seizure. Admiral Jouett,
commander of the North Atlantic squadron,
directed the vessel to be taken to New York
for adjudication as prize.
Mr. Root argued that Ambrose Light should
be forfeited as piratical under the law of
nations as she was not sailing under the
authority of an acknowledged power. Frank
F. Vanderveer, attorney for the claimants,
argued that being actually belligerent, she
was in no event piratical by the law of
nations; but if so, that the subsequent
recognition of belligerency by our
government by implication entitles her to
release.
As Ambrose Light was owned by the
Columbian rebel who signed her commission
and none of her officers or crew were
American, the question of whether her
cruise was considered lawful warfare or
piratical was determined by the law of
nations.
Judge Brown wrote liability of the vessel to
seizure, as piratical, turns wholly upon
whether the insurgents had or had not
obtained any previous recognition of
belligerent rights, whether from their own
government or from the political or
executive department of any other nation;
and that, in the absence of recognition by
any government whatever, the tribunals of
other nations must hold such expeditions as
this to be technically piratical.
The Three Friends
The said steamboat or steam vessel, Three
Friends, on, to-wit, on the 23d day of May,
A.D. 1896, whereof one Napoleon B.
Broward was then and there master, and
within the said Southern District of Florida,
was then and there fitted out, furnished, and
armed, with intent that said vessel, the said
Three Friends, should be employed in the
service of a certain people, to-wit, the
insurgents in the Island of Cuba, otherwise
called the 'Cuban revolutionists,' to cruise
and commit hostilities against the subjects,
property, and people of the King of Spain, in
the said Island of Cuba, with whom the
United States are and were then at peace."
July 27, 1896, a further proclamation was
promulgated, and in the annual message of
December 7, 1896, the President called
attention to the fact that "the insurrection in
Cuba still continues, with all its perplexities,"
and gave an extended review of the
situation.
The court is thus judicially informed of the
existence of an actual conflict of arms in
resistance of the authority of a government
with which the United States are on terms of
peace and amity, although acknowledgment
of the insurgents as belligerents by the
political department has not taken place,
and it cannot be doubted that, this being so,
the act in question is applicable.
SUCCESSION OF STATES AND
GOVERNMENTS
The principle of State Continuity
O The principle of State Continuity or
Continuity of State Life holds that a State,
despite changes in the form of Government,
in its headship, or alteration in the area of
its territory, does not lose its identity but
remains one and the same International
Person.
The Sapphire Case
O Suit was filed in the California court in the
name of Emperor Napoleon III, as owner of
the vessel Euryale which had been damaged
in a collision with the Sapphire. Later,
Napoleon III was deposed and dismissal of
the suit was asked on the ground that it had
abated.
O In holding that Napoleons successor could
carry on the suit, the Court said that
Napoleon was the owner of the Euryale, not
as an individual, but as a sovereign of
France. On his deposition the sovereignty
did not change but merely the person or
persons in whom it resided. The court stated
that the vessel had always belonged and
still belonged to France. However, the suit
could only be carried on by the recognized
government.
The Guaranty Trust Co. of New York v United
States
O The rights of a sovereign state are vested in
the state rather than any particular
government which may purport to represent
it. And suit in its behalf may be maintained
in our courts only by that government which
has been recognized by the political
department of our own government as the
authorized government of the foreign state.
Succession of States
O When a new State comes into being, when a
State becomes extinct, or when a State
acquires a portion of the territory of another
State, the situation known as State
succession occurs.
O The identity of a State as an international
person remains the same regardless of the
changes that may occur in its government,
people or territory.
O When a State loses the essential requisites
or elements of a State, it becomes extinct
and thereby loses its international
personality.
Extinction of the State
Cause of State Extinction:
1. Merger
2. Annexation after conquest in war
3. Division of a State into several States
4. Union with other States
Merger
examples of this are Congo Free State
merged in 1908 into Belgium, Korea in 1910
into Japan, and Montenegro in the Serb-
Croat-Slovene State after World War I.
Annexation after conquest in war
The Orange Free State and the South Africa
Republic were annexed by Great Britain in
1901
Division of a State into several States
or breaking up a State into parts which are
annexed by surrounding States
For example, in 1795, Russia, Austria, and
Prussia annexed parts of the old State of
Poland.
Union with other States
this has discussed by Group 2
O It is error to supposed that a state is
immortal, for the fact that it is possible for it
to be extinguished, or die, in a legal sense.
O Although a State may become extinct, its
territory and people do not disappear.
O Another State or other States will take the
place of the extinct State in the same
territory and among the same people.
O The displacement of the old State by the
new State or States raises the question of
whether and to what extent the rights and
obligation of the former devolve upon the
latter
O The practice of States shows that no general
succession takes place, but that a successor
State may make use of certain rights which
previously belonged to its predecessor in
relationship with other States and entities
and that the successor is also bound by the
duties of the Predecessor State.
Succession of states
O Succession is one of those concepts
borrowed from Roman private law by early
publicists on international law.
O When a man dies, his heirs succeed to his
rights and obligations.
O Does this mean that if a State dies, the
successor (also a State) should likewise
assume its rights and obligations?
O WRONG!
O First, the death of an individual is not
comparable to the extinction of a
State.
O A state does not die in the literal
sense; its population and territory
continue to exists.
O What occurs is a political change.
O Second, succession in private law
occurs automatically, regardless of
the absence of previous consent on
the part of the successor.
O In international law, an actual practice
of States shows that if there is any
assumption of rights and liabilities, it
is only because the Successor State
has given its consent to such
assumption.
O And when it does give its consent, the
State, usually specifies the rights and
obligations it is willing to assume.
O
O State Succession refers to the
succession by one State to the rights of
control within and supremacy over territory
possessed by another.
O According to Oppenheim,
O A succession of International Person
occurs when one or more
International Person take the place of
another International Person, in
consequence of certain changes in
the latters condition.
Succession may be Universal or Partial.
O Universal succession takes place when
one State is completely absorbed by
another, either through subjugation or
through voluntary merger, or when it
breaks up into parts, which in turn
becomes separate States or are annexed
by surrounding States.
O Partial succession takes place
O First, when a part of the territory of a
State wins its independence either by
revolt or grant, becoming in itself a
separate State.
O Second, when one State acquires a
part of the territory of another State
through cession, as in the case of the
United States vis--vis Spain
respecting the Philippine Islands.
O Third, when a full sovereign State
loses part of its independence by
entering into a Federal Union or
coming under suzerainty or under a
protectorate, or when a hitherto not
full-sovereign State becomes full-
sovereign.
Different kinds of State Succession
O Succession in consequence of absorption
O Succession as a result of
dismemberment
O Succession arising from emancipation or
cession
Succession in consequence of absorption
O When one state is completely absorbed
by another State, either through merger
or subjugation, the former is
extinguished but the latter remains one
and the same International Person.
O Consequences as to rights and
obligations of the successor State
1. Former States political rights and
duties.
2. State property such as public
buildings, Government funds in the
banks, or state railways
3. Fiscal debts
4. Contractual liabilities
5. Tort liability
6. Local rights and duties
Consequences as to rights and obligations of
the successor State
Former States political rights and duties.
o No succession occurs.
o Treaties of alliance, arbitration, neutrality
or of any political nature fall to the
ground and treaties of extradition and
commerce.
State property such as public buildings,
Government funds in the banks, or state
railways
o The successor State invariably acquires
them.
Fiscal debts
o State practices are diverse, motivated as
these are by considerations of self-
interests.
Res transit cum suo onere
o In case of absorption of a State, the
substituted sovereignty assumes the
debts and obligations of the absorbed
state and takes the burdens with the
benefits.
Dettes odieuses
o To assume not only public properties but
also public debts, not connected with the
prosecution of the war.
o West Rand Central Gold Mining Co. v The
King, states that the conquering
sovereign can make any conditions he
thinks fit respecting the financial
obligations of the conquered country,
and it is entirely at his option to what
extent he will adopt them.
The conquering sovereign can make any
conditions he thinks fit respecting the
financial obligations of the conquered
country, and it is entirely at his option to
what extent he will adopt them.
Contractual liabilities
o (not giving rise to fiscal debts)
o Writers are in wide disagreement, judicial
decisions are not decisive.
Tort liability
o With reference to tort liability for
wrongful acts of the State whose territory
is annexed the authorities agree that a
State does not become liable for torts or
delicts of the extinct State which it has
absorbed.
Robert Brown Claim:
o It was held that a State acquiring
territory by conquest is under no
obligation to take affirmative steps to
right a wrong that may have been
committed by its predecessor.
Local rights and duties
o Such international rights and duties of
the extinct States as are locally
connected with its land, rivers, main
roads, railways and the like, devolve on
the absorbing State, under the principle
of res transit cum suo onere.
o Dispositive treaties such as at treaty
fixing boundary lines should be
considered as remaining in force.
Succession as a result of dismemberment
O The absorbing State usually succeeds to the
public properties and funds on, and to the
international rights and duties locally
connected with the part of the territory
which it absorbs.
Succession arising from emancipation or
cession
O A portion of the territory of a State may
be separated from it, either through
peaceful or violent means, and becomes
a new State or is absorbed by another
State.
O This is a case of so-called partial
succession.
O The old State remains intact as an
International Person, although its
territory is diminished.
O Succession takes place only with respect
to the portion of the territory that is
separated from the old State to become
either a new State or part of another
State.
O In case of separation or cession,
succession takes place with regard to
such international rights and duties as
are locally connected with the part of the
territory ceded or broken off, and with
regard to the public properties found on
such territory, as well as a corresponding
part of the debt of the predecessor State
relating to the territory in question.
O Successor States appear reluctant to
assume debts contracted by the
predecessor State, as well as to
recognize concessions granted by it,
where such debts or concessions are
deemed to be contracted or granted not
in the interest of the ceded territory, but
in the general interest of the predecessor
State.
O Upon a change of sovereignty arising
from cession, the natural consequence is
that political relations with the old
sovereign are cut off and new political
relations established with the new
sovereign.
O With respect to the effect on private
rights of the inhabitants within the ceded
territory, it would seem that this is a
matter governed by the municipal law of
the new sovereign.
Succession of Governments
O Where the change in Government has
come about through peaceful means,
such as by plebiscite, the new
Government assumes all liabilities and
exercises all the rights of the old
Government.
O The State is said to be responsible for all
the acts committed by the former
Government.
O Where the new Government succeeds in
ousting the old regime through violence,
it is said that a distinction is generally
made by the new Government between
political acts and routinary acts of
administration of the old Government.
O Loans contracted by the former
Government to finance its resistance
may be denounced by the new
Government.
O For routinary acts of administration that
must be performed by any kind of
Government, regardless of its form or
character, the new Government has
assumed responsibility.
George Hopkins v Mexico:
O In the claim of an American citizen against
the Mexican Government from the Huerta
Administration, which the Mexican
Government refused to honor on the ground
that the Huerta Administration was pure
usurpation, it was held that the claim must
be sustained, since the greater part of the
governmental machinery in every modern
country is not affected by changes in the
higher administrative officers.
O A resident in Mexico who cleans the
government bureaus or pays his school fee
to the administration does not and cannot
take into consideration the regularity or
even legality of the present administration
and the present progress; his business is not
one with the personal rulers, not one with
the specific administration, but one with the
government in its unpersonal aspect.
Succession of governments arising in the event
of an abortive revolution
O What happens to the property acquired or
seized by the unsuccessful rebels in the
course of the struggle? Is the legitimate
government entitled to such properties?
O In so far as properties situated within the
jurisdiction of the State is concerned, no
question of international law arises.
O As regards property situated in foreign
States is concerned, a distinction must be
drawn between property which formerly
belonged to the legitimate government and
was seized by the rebel government, and
property acquired by the latter as a result of
voluntary subscriptions, lawful seizure of
prizes, etc.
O The former can be recovered by the
legitimate government by virtue of its own
title thereto; the latter is recoverable by
virtue of its right of succession to the rebel
government.
United States of America v Prioleau (1865)
O It was held that as the Confederate
Government was a de facto government,
property acquired by it became public
property to which the United States
Government was entitled by the law of the
nations.
O With respect to liability for debts and
wrongful acts of the rebel government, it
was held by a mixed Commission
established by the Treaty of Washington of
1871 that the United States Government
was not internationally liable for the debts of
the confederacy, or for acts of the
Confederate forces.
RIGHTS AND DUTIES OF STATES
1949 UN Draft Declaration on Rights and Duties
of States
1 Every state is attributed with the following
rights
To independence, without dictation by
any other State
To exercise jurisdiction over its
territory, and over all persons and
things therein
The right to self defense against
armed attacks
1 Every state is also tasked with the following
duties:
To treat all persons under its
jurisdiction with respect for human
rights and fundamental freedoms,
without distinction as to race, sex,
language, or religion
To settle disputes with other states by
peaceful means
To refrain from resorting to war as an
instrument of national policy and to
refrain from the threat or use of force
against another state.
To carry out in good faith its
obligations arising from treaties and
other sources of international law.
Right to Exist
1 Ernest Renan
a state has the right to exist when
individuals are willing to sacrifice
their own interests for the community
it represents.
A state has the right to exist when it
gives proof of its strength by the
sacrifices which demand the
abdication of the individual
the right to exist is an attribute of
states rather than of peoples
One of the fundamental right of states
Right to Self Preservation
1 Hugo Grotius
Necessity, the great protectress of
human infirmity, breaks through all
human laws, and all those made in
the spirit of human regulations.
"Hence it may be inferred that, in the
prosecution of a just war, any Power
has a right to take possession of a
neutral soil if there be real grounds,
and not imaginary fears, for
supposing the enemy intends to make
himself master of the same,
especially if the enemy's occupying it
would be attended with imminent and
irreparable mischief to that same
Power."
1 Travers Twiss
"Of the primary or absolute rights of a
nation the most essential, and as it
were, the cardinal right, upon which
all others hinge, is that of self-
preservation. This right necessarily
involves, as subordinate rights, all
other rights which are essential as
means to secure this principal end."
Right of self-preservation is prior and
paramount to the right of dominion
and property, in the case of
individuals, so the right of self-
preservation is prior and paramount
to the right of territorial in-violability
in the case of nations, and if ever
these rights conflict, the former is
entitled to prevail within the limits of
the necessity of the case.
1 Phillimor
The right of self-preservation is the
first law of nations, as it is of
individuals. . . . It may happen that
the same right may warrant her in
extending precautionary measures
without these limits, and even in
transgressing the borders of her
neighbor's territory.
1 George B. Davis
The right of self-preservation is the
first law of nations, as it is of
individuals. A society which is not in
condition to repel aggression from
without is wanting in its principal duty
to its members of which it is
composed, and to the chief end of its
institution. All means which do not
affect the independence of other
nations are lawful to this end. No
nation has a right to prescribe to
another what these means shall be,
or to require any account of her
conduct in this respect!
1 Lawrence
Nevertheless all authorities admit that
the exigencies of self-defense will
justify a temporary violation of
neutral territory. But it must be
confined within the strictest limits
required by the necessity of the case,
and the power which is obliged to
resort to it should tender a prompt
apology. The act is illegal; but if the
necessity is sufficiently imperative a
wise neutral will condone it on the
tender of proper explanations.
1 Edward William Hall
The right of self-preservation in some
cases justifies commissions of acts of
violence against a friendly or neutral
state, when from its position and
resources it is capable of being made
use of to dangerous effects by an
enemy, when there is a known
intention on his part so to make use
of it, and when, if he is not
forestalled, it is almost certain that he
will succeed, either through the
helplessness of the country or by
means of intrigues with a party within
it.
Summary
1 The Right of Self Preservation: A state when
it is exposed to a grave, imminent danger, is
fully justified in committing any action liable
to avert that danger, even if, under normal
conditions, such action would constitute a
wrong and a violation of international law.
Attributes of Independence
Independence?
1 the capacity of a state to provide for its own
well-being and development free from the
domination of other states, providing it does
not impair or violate their legitimate rights.
Restrictions
1 Restrictions upon a states liberty, whether
arising out of customary law or treaty
obligations, do not as such affect its
independence. As long as such restrictions
do not place the state under the legal
authority of another state, the former
maintains its status as an independent
country.
Nicaragua case
1 In international law there are no rules, other
than such rules as may be accepted by the
state concerned, by treaty or otherwise,
whereby the level of armaments of a
sovereign state can be limited, and this
principle is valid for all states without
exception.
1 The starting point for the consideration of
the rights and obligations of states within
the international legal system remains that
international law permits freedom of action
for states, unless there is a rule constraining
this.
The notion of independence in international law
implies a number of rights and duties:
1 the right of a state to exercise
jurisdiction
1 over its territory and permanent
population
1 the right to engage upon
1 an act of self-defence in certain
situations
1 the duty not to intervene in the internal
affairs of other sovereign states.
Intervention
United Nations has condemned armed
intervention and all other forms of interference
or attempted threats against the personality of
the State of against its political, economic, and
cultural elements UNGA Res. 2131, Decembr
1965
1 General principle
No State has the right to intervene in the
internal or external affairs of another.
1933 Montevideo Convention
The Principal of Non-intervention involves
te right of every sovereign State to
conduct its affairs without outside
interference Nicaragua vs USA 1986 ICJ
Report
Exceptional Circumstance
1 UN Authorized Interventions
1 Acting under Chapter VII of the UN
Charter, A state can authorize military
action in response to severe atrocities
and other humanitarian emergencies
that it concludes constitute a threat to
peace and security
1 Chapter VII Article 39
1 The Security Council shall
determine the existence of any
threat to the peace, breach of the
peace, or act of aggression and
shall make recommendations, or
decide what measures shall be
taken in accordance with Articles
41 and 42, to maintain or restore
international peace and security.
1 Operation Desert Storm
On 2 August 1990 at 2:00 am, local time,
Iraq launched an invasion of Kuwait
On 3 August 1990, the UN Security
Council passed Resolution
660 condemning the Iraqi invasion of
Kuwait and demanding that Iraq
unconditionally withdraw all forces
deployed in Kuwait.
War waged by a U.N.-
authorized Coalition force from 34
nations led by the United States
1 Libyan Civil War
17 February 2011, major political
protests began in Libya against Gaddafi's
government.
Gaddafi accused the rebels of being
"drugged" and linked to al-Qaeda,
proclaiming that he would die
a martyr rather than leave
Libya. Proclaiming that the rebels would
be "hunted down street by street, house
by house and wardrobe by
wardrobe", the armed forces opened fire
on protests in Benghazi, killing hundreds.
On 19 March 2011, a multi-state coalition
began a military intervention in
Libya to implement United Nations
Security Council Resolution 1973
Fighting in Libya ended in late October
following the death of Muammar Gaddafi
1 Doctrine of Equality of States
Hague Conference of 1907
In international law all states are
equal. . . It then necessarily
follows that the conception of
great and small powers find no
place in a correct system of
international law. It is only when
we leave the system of law and
face brute fact that inequality
appears . .
In matters of justice, THERE CAN
BE NO DISTINCTION, for every
state, be it large or small, has an
equal interest that justice be
done.
The Doctrine Defined
1 All states are equal in International Law
despite of their obvious factual inequalities
as to size, population, wealth, strength, or
degree of civilization
Oppenheims Consequences that follow the
Doctrine of Equality
1 When a question arises which has to be
settled by consent, every State has a right
to vote, and to one vote only
1 The vote of the weakest state has much
weight of the most powerful
1 To have equal rights to be part of treaties,
and have diplomatic relations with other
states.
1 The courts of one state does not, as a rule,
question the validity of the ruling of another
state in so far as it takes effect within the
latters jurisdiction
The Cuban Missile Crisis
1 13-day confrontation between the Soviet
Union and Cuba on one side, and the United
States on the other, in October 1962.
1 It is one of the major confrontations of
the Cold War, and is generally regarded as
the moment in which the Cold War came
closest to turning into a nuclear conflict.
1 In May 1962 Nikita Khrushchev proposed the
idea of placing Soviet nuclear missiles on
Cuba to deter any future invasion attempt.
1 The United States considered attacking
Cuba via air and sea, but decided on a
military blockade instead, calling it a
"quarantine" for legal and other reasons.
The Cuban Quarantine
1 This initially was to involve a naval blockade
against offensive weapons within the
framework of the Organization of American
States and the Rio Treaty. Such a blockade
might be expanded to cover all types of
goods and air transport. The action was to
be backed up by surveillance of Cuba.
International Response
1 Three days after Kennedy's speech, the
Chinese People's Daily announced that
"650,000,000 Chinese men and women
were standing by the Cuban people".
1 In West Germany, newspapers supported
the United States' response, contrasting it
with the weak American actions in the
region during the preceding months. They
also expressed some fear that the Soviets
might retaliate in Berlin.
1 In France on October 23, the crisis made the
front page of all the daily newspapers. The
next day, an editorial in Le
Monde expressed doubt about the
authenticity of the CIA's photographic
evidence. Two days later, after a visit by a
high-ranking CIA agent, they accepted the
validity of the photographs. Also in France,
in the October 29 issue of Le Figaro, wrote
in support of the American response.
Vietnam War
1 The Vietnam War was a Cold War-era
military conflict that occurred in Vietnam,
Laos, and Cambodia from 1 November 1955
to the fall of Saigon on 30 April 1975.
1 was fought between North Vietnam,
supported by its communist allies, and the
government of South Vietnam, supported by
the United States and other anti-communist
countries.
1 The Viet Cong (also known as the National
Liberation Front, or NLF), a lightly armed
South Vietnamese communist common front
directed by the North, largely fought a
guerrilla war against anti-communist forces
in the region.
1 The Vietnam People's Army (North
Vietnamese Army) engaged in a more
conventional war, at times committing large
units into battle.
U.S. Involvement
1 The U.S. government viewed involvement in
the war as a way to prevent a communist
takeover of South Vietnam as part of their
wider strategy of containment.
1 In 1961, South Vietnam signed a military
and economic aid treaty with the United
States leading to the arrival (1961) of U.S.
support troops and the formation (1962) of
the U.S. Military Assistance Command.
Opposition to U.S. Involvement
1 The reasons behind American opposition to
the Vietnam War fell into the following main
categories:
opposition to the draft;
moral, legal, and pragmatic
arguments against U.S. intervention;
reaction to the media portrayal of the
devastation in Southeast Asia.
The Draft
1 At that time, only a fraction of all men of
draft age were actually conscripted, but the
Selective Service System office ("Draft
Board") in each locality had broad discretion
on whom to draft and whom to exempt
where there was no clear guideline for
exemption.
1 The charges of unfairness led to the
institution of a draft lottery for the year
1970 in which a young man's birthday
determined his relative risk of being drafted
(September 14 was the birthday at the top
of the draft list for 1970; the following year
July 9 held this distinction).
1 The first draft lottery since World War II in
the United States was held on 1 December
1969 and was met with large protests and a
great deal of controversy; statistical analysis
indicated that the methodology of the
lotteries unintentionally disadvantaged men
with late year birthdays.
1 Various antiwar groups, such as Another
Mother for Peace, WILPF, and WSP, had free
draft counseling centers, where they gave
young American men advice for legally and
illegally evading the draft.
1 Over 30,000 people left the country and
went to Canada, Sweden, and Mexico to
avoid the draft.
Polarization
1 The U.S. became polarized over the war.
1 Many supporters of U.S. involvement argued
for what was known as the domino theory, a
theory that believed if one country fell to
communism, then the bordering countries
would be sure to fall as well, much like
falling dominoes.
1 Civilian critics of the war argued that the
government of South Vietnam lacked
political legitimacy, or that support for the
war was completely immoral.
Self Defense by Nations
1 Chapter VII of the United Nations Charter
1 Customary international law
1 Imminent threat
Chapter VII of the United Nations Charter
1 Article 51: Nothing in the present Charter
shall impair the inherent right of collective
or individual self-defence if an armed attack
occurs against a member of the United
Nations, until the Security Council has taken
the measures necessary to maintain
international peace and security. Measures
taken by members in exercise of this right
of self-defence shall be immediately
reported to the Security Council and shall
not in any way affect the authority and
responsibility of the Security Council under
the present Charter to take at any time such
action as it deems necessary in order to
maintain or restore international peace and
security.
1 Article 51 acknowledges this general right,
and proceeds to lay down procedures for the
specific situation when an armed attack
does occur.
1 Under the latter interpretation, the
legitimate use of self-defence in situations
when an armed attack has not actually
occurred is still permitted.
1 It is also to be noted that not every act of
violence will constitute an armed attack.
Customary international law
1 The traditional customary rules on self-
defence derive from an early diplomatic
incident between the United States and the
United Kingdom over the killing on some US
citizens engaged in an attack on Canada,
then a British colony.
1 The so-called Caroline case established that
there had to exist "a necessity of self-
defence, instant, overwhelming, leaving no
choice of means, and no moment of
deliberation,' and furthermore that any
action taken must be proportional, "since
the act justified by the necessity of self-
defence, must be limited by that necessity,
and kept clearly within it."
Imminent threat
1 The imminent threat is a standard
criterion in international law, developed by
Daniel Webster as he litigated the Caroline
affair, described as being "instant,
overwhelming, and leaving no choice of
means, and no moment for deliberation."
1 The criteria are used in the international law
justification of preemptive self-defense: self-
defense without being physically attacked
first.
TERRITORY OF STATES
sovereignty itself, with its retinue of legal
rights and duties, is founded upon the fact
of territory. Without territory a legal person
cannot be a state.2 It is undoubtedly the
basic characteristic of a state and the one
most widely accepted and understood.
Malcolm Shaw
Territory, defined
A geographical area included within a
particular governments jurisdiction; the
portion of the earths surface that is in a
states exclusive possession and
control Blacks Law
Domain, defined
The territory over which sovereignty is
exercised Blacks Law
Acquisition of Territorial Domain
Acquisition of land not hitherto belonging to
any other State (Original Title); or
Transfer of one State to another (Derivative
Title)
5 Modes of Acquisition
Discovery and Occupation
Prescription
Cession
Conquest or Subjugation
Accretion
Occupation, defined
Means of acquiring territory not already
forming part of the dominion of any State
This has been the basis of title to the many
original territorial domain of many States.
The only natural and original mode of
acquisition. - Grotius
Prescription, defined
The acquisition of territory by an adverse
holding continued through a long term of
years.
Presumes the existence, at least in theory,
of an earlier title by another
Under international law, prescription
requires 2 essential facts: Continuous and
undisturbed possession and Lapse of a
period of time
Cession, defined
A bilateral agreement, whereby one state
transfers sovereignty over a definite
portion of territory to another State.
May be a fractional portion of the territory
of the ceding State or the entirety of its
domain.
International law only deals with cessions of
territory between States which are members
of the Family of Nations; cessions of territory
between native tribes are not included
Treaties of cession usually prescribes the
conditions under which the transfer was
made, namely, peaceful negotiations or
as a result of war.
Subjugation, defined
The acquisition of sovereignty of a certain
territory by force or arms, exercised by an
independent power which reduces
vanquished to the submission of its empire.
The taking of possession of hostile territory
through military force in time of war and by
which the victorious belligerent compels the
enemy to surrender sovereignty of that
territory thus occupied
Not to be confused with the so-called
military or belligerent occupation
Conquest of an area belonging to one of the
belligerents in time of war does not itself
confer title to the occupying belligerents.
It is merely conquest followed by annexation
which constitutes subjugation and confers
good title over the territory
Loss of Territory
Dereliction
Prescription
Cession
Subjugation
Operation of Nature
Revolt
Dereliction
Abandonment of territory by the
sovereign State
Mere physical withdrawal does not of
itself achieve an abandonment of
sovereignty over the territory;
Nor does temporary or intermittent
assertion of sovereignty divest the owner
of its title
Physical cessation of possession
coupled with the intention of giving up
sovereignty
Operation of Nature
As the land area of a state may be
increase, it may also be decreased.
This may involve the total extinction of
a state, as when it is blotted out of
existence or rendered forever
uninhabitable by the rage of the
elements;
May also be brought about artificially
Revolt
Like subjugation, revolt involves force of
arms
Subjugation only involves the acquisition
by the victorious state of the territory
lost; revolt involves the formation of a
new State
Maritime and Fluvial Domain
The sovereignty of a State extends
beyond its land territory and its
internal waters, to a belt of sea adjacent
to its coast described as the territorial
sea.
Internal Waters
Sometimes called national or inland
Consists of the waters in the lakes,
canals, rivers, together with their
mouths, ports and harbors
May also include parts of the sea which
have the character of historic waters
Historic waters waters which are
treated as internal waters but which
would not have that character were it not
for the existence of a historic title
Territorial Sea
Comprises the waters in the so-called
maritime or marginal belt surrounding
the land area
May include waters in the bays, gulfs
and straits which do not have the
character of historic waters
Territorial and National Waters, Distinguished
Foreign States can claim for their ships a
certain right of passage in territorial
waters; no such right exists in national
waters
Base line for the measurement of
territorial waters begin where the waters
of the gulf or bays (national) cease
High Seas and Open Seas
Waters beyond territorial sea
Not and cannot be under the
sovereignty of any State
Freedom of the open sea includes
freedom of navigation, freedom of
fishing, freedom to lay cables and
pipelines, freedom to fly over the
high seas
Aerial Domain
The airspace above the terrestrial
domain and the maritime and fluvial
domain of the state to an ultimate
altitude but not including outer space.
Every state has complete and exclusive
sovereignty over airspace above its
territory
Island of Palmas Case
Who has a better right over a territory?
The state who is the first discoverer,
even if they do not exercise authority
over the territory, or
The state which actually exercises
sovereignty over it.
In 1898, Spain ceded the Philippines to the
United States in the Treaty of Paris (1898)
and Palmas lay within the boundaries of that
cession to the U.S.
In 1906, the United States discovered that
the Netherlands also claimed sovereignty
over the island, and the two parties agreed
to submit to binding arbitration by the
Permanent Court of Arbitration.
Claims of the US
Right by discovery
Contiguity
Claims of the Netherlands
Continuous and peaceful display of
sovereignity
Ruling
Three important rules for resolving island
territorial disputes were decided:
Title based on contiguity has no
standing in international law.
Title by discovery is only an
inchoate title.
If another sovereign begins to
exercise continuous and actual
sovereignty, (and the arbitrator
required that the claim had to be
open and public and with good title),
and the discoverer does not contest
this claim, the claim by the
sovereign that exercises
authority is greater than a title
based on mere discovery.
Clipperton Island Case
What kind of possession is a necessary
condition for occupation?
The case concerned a dispute between
France and Mexico over an uninhabited
island.
The arbitrator emphasized that the actual,
and not the nominal, taking of
possession was a necessary condition
of occupation, but noted that such taking
of possession may be undertaken in
different ways depending upon the nature of
the territory concerned.
Law of the Sea
Baselines
The traditional principle under customary
international law
The width of the territorial sea is
defined from the low-water mark
around the coasts of the state.
By virtue of the 1958 Convention on the
Territorial Sea and the 1982 Law of the Sea
Convention, the low-water line of a low-tide
elevation may now be used as a baseline for
measuring the breadth of the territorial sea
if it is situated wholly or partly within the
the territorial sea measured from the
mainland or an island.
Archipelagic States
Article 47 provides that an archipelagic
state may draw straight archipelagic
baselines joining the outermost points of the
outermost islands and drying reefs of the
archipelago, which would then serve as the
relevant baselines for other purposes.
In addition, ships of all states shall enjoy the
rights of innocent passage through
archipelagic waters and all the ships and
aircraft are to enjoy a right of archipelagic
sea lanes passage through such lanes and
air routes designated by the archipelagic
state for continuous and expeditious
passage
Internal Waters
Internal waters are deemed to be such parts
of the seas as are not either the highseas
or relevant zones or the territorial sea,
and are accordingly classed as appertaining
to the land territory of the coastal state.
Internal waters, whether harbours, lakes or
rivers, are such waters as are to be found on
the landward side of the baselines from
which the width of the territorial and other
zones is measured,13 and are assimilated
with the territory of the state
Territorial Sea
Comprises the waters in the so-called
maritime or marginal belt surrounding the
land area
May include waters in the bays, gulfs and
straits which do not have the character of
historic waters
Internal Waters vs Territorial Seas
Internal waters differ from the territorial sea
primarily in that there does not exist any
right of innocent passage from which the
shipping of other states may benefit.
Exclusive Economic Zone
A 200-mile territorial sea and those wishing
a more restricted system of coastal state
power.
One of the major reasons for the call for a
200-mile exclusive economic zone has been
the controversy over fishing zones.
Provisions on Exclusive Economic Zones
Article 55 of the 1982 Convention provides
that the exclusive economic zone is an area
beyond and adjacent to the territorial sea,
subject to the specific legal regime
established under the Convention.
Article 57 provides that it shall not extend
beyond 200 nautical miles from the
baselines from which the breadth of the
territorial sea is measured.
Article 58 lays down the rights and duties of
other states in the exclusive economic zone.
These are basically the high seas freedom of
navigation, overflight and laying of
submarine cables and pipelines. It is also
provided that in exercising their rights and
performing their duties, states should have
due regard to the rights, duties and laws of
the coastal state.
Continental Shelf
The continental shelf is a geological
expression referring to the ledges that
project from the continental landmass
into the seas and which are covered with
only a relatively shallow layer of water
(some 150200 meters) and which
eventually fall away into the ocean depths
(some thousands of metres deep).
Exceed the distance of the economic zones
International Tribunal for the Law of the Sea
The Tribunal was established as one of the
dispute settlement mechanisms under Part
XV of the Law of the Sea Convention.
It shall be composed of twenty-one
independent members enjoying the highest
reputation for fairness and integrity and of
recognised competence in the field of the
law of the sea, while the representation of
the principal legal systems of the world and
equitable geographical distribution are to be
assured
The Tribunal, based in Hamburg, is open to
states parties to the Convention and to
entities other than states parties in
accordance with Part XI of the Convention,
concerning the International Seabed Area,
thereby including the International Seabed
Authority, state enterprises and natural and
juridical persons in certain circumstances, or
in any case submitted pursuant to any other
agreement conferring jurisdiction on the
Tribunal which is accepted by all the parties
to that case.
JURISDICTION OF STATES
Concept of Jurisdiction
The right of a State to exercise authority
over persons and things within its
boundaries, subject to certain exceptions
and to the rights of other States, over the
property and nationals of State beyond its
boundaries
Not co-extensive with the territory of a State
May be based upon the right of domain,
property right and political relationship
Two Classifications of Jurisdiction
TERRITORIAL
Control and authority exercised by a
State over its entire domain and over all
persons and thing therein found
PERSONAL
Exercise of State authority over
individuals whether within its domain or
elsewhere by virtue of nationality or
domicile
Territorial Jurisdiction
Definition: control and authority exercised
by a State over its entire domain, and over
all persons and things found therein
Basis: right of domain
Domain of a State:
Includes ordinarily only such
expanse of territory over which
it possesses and exercises the
full rights of sovereignty
Brief Background: recently colonizing
States have reserved for their own,
territories which they do not posses
sovereign rights and powers, thereby
enabling them to exercise the right of
jurisdiction
Joint jurisdiction
The exercise of jurisdiction of a State may
be conditioned or even waived in a manner
that jurisdiction over a defined sphere may
overlap
(aka) Condominium:
Jurisdiction over the same territory
has been exercised conjointly by 2 or
more States
Establishment is through an
agreement among such States
exercising such jurisdiction
Stipulations
The local State or territory may or
may not be a party to such an
agreement
The authority exercised is usually
defined and specified in the
agreement
The agreement may also require the
assumption of a corresponding
obligation on the part of the States
exercising such jurisdiction
Although implies a combined government,
the authority may nevertheless be
delegated to an official who is to represent
the States concerned in all matters
Leases
Leases of territory are similar to ordinary
leases of private law
There are also leases of territory which are
political in character and made with attempt
to separate sovereignty from possession of
the leased territory
Definitions
Brierlys definition: a diplomatic
device rendering a permanent loss of
territory more palatable to the
disposed State by avoiding any
mention of annexation and holding
out the hope of eventual recovery
Usually specify the powers to be
exercised by the lessee, and by
implication other powers remain in
the lessor State
Sovereignty may be retained by the lessor
State, even though complete jurisdiction
may be granted to the lessee
Stipulations:
Retention of sovereignty by the lessor
State
Lessee State retains nominal
sovereignty
Colonial protectorates
Brief Background: in the latter half of the
19
th
century, the colonizing States of Europe
introduced forms of staking out their claims
in territories one of such devices is
colonial protectorates
Definitions
Protectorate: a relation between a
State and a native community not
sufficiently civilized to be regarded as
a State (not a relation of dependence
between 2 States
Stipulations:
More or less voluntary with the native
chiefs
Generally lead to full annexation
when the protecting State is ready for
that step
Claims to exclude any other State
from making an occupation, from
maintaining any direct relations with
the protected communities
Accepts a somewhat vague obligation
to maintain a reasonable degree of
security for foreign subjects and
property within the protected territory
Spheres of Influence
Brief Background: rules on colonial
protectorates didnt satisfy some appetites
of colonizing powers so they made a more
indefinite method of staking out their claims
Definition
A State, without establishing its
jurisdiction or undertaking any
responsibility for securing good
government, signifies that it regards
certain territory as closed to the
ambitions of any other power,
probably
because it intends someday to
convert it into a colony or
protectorate or
because it regards it as
strategically necessary to the
security of part of its existing
dominions
Stipulations
Gives a State no right over the
territory; it is political and not a legal
act
The claim is often protected by
treaties with other States most likely
to be affected
To disregard it would be deemed to
be an unfriendly act
Servitudes
Nature: closely resembles the servitudes of
Roman law or the easements of English law
Definition;
Restrictions on the free exercise of
the jurisdiction of a State in the way
of obligation to allow a foreign State
to do a thing, or in a way of obligation
to a foreign State to refrain from
doing something
relation to private law: international
servitudes must be such a will survive a
change in sovereignty of either of the 2
States concerned
right in rem: exercisable not only
against a particular owner of the
servient estate but against any
successor to him in title, and not only
by a particular owner of a dominant
estate but also by his successor in
interest
HOWEVER, they say that rights created in
treaties are purely personal rights and not in
rem
Limitations of Territorial Jurisdiction
States do not assume jurisdiction over the ff:
Heads of States and diplomatic
representatives. Consuls and their archives
and official residence enjoy immunity to a
limited extent.
Foreign public warships and other public
vessels, which, by legal fiction, are
considered as floating parts of the flag
State. However the coastal State may
require a warship to leave the territorial sea
if it does not comply with local regulations.
Foreign merchant vessels exercising the
right of innocent passage through territorial
waters or entering the same in distress.
Foreign state property, including embassies
and legations. Hence, property owned by a
foreign Sate may not be proceeded against
and attached without its consent.
International organizations, their property,
acts and personnel. The extent and scope of
the immunities of international organization
are usually defined in international
agreements.
Foreign military units stationed in or
marching through the territory of a State
with is permission. The risk of friction
between the visiting forces and the local
authorities is such that it has become the
invariable practice to regulate the question
of jurisdiction over such forces by treaty,
either bilateral or multilateral.
Act of State:
Chief Justice Fuller in Underhill vs
Hernandez:
Every sovereign state is bound to respect the
independence of every other sovereign state,
and the courts of one country will not sit in
judgment on the acts of the government of
another done within its own territory.
It will include not only an executive or
administrative exercise of sovereign
power by an independent State, or by
its duly authorized agents or officers,
but also legislative and administrative
acts such as a statute decree or
order.
The courts of one State do not
question the validity or legality of the
official acts of another sovereign or
the official or officially avowed acts of
its agents, at least in so far as they
purport to have taken effect within
the sphere of the latter States
jurisdiction.
Banco Nacional de Cuba v. Sabbatino
376 U.S. 398 (1964)
FACTS:
1. July 1960 The United States imposed a
reduction on its import quota for Cuban
sugar.
a. In retaliation, Cuba nationalized many
companies in which U.S. nationals
had interests. One such company was
CAV, a sugar company in which
Whitlock Farr (defendant), an
American commodities broker, had an
interest.
2. Farr had contracted to buy a shipload of CAV
sugar.
3. After Cuba nationalized the company, Farr
entered into a new agreement to buy the
sugar from the Cuban Government.
a. However, CAV promised to indemnify
Farr for any losses suffered provided
he would turn the sugar sales
proceeds over to CAV instead of the
Cuban government.
4. Cuba assigned the bills of lading to its
shipping agent, Banco Nacional (plaintiff),
and Farr passed along the sugar and
collected payments from his customers.
Relying on the promise of
indemnification from CAV, Farr passed
along the proceeds to CAV instead of
Cuba.
5. Banco Nacional sued Farr for conversion of
the bills of lading.
a. It also sought to enjoin Sabbatino
(defendant), the temporary receiver
of CAVs New York assets, from
distributing the received proceeds.
b. Farr defended on the ground that title
to the sugar never passed to Cuba
because the expropriation of CAVs
proceeds by Cuba violated
international law.
6. DISCTRICT COURT: granted summary
judgment for Farr and Sabbatino as it found
that the American act of state doctrine did
not apply to a violation of international law
by a foreign actor, and that Cubas
expropriation violated international law.
a. It found that the sugar was
located within Cuban territory at
the time of expropriation, and
determined that, under merchant
law common to civilized
countries, Farr, Whitlock could
not have asserted ownership of
the sugar against C.A.V. before
making payment. It concluded
that C.A.V. had a property
interest in the sugar subject to
the territorial jurisdiction of
Cuba.
7. COURT OF APPEALS: affirmed.
HENCE THE APPEAL: Sabbatino argued that the
Act of State Doctrine was inappropriate
because:
The act in question was a violation of
international law;
The doctrine should not be applied
unless the Executive branch asks the
court to do so;
Cuba had brought the suit as a
plaintiff and had given up its
sovereign immunity.
ISSUE: Whether to apply the Act of State
doctrine, which would uphold the legality of the
expropriation because it was an official act of
another country, not subject to question in U.S.
courts
HELD: YES
Act of State Doctrine
The privilege of resorting to United
States courts being available to a
recognized sovereign power not at
war with the United States, and not
being dependent upon reciprocity of
treatment, petitioner has access to
the federal courts.
The propriety of the taking was not
governed by New York law, since the
sugar itself was expropriated. This
suit is not uncognizable in American
courts as being one to enforce the
"public" acts of a foreign state, since
the expropriation law here involved
had been fully executed within Cuba.
The Government's uncontested
assertion that the two State
Department letters expressed only
the then wish of the Department to
avoid commenting on the litigation,
obviates the need for this Court to
pass upon the "Bernstein exception"
to the act of state doctrine, under
which a court may respond to a
representation by the Executive
Branch that, in particular
circumstances, it does not oppose
judicial consideration of the foreign
state's act.
The scope of the act of state doctrine
must be determined according to
federal law.
Banco Nacional de Cuba v. Sabbatino,
HELD: YES
Act of State Doctrine
The act of state doctrine applies and is
desirable with regard to a foreign
expropriation even though the expropriation
allegedly violates customary international
law.
Disagreement exists as to relevant
standards of international law
concerning a State's responsibility
toward aliens.
The political branch can more
effectively deal with expropriation
than can the Judicial Branch.
Conflicts between the Judicial and
Executive Branches could hardly be
avoided were the judiciary to
adjudicate with respect to the validity
of expropriations. Even if the
combination alleged in this case of
retaliation, discrimination, and
inadequate compensation made the
expropriation here violative of
international law, a judicial
determination to that effect would
still be unwise as involving potential
conflict with or embarrassment to the
Executive Branch in later litigation.
A foreign country's status as a plaintiff does
not make the act of state doctrine
inapplicable.

Schooner Exchange v. M. Faddon
ISSUE: Whether an American citizen can
assert, in an American Court, a title to an
armed national vessel, found within the
waters of the US?
HELD: NO
The Court found that the vessel was a
public armed vessel commissioned
by, and in the service of the Emperor
of France
The Court also found that the US was
at peace with France and permitted
the vessel to enter the ports as a
friendly power
The Court held that when the vessel
entered American territory, it did so
under implied promise that the vessel
was exempt from the US jurisdiction
and enjoyed sovereign immunity.
HELD:
FOREIGN SOVEREIGN IMMUNITY
DOCTRINE
Rationale: recognition of
sovereignty of States
As applied in the case:
France, a foreign
sovereign owned the
boat
Court notes that
Emperor of France took
custody of the vessel,
even though improperly ,
the still took custody of
it.
Napoleon using it as an
official armed ship for
military purpose, not
like used for commercial
purposes instead of
public purpose.
Court holds that in cases
like these, there is
immunity and
jurisdiction is waived.
Jurisdiction on land
General Principle:
State Jurisdiction over its land area,
over all person and property within it,
is exclusive and absolute.
An alien exempt from prosecution for acts
on obedience to instructions from his own
state which violate the law of the State
where he may be.
Maritime Jurisdiction
Jurisdiction of a state extends over the
entire maritime or fluvial domain, which
consists of both the internal waters and the
territorial sea
Kinds of Maritime Jurisdiction
Jurisdiction over Internal Waters
Examples of internal waters of the state:
Ports, Harbors, bays.
Foreign Public Vessels : If not engaged in
commerce, are wholly exempt from the local
jurisdiction of the State in whose port of
harbor they may be anchored or moving.
Foreign Merchant Vessels and Occupants
the territorial sovereign has exclusive
jurisdiction over them in civil matters. But in
Criminal matters, there are two views:
The English Rule
The French Rule
Foreign Merchant Vessels and Occupants:
Two views in Criminal Matters
The English Rule
Emphasizes the territorial
principle.
There is a complete subjection
of the vessel to the local
jurisdiction.
When a foreign merchant ship
enters territorial waters, the
ships officers and crew are
subject to the jurisdiction of the
territorial courts, subject to
such limitations. (US vs. Bull)
Exception: Matters relating to
internal order and discipline of
a foreign vessel and affecting
solely the ship and its
occupants.
Rationale: It would be
obviously inconvenient and
dangerous to society and would
be subject the laws to continual
infraction and the government
to degradation. Justice
Marshall.
Foreign Merchant Vessels and Occupants:
Two views in Criminal Matters
The French Rule
Local sovereign possesses no
jurisdiction at all on such
matters, UNLESS the offense
affects the peace and security
of the territory
Involuntary Entrance Foreign vessels
arriving into port under stress of weather by
reason of inevitable necessity are regarded
as exempted from the local jurisdiction.
They are not subject to fines or duties.
To be placed under the exception,
there should be urgent necessity. It
must be grave.
Jurisdiction over the territorial sea
Geneva Convention
The sovereignty of a State extends
beyond its land territory and its
internal waters, to a belt of sea
adjacent to its coast, described as
the territorial sea.
Ships of all States shall enjoy the
right of innocent passage through
the territorial sea of a State
Right of Innocent Passage
Passage
means navigation through
the territorial sea for the
purpose of either traversing
through that sea without
entering internal waters or
of proceeding to internal
waters, or of making for the
high seas from internal
waters.
includes stopping and
anchoring, but only in so far
as these may be incidental
to ordinary navigation
deemed innocent so long as
it is not prejudicial to the
peace, good order or
security of the coastal state.
Foreign vessels exercising the right of
innocent passage must observe laws and
regulations which the coastal state.
The coastal state may suspend IF for the
protection of security.
There is no suspension of the
innocent passage of a foreign ship
through straits which are used for
international navigation.
Criminal jurisdiction.
A state may not exercise criminal
jurisdiction on board a foreign ship
passing through during its
passage.
Exceptions
The consequences of
the crime extended
to the coastal state
Crime is of a kind to
disturb the peace of
the country or the
good order of the
territorial sea.
If the assistance of
local authorities has
been requested by
the captain of the
ship or by the consul
the country whose
flag the ship flies
If it is necessary for
the suppression of
illicit traffic in
narcotic drugs
A state may not exercise criminal
jurisdiction on board a foreign ship
passing through during its
passage.
Exceptions
The consequences of
the crime extended
to the coastal state
Crime is of a kind to
disturb the peace of
the country or the
good order of the
territorial sea.
If the assistance of
local authorities has
been requested by
the captain of the
ship or by the consul
the country whose
flag the ship flies
If it is necessary for
the suppression of
illicit traffic in
narcotic drugs
Jurisdiction over the contiguous zone
These are zones of high sea contiguous to
the territorial sea.
Not extending 12 miles from the shores
Jurisdiction in the high seas
The open sea is not and cannot be under the
sovereignty of any state. However, there are
still laws governing which the Geneva
convention codified.
The state must effectively exercise its
jurisdiction in administrative,
technical and social matters over ship
flying its flag.
Ships shall sail under the flag of one
State only and in general, shall be
subject to its exclusive jurisdiction in
the high seas.
Piracy
Piracy is a crime against the law of
nations and pirates are deemed
Hostes Humani Generis, who may be
arrested on the high seas by the
warships of any state and brought
into port for the trial together with
their ship.
Geneva Convention definition of
piracy
Any illegal acts of violence,
detention, or any act of
depredation, committed for
private ends by the crew or
passengers of a private ship or
a private aircraft
Any act of voluntary
pariticpation in the operation of
a ship and aircraft with the
knowledge of facts making it a
pirate ship or aircraft.
Any act of inciting or of
intentionally facilitating any of
the acts described above.
Seizure may only be carried out by
warships or military aircraft
Piracy is a criminal offense under
penal laws. Article 122 of the RPC
with penalty of reclusion temporal
People v Lol-lo
Hot pursuit
Right of a state through the
instrumentality of its men-of-war or
military aircraft to pursue a foreign
merchant vessels which have violated
the municipal laws of that state while
within the territorial waters, into the
open sea and bring them back to the
national domain for the
administration of justice.
Such pursuit is permissible only if
commenced before the pursued
vessel has actually escaped from the
territorial waters and is continued
without interruption until it is
overtaken and seized
Submarine cables
All states are entitled to lay
submarine cables and pipelines on
the bed of the high seas.
People of the Philippines v.Lol-lo and
Saraw
ISSUE: W/N the offense charged was within
the jurisdiction of the CFI or any court of the
Philippines.
HELD: YES
Pirates are in law hostes humani
generis(ENEMY OF MANKIND). Piracy
is a crime not against any particular
state but against all mankind.
Piracy may be punished in the
competent tribunal of any country
where the offender may be found or
into which he may be carried.
jurisdiction of piracy unlike all
other crimes has no territorial
limits
It does not matter that the crime was
committed within the jurisdictional 3-
mile limit of a foreign state, "for
those limits, though neutral to
war, are not neutral to crimes."
Illuh Asaali, et al. v The Commissioner of
Customs
ISSUE: W/N the interception and seizure by
customs officials on the high seas is valid
HELD: YES
Judge Luciano said:
It is quite irrational for Filipino sailors
manning 5 Philippine vessels to sneak out of
the Philippines and go to British North Borneo,
and come a long way back laden with highly
taxable goods only to turn about upon reaching
the brink of our territorial waters and head for
another foreign port.
SC cannot question the findings of the
CTA because the former only
discusses questions of law.
HELD:
All vessels seized are of Philippine
registry.
RPC provides: its applicability
and enforceability not only
within the Philippines, its
interior waters and maritime
zone, but also outside of its
jurisdiction against those
committing offense while on a
Philippine ship ...
The principle of law that
sustains the validity of such a
provision (from the RPC)
equally supplies a firm
foundation for the seizure of
the five sailing vessels found
thereafter to have violated the
applicable provisions of the
Revised Administrative Code.
Church v. Hubbart: a state has the
right to protect itself and its
revenues, a right not limited to its
own territory but extending to the
high seas
Chief Justice Marshall: "The authority
of a nation within its own territory is
absolute and exclusive. The seizure of
a vessel within the range of its
cannon by a foreign force is an
invasion of that territory, and is a
hostile act which it is its duty to repel.
But its power to secure itself from
injury may certainly be exercised
beyond the limits of its territory."
Section 1363: "Property subject to
forfeiture under customs laws." (a)
cover any vessel including cargo
unlawfully engaged in the importation
of merchandise except a port of
entry (f) speaks of any merchandise
of any prohibited importation, the
importation of which is effected or
attempted contrary to law and all
other merchandise which in the
opinion of the Collector of Customs
have been used are or were intended
to be used as instrument in the
importation or exportation of the
former.
Based on the provision above,
seizure was valid.
There was no denial of due
process (to the petitioners)
nothing arbitrary about the
manner in which such seizure
and forfeiture were effected.
The right to a hearing of
petitioners-appellants was
respected.
The petitioners know what they
were doing.
Despite the expiration of RA No. 650
the Commissioner of Customs
retained his jurisdiction over the case
and could continue to take
cognizance thereof until its final
determination, for the main question
brought in by the appeal from the
decision of the Collector of Customs
was the legality or illegality of the
decision of the Collector of Customs,
and that question could not have
been abated by the mere expiration
of RA No. 650.
Aerial Jurisdiction
Jurisdiction over the air space.
Every state has complete and exclusive
sovereignty over the air space above its
territory and consequently has the right to
prevent passage by civilian aircraft of other
States except as permitted by treaty.
Crimes committed in a foreign aircraft, the
rules applicable to vessels are also
applicable to here.
The Philippine asserts criminal jurisdiction
over offenses committed in a Philippine
aircraft even though outside its territorial
jurisdiction.
Criminal Jurisdiction
States have the authority to punish persons
for offenses committed within their territory,
regardless of the nationality of the offender.
Reason: Every government has an
obligation to maintain order within its
domain. Thus, it has the right to defend the
state from such acts as disturb its peace
and security.
5 General Principles on the Extensive
Jurisdiction of States on Penal Offenses:
1. The territorial principle, determining
jurisdiction by reference to the place
where the offense is committed;
2. The nationality principle, determining
jurisdiction by reference to the
nationality or national character of the
person committing the offence;
3. The protective principle, determining
jurisdiction by reference to the national
interest injured by the offense;
4. The universality principle, determining
jurisdiction by reference to the custody
of the person committing the offense;
5. The passive personality principle,
determining jurisdiction by reference to
the nationality or national character of
the person injured by the offense.
TERRITORIAL PRINCIPLE
The criminal jurisdiction of a state is
coextensive with, and does not go beyond,
the national domain.
Strictly speaking, it is not within the
competence of a State, under this principle,
to punish individuals for breach of its
criminal laws if committed outside its
territory.
Exception: OBJECTIVE TERRITORIAL
JURISDICTION
A crime may be committed within the
territory of a State, though the actor
may be physically out of the same
territory, and therefore still justiciable
by its criminal courts.
Exception: OBJECTIVE TERRITORIAL
JURISDICTION
A crime may be committed within the
territory of a State, though the actor
may be physically out of the same
territory, and therefore still justiciable
by its criminal courts.
How this is applied in the
Philippines: Art. 2. of the RPC.
Personal Jurisdiction
Founded on the principle of personal
supremacy the supreme authority
exercised by a State over the person of its
nationals
The right to exercise personal jurisdiction is
possessed by a State regardless of the place
where its nationals may be, whether within
its territory or elsewhere.
The fact that a national goes out of the
territory of his home State by no means
divests the individual of the allegiance he
owes to that country, nor the States of its
jurisdiction over his person.
UNITED STATES PHILIPPPINES MILITARY BASES
AGREEMENT
The Military Bases Agreement of 1947 (MBA)
A joint agreement between the Philippines
and the United States
signed on March 16, 1947.
Officially allowed the US to establish,
maintain and operate air and naval bases,
free of rent, in the country.
Provided for about 23 listed bases and
utilities for use by Americans for a period of
99 years.
Most important of these bases were the
180,000 acres Clark Air Base in Pampanga,
the biggest American airbase outside of the
continental USA; and the Subic Naval Base
in Zambales.
Other provisions of the 29-article MBA are
the following:
a. Mutual protection and cooperation between
the two countries including the use of
American and Philippine military
installations
b. Philippine government was prohibited from
granting any bases to any other nation
without US consent
c. The US was permitted to recruit Filipino
citizens, on voluntary basis, for service in
American military
d. American base commanders had the right to
tax, distribute utilities, hand out licenses,
search without warrants, and deport
undesirables
e. Complementing the MBA was the signing of
the Military Assistance Agreement of 1947
and the Mutual Defense Treaty of 1951.
Sept. 16, 1966: An agreement was signed
in Washington, D.C. reducing the lease
period from 99 to 25 years,
the new period to begin from the
date of the signature of the formal
documents giving effect to the
agreement reached. In effect, the
lease was reduced to 44 years, since
the 25 year period began in 1966.
Sept. 16, 1991: the Senate rejected the
proposed RP-US Treaty of Friendship,
Cooperation and Security that will extend
the bases to ten more years.
MBA was terminated on Dec. 21, 1992 when
the 25-year tenure lapsed.
Prompted the US to vacate its bases
effectively by the end of December
1992.
The departure of the US warship
Bellau Wood marked the closure of
American military bases in the
country.
MBA was terminated on Dec. 21, 1992 when
the 25-year tenure lapsed.
Prompted the US to vacate its bases
effectively by the end of December
1992.
The departure of the US warship
Bellau Wood marked the closure of
American military bases in the
country.
After the US turnover of the military bases,
the government transformed it into
economic zones spearheaded by the Bases
Conversion Development Authority, Subic
Bay Metropolitan Authority and the Clark
Development Corporation. The government
also restored American military presence in
the country through a new form known as
the Balikatan exercises or the RP-US Visiting
Forces Agreement (VFA) ratified by the
Senate on May 27, 1999.
Key provision on criminal jurisdiction in
the MBA: Article XIII. Jurisdiction
The Philippines consents that the United
States shall have the right to exercise
jurisdiction over the following offenses:
1. Any offense committed by any person
within any base, except where the
offender and the offended parties are
both Philippine citizens,
not members of the Armed Forces of
the United States on active duty or
the offense is against the security of
the Philippines, and the offender is a
Philippine citizen;
2. Any offense committed outside the
bases by any member of the Armed
Forces of the United States in which
the offended party is also a member
of the Armed Forces of the United
States; and
3. Any offense committed outside the
bases by any member of the Armed
forces of the United States against
the security of the United States.
4. The Philippines shall have the
right to exercise jurisdiction over
all other offenses committed
outside the bases by any member
of the Armed Forces of the United
States. Notwithstanding the
foregoing provisions, it is mutually
agreed that in time of war the United
States shall have the right to exercise
exclusive jurisdiction over any
offenses which may be committed by
the members of the Armed Forces of
the United States in the Philippines.
NOTE: Exemption from the jurisdiction of
Philippine courts may be claimed only by
members of the armed forces of the US on
active duty, regardless of the
nationality of the offender.
STATE IMPUTABILITY / RESPONSIBILITY
Admission and exclusion of aliens
- No country is obliged to admit alien in the
absence of a treaty stipulation imposing that
duty. This flows from the concept of
sovereignty of the state.
- For a state to exclude all aliens from their
territory would mean giving up its position in
the society of nations, cutting off
commercial and diplomatic intercourse with
other states.
- This is not to say that a state cannot impose
conditions on the admissions of alien, they
can subject their admissions as it may deem
wise to impose.
- Example: Specify the kind of aliens
that cannot be admitted for reasons
of local security and public welfare.
- It can even devise a quota system,
restricting immigration and
discriminating against certain aliens
on racial grounds.
- Together with the right to suspend is the
right to expel
Reasons to be expelled
1. His stay constitutes as a MENACE to the
security of the state.
- His presence must be
DETRIMENTAL to the welfare of the
State
2. His entry was ILLEGAL
3. His permission to stay has EXPIRED
4. He VIOLATED any condition or limitation
prescribed for his admission
Right of Asylum
- We often here persons who seek refuge in
States other than their own in order to
escape prosecution. This practice is known
as RIGHT OF ASYLUM
- The right of asylum is the competence of a
State inferred from its territorial supremacy,
to allow a persecuted alien to enter and
remain on its territory and thereby to grant
an asylum to him.
- This right includes the competence of
the State of asylum to prevent the
other State from prosecuting the alien
within its territory.
- It also includes the right to put him
under surveillance or even to intern
him for the protection of the other
State.
- The General Assembly of the United Nations
(first session) affirmed the principle that
no refugees who express valid objections to
return to their countries of origin may be
compelled to do so.
- However, it was laid down that the
application of the principle should NOT
interfere with the surrender and punishment
of war criminals and traitors in conformity
with international arrangements.
- The United Nations adopted the Universal
Declaration of Human Rights which
enunciates the right of everyone to seek and
enjoy in other countries asylum for
prosecution.
Right of Aliens
- An alien, once received, falls within the
territory supremacy of the receiving state.
2 types of aliens
a. Domiciled Aliens
- By virtue of their domicile, they not only
have to obey the local laws and pay
normal taxes, but if the need arises, they
may be called upon by their State to
perform such public duties as police and
military service.
- Domicile creates a sort of qualified or
temporary allegiance
- Transient Aliens
- Philippine law today punishes any alien
residing in the Philippines, who commits
act of treason by levying war against the
Government or adhering to its enemies,
giving them aid and comfort.
- The alien cannot be compelled to serve
in the armed forces of the State of his
domicile without the consent of his own
State
- There are instances when an alien may
be entitled to a better treatment than
the nationals of the State where he
resides.
- If the State has low standard of
justice towards its own nationals,
an alien is entitled to a better
treatment because of the right
conferred to him by the
international law
- General rule: A person who voluntarily
enters the territory of a foreign State,
whatever is his purpose, must accept the
institutions of that State.
Example:
- He does not possess political rights (right to
vote and hold public office)
- He may not be allowed to acquire or hold
lands
Condition: Institutions of the State must conform to
the international standard
- An alien may be granted certain rights and
privileges based upon the following
- Reciprocity
- Most-favoured-nation treatment
- National treatment: equality between
nationals and aliens in certain
matters
International Standard
- There is no rigid, mathematical rule in
determining whether State practices
conform or not to standard.
- It may be described broadly as standard of
the reasonable state which means
reasonable according to the notions that
are accepted in our modern civilization
- Neers case
....the treatment of an alien, in order to
constitute an international delinquency, should
amount to an outrage, to bad faith, to wilful
neglect of duty, or to an insufficiency of
governmental action so far short of
international standards that every reasonable
and impartial man would readily recognize its
insufficiency...
Example: Execution of an alien without trial and
indiscriminate killing of aliens by local officials.
Doctrine of State Responsibility
General Rule: A State is responsible for the
maintenance of law and order within its
territory.
However, the State cannot be an absolutely
insurer of the morality and behaviour of all
people within its jurisdiction. It would be
tenuous to assert that the State should be
responsible for all these acts.
Example: An alien may be robbed by a private
individual.
- Essential elements before a State can be
held responsible
1. An act or omission in violation of
international law
2. It is imputable to the state
3. It results to an injury to the claimant
State (directly or indirectly) through
damage to a national
Acts of omission imputable to the State
a. Acts of private individuals
- General Rule: The acts of private
individuals causing damage to aliens or
their property is not directly or
immediately attributable to the State.
- Exemption: The State is responsible if
displayed manifest negligence in taking
measure which are normally taken in the
particular circumstance to prevent
injurious acts.
Questions to determine the exemption:
- Whether the State ought to have
prevented the injurious act?
- Would the injury occur if the State had
been reasonably diligent?
- The claimant has the burden of proving
negligence.
b. Acts of Government Officials
- States are juridical persons and can only
act through their lawfully appointed
officials.
Example:
- The chief executive of the government
and its highest law making bodies are
the primary agents of the State in
determining its external policies and in
fulfilling its international obligations.
- Their acts are acts of the State.
- State responsibility for them is direct and
immediate.
Where the officer acts beyond the scope of his
office, act is like that if any individual.
- A wrongful act of a subordinate official is not
the act of the State unless and until some
organ of the State has expressly or tacitly
ratified the act.
Denial of Justice
- Broad sense - It includes all acts or
omission capable of giving rise to
international responsibility on the part of the
state. Regardless of the state organ w/c may
have been the proximate cause of such
injury.
- Narrow sense It includes only acts or
omissions of judicial authority
The Harvard Research Draft Convention
on Responsibility of States
Art. 9. A States is responsible if an
injury to an alien results from a denial of
justice. Denial of justice exists when there
is a denial, unwarranted delay or
obstruction or judicial or remedial
process, failure to provide those
guaranties which are generally considered
indispensable to the proper
administration of justice, or a manifestly
unjust judgment. An error of a national court
which does not produce manifest injustice is
not a denial of justice.
Most Latin-American States: They do
not adhere to the said view.
- Denial of justice means no more than
denial to aliens of access to courts.
This contention is wrong!
- It would mean an outright repudiation of
a minimum standard of international
justice, applicable to aliens;
- A state may not deny access to its courts
and yet deny justice; &
- Denial of justice may result from certain
acts or omissions of organs of
government other than courts.
Harvard Research Draft An erroneous or
even unjust judgment of a court will nor
constitute a denial of justice. Except in cases
where:
1. A court, having occasion to some rule of
international law, gives an incorrect
interpretation of that law; or
2. It applies a rule of municipal law which is
itself contrary to international law.
Therefore, there is no denial of justice
unless the misconduct is extremely gross.
Conditions for enforcement of claim
1. Exhaustion of remedies provided by the
local law;
2. The injury subject of the claim must have
been suffered by a national of the
claimant state.
1
st
: Exhaustion of remedies provided by
the local law
General rule: The Alien must have first
exhausted the remedies provided by
local law before the state, in which he is
a national, can have an international
claim.
Exceptions:
1. When the local law provides no
remedy for the wrong; or
2. The condition is waived, either
expressly or impliedly.
2
nd:
The injury subject of the claim must
have been suffered by a national of the
claimant state.
The International Court of Justice sees 2
bases for the rule:
1. The defendant State has broken an
obligation towards the claimant State
in respect to its nationals; and
2. Only the party to whom an
international obligation is due can
bring a claim in respect to the breach.
Exception:
- Reparation for injuries suffered in the
service of the United Nations
ICJ: it held that UN may bring an
international claim against the responsible
state for injuries suffered by UN agents in the
performance of their duties.
Attempts to limit State responsibility
Latin American States:
1. Parity of treatment between national and
alien precludes liability; and
2. Restricting the meaning of Denial of
Justice.
(there is no denial of justice where there
is access to local courts)
Example:
They make sure that they will not be held
responsible for injuries sustained by aliens
whom they enter into contracts by including
therein a calvo clause.
What is calvo clause?
- the alien waives the protection of his
State by agreeing to be considered as a
national of the State which he has
contracted.
- It is expressly stated that the alien shall
not seek foreign diplomatic intervention.
Problem:
An alien resorts to local judicial remedies
but finds a gross deficiency in administration of
the judicial process, amounting to a denial of
justice, is his home State precluded from taking
up his case, because of the Calvo clause?
Answer: No! An alien cannot waive a right that
does not belong to him but his government.
- Drago Doctrine:
a public debt cannot give rise to the
right of intervention, and much less to the
occupation of the soil of any American nation
by any European power
Case: Public debts against Vanezueal (1902);
Claimants: Great Britain, Germany, and Italy
Resolution: A compromise was found in the
Porter Convention, whereby the contracting
parties agreed not to have recourse to armed
forces for the recovery of contract debts of one
country by the government of another country
as being due to its nationals.
Judicial basis of protection: procedure
1. Diplomatic intervention as between
claimant State and the State against
whom the claim is filed, there is an
agreement to submit claims of a given
class to a claims commission or
arbitration tribunal.
2. International judicial settlement
When the delinquent State refuses
reparation for the wrong done, the
aggrieved State can exercise such
means as a necessary to enforce an
adequate reparation.
Nature and measure of damages
- Reparation it may consist of
restitution in kind, specific performance,
punishment of the guilty, or pecuniary
compensation.
Measuring Damages
- Theoretically, the measure of damages
would be the injury suffered by the
claimant State and not the injury
suffered by its own national.
- In Practice, tribunals base the amount of
reparation primarily on an estimate of
the loss caused to the injured individual.
PCIJ it is true that the damage suffered by an
individual is never identical in kind with that
which will be suffered by a State, it can only
afford a convenient scale for the calculation of
the reparation due to the State.
Punitive or Penal damages
- International tribunals award such
damages for the failure of States to
apprehend or to punish effectively
persons guilty of criminal acts against
aliens.
- The State and those acting on its behalf
may be held criminally responsible for
violations of international law.
New developments and the doctrine of State
Responsibility
Greece vs. Britain (1924)
Mavrommatis Palestine Concessions
Facts:
- A case was filed in the PCIJ by the Greek
Govt in behalf of Mavrommatis (a Greek
National) against the British Govt for
alleged refusal of Pelestine, then under the
mandate of Britain, to recognize rights
acquired by Mavrommatis under
agreements w/ the Turkish Govt concerning
concessions for public construction works in
Palestine.
- The Greek Govt assert its own rights by
cliaming an indemnity on the ground that
Mavrommatis, one of its subjects, has been
treated by Palestine or British authorities in
a manner incompatible w/ certain
international obligations w/c they were
bound to observe.
- At first the dispute was between a private
person and a State i.e. Mavrommatis and
Great Britain.
- Subsequently, the Greek government took
up the case. Thus, became a dispute
between two states.
Issue:
- WON the dispute may fall under the
jurisdiction of the Permanent Court of Justice
despite the fact that it was at first a dispute
between a private person and a State.
Held:
- Yes. Article 26 of the Palestine Mandate
requires that the dispute must be between
the Mandatory and another Member of the
League of Nations.
- The claimant State Greece, like Great Britain
belonged to the League of Nations.
- By taking up the case of one of its subjects
and by resorting to diplomatic action or
international judicial proceeding on his
behalf, a state is in reality asserting its own
rights i.e. Its right to ensure protection in
the person of its subjects.
- The fact that the dispute was at first
between the private person and a state is
irrelevant.
- Once a State has taken up a case of its
national, in the eyes of the international
tribunal the State is the sole claimant.
- The fact that Great Britain and Greece are
the opposing Parties to the dispute arising
out of the Movrommatis concession is
sufficient to make it a dispute between two
States within the meaning of Art. 26 of the
Palestine Mandate.
United States (Neer and Neer) vs Mexico
- United States for the Neers:
- Unwarranted lack of diligence or
unwarranted lack of intelligent investigation
in prosecuting the culprits
- Points to consider:
- Paul Neer was murdered in Mexico on the
evening of 16 November 1928.
- After the killing of Paul Neer had been
brought to their notice on the morning after,
the authorities addressed the matter by
conducting a proper investigation.
- turned out to be futile; unable to gather any
helpful information from the single eye witness
General Claims Commission:
- There is a long way between holding that a
more active and more efficient course of
procedure might have been pursued, on one
hand, and holding that this record presents
such lack of diligence and of intelligent
investigation as constitutes an international
delinquency, on the other hand.
- International delinquency vs an
unsatisfactory use of power included in
national sovereignty
- John Bassett Moore
- De Lapradelle and Politis
- Denial of Justice
a) The propriety of government acts should be
put to the test of international standards
b) The treatment of the alien should amount to
an outrage, to bad faith, to willful neglect of duty,
or to an insufficiency of governmental action so far
short of international standards that every
reasonable and partial man would readily
recognize its insufficiency.
- In the light of the entire record in this case,
the Commission is not prepared to hold that
the Mexican authorities have shown such
lack of intelligent investigation in
apprehending and punishing the culprits as
would render Mexico liable before this
Commission.
Mexico (Garcia and Garza) vs United States
- Mexico:
- The US is liable for a wrongful killing by one
of its officials.
- And for denial of justice
- Points to consider:
- A little girl was killed while she and her
family were crossing the river/ border to get
to the US
- purpose: to import barrels of a native
liquor called mescal
- suppositions as to atrocious acts they
might have been perpetrating were mere
inferences
- Delinquency: Crossing the river
- At a hidden point on the border
- committed during broad daylight
- The Lieutenant tried to reach them so he
wouldnt not have to fire at them.
- unable to get to them; instantaneous decision
to fire at them
- The firing took place in such a dangerous
way
- statement of officer
- The officer had be court-martialed and
ordered dismissed from the service but the
President of the United States reversed the
decision.
General Claims Commission:
- Main issue: Whether, under international
law, the American officer was entitled to
shoot in the direction of the raft in the
way he did.
- Whether there exists among civilized
nations any international standard concerning
the taking of human life.
- To justify shooting at the border:
a) the act of firing, always dangerous in
itself, should not be indulged in unless the
delinquency is sufficiently well stated
b) it should not be indulged in unless the
importance of preventing or repressing the
delinquency by firing is in reasonable
proportion to the danger arising from it to the
lives of the culprits and other persons in the
neighborhood
c) it should not be indulged in whenever
other practicable ways of preventing or
repressing the delinquency, might be available
d) it should be done with sufficient
precaution not to create unnecessary danger,
unless it be the officers intention to hit, wound,
or kill
- *** A proportion between the supposed
delinquency and the endangering of lives
is therefore not established by the
record. ***
- There should be a convincing evidence
that, put to the test of international
standards, the disapproval of the
sentence of the court-martial by the
President acting in his judicial capacity
amounted to an outrage, to bad faith, to
willful neglect of duty, or to an
insufficiency of governmental action so
far short of international standards that
every reasonable and impartial man
would readily recognize its insufficiency.
None of these insufficiencies appear from
the record.
United States ( North American Dredging Co.)
vs Mexico
- Point to consider:
- Claim was filed on behalf of the North
American Dredging Co. of Texas for the
recovery of allegedly losses and damages
resulting from a breach of contract
concluded between the company and the
Government of Mexico City.
- Mexico:
- Raised the Calvo Clause in their contract,
moving to dismiss the claim for want of
jurisdiction of the General Claims
Commission.
- The Calvo Doctrine is a foreign
policy doctrine which holds that jurisdiction
in international investment disputes lies with
the country in which the investment is
located. The Calvo Doctrine thus
proposed to prohibit diplomatic protection or
(armed) intervention before local
resources were exhausted. An investor,
under this doctrine, has no recourse but to use
the local courts, rather than those of
their home country. As a policy prescription,
the Calvo Doctrine is an expression of legal
nationalism.
- - ..under no conditions shall the
intervention of foreign diplomatic agents
be permitted in any matter related to
this contract.
General Claims Commission:
- Possible without violating any rule of
international law?
- The Calvo clause in a specific
contract is neither a clause which must be
sustained to its full length because of its
contractual nature nor can it be discretionarily
separated from the rest of the contract as if it
were just an ordinary postscript.
- ..unless!!
- The present stage of international law
imposed upon every international tribunal the
solemn duty of seeking for a proper and
adequate balance between the sovereign right
of national jurisdiction, on one hand, and the
sovereign right of national protection of citizens
on the other.
- Alien may make promise to seek redress in
the locality of the business but his the
government of his nation is not precluded from
applying international remedies for violations of
international law committed to his detriment.
- No set formula.
- Based on the merits of each case.
- Claimant signed an agreement
(promise) that he would not seek his
government to intervene on his behalf.
- Decision: The case is not within the
jurisdiction of the Commission.
US (Chapman) vs. Mexico
- FACTS:
- Chapman is a Consular officer
stationed as Consul of the US in
Puerto Mexico, Mexico.
- The American Consulate General
received a threat against the life of its
officers and offices in Mexico City
from an anonymous sender.
- Chapman requested additional
security from the Government of
Mexico.
- No appropriate action from the latter,
except a letter of instruction to the
Chief Municipal Police
- On 17 July 1927, Chapman was shot
and severely wounded.
- Hence, the US Government filed a
claim, in behalf of Chapman, against
the Government of Mexico for failure
to provide proper protection.
- ISSUE:
- Whether or not Chapman is entitled to
the claim on the ground that Mexican
authorities failed to provide the
proper protection?
- HELD:
- YES, because a Government (i.e.,
Mexican Government) is required to
take appropriate steos to prevents
injuries to aliens and to employ
prompt and effective measures to
apprehend and punish the offenders
who have committed such injuries.
US (Chattin) vs
- FACTS:
- Chattin was an employee of
Ferrocarril Sud-Pacifico de Mexico as
a conductor.
- He was charged and convicted for the
crime of embezzlement by the
Mexican Government.
- He was released from jail as a
consequence of disturbances caused
by the Madero revolution.
- US government filed a claim against
the Government of Mexico because
the arrest, trial and sentence were
illegal which tantamount to denial of
justice .
- ISSUE:
- Whether or not the Mexican
Government liable for the denial
justice committed against Chattin
even though it acted through its
judiciary? Direct responsibility or
indirect responsibility?
- HELD:
- YES, since it was an act of the
judiciary of the Mexican Government,
the distinction whether the such act
of the judiciary is an direct or indirect
responsibility of the Mexican
Government is immaterial.
- It is a matter if the greatest political
and international delicacy for one
country to disacknowledge the judicial
decision of a court of another country.
- Also, in both categories, the state
responsibility is limited to judicial acts
showing outrage bad faith, willful
neglect of duty, or manisfestly
insufficient governmental action.
EXTRADITION
A. Definition and Basis
Extradition
- defined as the surrender by one State to
another of an individual convicted or
accused of having committed a crime
within the jurisdiction of the demanding
State for trial and punishment.
2 Kinds of Fugitives:
1. Fugitive Political Offenders
2. Fugitive Criminals or Persons Accused of
Having Committed Crimes in One Country
and Having Fled to Another Country
- Normally, it is the latter kind of fugitives
that the concept of extradition usually
applies.
Extradition involves the surrender of power
of an individual within the jurisdiction of the
State of refuge, the latter is under the legal
obligation to deliver up the individual to the
demanding State.
- This applies if there is a treaty that
binds the 2 States.
In the absence of a treaty, the surrender of
a fugitive criminal may still take place, not
as a matter of legal obligation, but as a
moral obligation based on international
comity.
Therefore, a request for extradition may be
refused in the absence of a treaty
obligation.
But, if there is a treaty obligation, then it
may not be refused
2 Types of Extradition Treaties:
Classical Type
- which specifies the offences for
which extradition is provided
Modern Type
- which contains no list of offences,
but provides for extradition in all
cases where the offence is
punishable in both the demanding
and surrendering States.
B. Fundamental Principles
1st Principle A State is not under legal
obligation to surrender a fugitive from
justice in the absence of an extradition
treaty.
2nd Principle The person extradited can be
tried in the demanding State only for the
offence charged in the extradition
proceedings and for a crime mentioned in
the extradition treaty, unless the
surrendering State offers no objection.
o This is called the Principle of
Specialty
3rd Principle Religious and political
offences are not extraditable.
The difficulty in the application of this
principle consists in distinguishing
political offences from non-political
offences.
- There are instances when personal
motives colour political objectives.
- There are also offences that are at
the same time political acts and
ordinary crimes (Delits
Complexes)
4th Principle Is that the crime allegedly
committed must have been perpetrated
within the jurisdiction of the demanding
State.
Five Postulates of Extradition
Extradition is a major instrument for the
suppression of crime
The Requesting State will accord due
process to the accused
The proceedings are sui generis
Compliance should be in good faith
There is an underlying risk of flight
Procedure under PD No. 1069
A request shall be made by the Foreign
Diplomat of the requesting state or
government, which is a contracting party
Request shall accompanied by:
A copy of the decision or sentenced
imposed upon the accused; or the
criminal charge and warrant of arrest
issued by the requesting state or
government
A recital of facts for which extradition
is requested, name and identity of the
accused, his whereabouts in the
Philippines, if known, the acts or
omissions complained of, and the
time and place of commission of the
acts
The test of the applicable law and the
designation or description of the
offence
Such other documents or information
in support of the request
The Secretary of Foreign Affairs of the
Philippines shall forward the request
that meets the requirement of the
treaty or convention and this
extradition law, to the Secretary of
Justice, who, through a panel of
attorneys, shall file a petition with
RTC
Upon receipt of the petition, the
Presiding Judge of the court shall
summon the accused to appear and
answer the petition on the day and
order fixed in an order. A warrant of
arrest may be issued and served on
the accused anywhere in the
Philippines.
The hearing on the petition shall be
public, unless conducted in chamber
at the request of the accused.
Properly and legally authenticated
sworn statements shall be received
and admitted as evidence
Upon conclusion, the Court shall
render a decision granting the
extradition, and giving his reasons
therefor upon showing of the
existence of a prima facie case;
otherwise it shall dismiss the petition
pursuant to Section 10.
Within 10 days from receipt of the
decision of the court, the accused
may appeal to CTA, whose decision in
extradition cases shall be final and
immediately executory. The appeal
shall stay the execution of the
decision of RTC
After decision of the court to be final
and executory, the accused shall be
surrendered to the requesting state or
government for extradition. Under
Section 20, the requesting state may
request for provisional arrest of the
accused for a period of 20 days,
pending receipt of the request for
extradition
Concept and Process applied in Peru
"nulla extraditio sine lege
["no extradition without a law"]
Admissibility
The State has competency and
jurisdiction to try the offense;
The person has not been acquitted,
convicted or pardoned;
The prescription term has not expired
in either State concerned;
The penalty is not less than one year;
The case is not handled by an
exceptional court;
The offense is not of a military or
religious nature, or related to politics, the
press or opinion;
The case has not been preferred ex
parte, except in cases of rape;
It is not related to violation of taxation
or currency laws, unless it
constitutes an ordinary crime;
It is not related to a misdemeanor.
Documents that must accompany the
active extradition request
Extradition request document
INTERPOL report informing the judicial
authority that the defendant has been
found in a specified country.
Final decision of the judicial authority
requesting or approving the Active
Extradition request and the creation of
the extradition file.
Police certificate and complaint laid by
the Public Prosecutor.
Record of opening of the investigation.
Document testifying the defendant's
absence or fugitive status and the
respective search and arrest warrant.
Charges laid, order to stand trial, and
conviction, depending on the stage of
the proceedings.
Evidence for the prosecution and for
the defense.
Proof of personal identity showing that
the person sought is the person
convicted or wanted for trial.
Rules of domestic law and any
applicable treaties.
Report of the Supreme Penal
Prosecutor.
Decision of the Penal Chamber of the
Supreme Court, approving the
extradition.
Notice from the President of the
Supreme Court to the Minister of Justice.
Basic documents that must accompany
the passive extradition request
Copy of the conviction verdict, or the
arrest warrant issued by the
competent magistrate, with indication of
the offense and the summons or
declaration of fugitive status;
The place and the date of the offense.
Full copies of the legal text criminalizing
the offense, the applicable penalty and
applicable statute of limitations for
the offense.
Proof that the crime was committed;
Evidence submitted by the prosecution
and defense
Multilateral treatise on extradition in
force
Treaty of Montevideo on International
Penal Law - 1889.
Extradition Agreement (Bolivarian
Congress of Caracas).
Convention on Private International Law
(Bustamante Code)
Single Convention on Narcotic Drugs of
1961
Protocol of Amendment to the Single
Convention on Narcotic Drugs of 1961
Convention to prevent and punish the
acts of terrorism taking the form of
crimes
against persons and related extortion
that are of international significance.
United Nations Convention on Illicit
Traffic in Narcotic Drugs and
Psychotropic
Substances
D. Crimes Against the Law of Nations
Extradition treaty between the republic of the
Philippines and the Republic of Indonesia
Extraditable Crimes
1. Murder; parricide; infanticide; and
homicide
2. Rape, indecent assault; unlawful sexual
acts with or upon minors under the age
specified by the penal law of both
Contracting parties
3. Abduction; kidnapping
4. Mutilation; physical injuries; frustrated
murder or frustrated homicide
5. Illegal or arbitrary detention
6. Slavery; servitude
7. Robbery; theft
8. Estafa; malversation; swindling; fraud;
cheating
9. Extortion; threats; coercion
10. Bribery; corruption, graft
11. Falsification; perjury
12. Forgery; counterfeiting
13. Smuggling
14. Arson; destruction of property
15. Hijacking; piracy; mutiny
16. Crimes against the laws relating to
narcotics, dangerous or prohibited drugs or
prohibited chemicals chan
17. Crimes against the laws relating to
firearms, explosives, or incendiary devices
NATIONALITY
What is Nationality?
0 Nationality is the principal link between
individuals and the benefits of the Laws of
Nations
0 It is the bond of nationality between
the state and the individual which
alone confers upon the state the right
of diplomatic protection
0 Membership in a political community
0 Used interchangeably with citizenship
In Municipal Law
0 Citizenship and Nationality are different.
0 Citizen: one who enjoys full political
rights
0 National: includes a citizen as well
as a person who, not being a citizen,
owes permanent allegiance to the
State and is entitled to its protection
0 In public international law, the distinction is
of no importance.
ACQUISITION AND LOSS
The Hague Convention of 1930 on Conflict
of Nationality Laws
Two Important Rules:
1. It is not for international law but for the
municipal law of each State to determine
who are the nationals of a particular
state.
0 This law shall be recognized by
other States insofar as it is
consistent with international
convention, international customs,
and the principles of law generally
recognized with regard to
nationality
2. Any question as to whether a person
possesses the nationality of particular
State shall be determined in accordance
with the law of that State.
Five Modes of Acquiring Nationality
1. Birth
0 Jus sanguinis (by blood)
0 Jus soli (by place)
0 Both
2. Naturalization
0 Includes not only naturalization
proper, that is, the grant of
citizenship upon application in regular
proceedings, but also marriage,
legitimation, acquisition of domicile,
and appointment as Government
official
3. Resumption (or Repatriation)
0 Recovery of the original nationality
upon fulfillment of certain conditions
4. Subjugation
0 When a state is defeated or
conquered, all the citizens acquire the
nationality of the conquering state.
5. Cession
0 When a state has been ceded in
another state, all the people of the
territory acquire the nationality of the
state in which their territory has been
merged
Five Modes of Losing Nationality
1. Release
0 States give their citizens the right to
ask for release from their nationality.
2. Deprivation
0 some States deprive their citizens of
nationality upon entry into the
military service of a foreign power
3. Expiration
0 where a national stays abroad for a
long time and has not indicated any
desire to return, some States by
legislation decree that loss of
nationality under such circumstances
4. Renunciation
0 example: a child, upon reaching the
age of majority, renounces one
citizenship in favor of another.
0 Substitution
0 Where the former nationality is lost
ipso facto by naturalization abroad or
by marriage
STATELESS PERSONS
What is Statelessness?
0 It is the absence of a recognized link
between an individual and any state.
0 Stateless Persons - not considered as a
national by any state under the operation
of its law.
0 A Stateless Person has no citizenship or
nationality
Causes of Statelessness
0 Conflict of nationality laws by birth (jus
sanguinis) or by territory (jus soli)
0 State Succession when the state of
nationality ceased to exist
0 Renouncement of citizenship
Hague Convention
The treaty which gives rights to stateless
persons. The following are the rules on
nationality :
1. A person expatriated does not entail his
loss of nationality with that State unless
he has other nationality
2. If by law, a woman loses her nationality
by her marriage to a foreigner, it is
conditioned only when she acquired
nationality of her husband.
3. On the change of nationality of the
husband by naturalization during
marriage, the wife shall not be involved
except with her consent. Children do not
acquire nationality of the parents as a
result of naturalization of the parents.
4. Children whose birth is unknown shall
have the nationality of the country of
birth. Adoption of the child shall be
governed by the Rules on #3
5. In a State where nationality is not
conferred by the mere fact of birth in its
territory: General Rule citizenship of
the mother.
6. Where a person rendered stateless as
result of being deprived of his nationality
after entering a foreign country, the
State of origin is bound to admit him at
the request of the State in whose
territory he is if he is permanently
indigent or if he is sentenced to <1
month imprisonment
Rights of a Stateless Person
1. Freedom to practice religion
2. Access to the courts of law of the State
where they reside
3. Food/Education/Assistance accorded to
residents
4. Labor Benefits
5. Freedom of Movement
MULTIPLE NATIONALITY
What is Multiple Nationality?
0 Individuals who has two or more
Nationalities.
How can this happen?
0 Principle of Jus Soli (Right of the Soil)
0 Principle of Jus Sanguinis (Right of Blood)
0 Expatriation
0 Marriage
0 From a formal and voluntary act
Effects of Multiple Nationality
0 Two or more states demand loyalty and
allegiance from the individual.
0 Benefits from Protocol Relating to
Military Obligations in Certain Cases of
Double Nationality (more on this later)
How can this be a problem?
0 Situations may arise where both States
may enter into a delicate diplomatic
relationship. Specially if it leads to armed
conflict and ultimately war.
0 The Hague Convention on the Conflict of
Nationality Law provided some solutions.
The Hague Convention of 1930
1. A person having two or more
nationalities may be regarded as its
national by each of the States whose
nationality he possesses, and a State
may not give diplomatic protection to
one of its nationals against a State
whose nationality that person possesses.
(Nottenbohm Case)
2. If a person has more than one
nationality, he shall, with in a third State,
be treated as if he had only one; the
third State shall recognize exclusively
either the Nationality of the State in
which he is habitually and principally
resident, or the nationality of the State
with which he appears in fact to be most
closely connected. This is called the
Principle of Effective Nationality.
0 If a person, without any voluntary acts of
his own, possesses double nationality, he
may renounce one of them with the
permission of the State whose nationality
he wishes to surrender, and subject to
the laws of the State concerned, such
permission shall not be refused if that
person has his habitual residence
abroad.
Protocol Relating to Military Obligations in
Certain Cases of Double Nationality
Article 1:
0 A person possessing two or more
nationalities who habitually resides in
one of the countries whose nationality he
possesses, and who is in fact most
closely connected with that country, shall
be exempt from all military obligations in
the other country or countries.
This exemption may involve the loss of
the nationality of the other country or
countries.
0 Article 2:
0 Without prejudice to the provisions of
Article 1 of the present Protocol, if a
person possesses the nationality of two
or more States and, under the law of any
one of such States, has the right, on
attaining his majority, to renounce or
decline the nationality of that State, he
shall be exempt from military service in
such Stated during his minority.
0 Article 3.
0 A person who has lost the nationality of a
State under the law of that State and has
acquired another nationality, shall be
exempt from military obligations in the
State of which he has lost the nationality.
The Nottebohm Case 1955
FACTS
0 Frederic Nottebohm is a German citizen
0 Settled in Guatemala for 34 years
0 Applied for naturalization in Liechtenstein in
October, 1939
0 His application for naturalization was
motivated by the desire to dissociate
himself from the Government of his country
as a belligerent State to a national of a
neutral State
0 When he tried to re-enter Guatemala in
1943,he was refused entry.
0 Liechtenstein filed suit against Guatemala,
in behalf of Nottenbohm, asking for
damages and restoration of all properties
0 Liechtenstein sought judgment in the
International Court of Justice against
Guatemala for arresting, detaining, expelling
and refusing to readmit Nottebohm and for
seizing and retaining his property without
compensation
ISSUES
0 Whether the conferment of the Lichtenstein
citizenship is not contrary to international
law
0 Whether or not Lichtenstein's claim on
behalf of Nottebohm is admissible in court
HELD
0 The naturalization of Nottebohm was an act
performed by Liechtenstein in the exercise
of its domestic jurisdiction.
0 International law gives preference to the
real and effective nationality
0 Guatemala is under no obligation to
recognize a nationalitygranted by
Liechtenstein in such circumstances as in
this case
0 Judgment was for Guatemala
DOCTRINE
0 The provisions of a States municipal laws
are not necessarily conclusive to establish
its right to exercise diplomatic protection
under international law, if the bond of
nationality is not a real and effective one.
Mejoff v. Director of Prisons
FACTS
0 An alien of Russian descent
0 Brought to the Philippines from Shanghai by
the Japanese forces in 1944 (for being a
secret operative)
0 Upon liberation, he was arrested as a
Japanese spy by U. S. Army Counter
Intelligence Corps
0 Remained in detention after over two years,
not having been deported yet.
0 The Government has not found ways and
means of removing him out of the country
as no ship or country would take Mejoff.
ISSUE
0 Whether an alien who entered the country in
violation of its immigration laws may be
detained for as long as the Government is
unable to deport him
HELD
0 Aliens illegally staying in the Philippines
have no right of asylum, even if they are
stateless persons which the petitioner
claims to be
0 The protection against deprivation of liberty
without due process of law and except for
crimes committed against the laws of the
land is not limited to Philippine citizens but
extends to all residents, except enemy
aliens, regardless of nationality.
0 Mejoffs entry into the Philippines was not
unlawful
0 The Universal Declaration of Human Rights
provides that No one shall be subjected to
arbitrary arrest, detention or exile.
DOCTRINE
0 The protection against deprivation of liberty
without due process of law and except for
crimes committed against the laws of the
land is not limited to Philippine citizens but
extends to all residents, except enemy
aliens, regardless of nationality.
DIPLOMATIC INTERCOURSE
A. Establishment of Diplomatic Relations
B. Agents of Diplomatic Intercourse
C. Establishment of Resident Missions
D. Envoys and Consuls
E. Diplomatic Corps
F. Letters of Credence
G. Notification and Reception
H. Functions and Duties
I. Privileges and Immunities
J. Termination of Diplomatic Mission
Agents of diplomatic intercourse
Head of state
O Chief Organ and representative of the
state
1 Right to receive and send
diplomatic missions
1 Conclude treaties
1 Declare war
1 Make peace
As a rule diplomatic negotiations are made
by foreign offices.
Establishment of intercourse
No country can live in complete isolation.
O Establishment of diplomatic relations.
O Right of legation(not a real right but a
capacity in the absence of a treaty
obligation).
1 Right to send and receive
diplomatic missions.
1 No legal liability for refusal to
send or receive.
Diplomatic intercourse between states.
O Generally Conducted by foreign
offices.
O Unless, entered by heads of states.
Establishment of residential mission
Permanent resident missions, embassies.
O Head and subordinate.
1 Diplomatic staff
1 Administrative and technical
staff
1 Service staff
O Code of diplomatic relations, law of
nations
Receiving state
O Facilitate
O Assist missions in obtaining suitable
accommodations
O Limit the size of the mission
O Refuse to accept officials of a
particular category
Sending state
O Must have prior consent
DICKENSON v. DEL SOLAR
Suit to recover damages
Defendant, Secretary of the Peruvian
legation
O Sought declaration that he was
entitled to be indemnified by his
insurer.
Plaintiff, sustained injuries from a motorcar
accident
Mobile and general insurance
O Immune from from legal liability for
any wrongful act
O Not liable to be sued under English
court.
Diplomatic privileges does not import
immunity form legal liability, but only
exemption from local jurisdiction.
Consuls
Origin and Development of
Consular Practice
The practice of Greek city states of
appointing from among citizens of other
such states to assist and protect
travelling citizens of the appointing
States
Status of Consuls
Consuls belong to a class of State agents
distinct from that of diplomatic officers
They look mainly after the commercial
interests of their own State in the
territory of a foreign State
Consuls have a recognized public
character
Kinds and Grades
2 kinds of consuls
O Consuls of career or consules
missi
1 Members of the regular
consular service who are
sent abroad by their
governments expressly for
the purpose of performing
consular functions in the
territory of the receiving
country
O Honorary consuls or consules
electi
1 Appointed from individuals
residing in the consular
districts for which they are
designated as consuls
Heads of consular posts:
O Consuls general
O Consuls
O Vice consuls
O Consular agents
Appointment and Admission
A person becomes a consul through his
appointment by the sending State to
exercise consular functions and his to the
exercise of such functions by the
receiving State
Letter patent or lettre de provision
A consular officer is assigned to a
particular district outside of which he has
no authority to perform his functions
Consular Functions
The functions, powers and duties of
consuls are fixed by treaty, by
international usage and by the national
laws and instructions of the sending
State
One of the main functions: to promote
the commercial interests of his home
State
Consular Privileges and Immunities
Consuls as such, unless expressly
invested with diplomatic character in
addition to their ordinary functions, are
NOT entitled to diplomatic privileges and
immunities
They are entitled to certain privileges
and immunities deemed essential to the
performance of consular functions
Termination of Consular Office
Terminates upon:
his death
his recall
dismissal by his home government
notification by the receiving State
to the sending State that it has
ceased to consider him as a
member of the consular staff
withdrawal of his exequatur by the
receiving State
outbreak of war between his home
State and the receiving State
Other State Agents
Besides diplomatic and consular agents,
States send various kinds of agents
abroad
These agents do not enjoy special
privileges and immunities, although
because of their recognized public
character they should be accorded
special protection by the foreign State
Diplomatic Corps
All diplomatic envoys accredited to the
same State form a body known as the
Diplomatic Corps.
Letter of Credence
Diplomatic envoy things to bring:
1.) Diplomatic passport
2.) his instructions
3.) his letter of credence
Letter of Credence
Document by which the envoy is
accredited to the foreign state to which
he is being sent.
It designates his rank and the general
object of his mission, and asks that he be
received favorably and that full credence
be given to what he says on behalf of his
state.
Notification and reception
Must be notified to the Ministry for
Foreign Affairs of the receiving state
As soon as the diplomatic representative
arrives at his destination, he sends the
copy of his letter of credence to the
foreign office of the receiving state in
order to make known his arrival.
In the case of an ambassador or minister,
an audience with the head of state is
arranged, at which time the envoy
presents his sealed letter of credence
and is officially received in a formal
ceremony.
Functions and duties
Main functions of the diplomatic mission:
O Representing the sending state in
the receiving state
O Protecting in the receiving state
the interests of the sending state
and of its nationals, within the
limits permitted by international
law.
O Negotiating with the government
of the receiving state
O Ascertaining by all lawful means
conditions and developments in
the receiving state, and reporting
thereon to the government of the
sending state.
O Promoting friendly relations
between the sending state and the
receiving state, and developing
their economic , cultural and
scientific relations
One of the most important functions of a
diplomatic representative is to promote
the good relations between his home
state and the state to which he is
accredited.
He is forbidden, to interfere, whether by
words or by deed, with the internal
political affairs of the country of his
sojourn.
Privileges and immunities
The basis is on the necessity of
permitting free and unhampered
exercise of diplomatic functions and of
maintaining the dignity of the diplomatic
representative and the State which he
represents.
Privileges and immunities of diplomatic
representatives
1. Personal inviolability
- It is the duty of the receiving state to
afford him special protection so as to ensure his
personal safety and to safeguard him against
unlawful interference or molestation, whether
by private individuals or by public officials.
- The United Nations General Assembly
adopted a Convention on the Prevention and
Punishment of Crimes against Internationally
Protected Persons, including Diplomatic Agents.
- RA 75 --- imprisonment of not more
than three years, and a fine not exceeding two
hundred pesos. Provided that the country of the
diplomatic representative offers similar
protection.
- Such representative may be arrested
temporarily, in case of urgent danger such as
when he commits an act of violence which
makes it necessary to put him under restraint.
- He must be released and sent home I
due time.
2. Inviolability of premises and archives
- The premises occupied by a diplomatic
mission, as well as the private residence of a
diplomatic agent, are also inviolable.
- Agent of the receiving State may not
enter without the consent of the envoy.
- Except when the premises are on fire or
where there is imminent danger that the crime
of violence is about to be perpetrated on the
premises.
- Such premises cannot be entered or
searched and neither can the goods, records
and archive be detained by local authorities
even under process of law.
- Duty to protect and respect their
confidential character.
- However, it does not seem to include an
obligation to forbid the publication in the
receiving State of documents stolen from
foreign diplomatic archives.
- The service of any writs, summons,
orders or processes within the premises of the
mission or residence is prohibited.
- The receiving State is under a special duty to
protect the premises of the mission.
- The premises, their furnishings and
other property thereon and the means of
transport shall be immune from search,
requisition, attachment or execution.
- Premises is an attribute of the sending
State.
3. Right of official communication
- The right of an envoy to communicate
with his government fully and freely.
- Any interference with such right in
normal times is intolerable.
4. Exemption from local jurisdiction
- An envoy is immune from the criminal
and civil jurisdiction of the receiving State for
all acts, whether official or private.
- He cannot be arrested, prosecuted and
punished for any offense he may commit unless
his diplomatic immunity is waived.
- Guilty of a serious infraction of the laws.
- Immunity from jurisdiction, however,
does not mean exemption from the local law.
- The accurate statement is that they are
not liable to be sued, unless they submit to the
jurisdiction.
- Exemptions:
a) any real action relating to private
immovable property situated in the territory of
the receiving State, unless te envoy holds it on
behalf of the sending State for the purposes of
the mission;
b) an action relating to succesion in
which the diplomatic agent is involved as
executor, administrator, heir or legatee as a
private person and not on behalf of the sending
State;
c) an action relating to any professional
or commercial activity exercised by the
diplomatic agent in the receiving State outside
his official functions.
- Provided that they can be taken without
infringing the inviolability of the person or
residence of the envoy.
- RA 75 declares void any writ or process
for imprisonment or seizing of goods issued out
or prosecuted by any person in any court of the
Republic of the Philippines against the person
of any ambassador or public minister of any
foreign State, or any domestic servant of such.
- Persons by whom the process or writ is
obtained or prosecuted are liable.
- Condition of reciprocity.
5. Exemption from subpoena as witness
- Diplomatic representatives cannot be
compelled to testify, without the consent of
their governments, before any judicial or
administrative court in the receiving State.
- Some courts have held that where an
envoy has testified voluntarily, without the
authorization of his government is a matter
between him and his government.
6. Exemption from taxation
- Diplomatic agents are exempt from all
dues and taxes, whether personal or real,
national, regional or municipal.
- Except :
a) indirect taxes normally incorporated in
the price of goods or services;
b) dues and taxes on private immovable
property situated in the territory of the
receiving State, unless he holds it in behalf of
the sending State for the purposes of the
mission;
c) estate, succession or inheritance taxes
levied by the receiving State;
d) dues and taxes on private income
having its source in the receiving State and
capital taxes on investments in commercial
ventures in the receiving State;
e) charges levied for specific services
rendered;
f) registration, court or record fees,
mortgages dues and stamp duty, with respect
to immovable property.
7. Exemption from customs duties and
inspection
- Articles destined for the use of the
mission and intended for personal use of the
diplomatic agent and family members living
with him are exempt from customs duties.
- Articles addressed to ambassadors,
ministers and charges daffairs representing the
government of the Philippines are exempt from
customs inspection.
- While those addressed to foreign
representatives other than chiefs of mission are
subject to usual customs treatment.
8. Right of asylum
- The immunities of a diplomatic officer
do not include a general right of asylum, unless
the right is recognized by treaty or by local
usage.
- Except when there is mob violence.
- Refuge must be refuse to persons
fleeing from the pursuit of the legitimate
agents of the local government.
9. Acquisition of nationality
- The children born to him while he
possesses diplomatic status are regarded as
born in the territory of his home State.
10. Right to display flag
- The mission and its head have the right
to display the flag and emblem of the sending
State on the premises of the mission, including
the residence and on his means of transport.
Termination of a diplomatic mission
Terminates through:
a) Death of the envoy;
b) His recall by his government or his
dismissal by the receiving State;
c) A rupture of diplomatic relations or
outbreak of war
d) Upon the expiration of the period
e) A mission sent for a special purpose
comes to an end upon the
accomplishment of, or its failure to
accomplish, its object.
- In cases of recall, it may be due to his
a) resignation; b) or transfer to another post; c)
or to an unfriendly act of the receiving State.
- persona non grata
- Such request may lead to rupture of
diplomatic relations.
- In cases of dismissal, it may be due to:
a) gross misconduct dismissed by the receiving
State; b) as a result of rupture of diplomatic
relations.
- In the first, recall is first demanded. If it
is refused or not complied with promptly, the
receiving State may present him with his
passports and tell him to leave the country or
allow him to remain, but refuse further dealings
with him.
- When an envoy is recalled, the
following procedure takes place:
a) if of a rank higher than charge
daffaires, receives from the Head of his own
State a letter of recall (lettre de recreance)
which he presents to the Head of the receiving
State in solemn audience;
b) in case of charge daffaires, the same
process takes place but exclusively through the
Foreign Ministers of the countries concerned.
INTERNATIONAL HUMAN RIGHTS LAW
Development of International Human Rights
Law
In the 19
th
Century, all human rights issues
were universally regarded as within the
sphere of national jurisdiction.
Exceptions: Piracy and Slavery.
First development started from League Of
Nations in 1919 providing rights to ex-
enemy colonies. (freedom of conscience
and religion)
Part XIII of Treaty of Versailles created the
International Labour Organisation.
Impact of World war 2.
Exhaustion of local remedies rule
Permits states to solve their own internal
problems in accordance with their own
constitutional procedures before
international mechanisms may be invoked.
Exception: When such internal remedies are
non-existent or unduly and unreasonably
prolonged or unlikely to being relief.
The Universal declaration of Human Rights
Enacted in 1948 by the United Nations
Promotes universal respect for and
observance of human rights and
fundamental freedoms for all without
distinction as to race, sex, language or
religion.
Basic rights in UDHR: life, liberty, security,
equal protection, fair trial, own property,
freedom of thought religion, etc.
Not a legally binding document but a
common standard of achievement for all
peoples and nations.
Obligation of member states
Art. 56 of UDHR
- all members pledge themselves to take
joint and separate action in cooperation with
the organisation for the achievement of the
purposes set forth in art. 55
Technically not a legally enforceable
instrument, the declaration has become
binding by way of custom or general
principles of law.
PH example: Borowski vs Commissioner of
Immigration and Bureau of Prisons.
International Covenant on Civil and
Political Rights
IMPORTANCE:
0 several articles in the Covenant provide that
the rights being dealt with shall not be
subject to any restrictions except those
which are prescribed by law and are
necessary to protect national security,
public order, or the rights and freedoms of
others
0 Certain rights, therefore, may never be
suspended or limited, even in emergency
situations
o rights to life, to freedom from torture,
to freedom from enslavement or
servitude, to protection from
imprisonment for debt, to freedom
from retroactive penal laws, to
recognition as a person before the
law, and to freedom of thought,
conscience and religion
0 It allows a State to limit or suspend the
enjoyment of certain rights in cases of
officially proclaimed public emergencies
which threaten the life of the nation.
0 Such limitations or suspensions are
permitted only "to the extent strictly
required by the exigencies of the situation"
and may never involve discrimination solely
on the ground of race, colour, sex,
language, religion or social origin (art. 4).
0 The limitations or suspensions must also be
reported to the United Nations
PROTOCOLS
FIRST OPTIONAL PROTOCOL
The first Optional Protocol to the
International Covenant on Civil and
Political Rights entered into force
simultaneously with the Covenant,
having received the minimum 10
ratifications or accessions required.
As of 30 September 1995, 85 States
parties to the Covenant had also become
parties to the first Optional Protocol
It is procedural and provides a
mechanism for the Committee to receive
and consider individual complaints
alleging a violation of the Covenant, that
is to say of the substantive rights
contained in Part III, if appropriate in
conjunction with the provisions of Parts I
and II
SECOND OPTIONAL PROTOCOL
The Second Optional Protocol to the
International Covenant on Civil and
Political Rights, aiming at the abolition of
the death penalty, entered into force on
11 July 1991, having received the
minimum 10 ratifications or accessions
required
As of 30 September 1995, the Protocol
had been ratified or acceded toby 28
States
aims at the abolition of the death
penalty, was adopted by the General
Assembly by its resolution 44/128 of 15
December 198
How does a State agree to be bound by the
terms of a treaty such as the Covenant and its
Optional Protocols?
A State can become party to a treaty in
one of two main ways.
Firstly, it can sign the treaty, following
which, according to the rules of
international law, the State may not act
contrary to the objects and purposes of
the treaty. Signature is followed by
ratification. In depositing an instrument
of ratification, a State formally indicates
its
intent to be bound by the treaty.
Alternatively, a State can accede to a
treaty. Accession, whereby a State that
has not signed a treaty agrees to be
bound by it, is equivalent to ratification.
The treaty in question typically provides
a short period of time after the date of
ratification or accession before the State
is actually bound by the terms of the
treaty. In the case of the Covenant, this
is three months
Structure and Contents of the Covenant
The Covenant is divided into six major Parts.
Parts I and II set out a series of
provisions generally applicable to all
the rights described in the Covenant.
Part III is the backbone of the
Covenant, elaborating the substantive
individual rights.
The final Parts deal with the
establishment of the Human Rights
Committee, the Committees
monitoring functions and a variety of
technical matters. The Parts will now
be described in turn.
Can the rights that have been described in Part
III be limited or restricted?
A number of the rights described in Part III
are expressly set out as being subject to
restrictions or limitations, commonly where
provided by law and necessary for specific
enumerated purposes.
Articles 17, 18, 19, 21, 22 and 25 expressly
permit some form of restriction or limitation.
If a State party chooses to limit or restrict
one of these rights within the limits
prescribed, this is PERMISSIBLE and does
not amount to a violation of the right in
question
One method by which rights may be
restricted is by reservation.
A reservation is a formal declaration
lodged by a State party at the time it
becomes party to a treaty that it declines to
apply one or more provisions, either in
whole or in part, in its jurisdiction.
Can the Covenant be rejected or denounced by
a State that no longer wishes to be bound by it?
the Covenant do not provide for
denunciation of the treaty allowing a State
party to withdraw from the treaty regime.
In these circumstances, the Committee has
taken the view that in the light of the
particular character of human rights treaties
such as the Covenant, which extend basic
rights and freedoms to persons within a
State partys jurisdiction, these rights and
freedoms may not be withdrawn once
confirmed.
International Covenant on Civil and Political
Rights
It protects the:
right to life (art.6)
no one is to be subjected to torture or to
cruel, inhuman or degrading treatment
or punishment (art. 7);
that no one is to be held in slavery; that
slavery and the slave-trade are to be
prohibited;
that no one is to be held in servitude or
required to perform forced or compulsory
labour (art. 8);
that no one is to be subjected to
arbitrary arrest or detention (art. 9);
that all persons deprived of their liberty
are to be treated with humanity (art. 10);
and that no one is to be imprisoned
merely on the ground of inability to fulfill
a contractual obligation (art. 11)
freedom of movement and freedom to
choose a residence (art. 12)
limitations to be placed on the expulsion
of aliens lawfully in the territory of a
State party (art. 13)
It makes provision for the equality of all
persons before the courts and tribunals
and for guarantees in criminal and
civil proceedings (art. 14).
It prohibits retroactive criminal
legislation (art. 15);
lays down the right of everyone to
recognition everywhere as a person
before the law (art. 16);
calls for the prohibition of arbitrary or
unlawful interference with an individual's
privacy, family, home or correspondence,
and of unlawful attacks on his honour
and reputation (art. 17)
International Covenant on Civil and
Political Rights
protection of the rights to freedom of
thought, conscience and religion (art. 18)
and to freedom of opinion and
expression (art. 19).
It calls for the prohibition by law of any
propaganda for war and of any advocacy
of national, racial or religious hatred that
constitutes incitement to discrimination,
hostility or violence (art. 20).
It recognizes the right of peaceful
assembly (art. 21)
the right to freedom of association (art.
22)
It also recognizes the right of men and
women of marriageable age to marry
and to found a family, and the principle
of equality of rights and responsibilities
of spouses as to marriage, during
marriage and at its dissolution (art. 23).
It lays down measures to protect the
rights of children (art. 24),
and recognizes the right of every citizen
to take part in the conduct of public
affairs, to vote and to be elected, and to
have access, on general terms of
equality, to public service in his country
(art. 25).
provides that all persons are equal
before the law and are entitled to equal
protection of the law (art. 26)
It also calls for protection of the rights of
ethnic, religious and linguistic minorities
in the territories of States parties (art.
27)
Article 28 provides for the establishment
of a Human Rights Committee
responsible for supervising
implementation of the rights set out in
the Covenant.
International Covenant on Economic, Social &
Cultural Rights
Adopted in 1966, and entered into force in
1976
An evolving programme is envisaged
depending upon the goodwill and resources
of states rather than an immediate binding
legal obligation with regard to rights in
question
Rights that are aimed to be protected:
Right to self-determination
Right to non-discrimination
Equal right of men and women
Right to work
Right to form and join trade unions
Right to social security
Protection and assistance of the family
Right to an adequate standard of living
Right to health
Right to education
Right to cultural freedom
Challenges to Implementation
Committee established lacked or at the
very least only had relatively weak
means of implementation
Vagueness of principles contained
therein
Lack of legal basis (texts and
jurisprudence)
Velazquez Rodriguez vs Honduras
Issue: Whether the State of Honduras can be
held liable for the acts against Velazquez
Rodriguez constituting violations of the
American Convention on Human Rights
Underlying principle: Liability of a State for
Human Rights Violations
Facts as proven by testimonies:
a practice of disappearance carried
out or tolerated by Honduran officials
existed between 1981 and 1984
during the period, 100-150
persons disappeared and many
were never heard of again
the disappearances followed a
similar pattern
it was public and notorious
knowledge in Honduras that
the kidnappings were carried
out by military personnel or the
police, or persons acting under
their orders
the disappearances were
carried out in a systematic
manner
several heavily-armed men in civilian
clothes driving a white Ford without
license plates kidnapped Manfredo
Velasquez from a parking lot
nearly seven years later, he remains
disappeared (presumption of death)
persons connected with the Armed
Forces or under its direction carried
out that kidnapping
the said kidnapping falls within the
systematic practice of disappearances
the Government of Honduras failed to
guarantee the human rights affected
by that practice
remedies are not adequate in
cases where it is the State that
is accused of causing the
appearances, and ineffective in
that they are powerless to
compel the authorities and it
presents a danger to those who
invoke it, if not impartially
applied, and that they are not
capable of producing the result
for which it was designed
Velazquez Rodriguez vs
Honduras
The Phenomenon of Disappearances
means of creating a general state of
anguish, insecurity and fear
complex form of human rights
violation that must be understood and
confronted in an integral fashion
international practice and doctrine
have categorized disappearances as a
crime against humanity
The Inter-American Commission on Human
Rights asked the Court to find that Honduras
has violated the rights guaranteed to
Manfredo Velasquez by Articles 4 (right to
life), 5 (right to personal integrity), and 7
(right to personal liberty) of the American
Convention of Human Rights
Article 1(1) of the Convention states that:
the state parties must respect the
rights and freedoms recognized in the
convention and ensure to all persons
subject to their jurisdiction the free
and full exercise of those rights and
freedoms, without discrimination
Human Rights
higher values that are not derived
from the fact that an individual is a
national of a certain state, but are
based upon attributes of his human
personality
the exercise of public authority has
certain limits which derive from the
fact that human rights are inherent
attributes of human dignity and are
superior to the power of the State
the protection of human rights must
necessarily comprise the concept of
restriction of the exercise of State
power
The obligation of a State to ensure the free
and full exercise of human rights is not
fulfilled by the existence of a legal system
designed to make it possible to comply with
this obligation it is also required that this
system be effective
Ruling: The State of Honduras is responsible
for the involuntary disappearance of Angel
Manfredo Velasquez Rodriguez
Violations of Article 7 (right to
personal liberty; through illegal
detention), Article 5 (right to personal
integrity; through the showing of how
previous detainees were treated while
in detention), and Article 4 (right to
life; the disappearance and lack of
knowledge creates the presumption
of death, along with the
circumstances of the case
Velazquez Rodriguez vs
Honduras
Whether the violation is the result of a
States failure to fulfill its duty to respect
and guarantee those rights
State has legal duty to take
reasonable steps to prevent human
rights violations and to use the means
at its disposal to carry out a serious
investigation of violations committed
within its jurisdiction
Velazquez Rodriguez vs Honduras
Evidence shows a complete inability of the
procedures of the State of Honduras to carry
out an investigation and of the fulfillment of
its duties to pay compensation and punish
those responsible
Soering vs United Kingdon
Whether exposure to the death row
phenomenon would involve treatment or
punishment incompatible with Article 3 of
the European Convention on Human Rights
Mr. Jens Soering is a German national
in prison in England pending
extradition to the United States of
America to face charges of murder in
the Commonwealth of Virginia
United Kingdom requested that the death
penalty will not be carried out in the event
that Soering is convicted since the death
penalty has been abolished in Great Britain
The Federal Republic of Germany also
requested his extradition
It is alleged that to surrender him to the
authorities of the United States would give
rise to a breach by the United Kingdom of
Article 3 of the convention
The extradition procedure has been
completed, the Secretary of State having
signed a warrant ordering his surrender to
the US authorities
Whether the extradition from the UK to the
USA and the risk of serving on death row
would constitute a violation of Article 3
Article 3
No one shall be subject to torture or
to inhumane or degrading treatment
Article 3 cannot be interpreted as
generally prohibiting the death
penalty because to do so would be a
contradiction to the exception in
Article 2 (right to life) which is the
execution of a sentence of a court
following a conviction
That does not mean however that
circumstances relating to a death sentence
can never give rise to a breach.
The manner in which it was imposed or
executed, the personal circumstances of the
condemned person and a disproportionality
to the gravity of the crime committed, as
well as the conditions of detention awaiting
execution are some factors to consider
Death Row Phenomenon
emotional distress felt by prisoners on
death row
the anguish and mounting tension of
living in the ever-present shadow of
death
the possibility of being subjected to
violence and sexual abuse
the age and the mental state of the
accused should likewise be
considered as contributory factors
Considering all the factors, Soerings
extradition to the US would expose him to a
real risk of treatment going beyond the
threshold set by Article 3, and if
implemented, would constitute a breach
Hernandez vs Philippines
Whether the Philippines should be held
liable for violations of the International
Covenant on Civil and Political Rights
Hernandez vs Philippines
Victim is Ms. Benjaline Hernandez
Deputy Sec-Gen of KARAPATAN
(Southern Mindanao Region)
VP of the College Editor's Guild of the
Philippines
conducting research on the impact of
the peace process on the local
community in Arakan
She was shot together other members
of KARAPATAN by alleged
paramilitaries
Author of the complaint is the mother of
Benjaline Hernandez, and is represented by
a member of KARAPATAN.
They filed a complaint against the security
forces for violations of the Comprehensive
Agreement to Respect Human Rights and
International Humanitarian Law (as signed
by the Philippine Government and the
National Democratic Front as part of the
peace negotiations)
Alleged Violations of the International
Covenant on Civil and Political Rights:
Article 2 (1) and (3): Obligation of the
State to respect and ensure the rights
recognized in the Covenant to all
individuals within its territory and
subject to its jursdiction without
discrimination; and to ensure that
those aggrieved shall have an
effective remedy
Article 6 (1): That no one shall be
arbitrarily deprived of his life; every
human being has the inherent right to
life and this right shall be protected
by law
Article 7: no one shall be subjected to
torture or to cruel, inhuman or
degrading treatment or punishment
Article 9 (1): right to liberty and
security of person
Article 10 (1): all persons deprived of
their liberty shall be treated with
humanity
Article 17: no one shall be subjected
to arbitrary or unlawful interference
with his privacy, family, home or
correspondence , nor to unlawful acts
to his honor and reputation
Article 26: the right of all persons to
be equal before the law
Ruling:
It was held that the State party is
responsible for the death of Ms. Benjaline
Hernandez, and that there was a violation of
Article 6 (1) of the Covenant.
It was undisputed that the victim died as a
consequence of her being shot by
paramilitaries. While the victim's mother is
still availing domestic remedies (as is
argued by the State party), over eight years
have elapsed since the killing took place and
such killing has not yet been brought to
justice.
Hernandez vs Philippines
The information by the State party does not
indicate how the initiatives taken by State
will contribute to the efficient and effective
finalization of the case; nor does it explain
the lack of significant progress of the case in
the courts.
The State may not avoid its responsibilities
under the Covenant by arguing that
domestic courts are taking care of the
matter.
INTERNATIONAL HUMANITARIAN LAW
- Also called the Law of Armed Conflict or the
Laws of War
- This law regulates the conduct of warfare.
- Laws of War are to be found in the four (4)
1949 Geneva Conventions and their two (2)
1977 Additional Protocols.
- In addition, the 1907 Hague Conventions
lays down the important rules on the
conduct of hostilities, notably on military
occupation.
- There are also several treaties that prohibit
or restrict the use of specific weapons
- ex. Anti-personnel mines, exploding
bullets, cluster bombs, white
phosphorous
- The basis of International Humanitarian Law
is the Principle of Distinction, which
applies in all armed conflicts.
- The Principle of Distinction obliges
parties to a conflict (i.e. warring parties,
whether states or non-state armed groups)
to target only military objectives and not the
civilian population or individual civilians or
civilian objects (ex. Homes, schools,
hospitals, etc.)
- Failing to make this distinction in military
operations is tantamount to an
indiscriminate attack and is a war crime.
- The rules regarding International
Humanitarian Law are generally considered
to be customary international law, which
binds every party to a conflict (government
or non-state armed group) whether or not
the state on whose territory a conflict occurs
has ratified the relevant treaty.
1 Categories of Armed Conflicts
1) International Armed Conflicts
2) Internal or Non-International Armed
Conflicts
3) War of National Liberation
There is a distinction between International
Armed Conflicts and Non-International Armed
Conflicts.
- The legal regulation of International
Armed Conflicts is more detailed and the
protection afforded by the law greater than is
the case with Non-International Armed
Conflicts.
Ex.
The obligation on parties to an
International Armed Conflict to accord captured
combatants the status of POWs with the
associated rights.

However, there is no such right to POW
status in the law governing Non-International
Armed Conflicts; but captured fighters are still
entitled to legal protection.
1 1) International Armed Conflicts
An International Armed Conflict usually
refers to an inter-state conflict.

It involves a single incident involving the
armed forces of two (2) states or maybe more.

It can also include an event where a
state intervenes with its armed forces on the
side of the rebels fighting against government
forces in a non-international armed conflict.
1 Examples of International Armed
Conflicts
a) World War I
b) World War II
c) Korean War
Conduct of Warfare
1. Distinction between combatants and non-
combatants
2. Who constitute combatants
3. Restrictions on weapons
4. Limitation on traget of attact
5. Specially forbidden methods
6. Prisoners of War
Principles of International Humanitarian Law
International humanitarian law aims to
limit the suffering caused by war by
forcing parties engaged in a conflict to:
engage in limited methods and
means of warfare;
differentiate between civilian
population and combatants, and
work to spare civilian population
and property;
abstain from harming or killing an
adversary who surrenders or who
can no longer take part in the
fighting;
abstain from physically or
mentally torturing or performing
cruel punishments on adversaries.
2 Strands of IHL
Hague Law
concerns the conduct of hostilities
Hague Peace Conference in 1899
right of belligerents to adopt
means of injuring the enemy is not
unlimited
Geneva Law
4 Geneva Conventions of 1949
concerned with the treatment of
victims of war
Geneva Conventions
First Geneva Convention
Amelioration of the Condition of the
Wounded and Sick in Armed Forces in
the Field, 1864
Second Geneva Convention
Amelioration of the Condition of
Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea,
1906
Third Geneva Convention
Treatment of Prisoners of War, 1929
Fourth Geneva Convention
Protection of Civilian Persons in Time
of War, 1949
The whole set is referred to as the "Geneva
Conventions of 1949" or simply the "Geneva
Conventions".
Protocols
Protocol I (1977)
Protection of Victims of International
Armed Conflicts
Protocol II (1977)
Protection of Victims of Non-
International Armed Conflicts
Protocol III (2005)
Adoption of an Additional Distinctive
Emblem.
NEUTRALITY
Definition
O An attitude of impartiality adopted by third
States towards belligerents and recognized
by the belligerents, such attitude creating
rights and duties between the impartial
States and the belligerents.
Evolution of the concept of neutrality
O 16
th
century neutrality as a concept of
international law was unknown.
O 17
th
century writers such as Grotius tried to
develop the notion of neutrality.
O 18
th
century precise expression of the
concept of neutrality was found when
Bynkershoek and Vattel expounded the
doctrine of neutrality in their writings.
O 19
th
century doctrine of neutrality was
developed much more extensively.
Kinds of neutrality
O Perpetual or permanent neutrality
O Armed neutrality
O Perfect of absolute neutrality
O Qualified neutrality
O Perpetual or permanent neutrality
The neutrality of State which are
neutralized by special treaties, such
as Switzerland.
O Armed neutrality
Takes place when a neutral State
takes military measures for the
purpose of defending its neutrality
against possible or probable violation
by either of the belligerents.
O Perfect of absolute neutrality
The neutral State does not in any way
favor either belligerent, directly or
indirectly.
O Qualified neutrality
The neutrality of a State which
remains neutral on the whole, but
actively or passively, directly or
indirectly, gives some kind of
assistance to one of the belligerents
in consequence of an obligation
assumed under a treaty concluded
before the war, and not for that war
exclusively.
Effects of united nations charter
O Normally a State has the right to remain
neutral in the event of the outbreak of war
between other States. This right, however,
has been substantially affected by the
United Nations Charter, at least with respect
to Member States.
O While it cannot be said that the status of
neutrality has been entirely abolished under
the Charter, the legal position of the
neutrality has undergone a vital change.
O It is no longer possible for a Member of the
United Nations to maintain, in general, a
status of absolute neutrality in a war in
which the Security Council has found a
particular State guilty of a breach of the
peace or act of aggression and has called
for the application of enforcement measures
against such State.
Violations of neutrality
O Unneutral service
O Contrabands
Unneutral service
O Employed by writers to denote carriage
by neutral vessels of certain persons and
dispatches for the enemy, as
distinguished from carriage of
contrabands.
O The London Declaration of 1909
extended unneutral service to include
not only carriage of persons or
dispatches for the enemy, but also the
taking of direct part in the hostilities and
doing a number of other acts for the
enemy.
O A neutral vessel engaged in unneutral
service may be captured by a belligerent
and treated, in general, in the same way
as neutral vessels captured for carriage
of contraband.
Contrabands
O Contrabands of war, is a term used to
designate those goods which are
susceptible of use in war and declared to
be contraband by a belligerent, and
which are found by that belligerent on its
way to assist the war operations or war
effort of the enemy.
O To be deemed contraband, goods must
be (1) susceptible of use in war, and (2)
destined for the use of a belligerent in its
war operations or war effort.
Kinds of contraband
O Absolute contraband
Goods which by their very nature are
intended to be used in war. Example:
arms and ammunition
O Conditional contraband
Goods which by their nature are not
destined exclusively for use in war,
but which are nevertheless of great
value to a belligerent in the
prosecution of the war. These goods
are susceptible of military use, as well
as of peaceful uses. Example:
foodstuff, clothing, fuel, horses, and
the like
Goods which are not susceptible of
use in war and those which, although
susceptible of military use, are
exempt from treatment as
contraband on grounds of humanity,
fall into a class of free goods. These
goods may not be declared
contraband, whether their destination
be hostile or not.
Hostile destination
O Besides being of such nature as to be
susceptible for use in war, it is necessary
that the goods are destined for use by
the enemy in order that they may be
considered as contraband.
O Determination of hostile destination
would differ according to whether goods
in question are absolute or conditional
contraband.
O In case of absolute contraband it is
necessary only to prove that the goods
had as their destination any point within
enemy or enemy-controlled territory
O In the case of conditional contraband, it
is required that the goods be destined to
the authorities or armed forces of the
enemy.
O In both, the destination as of moment of
seizure is critical.
Doctrine of continuous voyage
O In general, goods which are destined to a
neutral port cannot be regarded as
contraband of war. This rule has been
greatly modified by the development of
the doctrine of continuous voyage.
O In order to obtain immunity during part
of its voyage to an enemy port, a vessel
carrying contraband may resort to the
use of breaking its journey at an
intermediate neutral port. The
contraband cargo would be ostentsibly
destined to such neutral port, and for the
sake of appearance, the vessel may
unload and reload the same cargo at that
port, but in any case the ship would then
proceed with the cargo to the enemy
port. The doctrine of continuous voyage
prescribes that such vessel and its cargo
are to be deemed to have an enemy
destination from the time she left her
home port.
O The doctrine of continuous transport
would apply to contraband unloaded at a
neutral port and then carried further to
the enemy port or destination by another
vessel or vehicle.
Consequences of contraband carriage
O Vessels carrying contraband cargo are
liable to seizure and confiscation. As to
the fate of the vessel seized while
carrying both contraband and innocent
cargo, practice has varied.
O Under British and American practice, the
penalty for carriage of contraband would
be
o confiscation of the contraband
cargo;
o innocent cargo belonging to the
same owner would also be subject
to confiscation under the doctrine
of infection;
o innocent cargo belonging to
another owner would be released,
but without compensation for
delay and detention in the Prize
Court.
O A vessel can only be seized while still in
delicto, that is to say, while still on her
way with contraband on board.
O But under British and American practice,
a vessel may also be seized on her
return voyage after having delivered her
contraband cargo, if on her outward
voyage she had carried simulated or
false paper.
Duties of neutrals and belligerents
O The status of neutrality creates correlative
rights and duties on both neutrals and
belligerents.
O These rights and duties are correlative in
the sense that a right of a neutral gives rise
to a corresponding duty on the part of the
belligerents, and a right of a belligerent
corresponds to a duty of the neutrals.
O Classification
Abstention
Prevention
Acquiescence
Duties of neutrals and belligerents
Abstention
Neutral State
O Requires that it should not give
assistance, direct or indirect, to either
belligerent in his war efforts or military
operations.
Belligerents
O Involves refraining from warlike acts on
neutral territory or using such territory as
a base for hostile operations and from
interfering with the legitimate
intercourse of neutrals with the enemy.
Duties of neutrals and belligerents
Prevention
Neutral State
O Places the neutral State under obligation
to prevent its territory from becoming a
base for hostile operations by one
belligerent against the other.
Belligerents
O Requires a belligerent to prevent the ill-
treatment of neutral subjects or injury to
neutral property on enemy territory
occupied by it.
Duties of neutrals and belligerents
Acquiescence
Neutral State
O Requires a neutral to submit to acts of
belligerents with respect to the
commerce of its nationals if such acts
are warranted under the law of nations.
Belligerents
O Requires belligerents to acquiesce in
activities of neutral States which are
sanctioned by international law or usage,
such as interment of the members of a
belligerent armed forces taking refuge in
neutral territory, or the granting of
asylum to hostile warships under certain
conditions.
Duties of neutrals and belligerents
Specific
O Passage of troops and war materials
O Passage of belligerent warship
O Prohibition of warlike activities in neutral
territory
O Neutral asylum to land and naval forces
of belligerent
O Furnishing troops, warships and war
materials
O Construction or use by belligerents of
wireless stations on neutral territory
O Loans and subsidies to belligerents
Passage of troops and war materials
O Under the Hague Convention No. 5 of
1907, passage of belligerent troops and
of convoy, either of munitions of war or
of supplies across neutral territory, is
forbidden and the neutral State has a
duty to prevent such passage.
O A neutral may, however, authorize the
passage of the sick and wounded of a
belligerent.
O A neutral is not obliged to prohibit
passage through its territory of persons
who intend to offer their services to one
of the belligerents, provided that they
cross the frontier individually and not as
a body.
Passage of belligerent warship
O A neutral State is not required to forbid,
although it may do so, the passage of
belligerent men-of-war through the
maritime belt forming part of its
territorial waters.
O The nature and duration of such passage
are subject to the overriding principle
that neutral territory must not be used as
a base for warlike operations by either
belligerent.
O The rule regarding passage through the
maritime belt applies to passage through
straits which do not connect two open
seas.
O Neutral States are forbidden to permit
the passage of belligerent warships upon
its national rivers or canals.
O However, with respect to canals which
have become international waterways,
such as the Suez Canal and the Panama
Canal, belligerents may claim for their
warships a right of passage where the
riparian States are neutral.
Prohibition of warlike activities in neutral
territory
O A belligerent cannot use neutral territory
to commit hostile acts against the
enemy.
O Hague Convention No. V declares that
neutral territory is inviolable and lays
down the duty of netural States to punish
any violations of neutrality committed on
its territory.
O The Hague Convention No. XIII provides
that belligerents are forbidden to use
neutral ports and waters as a base of
naval operations against their
adversaries
O A neutral may allow belligerent warships
to carry out in its ports or roadstead only
such repairs as are absolutely necessary
to render them seaworthy, but not
repairs which would add in any way to
their fighting force.
O Duties of neutrals and belligerents
Neutral asylum to land and naval forces of
belligerent
O As regards asylum to land forces, it is
essential to distinguish between
prisoners of war and fugitive soldiers.
O Prisoners of war become free ipso facto if
they escape into neutral territory or are
brought into neutral territory by enemy
troops who themselves take refuge
there. The neutral State shall leave such
prisoners at liberty, but if it allows them
to remain in its territory, it may assign
them a place of residence so as to
prevent them from rejoining their forces.
Neutral asylum to land and naval forces of
belligerent
O Fugitive soldiers may try to seek refuge
in neutral territory, or as it sometimes
happens large bodies of troops try to
cross neutral frontiers in order to avoid
capture. The neutral state is not obliged
to grant them asylum, although it is not
forbidden to do so. If the neutral State
grants such soldier asylum, they mu be
disarmed and measures should be taken
to prevent them from rejoining their
forces. It may keep these soldiers in
camps or even confine them in fortresses
or in localities assigned for the purpose;
if possible they should be kept at some
distance from the theater of war.
O A neutral State is not required to grant
asylum to belligerent men-of-war.
O Hence, it may prohibit all belligerent
warships from entering any of its ports,
whether these vessels desire entry in
order to evade capture or for any other
reason.
O An exception is accorded by international
usage, however, to vessels in distress.
Such vessels are allowed to enter even
those neutral ports which have been
declared closed to belligerent men-of-
war.
Furnishing troops, warships and war materials
O A neutral State would violate its
neutrality if it furnishes troops or men-of-
war to either of the belligerents or to
both of them.
O Moreover, a neutral is forbidden to
permit the formation of corps of
combatants or the opening of recruiting
offices on its territory.
Construction or use by belligerents of wireless
stations on neutral territory
O The Hague Convention No. V forbids
belligerents
(1) from installing on neutral territory a
wireless station or any apparatus intended to
serve as a means of communication with
belligerent forces on land or at sea
(2) from making use, for a purpose
exclusively military, of any installations of this
character established by them before the war
on neutral territory and not previously open for
forwarding public communications
O Apart from these duties, there is no duty
on the part of the neutral state to forbid
or restrict the belligerent use of
telegraph or telephone cables or of
wireless apparatus, whether publicly or
privately owned.
O If any restrictions are laid down however,
they should be applied to the
belligerents impartially.
Loans and subsidies to belligerents
O Neutral States are forbidden to grant
loans or subsides to a belligerent.
O But a neutral State need not prevent
subscriptions within its territory to loans
for belligerents.
O Likewise, a neutral is not obliged to
prevent its subjects from granting
subsides to belligerents, although it may
not allow on its territory a public appeal
for subscriptions to such subsidies,
except those for charitable purposes,
such as money raised for wounded
prisoners and the like.
Rights of neutrals and belligerents
O Right of angary
O Blockade
O Right of visitation
Right of angary
O Right of belligerent to requisition and
use, subject to certain condition, or even
to destroy in case of necessity, neutral
property found in its territory
O All kinds of neutral property, whether it
consists of vessel or other means of
transport, or arms, provisions or other
personal property, may be the object of
the right of angary, provided that it is
serviceable to military needs.
O Condition
O Urgency
O There must be an urgent
need for the property in
connection with the war
O Territoriality
O The property is within the
territory or jurisdiction of
the belligerent
O Compensation
O Compensation must be paid
to its owner
Blockade
O An operation of war carried out by
belligerent sea-craft or other means, for
the purpose of preventing ingress and
egress of vessels or aircraft of all nations
to and from the enemy coast or any part
thereof.
O Rights of neutrals and belligerents
Blockade
Requisites for a blockade to be legally
operative
O The blockade must be impartially applied
O It must, as a rule, not extend beyond the
ports and coast belonging to or occupied
by the enemy
O It must be established by the blockading
State or by its naval authorities in its
name
O It must be effective
O A blockade to be effective requires a
force sufficient to render the ingress or
egress dangerous, or in other words,
save under peculiar circumstances,
sufficient to render the capture of
vessels attempting to go or come out
most probable.
O It is a hostile operation by which the
vessels and aircraft of one belligerent
prevent all other vessels, including those
of neutral states, from entering or
leaving the ports or coasts of the other
belligerents.
O The purpose being to shut off the place
from international commerce and
communication with other states.
Breach of blockade and its consequences
O A breach of blockade occurs when a
vessel with knowledge of the existence
of the blockade enters or leaves the
blockaded port or coast through the
blockaded or forbidden approach.
O A mere attempt to violate the blockade is
treated in the same manner as a
consummated breach.
Navicert
O The purpose is to ease the inconvenience
which would be caused to neutrals
whereby both ship and cargo might be
issued credentials. These documents
could be obtained from appropriate
British or Allied officers in British or Allied
ports and possession of these documents
permitted neutral trader to clear himself
in advance and thus avoid having to call
at or risk being taken to a British port for
search.
O Rights of neutrals and belligerents
Blockade
Kinds of navicert
O Cargo navicert would certify goods as not
being destined for the enemy
O Certificate of origin and interest would
certify goods as not of enemy origin or
ownership
O Ship navicert would certify a particular
voyage of a particular ship as innocent
Right of visitation
O The right of belligerents to visit and, if be
needed, to search neutral merchantmen
for the purpose of ascertaining whether
they really belong to the merchant
marine of neutral States, and if this is
found to be the case, whether they are
attempting to break blockade, carrying
contraband or rendering unneutral
service.
O Rights of neutrals and belligerents
Right of visitation
O The right of visit and search may be
exercised only by men-of-war and
military aircraft of belligerents. Only
private or merchant vessels may be
subjected to visit and search.
Exemption:
O Right of convoy vessels under
convoy, it has been claimed that
belligerents should waive the right of
visit and search over such vessels if
the commander of the convoy
declared that the vessels carried no
contraband. This has not received
general recognition, for instance, the
British Government.
Procedure
O A warship wishing to visit a neutral
vessel must stop her by hailing or by
firing one or two blank cartridges, or if
necessary, by firing across the bow of
the vessel. Force is not to be used to
compel a neutral vessel to stop unless
she refuses to do so when signaled.
O After having stopped, the vessel is
visited by one or two officers sent on a
boat from the warship, or the master of
the vessel may be summoned with the
warship, or the master of the vessel may
be summoned with the ships papers on
board the warship.
O If everything is found in order after an
examination of the ships papers and
there exists no ground for suspicion of
fraud, the vessel is allowed to continue
her course after a memorandum of the
visit has been entered on the vessels
log-book.
O If the inspection of the ships papers
reveals that she is carrying contraband,
rendering unneutral service or otherwise
liable to capture, she is seized at once.
O But even if everything should appear to
be in order, if circumstances exist which
would give good cause to suspect the
vessel, she may be searched at sea or
brought to a port for search.
O Rights of neutrals and belligerents
Right of visitation
Capture
O Capture may take place if the vessel or
the cargo, or both, are liable for
confiscation, or if grave suspicion
requires further search which can only be
undertaken in a port.
O Capture is affected by placing a prize
crew on the neutral vessel or, if this
should prove impracticable, by ordering
her to lower her flag and steer according
to the captors orders.
O Captured vessels may not, as a rule, be
sunk, burned or otherwise destroyed.
O The captured vessel and cargo must be
brought before a Prize Court for trial.
O It is for the Prize Court to determine
whether the vessel or cargo, or both,
should be confiscated.
O Prize Court is municipal institutions and
is established by municipal law.
However, they are bound to apply the
rules of international law, in the absence
of special national legislation or
regulations.
O It has been the practice of belligerents,
upon the outbreak of war, to draw up a
body of prize rules which their Prize
Courts have to apply. States are bound,
however, to enact only such statutes and
regulations for their Prize Courts as are
in conformity with international law.
INTERNATIONAL ENVIRONMENTAL LAW
1 Main Principles: (i.e. fundamental doctrines
on which others are based, or rules of
conduct); and
1 Concepts (i.e. central unifying ideas or
themes)
SUSTAINABLE DEVELOPMENT
Embodied in the Rio Conventions
1 CBD: Conservation of Biodiversity and
the Sustainable Use of its Components
1 UNFCC: Climate Change should be
coordinated with social and economic
development in an integrated manner
1 UNCCD: Promotes a new approach within
the framework of sustainable
development
1 Sustainable development: Requires
complementary
o Development of trade law and
environmental law;
o Environmental law and human
rights law; and
o Development of liability and
compensation regimes to meet the
requirements of environmental
law.
1 Rio Principles 4, 25: Protection of the
environment an integral part of achieving
peace and development
INTER-GENERATIONAL AND INTRA-
GENERATIONAL EQUITY
1 Fundamental underpinning of sustainable
development
development that meets the needs of the
present without compromising the ability of
future generations to meet their own
needs
UNFCC, Article 3.(i) refers to inter-
generational equity
CBC , Preamble
UNCCD
Stockholm Convention on Persistent Organic
Pollutants
COMMON CONCERN OF MANKIND
[RESPONSIBILITY FOR TRANSBOUNDARY
HARM], AND COMMON BUT DIFFERENTIAL
RESPONSIBILITIES
Common Concern:
Reflects humanitys increasing awareness of
inter-dependence and the global nature of
environmental problems
Basic Assumptions:
1 States should not cause harm with
regard to issues of common concern
1 Shared responsibility for addressing
those concerns
Contrast this with the concept of State
Sovereignty notion of permanent
sovereignty over natural resources [U.N.
Resolution between 1952 and 1973]
EXTENSION OF THE CONCEPT OF STATE
SOVEREIGNTY
1 Sovereignty right of states to exploit
resources exists alongside the responsibility
to ensure that activities within their
jurisdiction or control do not cause
damage to the environment of other
states or areas beyond the limits of
national jurisdiction
Principle 21 of Stockholm Declaration,
Rio Declaration, Principle 2
CBD, Article 3
COMMON BUT DIFFERENTIAL
RESPONSIBILITES OF STATES
1 Recognizes the need for shared obligations
to address common concerns
1 In accordance with ones capacity and
capabilities
1 States assume differentiated responsibility
in addressing environmental issue - and
extension of the principle of sovereignty
UNFCC, Articles 3, 4, 12
CBD, Article 20 (4)
Rio Declaration, Principle 7
UNCCD, Articles 5 and 6
ACCESS AND BENEFIT SHARING
REGARDING NATURAL RESOURCES
Places Emphasis
1 The unique relationship between
indigenous peoples and some local
communities with natural resources
Rio Principle 22: Highlights
the vital role of indigenous people
et al in environmental
management
CBD: Preambular paragraph 12,
Article 8 (j)
Contracting Parties shall
subject to its national
legislation, respect, preserve
and maintain knowledge,
innovation and practices of
indigenous communities
embodying traditional lifestyles
and promote their wider
application with the approval
and involvement of the holder of
such knowledge, innovations and
practices and encourage the
equitable sharing of benefits
arising from the utilization of such
knowledge and practices
Right of Prior Informed Consent (PIC)
Free, Prior and Informed Consent (FPIC)
Indigenous and Tribal People Convent

PRECAUTION PRINCIPLE OR
(PRECAUTIONARY APPROACH)
1 Essential to protecting the environment,
including human health
1 Controversial: disagreement of its precise
meaning and Its legal status
Rio Declaration, Principle 15 [first global
codification of the precautionary approach]
CBD; Preambular paragraph
where there is a threat of significant
reduction or lost of biodiversity, lack of full
scientific uncertainty should not be used as a
reason or minimize such a treat
UNFCC, Article 3 (3)
Biosafety Protocol , Article 1, 10, 11
Fish Stock Agreement, Articles 5, 6
1995 U.N. Agreement for the
Implementation of the Provision for UNCLOS,
Relating to the Conservation and
Management of Straddling Fish Stocks and
Highly Migratory Fish Species Article 5.
TRANSPARENCY, PUBLIC PARTICIPATION
AND ACCESS TO INFORMATION AND
REMEDIES
1 Transparency and access to information
important to public participation
Right to know what decisions are
being contemplated, the factual basis
proposed and accomplished
governmental action, etc.
Right to appropriate, comprehensible
and timely information
Public participation is essential to
good governance responsive,
transparent and accountability
1 Empowerment: access to effective judicial
and administrative proceedings
Rio Declaration, Principle 10
UNFCC, Article 4
UNCCD, Article 3
CBD , Articles 13, 14
POLLUTER PAYS PRINCIPLE (PPP)
1 Environmental costs of economic activities,
including the costs of preventing harm,
should be internalize rather than imposing
upon society at large
1 Liability can be seen as a mechanism
implementing the PPP. The concept has
evolve to embrace liability
Rio Declaration, Principle 16
POP Convention, Preamble
International Civil Liability [Liability of
private individuals for environmental damage]
International Convention on Civil
Liability for Oil Pollution Damage,
1969 amended in 1976 and 1992
[Regime to guarantee payment of
compensation by ship owners for
pollution damage]
Convention for the Establishment of
an International Fund for the
Compensation of Oil Pollution, 1971
Convention on Liability and
Compensation from Damage in
Connection with the Carriage of
Hazardous and Noxious Substances
by Sea, 1996 I
Convention on Civil Liability for
Bunker Oil Pollution Damage, 2001
International Convention on Oil
Pollution Preparedness, Response and
Cooperation, Preamble
Basel Protocol on Liability and
Compensation from Transboundary
Movement of Hazardous Waste and
their Disposal, 1999
PREVENTION
1 Overarching aim that gives rise to a
multitude of legal mechanisms [prior
assessment of environmental harm,
licensing instruments, emission limits,
environmental impact assessment etc.]
TRADE RELATED MEASURES
1 Prohibitions and/or bans of import and/or
export of products (CITES, Article III) waste;
or controlled substances (Montreal Protocol,
Article 4).
1 Control systems which range from export
permits(CITES Article IV); quotas (CITES,
Conf. 12.8, COP 13); licensing mechanisms
(Montreal Protocol, Article 4B); Prior inform
consent procedure (Basel, Article ), to
discouraging of export of technology for the
production of ozone depleting substance
(ODS) (Montreal Protocol, Article 4).
1 Notification procedures: These are
commonly used and usually involved the
establishing of one or more competent
authority with responsibility for regulating
the import and export of the products,
waste and or controlled substance in
question.
1 Technical standards and regulations
including labelling systems (CITIES
Resolution Conf 11.16) registration systems
for processing and repackaging (CITIES
Resolution Conf. 12.7, COP 13; measures in
accordance with international standards
such as Sanitary and Phytosanitary
Measures (MOP XIV,2004, Decision XIV.II).
1 Economic instruments including the use of
economic incentives, subsidies etc. The use
of economic incentives is not commonly
used.