Public International Law Conspectus

Unofficial Quick Reference Conspectus on Public International Law
Earl Louie M. Masacayan, Section 3AA (2010-2011); UST Faculty of Civil Law
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I. Nature of International law
aggrandizement. Unlike ordinary customary law,
1. Is International law a law? which has traditionally required consent and allows
the alteration of its obligations between states
In the ultimate analysis, although the final enforcer through treaties, peremptory norms cannot be
is power, fundamentally, there is a general respect violated by any state "through international treaties
for law because of the possible consequences of or local or special customs or even general
defiance either to oneself or the larger society. customary rules not endowed with the same
normative force". Under the Vienna Convention on
2. Bases of international law the Law of Treaties, any treaty that conflicts with a
peremptory norm is void.[4] The treaty allows for the
The basis for the authority of international law is emergence of new peremptory norms, but does not
the same as the basis for early laws of every specify any peremptory norms. It does mention the
character, namely, the general consent of those to prohibition on the threat of use of force and on the
be bound thereby, strengthened by custom and use of coercion to conclude an agreement:
continued acquiescence. There is no common "A treaty is void if, at the time of its
superior among nations to promulgate principles of conclusion, it conflicts with a peremptory
international law, and on the other hand, no single norm of general international law. For the
nation can introduce a new principle into this purposes of the present Convention, a
system. Cornelius van Bynkershoek asserted that peremptory norm of general international
the bases of international law were customs and law is a norm accepted and recognized by
treaties commonly consented to by various states, the international community of states as a
while John Jacob Moser emphasized the importance whole as a norm from which no derogation
of state practice in international law. The positivism is permitted and which can be modified
school narrowed the range of international practice only by a subsequent norm of general
that might qualify as law, international law having the same character
favoring rationality over morality and ethics. The
1815 Congress of Vienna marked the formal 4. Erga Omnes (in relation to everyone)
recognition of the political and international legal In international law it has been used as a legal term
system based on the conditions of Europe. describing obligations owed by states towards the
community of states as a whole. An erga
3. Jus Cogens omnes obligation exists because of the universal
and undeniable interest in the perpetuation of
Jus Cogens is a fundamental principle critical rights (and the prevention of their breach).
of international law which is accepted by the Consequently, any state has the right to complain of
international community of states as a norm from a breach. Examples of erga omnes norms
which no derogation is ever permitted. "Latin include piracy, genocide, slavery, and racial
meaning "compelling law." This "higher law" may discrimination.
not be violated by any country. For example,
genocide or slave trade may be considered to go 5. Opinio Juris (Opinion of law)
against jus cogens. There is no clear agreement
regarding precisely which norms are jus cogens nor In international law, opinio juris is the subjective
how a norm reaches that status, but it is generally element which is used to judge whether the
accepted that jus cogens includes the prohibition practice of a state is due to a belief that it is legally
ofgenocide, maritime piracy, slaving in general (to obliged to do a particular act.[1] It can sometimes be
include slavery as well as the slave trade), torture, difficult to establish opinio juris, but where there is
and wars of aggression and territorial consistent practice over a length of time, the need
for opinio juris is lessened. Where there is more
Note: This Document does not ensure correct answers. Use at your own risk.
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sporadic state practice, the presence of opinio 9. Monist vs. Dualist
juris becomes more important. In addition, the
existence of custom in general need not be Monists assume that the internal and international
worldwide, but can also be restrained to the region. legal systems form a unity. Both national legal rules
Customary international law has been deemed a and international rules that a state has accepted,
source of international law under Article 38(1)(b) of for example by way of a treaty, determine whether
the Statute of the International Court of Justice. actions are legal or illegal. [1] In most monist states,
Although the ICJ has frequently referred to opinio a distinction between international law in the form
juris as being an equal footing with state of treaties, and other international law, e.g. jus
practice, the role of the psychological element in cogens is made. International law does not need to
the creation of customary law is uncertain... be translated into national law. The act of ratifying
the international law immediately incorporates the
law into national law. International law can be
6. Sources of international law directly applied by a national judge, and can be
 Formal – e.g. Legislations directly invoked by citizens, just as if it were
national law. A judge can declare a national rule
 Material – e.g. Treaties
invalid if it contradicts international rules because,
in some states, the latter have priority. In other
7. Soft law vs. Hard law
states, like in Germany, treaties have the same
effect as legislation, and by the principle of lex
Soft law means commitments made by negotiating
posterior, only take precedence over national
parties that are not legally binding. Hard law means
legislation enacted prior to their ratification. In its
binding laws. To constitute law, a rule, instrument
most pure form, monism dictates that national law
or decision must be authoritative and prescriptive.
that contradicts international law is null and void,
even if it predates international law, and even if it is
In international law, hard law includes self-
the constitution. From a human rights point of view,
executing treaties or international agreements, as
for example, this has some advantages. Suppose a
well as customary laws. These instruments result in
country has accepted a human rights treaty -
legally enforceable commitments for countries
the International Covenant on Civil and Political
(states) and other international subjects.
Rights for instance - but some of its national laws
limit the freedom of the press. A citizen of that
8. Private international law vs. Public
country, who is being prosecuted by his state for
international law
violating this national law, can invoke the human
rights treaty in a national courtroom and can ask
Public international law, which governs the
the judge to apply this treaty and to decide that the
relationship between provinces and international
national law is invalid. He or she does not have to
entities, either as an individual or as a group. It
wait for national law that translates international
includes the following specific legal field such as
law. His or her government can, after all, be
the treaty law, law of sea, international criminal
negligent or even unwilling to translate. The treaty
law and the international humanitarian law.
was perhaps only accepted for political reasons, in
order to please donor-countries for example.
Private international law, or conflict of laws, which Dualists emphasize the difference between national
addresses the questions of (1) in which legal and international law, and require the translation of
jurisdiction may a case be heard; and (2) the law the latter into the former. Without this translation,
concerning which jurisdiction(s) apply to the issues international law does not exist as law.
in the case. International law has to be national law as well, or it
is no law at all. If a state accepts a treaty but does
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not adapt its national law in order to conform to the obligations under the treaty. The only exception to
treaty or does not create a national law explicitly this rule is provided by Article 46 of the Vienna
incorporating the treaty, then it violates Convention, where a state's expression of consent
international law. But one cannot claim that the to be bound by a treaty was a manifest violation of
treaty has become part of national law. Citizens a "rule of its internal law of fundamental
cannot rely on it and judges cannot apply it. importance
National laws that contradict it remain in force.
According to dualists, national judges never apply 12. Calvo and Drago doctrine
international law, only international law that has
been translated into national law. The supremacy of The Drago Doctrine was announced in 1902 by
international law is a rule in dualist systems as it is the Argentine Minister of Foreign Affairs Luis María
in monist systems. If international law is not directly Drago. Extending the Monroe Doctrine, it set forth
applicable, as is the case in dualist systems, then it the policy that no foreign power, including
must be translated into national law, and existing the United States, could use force against
national law that contradicts international law must an American nation to collect debt. It was
be "translated away". It must be modified or supplanted in 1904 by the Roosevelt Corollary. It
eliminated in order to conform to international law. grew from the ideas expressed by Carlos
Again, from a human rights point of view, if a Calvo in Derecho internacional teórico y práctico de
human rights treaty is accepted for purely political Europa y América, commonly known as the Calvo
reasons, and states do not intend to fully translate it Doctrine. The Calvo Doctrine proposed to prohibit
into national law or to take a monist view on diplomatic intervention before local resources were
international law, then the implementation of the exhausted. The Drago Doctrine itself was a response
treaty is very uncertain. to the actions of Britain, Germany, and Italy, who
had blockaded and shelled ports in response
10. Doctrine of Transformation vs. Doctrine of to Venezuela's massive debt, acquired under
Incorporation president Cipriano Castro. A modified version
by Horace Porter was adopted at the Hague in 1907,
Doctrine of Transformation is the adding that arbitration and litigation should always
Legal principle that the provisions of international be used first.
law are enforceable in a jurisdictions if they are
adopted through The Calvo Doctrine is a foreign policy doctrine which
customary use, court decisions (precedence), holds that jurisdiction in
or legislation. international investment disputes lies with the
country in which the investment is located. The
Doctrine of Incorporation is the Legal principle that, Calvo Doctrine thus proposed to prohibit diplomatic
in general, the provisions of international law are protection or (armed) intervention before local
enforceable in a jurisdiction so far as they resources were exhausted. An investor, under this
are consistent with the provisions of doctrine, has no recourse but to use the
its domestic law. local courts, rather than those of their home
country. The principle, named after Carlos Calvo,
11. Municipal law vs. international law; what shall an Argentine jurist, has been applied
prevail? throughout Latin America and other areas of the
world. The doctrine arose from Calvos's ideas,
Article 27 of the Vienna Convention on the Law of expressed in his Derecho internacional teórico y
Treaties provides that, where a treaty conflicts with práctico de Europa y América (Paris, 1868; greatly
a state's municipal law (including the state's expanded in subsequent editions, which were
constitution), the state is still obliged to meet its published in French). Calvo justified his doctrine as
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necessary to prevent the abuse of the jurisdiction of II. Subjects of International law
weak nations by more powerful nations. It has since
been incorporated as a part of several Latin 1. Elements of states
American constitutions, as well as many
other treaties, statutes, and contracts. The doctrine  people
is used chiefly in concession contracts,  land
the clause attempting to give local courts final  government
jurisdiction and to obviate any appeal to diplomatic  sovereignty
intervention.
2. Is recognition an element of state? 2 theories
13. Doctrine of Equality of states
 Constitutive theory – recognition constitutes a
It says that one state cannot assert jurisdiction over state & it confers legal personality on the entity
another in violation of the maxim par in parem non  Declaratory theory – recognition is merely
habet imperium (an equal has no power over an regulatory & being a state depends upon
equal). possession of required elements. (favored
authoritatively)
14. Doctrine of non-intervention
3. Tobar/Wilson, Stimpson and Estrada Doctrine
The principle of non-intervention involves the right
of every sovereign State to conduct its affairs TOBAR / WILSON DOCTRINE : Precludes recognition
without outside interference. A prohibited of any government established by revolutionary
interference must accordingly be one bearing on means until constitutional reorganization by free
matters in which each State is permitted, by the election of representatives.The doctrine was first
principle of State sovereignty, to decide freely. The expressed in a treaty concluded in 1907 by Central
element of coercion, which defines, and indeed American republics at the suggestion of Foreign
forms the very essence of prohibited intervention, is Minister Tobar of Ecuador and was reiterated by
particularly obvious in the case of an intervention President Woodrow Wilson of the United States in a
which uses force, either in the direct from of public statement made 1913. Example: Coup d'etat
military action, or in the indirect form of support to during Marcos Regime constituting internal
subversive or terrorist armed activities within violence,revolution,civil war
another State. These are therefore wrongful in the
light of both the principle of non-use of force, and Stimson doctrine - No recognition of a govt
that of intervention. established through external aggression. Example :
Members of the League of Nations not to recognize
15. Self determination any situation, treaty or agreement which may be
brought about by means of contrary to the
Self-determination is the free choice of one’s own
Convention of the League of Nations or to Pact of
acts without external compulsion. In politics it is
Paris.
seen as the freedom of the people of a given
territory or national grouping to determine their
Estrada Doctrine- Since recognition has been
own political status and how they will be governed
construed as approval (and non-
without undue influence from any other country.
recognition,disapproval) of a govt established
There are conflicting definitions and legal criteria
through political upheaval, a state may not issue a
for determining which groups may legitimately
declaration giving recognition to such govt, but
claim the right to self-determination.
merely accept whatever govt is in effective control
without raising the issue of recognition. Dealing or
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not dealing with the govt is not a judgement on the possideatis, meaning "as you possessed, you shall
legitimacy of the said govt. possess henceforth". This principle enables a
belligerent party to claim territory that it has
4. Is Holy See a state? acquired by war. The term has historically been
used to legally formalize territorial conquests, such
The Lateran Treaty in 1929, which brought the city- as the annexation ofAlsace-Lorraine by the German
state into existence, spoke of it as a new creation Empire in 1871.
(Preamble and Article III), not as a vestige of the The principle was affirmed by the International
much larger Papal States (756-1870) that had Court of Justice in the 1986 Case Burkina-Faso v
previously encompassed central Italy. Most of this Mali:
territory was absorbed into the Kingdom of Italy in [Uti possidetis] is a general principle, which
1860, and the final portion, namely the city of Rome is logically connected with the phenomenon
with a small area close to it, ten years later, in 1870. of obtaining independence, wherever it
occurs. Its obvious purpose is to prevent the
5. Sui generis entities independence and stability of new states
being endangered by fratricidal struggles
It’s literally meaning of its own kind/genus or provoked by the changing of frontiers
unique in its characteristics. following the withdrawal of the
administering power.
Taiwan, classified by most commentators as an
“unrecognized state” or an “entity Sui generis”, has 9. Sovereign immunity
been excluded from most of the major international
organizations. Sovereign immunity, or crown immunity, is a type
of immunity that in common law jurisdictions traces
The legal status of the Holy See has been described its origins from early English law. Generally speaking
as a sui generis entity possessing a international it is the doctrine that the sovereign or state cannot
personality. commit a legal wrong and is immune from civil
suit or criminal prosecution; hence the saying, "the
Principle of succession of states/governments king (or queen) can do no wrong". In many cases,
states have waived this immunity to allow for suits;
6. State succession in some cases, an individual may technically appear
as defendant on the state's behalf. Sovereign
State succession is defined as change or transfer of immunity is available to countries in international
sovereignty over a territory. court but if they are acting more as a contracting
body (example: making agreements in regards to
7. Belligerency extracting oil and selling it), then sovereign
immunity may not be available to them. Under
It is the state of being at war or being engaged in a international law, and subject to some conditions,
warlike conflict. countries are immune from legal proceedings in
another state.
8. Uti Possidetis
Uti possidetis (Latin for "as you possess") is a
10. Act of state doctrine
principle in international law that territory and
other property remains with its possessor at the The Act of State Doctrine says that a nation
end of a conflict, unless provided for bytreaty. is sovereign within its own borders, and its domestic
Originating in Roman law, the phrase is derived actions may not be questioned in the courts of
from the Latin expression uti possidetis, ita another nation. The doctrine is not required
by international law, but it is a principle recognized
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and adhered to by United States federal courts. Its to invalidate a treaty or agreement between states
aim is not to protect other nations' sovereignty by to the extent of the inconsistency with any such
intervention from the U.S but rather to protect the principles or norms. A treaty is null and void if it is in
US Executive's prerogatives in foreign affairs from violation of a peremptory norm. These norms,
being frustrated by a decision issuing from U.S. unlike other principles of customary law, are
courts. The Act of State Doctrine enters recognized as permitting no violations and so
consideration most often in cases where a foreign cannot be altered through treaty obligations. These
sovereign has expropriated the property of a U.S. are limited to such universally accepted prohibitions
national located in that foreign territory (e.g. as those against genocide, slavery, torture, and
through nationalization). Rather than pursuing piracy, meaning that no state can legally assume an
recourse through the courts, United States obligation to commit or permit such acts.
nationals are to take their claims against foreign
sovereign governments to the Executive so that the 3. Process of treaty making
government can either espouse the claims of all U.S.
nationals as a group or seek recourse through  Negotiation
diplomatic channels. The United States employs the  Signature of the agreed text
Act of State Doctrine more broadly and with more  Consent to be bound
frequency than other countries.  Ratification or accession made by treaty-making
organs of states concerned
III. The Law of Treaties  Exchange or deposit of the instruments of
ratification or accession
1. Treaty vs. Executive Agreement
4. Essential requisites of a valid treaty
The Constitution specifically grants the president
the power to broker treaties. These agreements are  Capacity of parties
like contracts. After the president brokers the  Competence of particular organs concluding the
treaty, the Senate must ratify the treaty by a two- treaty
thirds majority. Treaties carry over to succeeding  Reality of Consent
presidents. Executive agreements are the second  Legality of Object
tool of foreign policy used by the president to form
agreements with foreign powers. Unlike treaties,
5. Legal effects of reservations and of objections
executive agreements are less formal, compel but
to reservations
do not bind the president to take actions and do not
bind succeeding presidents to follow the
A reservation established with regard to another
agreement. Succeeding presidents must renegotiate
party in accordance with articles 19, 20 and 23:
such agreements.
a. Modifies for the reserving State in its relations
with that other party the provisions of the treaty to
2. Peremptory norm
which the reservation relates to the extent of the
reservation; and Modifies those provisions to the
That body of peremptory principles or norms from
same extent for that other party in its relations with
which no derogation is permitted; those norms
the reserving State. The reservation does not
recognized by the international community as a
modify the provisions of the treaty for the other
whole as being fundamental to the maintenance of
parties to the treaty inter se. When a State
an international legal order. It is the elementary
objecting to a reservation has not opposed the
rules that concern the safeguarding of peace and
entry into force of the treaty between itself and the
notably those that prohibit recourse to force or the
reserving State, the provisions to which the
threat of force. Jus cogens may, therefore, operate
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reservation relates do not apply as between the  Parties to apparently unrelated treaties may
two States to the extent of the reservation. also be linked by the most-favored nation
clause
6. Protocol de cloture
9. Effect of non-ratification of treaty
A final act, sometimes called protocol de clôture, is
an instrument which records the winding up of the Section 4., Article XVIII of the Constitution provides
proceedings of a diplomatic conference and usually All existing treaties or international agreements
includes a reproduction of the texts of treaties, which have not been ratified shall not be renewed
conventions, recommendations and other acts or extended without the concurrence of at least
agreed upon and signed by the plenipotentiaries two-thirds of all the Members of the Senate.
attending the conference.”[54] It is not the treaty
itself. It is rather a summary of the proceedings of a 10. Principle of maximum effectiveness
protracted conference which may have taken place
over several years. The Vienna Convention states that treaties are to be
interpreted “in good faith” according to the
7. When does a treaty take effect? “ordinary meaning given to the terms of the treaty
in their context and in the light of its object and
Treaties may be seen as 'self-executing', in that purpose.” International legal experts also often
merely becoming a party puts the treaty and all of invoke the 'principle of maximum effectiveness,'
its obligations in action. Other treaties may be non- which interprets treaty language as having the
self-executing and require 'implementing fullest force and effect possible to establish
legislation'—a change in the domestic law of a state obligations between the parties.
party that will direct or enable it to fulfil treaty
obligations. An example of a treaty requiring such 11. Pacta sunt servanda
legislation would be one mandating local
prosecution by a party for particular crimes. With reference to international agreements,
The division between the two is often not clear and "every treaty in force is binding upon the parties to
is often politicized in disagreements within a it and must be performed by them in good faith."
government over a treaty, since a non-self- Pacta sunt servanda is based on good faith. This
executing treaty cannot be acted on without the entitles states to require that obligations be
proper change in domestic law. If a treaty requires respected and to rely upon the obligations being
implementing legislation, a state may be in default respected. This good faith basis of treaties implies
of its obligations by the failure of its legislature to that a party to the treaty cannot invoke provisions
pass the necessary domestic laws. of its municipal (domestic) law as justification for a
failure to perform. The only limit to pacta sunt
8. Instances when a non signatory may be bound servanda are the peremptory norms of general
by a treaty international law, called jus cogens (compelling
law). The legal principle clausula rebus sic stantibus,
 Mere formal expression of customary part ofcustomary international law, also allows for
international law treaty obligations to be unfulfilled due to a
 UN shall ensure that states which are not compelling change in circumstances.
Members of the United Nations act in
accordance with these Principles so far as may
be necessary for the maintenance of
international peace and security.
 Expressly extend its benefits to non signatories
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12. clausula rebus sic stantibus and perhaps wrongfully suspends or terminates its
own obligations due to an alleged breach itself runs
the risk of being held liable for breach. Additionally,
In public international law, clausula rebus sic parties may choose to overlook treaty breaches
stantibus (Latin for "things thus standing") is while still maintaining their own obligations towards
the legal doctrine allowing for treaties to become the party in breach. Treaties sometimes include
inapplicable because of a fundamental change of provisions for self-termination, meaning that the
circumstances. It is essentially an "escape clause" treaty is automatically terminated if certain defined
that makes an exception to the general rule conditions are met. Some treaties are intended by
of pacta sunt servanda (promises must be kept). the parties to be only temporarily binding and are
Because the doctrine poses a risk to the security of set to expire on a given date. Other treaties may
treaties as its scope is relatively unconfined, it self-terminate if the treaty is meant to exist only
requires strict regulations as to the conditions in under certain conditions. A party may claim that a
which it may be invoked. The doctrine is part treaty should be terminated, even absent an
of customary international law, but is also provided express provision, if there has been a fundamental
for in the 1969 Vienna Convention on the Law of change in circumstances. Such a change is sufficient
Treaties under Article 62 (Fundamental Change of if unforeseen, if it undermined the “essential basis”
Circumstance), although the doctrine is never of consent by a party, if it radically transforms the
mentioned by name. Article 62 provides the only extent of obligations between the parties, and if the
two justifications of the invocation of rebus sic obligations are still to be performed. A party cannot
stantibus: first, that the circumstances existing at base this claim on change brought about by its own
the time of the conclusion of the treaty were indeed breach of the treaty. This claim also cannot be used
objectively essential to the obligations of treaty to invalidate treaties that established or redrew
(sub-paragraph A) and the instance wherein the political boundaries.
change of circumstances has had a radical effect on
the obligations of the treaty (sub-paragraph B). If 14. Invalidity of treaties
the parties to a treaty had contemplated for the
occurrence of the changed circumstance the  Provisions of internal law regarding competence
doctrine does not apply and the provision remains to conclude treaties
in effect. Clausula rebus sic stantibusonly relates to  Specific restrictions on authority to express the
changed circumstances that were never consent of a State
contemplated by the parties.  Error
 Fraud
13. Breach of treaty  Corruption of a representative of a State
 Coercion of a representative of a State
If a party has materially violated or breached its  Coercion of a State by the threat or use of force
treaty obligations, the other parties may invoke this  Treaties conflicting with a peremptory norm of
breach as grounds for temporarily suspending their general international law "jus cogens"
obligations to that party under the treaty. A
material breach may also be invoked as grounds for 15. The termination of a treaty or the withdrawal
permanently terminating the treaty itself. A treaty of a party may take place:
breach does not automatically suspend or
terminate treaty relations, however. The issue must  In conformity with the provisions of the treaty;
be presented to an international tribunal or arbiter or
(usually specified in the treaty itself) to legally  At any time by consent of all the parties after
establish that a sufficiently serious breach has in consultation with the other contracting States.
fact occurred. Otherwise, a party that prematurely
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relinquishment of the right to the islands without
IV. Jurisdiction of States any special beneficiary. Therefore, argue the
Philippines, the islands became res nullius and
1. Modes of acquiring territory available for annexation. Philippine businessman
Tomas Cloma did exactly that in 1956 and while the
 by accretion Philippines never officially supported Cloma’s claim,
 by cession upon transference of the islands’ sovereignty from
 by conquest Cloma to the Philippines, the Philippines used the
 by discovery same sovereignty argument as Cloma did. The
 by treaty Philippine claim to Kalayaan on geographical bases
can be summarized using the assertion that
2. Discovery and Occupation Kalayaan is distinct from other island groups in the
South China Sea because: It is a generally accepted
‘Occupation’ is the intentional acquisition by a State practice in oceanography to refer to a chain of
of sovereignty over a territory which is at the time islands through the name of the biggest island in
not under the sovereignty of another State (terra the group or through the use of a collective name.
nullius). There are two basic requirements: (1) The Note that Spratly (island) has an area of only 13
territory in question must be terra nullius; (2) The hectares compared to the 22 hectare area of the
occupation must be ‘effective’ in the sense that Pag-asa Island. Distance-wise, Spratly Island is some
there must be an intention to occupy (animus 210nm off Pag-asa Islands. This further stresses the
occupandi), followed by the actual exercise of State argument that they are not part of the same island
functions over the territory (corpus occupandi). chain. The Paracels being much further (34.5nm
northwest of Pag-asa Island) is definitely a different
3. Doctrine of effective occupation group of islands. A second argument used by the
Philippines regarding their geographical claim over
Occupation to be valid must be ‘effective’. The the Spratly’s is that all the islands claimed by the
requirements of ‘effective occupation’ have become Philippines lie within their archipelagic baselines,
increasingly strict in international law. Mere the only claimant who can make such a statement.
‘discovery’ gave a State an ‘inchoate title’, that is, The 1982 United Nations Convention on the Law of
an option to occupy the territory within a the Sea (UNCLOS) stated that a coastal state could
reasonable time, during which time other States claim two hundred nautical miles of jurisdiction
were not allowed to occupy the territory. According beyond its land boundaries. It is perhaps telling that
to the present law, there are two elements of while the Philippines is a signatory to UNCLOS, the
effective occupation: (1) The intention and will to PRC and Vietnam are not. The Philippines also
act as sovereign (animus); and (2) The peaceful and argue, under Law of the Sea provisions, that the PRC
continuous display of State authority (factum). cannot extend its baseline claims to the Spratly’s
because the PRC is not an archipelagic state.
4. Basis of the claim for Kalayaan Island Whether this argument (or any other used by the
Philippines) would hold up in court is debatable but
The Philippines base their claims of sovereignty over possibly moot, as the PRC and Vietnam seem
the Spratly’s on the issues of res nullius and unwilling to legally substantiate their claims and
geography. The Philippines contend Kalayaan was have rejected Philippine challenges to take the
res nullius as there was no effective sovereignty dispute to the World Maritime Tribunal in Hamburg.
over the islands until the 1930s when France and
then Japan acquired the islands. When Japan
renounced their sovereignty over the islands in the
San Francisco Peace Treaty in 1951, there was a 5. Archipelago Doctrine
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The archipelago doctrine defines and elucidates the
archipelago as a body of water studded with islands 8. Innocent passage
and the outermost portion of the archipelago are
connected with straight baselines and consider all The right of all ships to engage in continuous and
waters covered therein as internal waters thereof. expeditious surface passage through the territorial
sea and archipelagic waters of foreign coastal states
6. Thalweg Doctrine in a manner not prejudicial to its peace, good order,
or security. Passage includes stopping and
The thalweg principle is the principle which defines anchoring, but only if incidental to ordinary
the boundary between two states separated by a navigation or necessary by force majeure or
watercourse when and if those two states have distress, or for the purpose of rendering assistance
agreed to use the thalweg definition. Various states to persons, ships, or aircraft in danger or distress.
have also defined their watercourse international
boundaries by a median line, left bank, right bank, 9. Five freedoms on states aerial domain
etc. The precise drawing of river boundaries has
been important on countless occasions; notable  freedom to fly across the territory without
examples include the Shatt al-Arab known as landing
Arvand Rud in Iran between Iraq and Iran,  freedom to land for nontraffic purposes
the Danube in central Europe,  freedom to put down passengers, mails, and
theKasikili/Sedudu Island dispute cargo on the territory of the state whose the
between Namibia and Botswana, settled by nationality of the aircraft possesses.
the International Court of Justice in 1999 external  freedom to take on passengers, mail, and cargo
link, and the 2004 dispute settlement under the destined for territory of any other contracting
UN Law of the Sea concerning the offshore state
boundary between Guyana and Suriname, in which  freedom to put down passengers, mail and
the thalweg of the Courantyne River played a role in cargo coming from any such territory.
the ruling.
10. Principle of State Continuity
7. Territorial sea vs. High sea
The doctrine by which a state’s identity as an
In International Law the term territorial international legal person persists notwithstanding
waters refers to that part of the ocean immediately unconstitutional or even violent changes in its
adjacent to the shores of a state and subject to its government. As a result, a state generally continues
territorial jurisdiction. The state possesses both the to owe and accrue international legal obligations
jurisdictional right to regulate, police, and notwithstanding such changes.
adjudicate the territorial waters and the proprietary
right to control and exploit natural resources in 11. Recognition of States
those waters and exclude others from them.
Territorial waters differ from the high seas, which The recognition of states must be distinguished
are common to all nations and are governed by the from the recognition of governments. New states
principle of freedom of the seas. The high seas are are generally recognized as such by other states if
not subject to appropriation by persons or states their origin is considered legitimate and irreversible.
but are available to everyone for navigation, However, there is no obligation under international
exploitation of resources, and other lawful uses. law to recognize other states. Although the
The legal status of territorial waters also extends to conditions for recognition may differ from state to
the seabed and subsoil under them and to the state, they are based on what is known as the
airspace above them. three-element doctrine: state territory, state
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people, state power. Where the recognition of government is forced into exile by foreign
governments is concerned, the central element is occupation or the de facto government in situ has
the exercise of sovereign power over the state. A been created in violation of international law.
change of government makes no difference to Despite a trend in the literature to the contrary,
statehood or to the recognition of the state as such. there is still no rule of general or regional customary
Switzerland is in favour of the widest-possible international law that a de facto government, to be
recognition of states, but it is extremely reticent a government in the sense of international law,
about recognizing governments. must be democratically elected. Attempts to
introduce such a requirement either by treaty
12. Effects of Recognition of States/Theories (Central American Treaties of Peace and Amity of
1907 and 1923) or as a matter of national (Tobar,
The question of the legal effect of recognition of Wilson and Betancourt doctrines) or regional
new entities claiming to be “States” has been policies (Santiago Commitment to Democracy and
characterized for over a century by the “great the Renewal of the Inter-American System, OAS
debate” between the “constitutive” and General Assembly Resolution 1080 of 5 June 1991)
“declaratory” schools of thought. While the former have failed. States may be roughly divided into
contends that a State only becomes a State by three groups according to their recognition policy:
virtue of recognition, the latter – which is now States (such as the United Kingdom before 1980)
widely accepted – argues that a State is a State that formally recognize governments; States (such
because it is a State, that is, because it meets all the as the United States) that generally do not formally
international legal criteria for statehood. In the first recognize governments but do so in exceptional
case recognition is status-creating; in the latter it is circumstances for political reasons; and States (such
merely status-confirming. International lawyers and as the United Kingdom since 1980, and other
States do not always distinguish clearly between the member States of the European Union) that
requirements for recognition of an entity as a State formally recognize only States, not governments.
(the criteria for statehood) and the requirements That policy is reminiscent of the “Estrada doctrine”
for recognition of a State, that is, the preconditions according to which States issue no declarations in
for entering into optional or discretionary – the sense of grants of recognition in cases of change
diplomatic, political, cultural or economic – of regime but confine themselves to the
relations with the entity (the conditions for maintenance or withdrawal, as they may deem
recognition). While the former are prescribed by advisable, of their diplomatic agents. Those States
international law, the latter may vary from State to have not completely abolished the recognition of
State. governments, only the making of official statements
of recognition. They still have to decide whether a
13. Recognition of Government person or group of persons qualifies as the
government of another State, especially where
The question of recognition of government normally there are competing “governments” in the same
arises only with regard to recognized States. When recognized State or when there is an attempted
a State recognizes a new “government,” it usually secession and issues of governmental status and
acknowledges a person or group of persons as statehood are linked. In the case of the British
competent to act as the organ of the State and to government, its opinion on the legal status of a
represent it in its international relations. The only claimant may be determined on the basis of the
criterion in international law for the recognition of nature of the dealings (non-existent, limited or
an authority as the government of a State is its government-to-government dealings) which it has
exercise of effective control over the State’s with a claimant.
territory. States may, however, continue to
recognize a government-in-exile if an incumbent
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14. Tobar/Wilson, Stimpson and Estrada rebellion are not recognised as belligerents then the
Doctrine rebellion is an insurgency.
16. Requisites in recognizing Belligerency
TOBAR / WILSON DOCTRINE : Precludes recognition
of any government established by revolutionary
 a provisional government
means until constitutional reorganization by free
 occupation of a substantial portion of state’s
election of representatives.The doctrine was first
territory
expressed in a treaty concluded in 1907 by Central
 seriousness of struggle
American republics at the suggestion of Foreign
Minister Tobar of Ecuador and was reiterated by  willingness on the part of the rebel to observe
President Woodrow Wilson of the United States in a rules and customs of war
public statement made 1913. Example: Coup d'etat
during Marcos Regime constituting internal 17. Insurgency
violence,revolution,civil war
An insurgency is an armed rebellion against a
Stimson doctrine - No recognition of a govt constituted authority (for example, an authority
established through external aggression. Example : recognized as such by the United Nations) when
Members of the League of Nations not to recognize those taking part in the rebellion are not recognized
any situation, treaty or agreement which may be as belligerents. An insurgency can be fought
brought about by means of contrary to the via counter-insurgency warfare.
Convention of the League of Nations or to Pact of
Paris. 18. Deportation vs. Extradition
Estrada Doctrine- Since recognition has been In the case of deportation, the state of residence
construed as approval (and non- will initiate the action, often for administrative
recognition,disapproval) of a govt established reasons and not for criminal behaviour, and eject
through political upheaval, a state may not issue a the person from their territory. The person is never
declaration giving recognition to such govt, but a citizen of the state of residence. In other words,
merely accept whatever govt is in effective control you can't deport your own citizen (unless you can
without raising the issue of recognition. Dealing or somehow strip the person of his or her citizenship,
not dealing with the govt is not a judgement on the which might be possible for someone with dual
legitimacy of the said govt. citizenship). If the person has committed a criminal
act instead of merely overstaying his or her visa, the
15. Belligerency state of residence will generally prefer to prosecute
and punish that person, in order to ensure justice is
Belligerency is a term used in international law to done. The state of citizenship is not likely to pursue
indicate the status of two or more entities, criminal prosecution of a crime committed out of its
generally sovereign states, being engaged in a war. jurisdiction. Once the punishment is served, the
Wars are often fought with one or both parties to a criminal is deported. In the case of extradition, the
conflict invoking the right to self defence person has committed a crime in one state and has
under Article 51 of the United Nations Charteror evaded prosecution or punishment by fleeing to
under the auspices of a United Nations Security take up residence in another state. The state in
Council resolution. A state of belligerency may also which the crime has occurred requests that the
exist between one or more sovereign states on one state of residence apprehend the person and force
side, and rebel forces, if such rebel forces are his return. Note that if the person is a citizen of the
recognised as belligerents. If there is a rebellion state of residence, that state might refuse to
against a constituted and those taking part in the extradite. Many countries refuse to extradite their
P a g e | 13
own citizens on principle. Foreigners legally in the 23. Principle of territoriality and extra-
country, however, are fair game for extradition. territoriality
Territoriality principle is a principle of public

19. Refusal of a state of a request for grant of international law under which sovereign state can
extradition prosecute criminal offences that are committed
within their borders. The principle also bars states
 Double Criminality from exercising jurisdiction beyond its borders,
 Nos bis in idem unless they has jurisdiction under other principles
 Capital Punishment such as the principle of nationality, the passive
personality principle, the protective principle, and
20. Attentat clause possibly the universal jurisdiction.
In French, it means successful or unsuccessful Extra-territoriality is the state of being exempt from
attempt on someone’s life. Under that clause, an the jurisdiction of local law, usually as the result of
attempt on the life of a head of a foreign state or a diplomatic negotiations. Extraterritoriality can also
member of the family is not considered a political be applied to physical places, such as military
offense and consequently, the perpetrator is bases of foreign countries, or offices of the United
subject to extradition. Nations. The three most common cases recognized
today internationally relate to the persons and
21. Nationality Doctrine belongings of foreign heads of state, the persons
and belongings of ambassadors and certain other
It says that every state has jurisdiction over its diplomatic agents, and public ships in foreign
nationals even when those nationals are outside the waters.
state.
24. Protective Principle
22. Principle of Universality of Jurisdiction
Universal jurisdiction or universality principle is a It says that a state may exercise jurisdiction over
principle in public international conduct outside its territory that threatens it
law whereby states claim criminal jurisdiction over security, as long as that conduct is generally
persons whose alleged crimes were committed recognized as criminal by states in the international
outside the boundaries of the prosecuting state, community.
regardless of nationality, country of residence, or 25. Statelessness
any other relation with the prosecuting country.
It is the legal and social concept of a person lacking
The state backs its claim on the grounds that the
belonging (or a legally enforceable claim) to any
crime committed is considered a crime against all,
recognised state. Statelessness is not always the
which any state is authorized to punish, as it is too
same as lack of citizenship. De jure statelessness is
serious to tolerate jurisdictional arbitrage. The
where there exists no recognised state in respect of
concept of universal jurisdiction is therefore closely
which the subject has a legally meritorious basis to
linked to the idea that certain international norms
claim nationality. De facto statelessness is where
are erga omnes, or owed to the entire world
the subject may have a legally meritorious claim but
community, as well as the concept of jus cogens -
is precluded from asserting it because of practical
that certain international law obligations are
considerations such as cost, circumstances of civil
binding on all states and cannot be modified
disorder, or the fear of persecution.
by treaty.
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26. Repatriation vs. Naturalization 29. Restrictive doctrine of immunity
Repatraition is the process of returning a person
back to one's place of origin or citizenship. This The restrictive theory of state immunity provided
includes the process of that foreign states were immune from jurisdiction
returning refugees or soldiers to their place of origin relating to their “public acts” (acta jure imperii) but
following a war. The term may also refer to the were not immune from jurisdiction for their
process of converting a foreign currency into the “private acts” (acta jure gestionis) including
currency of one's own country. The act of forced commercial activities.
repatriation against the will of those concerned is
also known as refoulement. 30. Asylum
Naturalization is the acquisition Political asylum is similar, but not identical, to

of citizenship and nationality by somebody who was modern refugee law, which deals with massive
not a citizen or national of that country when he or influx of population, while the right of asylum
she was born. is the acquisition concerns individuals and is usually delivered in a
of citizenship and nationality by somebody who was case-to-case basis. There is overlap between the
not a citizen or national of that country when he or two because each refugee may demand political
she was born. asylum on an individual basis.
27. Doctrine of Specialty
31. Right of Legation
U.S. law has five substantive requirements that
must be satisfied for extradition to and from the The right of legation; also known as the right of
United States: (1) reciprocity; (2) double criminality; diplomatic intercourse, this refers to the right of the
(3) an extraditable offense; (4) non-inquiry; and (5) State to send and receive diplomatic missions,
specialty.(59) The first, reciprocity, essentially which enables States to carry on friendly
requires that either (a) the states involved in an intercourse. It is not a natural or inherent right, but
extradition reciprocally recognize their respective exists only by common consent. No legal liability is
judicial processes, or (b) symmetry exists between incurred by the State for refusing to send or receive
the judicial processes of each state. This element is diplomatic representatives.
typically addressed in U.S. courts prior to the
extradition of a person to the United States. 32. Diplomatic vs. Consular Immunity
Consular immunity privileges are described in the

28. Doctrine of Double criminality
Vienna Convention on Consular Relations of 1963
(VCCR). Consular immunity offers protections
It requires the offenses for which extradition is
similar to diplomatic immunity, but these
requested be a crime in both the requested and
protections are not as extensive, given the
requesting states.(61) This requirement may be
functional differences between consular and
interpreted in one of three ways: In order to qualify,
diplomatic officers. For example, consular officers
the crime must be (1) chargeable, (2) chargeable
are not accorded absolute immunity from a host
and prosecutable, or (3) chargeable, prosecutable,
country’s criminal jurisdiction (they may be tried for
and likely to result in a conviction. Unlike
certain local crimes upon action by a local court)
reciprocity, double criminality is often asserted by
and are immune from local jurisdiction only in cases
defendants who are either contesting their
directly relating to consular functions. Diplomatic
extradition from the United States or challenging
immunity is a form of legal immunity and a policy
their extradition to the United States (usually after
held between governments, which ensures
they have arrived).
that diplomats are given safe passage and are
P a g e | 15
considered not susceptible to or control of, that State in carrying out the conduct.
lawsuit or prosecution under the host country's The conduct of a person or group of persons shall
laws (although they can be expelled). It was agreed be considered an act of a State under international
as international law in the Vienna Convention on law if the person or group of persons is in fact
Diplomatic Relations (1961), though the concept exercising elements of the governmental authority
and custom have a much longer history. Many in the absence or default of the official authorities
principles of diplomatic immunity are now and in circumstances such as to call for the exercise
considered to be customary law. Diplomatic of those elements of authority.
immunity as an institution developed to allow for
the maintenance of government relations, including 3. Internationally wrongful act
during periods of difficulties and even armed
conflict. When receiving diplomats — who are, There is an internationally wrongful act of a State
formally, representatives of the sovereign — the when conduct consisting of an action or omission:
receiving head of state grants certain privileges and (a) Is attributable to the State under international
immunities to ensure that they may effectively carry law; and (b) Constitutes a breach of an international
out their duties, on the understanding that these obligation of the State. The characterization of an
will be provided on a reciprocal basis. act of a State as internationally wrongful is
governed by international law. Such
V. State Responsibility characterization is not affected by the
characterization of the same act as lawful by
1. State’s responsibility for injury to aliens internal law.
The general rule is no state is under obligation to 4. Injured State

admit aliens. This flows from sovereignty except if
there is a treaty stipulation imposing that duty like A State is entitled as an injured State to invoke the
quota system. responsibility of another State if the obligation
breached is owed to: (a) That State individually; or
2. Extent of state responsibility for the acts of (b) A group of States including that State, or the
its officials international community as a whole, and the breach
of the obligation: (i) Specially affects that State; or
The conduct of any State organ shall be considered (ii) Is of such a character as radically to change the
an act of that State under international law, position of all the other States to which the
whether the organ exercises legislative, executive, obligation is owed with respect to the further
judicial or any other functions, whatever position it performance of the obligation.
holds in the organization of the State, and whatever
its character as an organ of the central Government 5. Reparation vs. Restitution
or of a territorial unit of the State. The conduct of
an organ of a State or of a person or entity In Reparation, the responsible State is under an
empowered to exercise elements of the obligation to make full reparation for the injury
governmental authority shall be considered an act caused by the internationally wrongful act. Also,
of the State under international law if the organ, injury includes any damage, whether material or
person or entity acts in that capacity, even if it moral, caused by the internationally wrongful act of
exceeds its authority or contravenes instructions. a State. Restitution is just a form of reparation
The conduct of a person or group of persons shall wherein a State responsible for an internationally
be considered an act of a State under international wrongful act is under an obligation to make
law if the person or group of persons is in fact restitution, that is, to re-establish the situation
acting on the instructions of, or under the direction which existed before the wrongful act was
P a g e | 16
committed, provided and to the extent that circumstances of each case, be provided with full
restitution: (a) Is not materially impossible; (b) Does and effective reparation which include the following
not involve a burden out of all proportion to the forms: restitution, compensation, rehabilitation,
benefit deriving from restitution instead of satisfaction and guarantees of non-repetition.
compensation. Compensation should be provided for any
economically assessable damage, as appropriate
6. Remedies for internationally wrongful act and proportional to the gravity of the violation and
the circumstances of each case, resulting from gross
An injured State which invokes the responsibility of violations of international human rights law and
another State shall give notice of its claim to that serious violations of international humanitarian law,
State. The injured State may specify in particular the such as: (a) Physical or mental harm; (b) Lost
conduct that the responsible State should take in opportunities, including employment, education
order to cease the wrongful act, if it is continuing, and social benefits; (c) Material damages and loss of
what form reparation should take. The earnings, including loss of earning potential; (d)
responsibility of a State may not be invoked if: The Moral damage; (e) Costs required for legal or expert
claim is not brought in accordance with any assistance, medicine and medical services, and
applicable rule relating to the nationality of claims psychological and social services.
or the claim is one to which the rule of exhaustion
of local remedies applies and any available and 9. Terrorism
effective local remedy has not been exhausted.
Terrorism sprouts from the existence of aggrieved
7. Circumstances Precluding Wrongfulness groups. These aggrieved groups share two essential
characteristics: they have specific political
 Consent objectives, and they believe that violence is an
 Self-defence inevitable means to achieve their political ends. The
 Force majeure political dimension of terrorist violence is the key
 Distress factor that distinguishes it from other crimes
 Necessity
10. Human rights law applied to terrorists
8. May a state be made to damages for
violation of Human Rights? The promotion and protection of human rights
while countering terrorism is an obligation of States
States shall, with respect to claims by victims, and an integral part of the fight against terrorism.
enforce domestic judgements for reparation against National counter-terrorism strategies should, above
individuals or entities liable for the harm suffered all, seek to prevent acts of terrorism, prosecute
and endeavour to enforce valid foreign legal those responsible for such criminal acts, and
judgements for reparation in accordance with promote and protect human rights and the rule of
domestic law and international legal obligations. To law. At the outset, it is important to highlight that
that end, States should provide under their the vast majority of counterterrorism measures are
domestic laws effective mechanisms for the adopted on the basis of ordinary legislation. In a
enforcement of reparation judgements. In limited set of exceptional national circumstances,
accordance with domestic law and international some restrictions on the enjoyment of certain
law, and taking account of individual circumstances, human rights may be permissible. Ensuring both the
victims of gross violations of international human promotion and protection of human rights and
rights law and serious violations of international effective counter-terrorism measures nonetheless
humanitarian law should, as appropriate and raises serious practical challenges for States. One
proportional to the gravity of the violation and the such example is the dilemma faced by States in
P a g e | 17
protecting intelligence sources, which may require 13. Torture as legitimate policy by state
limiting the disclosure of evidence at hearings
related to terrorism, while at the same time Torture in all forms is banned by the 1948 Universal
respecting the right to a fair trial and the right to a Declaration of Human Rights (UDHR) which provides
fair hearing for the individual. These challenges are No one shall be subjected to torture or to cruel,
not insurmountable. States can effectively meet inhuman or degrading treatment or punishment.
their obligations under international law by using
the flexibilities built into the international human VI. International Organizations
rights law framework. Human rights law allows for
limitations on certain rights and, in a very limited
set of exceptional circumstances, for derogations 1. Extent of immunity granted to
from certain human rights provisions. These two international organizations
types of restrictions are specifically conceived to
provide States with the necessary flexibility to deal Because they enjoy international personality, they
with exceptional circumstances, while at the same can also be given the immunities and privileges of
time—provided a number of conditions are international persons. Their immunity however
fulfilled—complying with their obligations under have for the basis not sovereignty, as it is for states,
international human rights law. but the need for the effective exercise of their
functions.
11. Torture
2. Powers of Security Council
It is any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted  to maintain international peace and security in
on a person for such purposes as obtaining from accordance with the principles and purposes of
him, or a third person, information or a confession, the UN;
punishing him for an act he or a third person has  to investigate any dispute or situation that
committed or is suspected of having committed, might lead to international friction and to
or intimidating or coercing him or a third person, or recommend methods of adjusting such disputes
for any reason based on discrimination of any kind, or the terms of settlement;
when such pain or suffering is inflicted by or at the  to determine the existence of a threat to the
instigation of or with the consent or acquiescence peace or an act of aggression and to
of a public official or other person acting in an recommend what action should be taken;
official capacity. It does not include pain or suffering  to call on members to apply economic sanctions
arising only from, inherent in, or incidental to, and other measures not involving the use of
lawful sanctions. force in order to prevent or stop aggression;
 to take military action against an aggressor; and
12. Torture vs. inhuman or degrading  to formulate plans for the establishment of a
treatment or punishment. system to regulate armaments.
Inhuman or degrading treatment or punishment 3. International Court of Justice

meant "the cruel, unusual and inhumane treatment
or punishment prohibited by the Fifth, Eighth, The function of the ICJ is to resolve disputes
and/or Fourteenth Amendments to the Constitution between sovereign states. Disputes may be placed
of the United States. Inhuman or degrading before the court by parties upon conditions
treatment or punishments are acts that do not prescribed by the U.N. Security Council. No state,
amount to torture. however, may be subject to the jurisdiction of the
court without the state's consent. Consent may be
P a g e | 18
given by express agreement at the time the dispute 6. World Bank and BSP
is presented to the court, by prior agreement to
accept the jurisdiction of the court in particular The World Bank is a vital source of financial and
categories of cases, or by treaty provisions with technical assistance to developing countries around
respect to disputes arising from matters covered by the world. Our mission is to fight poverty with
the treaty. passion and professionalism for lasting results and
to help people help themselves and their
4. ICSID environment by providing resources, sharing
ICSID provides facilities for the conciliation and knowledge, building capacity and forging
arbitration of disputes between member countries partnerships in the public and private sectors.
and investors who qualify as nationals of other
member countries. Recourse to ICSID conciliation The Bangko Sentral ng Pilipinas (BSP) is the central
and arbitration is entirely voluntary. However, once bank of the Republic of the Philippines. It was
the parties have consented to arbitration under the established on 3 July 1993 pursuant to the
ICSID Convention, neither can unilaterally withdraw provisions of the 1987 Philippine Constitution and
its consent. Moreover, all ICSID Contracting States, the New Central Bank Act of 1993. The BSP took
whether or not parties to the dispute, are required over from the Central Bank of Philippines, which
by the Convention to recognize and enforce ICSID was established on 3 January 1949, as the country’s
arbitral awards. Besides this original role, the Centre central monetary authority. The BSP enjoys fiscal
has since 1978 had a set of Additional Facility Rules and administrative autonomy from the National
authorizing the ICSID Secretariat to administer Government in the pursuit of its mandated
certain types of proceedings between States and responsibilities.
foreign nationals which fall outside the scope of the 7. Economic Integration
Convention. These include conciliation and
arbitration proceedings where either the State Economic integration refers to trade unification
party or the home State of the foreign national is between different states by the partial or full
not a member of ICSID. Additional Facility abolishing of customs tariffs on trade taking place
conciliation and arbitration are also available for within the borders of each state. This is meant in
turn to lead to lower prices for distributors and
cases where the dispute is not an investment
consumers (as no customs duties are paid within the
dispute provided it relates to a transaction which integrated area) and the goal is to increase trade.
has "features that distinguishes it from an ordinary The trade stimulation effects intended by means of
commercial transaction." The Additional Facility economic integration are part of the contemporary
Rules further allow ICSID to administer a type of economic Theory of the Second Best: where, in
proceedings not provided for in the Convention, theory, the best option is free trade, with free
competition and no trade barriers whatsoever. Free
namely fact-finding proceedings to which any State
trade is treated as an idealistic option, and although
and foreign national may have recourse if they wish realized within certain developed states, economic
to institute an inquiry "to examine and report on integration has been thought of as the "second best"
facts option for global trade where barriers to full free
trade exist.
5. Individual Suing a State
8. EU and ASEAN
A state can be sued when the dispute arises from a
commercial transaction entered into by a state or The European Union (EU) is an economic and
some other non-sovereign activity of a state. The political union of 27 member states, located
United Nations Convention on Jurisdictional
Immunities of States and their Property 2004, which
primarily in Europe. Committed to regional
is not yet in force, formulates the rules and the integration, the EU was established by the Treaty of
exceptions to them Maastricht in 1993 upon the foundations of
the European Communities. With over 500 million
P a g e | 19
citizens, the EU combined generated an estimated particularly obvious in the case of an intervention
28% share (US$ 16.5 trillion) of the nominal and which uses force, either in the direct from of
about 21% (US$14.8 trillion) of the PPP gross world military action, or in the indirect form of support to
product in 2009.
subversive or terrorist armed activities within
The Association of Southeast Asian Nations is a geo- another State. These are therefore wrongful in the
political and economic organization of 10 countries light of both the principle of non-use of force, and
located in Southeast Asia, which was formed on 8 that of intervention.
August 1967 by Indonesia, Malaysia,
the Philippines, Singapore and Thailand. Since then, 3. Optional Jurisdiction Clause vs. Domestic
membership has expanded to Jurisdiction Clause in the UN Charter
include Brunei, Burma (Myanmar), Cambodia, Laos,
and Vietnam. Its aims include the acceleration Optional Jurisdiction Clause provides that The
of economic growth, social progress, cultural Security Council should take into consideration any
development among its members, the protection of procedures for the settlement of the dispute which
the peace and stability of the region, and to provide
have already been adopted by the parties.
opportunities for member countries to discuss
differences peacefully. ASEAN spans over an area of
Domestic Jurisdiction Clause provides that nothing
4.46 million km2 with a population of approximately
580 million people, 8.7% of the world population. In contained in the present Charter shall authorize the
2009, its combined nominal GDP had grown to United Nations to intervene in matters which are
more than USD $1.5 trillion. If ASEAN was a single essentially within the domestic jurisdiction of any
country, it would rank as the 9th largest economy in state or shall require the Members to submit such
the world in terms of nominal GDP. matters to settlement under the present Charter;
VII. War and Peace but this principle shall not prejudice the application
of enforcement measures under Chapter Vll (Action
1. Peaceful means of settling international with respect to Threats to the Peace, Breaches of
disputes the Peace, and Acts of Aggression)
 Negotiation 4. Doctrine of Humanitarian Intervention

 Good Offices
 Mediation Humanitarian intervention refers to armed
 Arbitration interference in one state by another state(s) with
 Enquiry the objective of ending or reducing the suffering of
 Conciliation the population within the first state. That suffering
may be the result of civil war, humanitarian crisis,
2. Principle of non-intervention or crimes committed by the occupied nation (such
as genocide). The goal of humanitarian intervention
The principle of non-intervention involves the right is neither annex ation nor interference with
of every sovereign State to conduct its affairs territorial integrity, but minimization of the
without outside interference. A prohibited suffering of civilians in that state.
interference must accordingly be one bearing on
5. Use of Force
matters in which each State is permitted, by the
principle of State sovereignty, to decide freely. The The term use of force describes a right of an
element of coercion, which defines, and indeed individual or authority to settle conflicts or prevent
certain actions by applying measures to either: a)
forms the very essence of prohibited intervention, is
dissuade another party from a particular course of
P a g e | 20
action, or b) physically intervene to stop them. In 3. He shall also notify the Members of the United
nations of the developed world and the developing Nations through the Secretary-General, and also
world, citizens allow police, corrections, or any other states entitled to appear before the
other security personnel to employ force to actively Court.
prevent imminent commission of crime, or even for
Article 41
deterrence. It may also be exercised by
the executive branch (i.e., through the president, 1. The Court shall have the power to indicate, if it
prime minister, premier, governor or mayor) of a considers that circumstances so require, any
political jurisdiction, deploying the police provisional measures which ought to be taken to
or military to maintain public order. The use of force preserve the respective rights of either party.
is governed by statute and is usually authorized in a
progressive series of actions, referred to as a "use of 2. Pending the final decision, notice of the measures
force continuum. suggested shall forthwith be given to the parties
and to the Security Council.
6. Procedure in ICJ
Article 42
CHAPTER III - PROCEDURE 1. The parties shall be represented by agents.
Article 39 2. They may have the assistance of counsel or
advocates before the Court.
1. The official languages of the Court shall be French
and English. If the parties agree that the case shall 3. The agents, counsel, and advocates of parties
be conducted in French, the judgment shall be before the Court shall enjoy the privileges and
delivered in French. If the parties agree that the immunities necessary to the independent exercise
case shall be conducted in English, the judgment of their duties.
shall be delivered in English. Article 43
2. In the absence of an agreement as to which
language shall be employed, each party may, in the 1. The procedure shall consist of two parts: written
pleadings, use the language which it prefers; the and oral.
decision of the Court shall be given in French and 2. The written proceedings shall consist of the
English. In this case the Court shall at the same time communication to the Court and to the parties of
determine which of the two texts shall be memorials, counter-memorials and, if necessary,
considered as authoritative. replies; also all papers and documents in support.
3. The Court shall, at the request of any party, 3. These communications shall be made through the
authorize a language other than French or English Registrar, in the order and within the time fixed by
to be used by that party. the Court.
Article 40 4. A certified copy of every document produced by
one party shall be communicated to the other
1. Cases are brought before the Court, as the case party.
may be, either by the notification of the special
agreement or by a written application addressed to 5. The oral proceedings shall consist of the hearing
the Registrar. In either case the subject of the by the Court of witnesses, experts, agents, counsel,
dispute and the parties shall be indicated. and advocates.
2. The Registrar shall forthwith communicate the Article 44

application to all concerned.
1. For the service of all notices upon persons other
than the agents, counsel, and advocates, the Court
P a g e | 21
shall apply direct to the government of the state Article 52
upon whose territory the notice has to be served.
After the Court has received the proofs and
2. The same provision shall apply whenever steps evidence within the time specified for the purpose,
are to be taken to procure evidence on the spot. it may refuse to accept any further oral or written
Article 45 evidence that one party may desire to present
unless the other side consents.
The hearing shall be under the control of the
Article 53
President or, if he is unable to preside, of the Vice-
President; if neither is able to preside, the senior 1. Whenever one of the parties does not appear
judge present shall preside. before the Court, or fails to defend its case, the
Article 46 other party may call upon the Court to decide in
favour of its claim.
The hearing in Court shall be public, unless the
2. The Court must, before doing so, satisfy itself, not
Court shall decide otherwise, or unless the parties
only that it has jurisdiction in accordance with
demand that the public be not admitted .
Articles 36 and 37, but also that the claim is well
Article 47 founded in fact and law.
1. Minutes shall be made at each hearing and Article 54

signed by the Registrar and the President.
1. When, subject to the control of the Court, the
2. These minutes alone shall be authentic. agents, counsel, and advocates have completed
their presentation of the case, the President shall
Article 48
declare the hearing closed.
The Court shall make orders for the conduct of the 2. The Court shall withdraw to consider the
case, shall decide the form and time in which each judgment.
party must conclude its arguments, and make all
arrangements connected with the taking of 3. The deliberations of the Court shall take place in
evidence. private and remain secret.
Article 49 Article 55
The Court may, even before the hearing begins, call 1. All questions shall be decided by a majority of the
upon the agents to produce any document or to judges present.
supply any explanations. Formal note shall be taken 2. In the event of an equality of votes, the President
of any refusal. or the judge who acts in his place shall have a
casting vote.
Article 50
Article 56
The Court may, at any time, entrust any individual,
body, bureau, commission, or other organization 1. The judgment shall state the reasons on which it
that it may select, with the task of carrying out an is based.
enquiry or giving an expert opinion.
2. It shall contain the names of the judges who have
Article 51 taken part in the decision.
During the hearing any relevant questions are to be

put to the witnesses and experts under the
conditions laid down by the Court in the rules of
procedure referred to in Article 30.
P a g e | 22
Article 57 Article 62
If the judgment does not represent in whole or in l. Should a state consider that it has an interest of a
part the unanimous opinion of the judges, any judge legal nature which may be affected by the decision
shall be entitled to deliver a separate opinion. in the case, it may submit a request to the Court to
be permitted to intervene.
Article 58
2 It shall be for the Court to decide upon this
The judgment shall be signed by the President and request.
by the Registrar. It shall be read in open court, due
notice having been given to the agents. Article 63
Article 59 1. Whenever the construction of a convention to

which states other than those concerned in the case
The decision of the Court has no binding force are parties is in question, the Registrar shall notify
except between the parties and in respect of that all such states forthwith.
particular case.
2. Every state so notified has the right to intervene
Article 60 in the proceedings; but if it uses this right, the
construction given by the judgment will be equally
The judgment is final and without appeal. In the binding upon it.
event of dispute as to the meaning or scope of the
judgment, the Court shall construe it upon the Article 64
request of any party.
Unless otherwise decided by the Court, each party
Article 61 shall bear its own costs.
1. An application for revision of a judgment may be 7. Basis of ICJ Jurisdiction
made only when it is based upon the discovery of
some fact of such a nature as to be a decisive factor, The jurisdiction of the Court in contentious
which fact was, when the judgment was given, proceedings is based on the consent of the States to
unknown to the Court and also to the party claiming which it is open1. The form in which this consent is
revision, always provided that such ignorance was expressed determines the manner in which a case
not due to negligence. may be brought before the Court.
2. The proceedings for revision shall be opened by a

judgment of the Court expressly recording the (a) Special agreement
existence of the new fact, recognizing that it has Article 36, paragraph 1, of the Statute provides that
such a character as to lay the case open to revision, the jurisdiction of the Court comprises all cases
and declaring the application admissible on this which the parties refer to it. Such cases normally
ground. come before the Court by notification to the
3. The Court may require previous compliance with Registry of an agreement known as a special
the terms of the judgment before it admits agreement and concluded by the parties specially
proceedings in revision. for this purpose2. The subject of the dispute and the
parties must be indicated (Statute, Art. 40, para. 1;
4. The application for revision must be made at Rules, Art. 39).
latest within six months of the discovery of the new
fact.
(b) Cases provided for in treaties and conventions
5. No application for revision may be made after the
lapse of ten years from the date of the judgment. Article 36, paragraph 1, of the Statute provides also
that the jurisdiction of the Court comprises all
P a g e | 23
matters specially provided for in treaties and the same obligation, the jurisdiction of the Court in
conventions in force. In such cases a matter is all legal disputes concerning:
normally brought before the Court by means of a
(a) the interpretation of a treaty;
written application instituting proceedings3; this is a
unilateral document which must indicate the (b) any question of international law;
subject of the dispute and the parties (Statute, (c) the existence of any fact which, if established,
Art. 40, para. 1) and, as far as possible, specify the would constitute a breach of an international
provision on which the applicant founds the obligation;
jurisdiction of the Court (Rules, Art. 38).
A list of treaties and conventions governing the (d) the nature or extent of the reparation to be
jurisdiction of the International Court of Justice in made for the breach of an international obligation.
contentious cases is given in the "Treaties and 3. The declarations referred to above may be made
Other Documents" section. unconditionally or on condition of reciprocity on the
To these instruments must be added other treaties part of several or certain States, or for a certain
and conventions concluded earlier and conferring time.
jurisdiction upon the Permanent Court of 4. Such declarations shall be deposited with the
International Justice, for Article 37 of the Statute of Secretary-General of the United Nations, who shall
the International Court of Justice stipulates that transmit copies thereof to the parties to the Statute
whenever a treaty or convention in force provides and to the Registrar of the Court.
for reference of a matter to a tribunal to have been
instituted by the League of Nations, or to 5. Declarations made under Article 36 of the Statute
the Permanent Court of International Justice, the of the Permanent Court of International Justice and
matter shall, as between the parties to the Statute, which are still in force shall be deemed, as between
be referred to the International Court of Justice. the parties to the present Statute, to be
The Permanent Court reproduced, in 1932, in acceptances of the compulsory jurisdiction of the
its Collection of Texts governing the Jurisdiction of International Court of Justice for the period which
the Court (P.C.I.J., Series D, No. 6, fourth edition) they still have to run and in accordance with their
and subsequently in Chapter X of its Annual Reports terms."
(P.C.I.J., Series E, Nos. 8-16) the relevant provisions Texts of those declarations are given in the
of the instruments governing its jurisdiction. By "Declarations Recognizing as Compulsory the
virtue of the Article referred to above, some of Jurisdiction of the Court" section.
these provisions now govern the jurisdiction of the
(d) Forum prorogatum
International Court of Justice.
If a State has not recognized the jurisdiction of the
(c) Compulsory jurisdiction in legal disputes
Court at the time when an application instituting
The Statute provides that a State may recognize as proceedings is filed against it, that State has the
compulsory, in relation to any other State accepting possibility of accepting such jurisdiction
the same obligation, the jurisdiction of the Court in subsequently to enable the Court to entertain the
legal disputes. These cases are brought before the case: the Court thus has jurisdiction as of the date
Court by means of written applications. The of acceptance in virtue of the rule of forum
conditions on which such compulsory jurisdiction prorogatum.
may be recognized are stated in paragraphs 2-5 of
(e) The Court itself decides any questions as to its
Article 36 of the Statute, which read as follows:
jurisdiction
"2. The States parties to the present Statute may at
Article 36, paragraph 6, of the Statute provides that
any time declare that they recognize as
in the event of a dispute as to whether the Court
compulsory ipso factoand without special
has jurisdiction, the matter shall be settled by the
agreement, in relation to any other State accepting
P a g e | 24
decision of the Court. Article 79 of the Rules lays 10. Collective Self Defense
down the conditions which govern the filing of
preliminary objections. Collective self-defense is the act of defending other
designated non-US forces. Only the National
Command Authorities may authorize US forces to
(f) Interpretation of a judgment
exercise the right of collective self-defense.
Article 60 of the Statute provides that in the event
of dispute as to the meaning or scope of a 11. Unilateralism
judgment, the Court shall construe it upon the
Unilateralism is any doctrine or agenda that supports
request of any party. The request for interpretation one-sided action. Such action may be in disregard
may be made either by means of a special for other parties, or as an expression of a
agreement between the parties or of an application commitment toward a direction which other parties
by one or more of the parties (Rules, Art. 98)5. may find agreeable.
12. Retortion vs. Reprisal

(g) Revision of a judgment
Retortion consists of an unfriendly, but not
An application for revision of a judgment may be international illegal act of one State against another
made only when it is based upon the discovery of in retaliation for the latter’s unfriendly or
some fact of such a nature as to be a decisive factor, inequitable conduct. It does not involve the use of
which fact was, when the judgment was given, force. States resorting to retorsion retaliate by acts
unknown to the Court and also to the party claiming of the same or similar kind as those complained of.
revision, always provided that such party's It is resorted by States usually in cases of unfair
ignorance was not due to negligence (Statute, treatment of their citizens abroad.
Art. 61, para. 1). A request for revision is made by
means of an application (Rules, Art. 99). Reprisal is any kind of forcible or coercive measures
whereby one state seeks to exercise a deterrent
8. Enforcement of Judgments by the ICJ effect or to obtain redress or satisfaction, directly or
Each Member of the United Nations undertakes to indirectly, for the consequences of the illegal acts of
comply with the decision of the International Court another state, which has refused to make amends
of Justice in any case to which it is a party. If any for such illegal conduct.
party to a case fails to perform the obligations
incumbent upon it under a judgment rendered by 13. Economic Embargo
the Court, the other party may have recourse to the
Security Council, which may, if it deems necessary, An embargo is the partial or complete prohibition of
make recommendations or decide upon measures the movement of merchant ships into or out of a
to be taken to give effect to the judgment. country's ports, in order to isolate it. Embargoes are
However, it is subject to the veto powers of the considered strong diplomatic measures imposed in
permanent members. an effort, by the embargo-imposing-country, to
elicit a given national-interest result from the
9. Pre-emptive Strike country on which it is imposed. Embargoes are
similar to economic sanctions and are generally
It is a surprise attack that is launched in order to considered legal barriers to trade, not to be
prevent the enemy from doing it to you. confused with blockades, which are often
considered to be acts of war.
P a g e | 25
14. Non-intercourse vs. Boycott
18. Mercenary vs. Spy
Non-intercourse consists of suspension of all
commercial intercourse with a state. It is also a A mercenary is a person who takes part in an armed
complete or partial interruption of economic conflict, who is not a national or a party to the
relations with the offending state as a form of conflict, and is "motivated to take part in the
enforcement measure. hostilities essentially by the desire for private gain
and, in fact, is promised, by or on behalf of a party
Boycott is a comparatively modern form of reprisal to the conflict, material compensation substantially
which consists of a concerted suspension of trade in excess of that promised or paid to combatants of
and business relations with the nationals of the similar ranks and functions in the armed forces of
offending state. that Party"
15. War A spy is an agent employed by a state to obtain

secret information, especially of a military nature,
It is a sustained struggle by armed forces of a concerning its potential or actual enemies.
certain intensity between groups of certain size,
consisting of individuals who are armed, who wear 19. Neutrality vs. Neutralization
distinctive insigna and who are subjected to military
discipline under responsible command. Neutrality is a status only obtained during war
created under international law, by means of stand
16. Doctrine of Military Necessity on the part of the state not to side with any of the
parties at war brought about by a unilateral
An attack or action must be intended to help in the declaration by neutral state.
military defeat of the enemy, it must be an attack
on a military objective, and the harm caused to Neutralization is a status that applies in peace and
civilians or civilian property must be proportional war which is created by means of a treaty and
and not excessive in relation to the concrete and cannot be effected by unilateral act only but must
direct military advantage anticipated. be recognized by other states.
17. The Principle of Postliminium,
It is a specific version of the maxim ex injuria jus non

oritur, providing for the invalidity of all illegitimate
acts that an occupant may have performed on a
given territory after its recapture by the legitimate
sovereign. Therefore, if the occupant has
appropriated and sold public or private property as
may not legitimately be appropriated by a military
occupant, the original owner may reclaim that
property without payment of compensation. It
derives from the jus posiliminii, of Roman law. The
codification of large areas of international law have
made postliminium to a great extent superfluous
though. It may either be seen as a historical
concept, or a term generally describing the
consequences to legal acts of an occupant after the
termination of occupation

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Unofficial Quick Reference Conspectus on Public International Law

Territoriality principle is a principle of public

Naturalization is the acquisition Political asylum is similar, but not identical, to

Consular immunity privileges are described in the

The general rule is no state is under obligation to 4. Injured State

Inhuman or degrading treatment or punishment 3. International Court of Justice

 Negotiation 4. Doctrine of Humanitarian Intervention

2. The Registrar shall forthwith communicate the Article 44

1. Minutes shall be made at each hearing and Article 54

During the hearing any relevant questions are to be

Article 59 1. Whenever the construction of a convention to

2. The proceedings for revision shall be opened by a

12. Retortion vs. Reprisal

15. War A spy is an agent employed by a state to obtain

17. The Principle of Postliminium,

It is a specific version of the maxim ex injuria jus non

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