CHAPTER VIII JURISDICTION
Unless consent to a different rule has been
OF STATES
Jurisdiction – the authority to affect legal interests.
Corresponding to the powers of gov’t, it can be:
1. legislative jurisdiction – jurisdiction to
prescribe norms of conduct;
2. executive jurisdiction – jurisdiction to
enforce norms prescribed; and
3. judicial jurisdiction – jurisdiction to
adjudicate
Scope of a state’s jurisdiction over a person, thing,
or event depends on the interest of the state in
affecting the subject matter in question.
When there are competing interests among various
states, need to establish priorities on the basis of the
quality and quantity of the linkages the various
states have.
It is possible to for more than one sovereignty to
have jurisdiction over the same subject matter.
International law limits itself to criminal jurisdiction.
Civil jurisdiction is a subject for private international
law or conflict of laws.
FIVE PRINCIPLES OF JURISDICTION OF STATES
1. territoriality principle
2. nationality principle
3. protective principle
4. universality principle
5. passive personality principle
1, 2, and 3 are supported in customary law. The
universality principle finds application in special
circumstances. The passive personality principle
does not enjoy wide acceptance.
Jurisdiction may also be acquired through treaty.
1. THE TERRITORIALITY PRINCIPLE
Fundamental source of jurisdiction: sovereignty over
territory
A state has absolute though not necessarily exclusive
power to prescribe, adjudicate, and enforce ruled for
conduct within its territory. This is why it is
necessary to determine boundaries.
The Rules on Boundaries
1. The boundary separating the land areas of
two states is determined by acts of the
states expressing their consent to its
location
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2.
expressed: (DEFAULT RULE)
a. when the boundary bet. 2 states is
a navigable river, the location of
the boundary is the middle of the
channel navigation (Thalweg
doctrine)
b. when the boundary bet. 2 states is
a non-navigable river or a lake, the
location of the boundary is the
middle of the river or lake.
Remember Las Palmas case: to have jurisdiction,
occupation is not enough; control must also be
established.
For the Phil. there is no problem with surface land
boundaries, since we have no contiguous neighbors.
But knowing our boundaries is important in
determining our EEZ.
“Effects Doctrine”
A state has jurisdiction over act occurring outside its
territory but having effects within it.
Two principles of the effects doctrine:
1. Subjective territorial principle: a state
has jurisdiction to prosecute and punish for
crime commenced within the state but
completed or consummated abroad
2. Objective territorial principle: a state
has jurisdiction to prosecute and punish for
crime commenced without the state but
consummated within its territory.
The Lotus Case (France v. Turkey)
The French mail steamer Lotus, on the way to
Constantinople, collided with the Turkish vessel Boz-
Kourt on the high seas. The Boz-Kourt sank and lost
eight sailors, all Turkish nationals. The Lotus arrived
in Constantinople, where Turkish authorities arrested
Lt. Demons, the French officer in charge of the Lotus
at the time of the collision, and Hassan Bey, the
captain of the Boz-Kourt. Both were charged with
manslaughter. They were both convicted. The
French government objected, claming that Turkey
had no jurisdiction to institute criminal proceedings
under Turkish law against Lt. Demons.
ISSUE: Whether Turkey has jurisdiction over the
offense committed in the high seas.
HELD: Yes, Turkey has jurisdiction.
The offense for which Lt. Demons was prosecuted
was negligence or imprudence which had its origin
on board the Lotus, while its effects made
themselves felt on board the Boz-Kourt. These two
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elements are legally inseparable such that their
separation would render the offense non-existent.
Neither the exclusive jurisdiction of either State, nor
the limitations of the jurisdiction of each to the
occurrences which took place on the respective ships
would appear calculated to satisfy the requirements
of justice and effectively protect the interests of the
two States. It is only natural that each should be
able to exercise jurisdiction in respect of the incident
as a whole. Therefore, Turkey and France have
concurrent jurisdiction.
Trail Smelter Arbitration (US v. Canada)
PART I
A smelter for zinc and lead ores was operated in a
place called Trail in Canada by the Consolidated
Mining and Smelting Company of Canada. The
smelter produced emissions of sulphur dioxide
fumes. The US Government complained that the
fumes were causing damage in the state of
Washington.
ISSUES: Whether Canada is liable for damages to
the US.
Whether the Trail smelter should be required to
refrain from causing damage in Washington in the
future.
HELD: Yes, Canada is liable for damages.
It was found that there was injury caused to the US.
Hence, Canada is liable for damages caused by the
Trail smelter. But, the question is how much. The
US claims a total of $2.1M in damages. One of the
claims was for “wrong done the US in violation of its
sovereignty, measured by the cost incurred by the
US in investigating the problems created by the
smelter.” The tribunal held that the US should not
be awarded this particular claim since it was not
within the intention of the parties to include money
expended for the investigation of the case as part of
the term “damages caused by the Trail smelter.” In
other previously decided cases, damages awarded
for expenses were awarded not as compensation for
violation of national sovereignty but as compensation
for expenses incurred by individual claimants in
prosecuting their claims for the wrongful acts of the
offending Government. The Tribunal awarded the US
an indemnity of $78,000 instead.
The Train Smelter shall refrain from causing damage
in Washington in the future to the extent set forth.
The Tribunal then provided for a temporary regime
for the regulation of sulphur emissions.
PART II
Two years later, the Tribunal met again and
reiterated its decision but added the following:
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A State owes at all times a duty to protect other
States against injurious acts by individuals from
within its jurisdiction. The Tribunal holds that
Canada is responsible in international law for the
conduct of the Trail Smelter. It is, therefore, the
duty of the government of Canada to see to it that
this conduct should be in conformity with the
obligation of Canada under international law as
herein determined. The Trail Smelter shall be
required to refrain from causing any damage through
fumes in the State of Washington. The tribunal then
set forth a permanent regime for monitoring and
regulating the pollution from the Trail Smelter.
Jurisdiction over foreign vessel
Crimes committed on foreign vessels within
Philippine territory:
1. French Rule: crimes committed aboard a
foreign merchant vessel should not be
prosecuted in the courts of the country
within whose territorial jurisdiction they
were committed unless their commission
affects the peace and security of the
territory.
2. English Rule: crimes perpetrated under
such circumstances are in general triable in
the courts of the country within whose
territory they were committed. (Based on
the territorial principle and followed in the
US)
The Philippines follows the English rule because the
theories and jurisprudence prevailing in the US on
the matter are authority in the Philippines. (People v.
Wong Cheng)
2. THE NATIONALITY PRINCIPLE
Every state has jurisdiction over its nationals even
when those nationals are outside the state. The
following case is an illustration:
Blackmer v. United States
Harry Blackmer was a US citizen residing in Paris.
He was subpoenaed by the Supreme Court of DC to
appear as witness for the government at a criminal
trial. He failed to respond to the subpoenas. The
court held him in contempt and fined him $30,000.
The court seized his property to satisfy the fine.
HELD: While Blackmer moved his residence to Paris,
he still continued to owe allegiance to the US as a US
citizen. By virtue of the obligations of citizenship,
the US retained its authority over him, and he was
bound by its laws made applicable to him in a foreign
country.
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This is not even a question of international law; it is
municipal law which establishes the duties of the
citizen in relation to his own government. It cannot
be doubted that the US possesses the power
inherent in sovereignty to require the return to his
country of its citizen, resident elsewhere, whenever
the public interest requires it, and to penalize him in
case of refusal.
Nationality of natural persons
Each state has the right to decide who are its
nationals using either the principle of jus sanguinis
or jus soli or naturalization laws.
But, to claim a person as a national, the state must
have reasonable connection or an “effective line”
with that person. The consent of the individual alone
is not enough for him to be recognized by other
states as a national of the state to which he claims to
belong.
Nationality of corporations
A state has jurisdiction over corporations organized
under its laws.
Many states also assert jurisdiction over corps.
whose principal place of business or registered office
is located within its territories.
States have also sought to regulate corps. organized
or having their principal place of business abroad
when these corps. are owned or controlled by
nationals. This last one is controversial.
Also more controversial: multi-national corps. which
register various addresses for diff. Purposes. But
this does not interest us because it is a subject for
conflict of laws.
Nationality of maritime vessels
A state has jurisdiction over vessels flying its flag.
Each state determines requirements for registration.
But flags of convenience might be challenged on the
ground of lack of sufficient link.
The same rule generally applies to aircraft and
spacecraft.
Effective Nationality Link
The doctrine on effective nationality link is used to
determine which of two states of which a person is a
national will be recognized as having the right to
give diplomatic protection to the holder of dual
nationality. The doctrine is found in the following
case:
The Nottebohm Case (Liechtenstein v.
Guatemala)
Nottebohm was a German national by birth. At the
age of 24, he moved to Guatemala, where he
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maintained his residence and a business enterprise.
Shortly after the outbreak of WWII, he applied for
citizenship by naturalization in Liechtenstein. He was
granted citizenship soon after. He then returned to
Guatemala.
Guatemala entered WWII against Germany. It then
ordered the arrest of Nottebohm as a dangerous
enemy alien and deported him to the US, where he
was interred for three years. He then returned to
Liechtenstein after Guatemala refused him
readmission. Guatemala confiscated his property on
the ground that he was an enemy alien.
In 1951, Liechtenstein brought this action against
Guatemala, claiming reparation for its wrongful act
of arresting, detaining, expelling, and refusing to
readmit Nottebohm. Guatemala claimed that
Liechtenstein had no right to bring the action since it
could not exercise its right to protect its nationals
with respect to Nottebohm, whose status as a
national of Liechtenstein was questionable.
ISSUE: Whether the nationality conferred on
Nottebohm by Liechtenstein entitles Liechtenstein to
file this action against Guatemala on behalf of
Nottebohm.
HELD: No, Liechtenstein has no right to file this
action.
International law leaves it to each State to lay down
its own rules governing the grant of nationality.
BUT, a State cannot claim that the rules it has thus
laid down are entitled to recognition by another state
unless it has acted in conformity with the general
aim of making the legal bond of nationality accord
with the individual’s genuine connection with the
State.
Nationality is a legal bond having as its basis a social
fact of attachment, a genuine connection of
existence, interests and sentiments, together with
the existence of reciprocal rights and duties. In this
case, Nottebohm had no real connections with
Liechtenstein other than a few visits to his brother
there. On the other hand, the facts show that his
attachment was really to Guatemala where he
resided and carried on his business for 34 years. His
naturalization was not based on any real prior
connection with Liechtenstein, nor did it alter his
manner of life upon its conferment. He did not
become wedded to the traditions, interests, and way
of life of Liechtenstein. It appears that Nottebohm
asked for naturalization only because he wanted to
be a national of a neutral state instead of a
belligerent state like Germany.
Guatemala is therefore under no obligation to
recognize the nationality granted to Nottebohm.
Liechtenstein is not entitled to extend its protection
to Nottebohm as against Guatemala.
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Stateless Persons
Stateless persons are those who do not have a
nationality. They are either de jure or de facto
stateless.
De jure stateless persons – those who have lost
their nationality, if they had one, and have not
acquired a new one
De facto stateless persons – those who have a
nationality but to whom protection is denied by their
state when out of that state. (ex: refugees)
Since they do not enjoy protection by any state, how
are they protected against human rights violations,
such as deportation to parts unknown? See the
following case:
Mejoff v. Director of Prisons
Boris Mejoff was an alien of Russian descent who
was brought to the Phil. as a secret operative by the
Jap forces during the Jap regime in the Phil. Upon
liberation, he was arrested as a Jap spy. The
People’s Court ordered his release. The Deportation
Board found that, having no travel documents,
Mejoff was illegally in this country. The Board of
Commissioners of Immigration ordered his
deportation on the first available transportation to
Russia. A few months later, two boats of Russian
nationality called at the Cebu Port but refused to
take Mejoff alleging lack of authority to do so.
Mejoff was moved to Bilibid where he languished for
two years because no ship or country would take
him. He filed this petition for habeas corpus.
ISSUE: Whether Mejoff should be released.
HELD: Yes, he should be released.
Aliens illegally staying in the Philippines have no
right of asylum therein, even if they are “stateless.”
However, foreign nationals, not enemy, against
whom no charge has been made other than that
their permission to stay has expired, may not
indefinitely be kept in detention. The protection
against deprivation of liberty without due process of
law and except for crimes committed against the
laws of the land is not limited to Philippine citizens
but extends to all residents, except enemy aliens,
regardless of nationality. In this case, Mejoff’s entry
was not unlawful since he was brought in by the
forces of a de facto gov’t whose decrees were law
during the occupation. Moreover, the Phil. adopts
the generally accepted principles of international law
as part of the law of the land, including the Universal
Declaration of Human Rights, which guarantees the
right against arbitrary arrest, etc.
Therefore, Mejoff should be released but placed
under the surveillance of the immigration authorities
or their agents in such form and manner as may be
deemed adequate to insure that he keep peace and
be available when the gov’t is ready to deport him.
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3. THE PROTECTIVE PRINCIPLE
A state may exercise jurisdiction over conduct
outside its territory that threatens its security, as
long as that conduct is generally recognized as
criminal by states in the international community.
[This conditional clause excludes acts committed in
exercise of the liberty guaranteed an alien by the law
of the place where the act was committed.]
Examples: Plots to overthrow the government,
forging its currency, plot to break its immigration
regulations.
Sample Case: “Lord Haw Haw” was an American
citizen who broadcast messages from Germany
seeking to persuade the Allies to surrender. He was
a holder of a British passport. After the war, he was
convicted of high treason in the UK. The decision
said that no principle of comity demands that a state
should ignore the crime of treason committed
against it outside its territory. On the contrary, a
proper regard for its own security required that all
those who commit treason, whether within or
without the realm should be amenable to its laws.
Limitations of the Protective Principle
The doctrine is limited to those offenses posing a
direct, specific threat to national security.
However, recently, some academicians have urged a
more liberal interpretation of the Protective Principle
when applied to terrorist activities.
4. THE UNIVERSALITY PRINCIPLE
Certain activities, universally dangerous to states
and their subjects, require authority in all community
members to punish such acts wherever they may
occur, even absent a link between the state and the
parties or the acts in question.
The Universal Principle recognizes that certain
offenses are so heinous and so widely condemned
that any state, if it captures the offender, may
prosecute and punish that person on behalf of the
world community regardless of the nationality of the
offender or victim or where the crime was
committed.
Origin of this principle: Piracy
Piracy (def in int’l law): any illegal act of violence
or depredation committed for private ends on the
high seas or outside the territorial control of any
state.
Other crimes covered by the universality principle,
aside from piracy:
1. genocide
2. crimes against humanity
3. war crimes
4. aircraft piracy
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 5. terrorism
There is also growing support for universal
jurisdiction over crimes against human rights.
Definitions
Genocide – any of the following acts committed
with intent to destroy, in whole or in part, a national,
ethnical, racial, or religious group, as such:
1. killing members of the group;
2. causing serious bodily or mental harm to
members of the group;
3. deliberately inflicting on the group
conditions of life calculated to bring about
its physical destruction in whole or in part;
4. imposing measures intended to prevent
births within the group;
5. forcibly transferring children of the group to
another group.
Crimes against humanity – any of the following
acts when committed as part of a widespread or
systematic attack directed against any civilian
population with knowledge of the attack:
Õ “Attack directed against any civilian population”
means the multiple commission of the following acts
against any civilian population, pursuant to or in
furtherance of a State or organizational policy to
commit such an attack.
1. murder;
2. extermination – includes intentional
infliction of conditions of life, the deprivation
of access to food and medicine, calculated
to bring about the destruction of part of a
population;
3. enslavement – the exercise of any or all of
the powers attaching to the right of
ownership over a person and includes the
exercise of such power in the course of
trafficking persons, in particular women and
children;
4. deportation or forcible transfer of
population – forced displacement of the
persons concerned by expulsion or other
coercive acts from the area in which they
are lawfully present, without grounds
permitted under int’l law;
5. imprisonment or other severe
deprivation of physical liberty in
violation of fundamental rules of
international law;
6. torture – intentional infliction of severe
pain or suffering, physical or mental, upon a
person in the custody or under the control
of the accuser; does not include pain or
suffering arising from, inherent, or
incidental to lawful sanctions;
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7. rape, sexual slavery, enforced
prostitution, forced pregnancy,
enforced sterilization, or any other
form of sexual violence of comparable
gravity – forced pregnancy is the unlawful
confinement of a woman forcibly made
pregnant with the intent of affecting the
ethnic composition of any population;
8. persecution against any identifiable
group or collectivity on political, racial,
national, ethnic, or other grounds –
intentional and severe deprivation of
fundamental rights contrary to int’l law by
reason of the identity of the group or
collectivity;
9. enforced disappearance of persons –
arrest, detention or abduction of persons
by, or with the authorization, support, or
acquiescence of a State or a political
organization, followed by a refusal to
acknowledge that deprivation of freedom or
to give information on the fate or
whereabouts of those persons, with the
intention of removing them from the
protection of the law for a prolonged period
of time;
10. apartheid – inhumane acts committed in
the context of an institutionalized regime of
systematic oppression and domination by
one racial group over any other racial group
with the intention of maintaining that
regime.
11. other inhumane acts of a similar
character intentionally causing great
suffering, or serious injury to body or
to mental or physical health.
War Crimes – grave breaches of the Geneva
Convention of 12 August 1949.
CASES
Filartiga v. Peña-Irala
A wrongful death action was brought by two
nationals of Paraguay in the US Courts. They were
the father and sister of a 17-year old Paraguayan
who was tortured to death in Paraguay by Peña-Irala
who was Inspector-General of the police.
Jurisdiction was claimed on the basis of the Alien
Tort Statute.
ISSUE: Whether the US Court has jurisdiction over
the case.
HELD: Yes, it has jurisdiction. Deliberate torture
under the color of official authority violates the
universal rules of international law regardless of the
nationality of the parties. The prohibition of torture
has become part of customary law. This is
supported by the Universal Declaration of Human
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Rights and the 1975 Declaration on the Protection of
all Persons from Torture. The Declaration creates an
expectation of adherence among its member states,
and insofar as the expectation is gradually justified
by State practice, a declaration, may by custom
become recognized as laying down rules binding
upon the States. Indeed, several commentators
have concluded that the Universal Declaration has
become a part of binding customary international
law.
The Eichmann Case
Adolf Eichmann was a high ranking SS officer who
played a central role in the planning and
implementation of the persecution of Jews in
Germany, Poland, Hungary, and several other
countries. At the end of the war, he escaped to
Argentina. In 1960, he was kidnapped in Argentina
by Israeli agents. He was then tried under Israel’s
Nazi Collaborators Law and was found guilty by the
trial court. The Supreme Court of Israel upheld the
conviction. In 1962, Eichmann went to the gallows,
the only person ever formally executed by the State
of Israel.
Israel v. Eichmann (Trial Court Decision)
ISSUE: Whether Israel has jurisdiction to punish
acts done outside its boundaries by a person who
was not an Israeli citizen and who was acting in the
course of his duty on behalf of his home country
(Germany).
HELD: Yes, Israel has jurisdiction. The power of
Israel to enact the Nazi Collaborators Law under
which Eichmann was tried is based on a dual
foundation: the universal character of the crimes in
question and their specific character as intended to
exterminate the Jewish people.
Jurisdiction is justified under the law of nations: The
abhorrent crimes defined in the Nazi Collaborators
Law are not crimes under Israel Law alone. These
crimes are grave offenses against the law of nations
itself (delicta jurit gentium). The jurisdiction to try
crimes under international law is universal.
Genocide is nothing but the gravest type of crime
against humanity.
Jurisdiction is also justified under the special
connection which the State of Israel has with the
crimes: The people of Israel, the Jewish people,
constituted the target and victim of most of the said
crimes. The connection between the State of Israel
and the Jewish people has been recognized as an
integral part of the law of nations. The crimes
against the Jews very deeply concern the vital
interests of the State of Israel, and under the
protective principle, it has the right to punish the
criminals.
Also, it is true that under international law, Germany
bears not only moral, but also legal responsibility for
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all the crimes that were committed as its own “acts
of State.” But that responsibility does not detract
from the personal responsibility of the accused for
his acts.
Eichmann v. Israel (Supreme Court Decision)
ISSUE: Whether the State of Israel can punish the
offenses allegedly committed by Eichmann even if it
had not existed as a state at the time of the
commission of the offenses; Whether the law can be
applied retroactively to acts committed prior to its
enactment.
HELD: Yes, the State of Israel has jurisdiction.
The crimes established in the Nazi Collaborators Law
of 1950 must be seen today as acts that have always
been forbidden by customary international law. They
are acts which are of a universal criminal character
and entail individual criminal responsibility. The
enactment of the law was not a retroactive penal
law, but rather one by which the legislative body of
Israel gave effect to international law and its
objectives.
It is the universal character of the crimes which
vests in every State the power to try those who
participated in the preparation of such crimes, and to
punish them therefor.
One of the principles whereby States assume the
power to try and punish a person for an offense he
has committed is the principle of universality. It
means that the power is vested in every State
regardless of the fact that the offense was
committed outside its territory by a person who did
not belong to it, provided he is in its custody at the
time he is brought to trial. This principle has wide
support and is universally acknowledged with respect
to the offense of piracy. There is full justification for
applying the principle of universal jurisdiction to this
case, since the international character of “crimes
against humanity” is not in doubt, and the
unprecedented extent of the injurious and
murderous effect is not open to dispute. The basic
reason for which international law recognizes the
right of each State to exercise such jurisdiction in
piracy applies with greater force to these cases.
The State which prosecutes and punishes a person
for that offense acts solely as the organ and agent of
the international community, and metes out
punishment to the offender for his breach of the
prohibition imposed by the law of nations. Thus, the
State of Israel was entitled, pursuant to the principle
of universal jurisdiction and acting in the capacity of
guardian of international law and agent for its
enforcement, to try Eichmann.
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5. THE PASSIVE PERSONALITY PRINCIPLE
A state may apply law – particularly criminal law – to
an act committed outside its territory by a person
not its national where the victim of the act was its
national.
This principle has not been ordinarily accepted for
ordinary torts or crimes, but is increasingly accepted
as applied to terrorist and other organized attacks on
a state’s nationals by reason of their nationality, or
to assassination of a state’s diplomatic
representatives of other officials.
US v. Fawaz Yunis
The Royal Jordanian Airlines Flight 402 was
scheduled to depart from Beirut, Lebanon. Several
American citizens were on board the plane. Before
the plane could depart, several Arab men hijacked
the plane. The plane left Beirut and landed in
Cyprus, Sicily, and went over the airspace of several
Mediterranean countries. It finally landed back in
Beirut, where the Arab guys delivered a press
conference and blew up the plane.
Fawaz Yunis was among the Arab hostage-takers.
He was indicted under a US court. He contends that
the US courts have no jurisdiction to prosecute a
foreign national for crimes committed in foreign
airspace and on foreign soil. He also claims that the
presence of American nationals on board the plane is
an insufficient basis for exercising jurisdiction by the
US courts. [The plane was registered in Jordan, flew
the Jordanian flag, and never landed on American
soil nor flew over American airspace.]
ISSUE: Whether the US court has jurisdiction.
HELD: Yes, the US court has jurisdiction under both
the universal principle and the passive personality
principle.
Under the Universal Principle: The Universal
Principle recognizes that certain offenses are so
heinous and so widely condemned that any state if it
captures the offender may prosecute and punish that
person on behalf of the world community regardless
of the nationality of the offender or victim or where
the crime was committed. Aircraft piracy and
hostage taking are crimes that fit within the category
of heinous crimes for purposes of asserting universal
jurisdiction, as evidenced by several treaties and
conventions (The Tokyo Convention, The Hague
Convention, The Montreal Convention, International
Convention for the Taking of Hostages). These
treaties require signatory states to prosecute any
alleged offenders present in its territory.
Under the Passive Personality Principle: The
Passive Personality Principle authorizes states to
assert jurisdiction over offenses committed against
their citizens abroad. It recognizes that each state
has a legitimate interest in protecting the safety of
its citizens when they journey outside national
boundaries. This is the most controversial of the five
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sources of jurisdiction, but many international legal
scholars agree that the international community
recognizes its legitimacy. The Hostage Taking
Convention gives each signatory country discretion
to exercise extraterritorial jurisdiction when the
offense is committed with respect to a hostage who
is a national of that state if that state considers it
appropriate.
It is true that the US has been reluctant to accept
the passive personality principle for fear that it could
lead to indefinite criminal liability for its own citizens.
The belief was that foreigners visiting the US should
comply with the laws of the US and should not be
permitted to carry their laws with them. Otherwise,
Americans would face criminal prosecutions for
actions unknown to them.
However, the theory has been increasingly accepted
when applied to terrorist and other organized attacks
on a state’s nationals by reason of their nationality,
or to assassinations of a state’s ambassadors, or
government officials. Perpetrators of crimes
unanimously condemned by the international
community should be aware of the illegality of their
actions. Therefore, qualified application of the
doctrine to serious and universally condemned
crimes will not raise the specter of unlimited and
unexpected criminal liability.
CONFLICTS OF JURISDICTION
Since there are various principles for assuming
jurisdiction, more than one state may have a valid
claim to jurisdiction. US courts have developed the
following modes to resolve conflicts of jurisdiction:
1. The Balancing Test – In Timberlane
Lumber Co. v. Bank of America, the issue
was whether to assume jurisdiction in a
case involving acts emanating from
Honduras. The court employed a tripartite
analysis as follows:
a. Was there an actual or intended
effect on American commerce?
b. Is the effect sufficiently large to
present a cognizable injury to the
plaintiffs?
c. Are the interests of, and link to,
the US including effects on
American foreign commerce
sufficiently strong vis-à-vis those
of other nations, to justify an
assertion of extraordinary
authority?
If the answer to all three questions is YES,
then the court will assume jurisdiction.
2. International Comity – Even when a state
has basis for exercising jurisdiction, it will
refrain from doing so it its exercise will be
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 unreasonable. Unreasonableness is
determined by evaluating various factors,
such as:
a. the link of the activity to the
territory of the regulating state;
b. the connection between the
regulating state and the person
principally responsible for the
activity to be regulated (ex:
nationality, residence, economic
activity);
c. the character of the activity to be
regulated;
d. the existence of justified
expectations that might be
protected or hurt by the
regulation; and
e. the likelihood of conflict with
regulation by another state.
3. Forum non conveniens – If in the
circumstances of the case, it be discovered
that there is a real unfairness to one of the
suitors in permitting the choice of a forum
which is not the natural or proper forum,
either on the ground of convenience of trial
or the residence or domicile of parties or of
its being the locus contractus or locus
solutionis, then the doctrine of forum non
conveniens is properly applied.
The application of the doctrine is
discretionary with the court. The court
needs to weigh the private interest and the
public interest factors.
The private interest factors are:
a. access to sources of proof
b. availability of compulsory process for
unwilling witnesses
c. other personal problems which make
trial easy, expeditious, and
inexpensive.
The public interest factors are:
a. congestion
b. desire to settle local controversies at
home
c. having the case tried in a forum at
home with the applicable law.
EXTRADITION
Extradition is the surrender of an individual by the
state within whose territory he is found to the state
under whose laws he is alleged to have committed a
crime or to have been convicted of a crime.
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It is a process that is governed by treaty. The legal
right to demand extradition and the duty to
surrender a fugitive exist only when created by
treaty. The treaty may cover specific crimes only or
all offenses considered criminal by both states.
The following principles govern extradition:
1. No state is obliged to extradite unless there
is a treaty;
2. Differences in legal system can be an
obstacle to interpretation of what the crime
is; and
3. Religious and political offenses are not
extraditable.
The procedure for extradition is normally through
diplomatic channels.
How extradition rules can be bypassed – see the
following case:
US v. Alvarez-Machain
Alvarez was indicted for participating in the kidnap
and murder of a US Drug Enforcement
Administration (DEA) agent and a Mexican pilot. The
DEA believes that Alvarez, a medical doctor,
participated in the murder of the agent by prolonging
his life so that others could torture and interrogate
him. Alvarez was forcibly kidnapped in Mexico and
flown to Texas where he was arrested by DEA
officials. The District Court concluded that the DEA
was responsible for the abduction.
Alvarez moved to dismiss on the ground that the
court lacked jurisdiction because his abduction was a
violation of an extradition treaty between the US and
Mexico.
ISSUE: Whether the US court has jurisdiction.
HELD: Yes, the US court has jurisdiction.
The applicable rule is Ker v. Illinois, where the US
Supreme Court held that the forcible abduction of a
defendant is no sufficient reason why the party
should not answer when brought within the
jurisdiction of the court which has the right to try
him for such an offense, and presents no valid
objection to his trial in such court.
Moreover, the abduction of Alvarez was not a
violation of the extradition treaty between the US
and Mexico. There is nothing in the language of the
treaty that proscribes or prohibits forcible abductions
of people from the territory of the other nation.
While it outlines the processes and restrictions on
the obligation to extradite, it does not specify the
only way in which one country may gain custody of a
national of the other country for the purposes of
prosecution.
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DUE PROCESS IN EXTRADITION CASES
Sec. of Justice v. Hon. Ralph Lantion (Mark
Jimenez Case)
ISSUE: Whether MJ is entitled to the due process
rights to notice and hearing during the evaluation
stage of the extradition process.
HELD: No, MJ is not entitled to notice and hearing
during the evaluation stage of the extradition
process.
There is no provision in the RP-US Extradition Treaty
and in PD 1069 which implements the treaty, that
gives an extraditee the right to demand from the
Secretary of Justice copies of the extradition request
from the US government and its supporting
documents and to comment thereon while the
request is still undergoing evaluation.
MJ argues that an extradition proceeding is like a
criminal proceeding, and the evaluation stage is like
a preliminary investigation. Hence, he should be
afforded the right to notice and hearing. This is not
correct. An extradition proceeding is sui generis [of
its particular kind; unique]. It is not a criminal
proceeding which will call into operation all the rights
of an accused as guaranteed by the Bill of Rights. To
begin with, extradition does not involve the
determination of the guilt or innocence of an
accused. His guilt or innocence will be adjudged in
the court of the state where he will be extradited.
As a rule, constitutional rights that are only relevant
to determine the guilt or innocence of an accused
cannot be invoked by an extraditee especially by one
whose extradition papers are still undergoing
evaluation.
Other differences between an extradition proceeding
and a criminal proceeding:
EXTRADITION CRIMINAL
Summary in nature Involve a full-blown trial
Rules of evidence are Stricter rules of evidence
less stringent
Quantum of evidence Requires proof beyond
required is only prima reasonable doubt
facie
Courts may adjudge an Judgment of a court
individual extraditable, becomes executory upon
but the President has the being rendered final
final discretion to
extradite him
Since extradition proceedings are not criminal in
character and the evaluation stage in an extradition
proceeding is not akin to a preliminary investigation,
the due process safeguards in the latter do not
necessarily apply to the former.
MJ’s plea to due process collides with important state
interests which cannot be ignored. The clash of
rights demands a delicate balancing of interests. On
the one hand, MJ claims his right to due process
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under the Constitution. On the other hand, we have
our national commitment under the RP-US
Extradition Treaty. Considering that the extradition
proceeding is only at its evaluation stage, the nature
of his right to due process is nebulous and the
degree of prejudice that he will allegedly suffer is
weak. Hence, greater weight must be accorded to
the interests of the government.
This is not to say that MJ is being denied due process
altogether. PD 1069 affords the extraditee the
opportunity to meet the evidence against him once
the petition is filed in court. The time for the
extraditee to know the basis of the request for his
extradition is merely moved to the filing in court of
the formal petition for extradition. The extraditee’s
right to know is momentarily withheld during the
evaluation stage of the extradition process to
accommodate the more compelling interest of the
State to prevent escape of potential extradites which
can be precipitated by premature information of the
basis of the request for his extradition.
CHAPTER IX IMMUNITY FROM
JURISDICTION
General Rule
Jurisdiction of a state within its territory is complete
and absolute.
Exceptions
1. Sovereign immunity (covers both a head of
state and the state itself)
2. Immunity of the representative of states or
diplomatic and consular immunities
IMMUNITY OF HEAD OF STATE
Immunity from jurisdiction is enjoyed by both the
head of state and by the state itself.
Example: Case of Mighell v. Sultan of Johore – The
Sultan was sued for breach of promise to marry in a
British court. The subject of the suit was therefore a
private matter. Upon verification of his being a
sitting foreign sovereign, the case was dismissed.
The immunity that is recognized here is absolute.
The Pinochet Case
Pinochet was one of the leaders of a coup that
deposed the government of President Allende in
Chile. He became head of state in 1974. In a
campaign to destroy leftist political forces in Chile,
Pinochet’s government arrested thousands of people;
many were executed, imprisoned, or disappeared.
The UN Human Rights Commission condemned
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Pinochet’s government for torturing detainees. In
1990, Pinochet stepped down as president. In 1998,
he assumed a lifetime seat in the Chilean Senate.
While Pinochet was seeking medical treatment in the
UK, a Spanish judge requested his extradition to
Spain to face charges of human rights violations
committed during his regime.
ISSUE: Whether Senator Pinochet is entitled to
immunity as a former head of state.
HELD: Yes, he is entitled to immunity. A former
head of state cannot be prosecuted in the municipal
courts of a foreign state for his official acts as head
of state.
Under customary international law, it is accepted
that a state is entitled to expect that its former head
of state will not be subjected to the jurisdiction of
the courts of another state for certain categories of
acts performed while he was head of state unless
immunity is waived by the current government of the
state of which he was once the head. The immunity
is accorded for the benefit not of the former head of
state himself but for the state of which he was once
the head, and any international law obligations are
owed to that state and not to the individual.
The rationale is the same for former heads of state
as it is for current heads of state. In each case, the
obligation in international law is owed to the state,
and not to the individual, though in the case of a
current head of state, he will have a concurrent
immunity ratione personae. It is the state alone
which can waive the immunity. In this case, Chile
has made no such waiver.
An isolated case was Hilao v. Marcos in which the
claim to immunity of the Marcos estate failed. The
facts of that case were unique in that the Philippines
filed a brief, stating that its foreign relations with the
US would not be adversely affected if claims against
ex-President Marcos were litigated in the US. In the
Pinochet case, the government of Chile has asserted
the immunity.
Immunity applies only to “acts of state”: It is
only in respect of certain categories of acts that the
former head of state is immune from the jurisdiction
of municipal courts. In order for the act of state
doctrine to apply, the defendant’s activities must
have been “acts of state” – they must have been
taken on behalf of the state and not private acts on
behalf of the actor himself. In this case, Senator
Pinochet was acting in his sovereign capacity when
he committed the crimes imputed to him. He
organized the commission of these crimes as the
head of the government, in cooperation with other
governments, and he carried these out through the
agency of the police and the secret service. These
were sovereign and not private acts. Since the
crimes were committed in his sovereign capacity,
Pinochet is covered by the immunity.
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STATE IMMUNITY
The state may not be sued without its consent. This
is both municipal law and also international law
applicable to foreign states.
Basis: Principle of equality of states: par in parem
non habet imperium. The perfect equality and
absolute independence of sovereigns and the
common interest impelling them to mutual
intercourse have given rise to a class of cases in
which every sovereign is understood to waive the
exercise of a part of that complete exclusive
territorial jurisdiction.
When is it applicable?
Immunity is reserved only for acts jure imperii
(governmental acts) but not for acts jure gestionis
(trading and commercial acts).
When is it not applicable?
1. Trading and commercial acts of the
government - A State may be said to have
descended to the level of an individual and
can be deemed to have tacitly given its
consent to be sued only when it enters into
business contracts. It does not apply where
the contract relates to the exercise of its
sovereign functions.
How to determine if it is a commercial act of
the government – Ask whether the foreign
state is engaged in the activity in the
regular course of business. If the foreign
state is not engaged regularly in a business
or trade, the particular act or transaction
must then be tested by its nature. If the
act is in pursuit of a sovereign activity or an
incident thereof, then it is a governmental
act, especially when not undertaken for gain
or profit.
2. When the public official acts contrary to
law - The doctrine of state immunity may
also not be invoked where the public official
is made to account in his capacity as such
for acts contrary to law and injurious to the
rights of plaintiff. The State authorizes only
legal acts by its officers, so that
unauthorized acts of government officials or
officers are not acts of State. An action
against them is not a suit against the State
within the rule of immunity of the State
from suit.
How should a state claim sovereign immunity?
The state or international agency wishing to plead
sovereign or diplomatic immunity in a foreign court
should request the Foreign Office of the state where
it is sued to convey to the court that said defendant
is entitled to immunity.
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In the Philippines, the practice is for the foreign
government to first secure an executive
endorsement of its claim of sovereign or diplomatic
immunity.
If a foreign sovereign is immune from suit,
what remedies can one enforce against it?
A person who feels aggrieved by the acts of a foreign
sovereign can ask his own government to espouse
his cause through diplomatic channels.
DIPLOMATIC AND CONSULAR IMMUNITIES
Official representatives of a state are given
immunities and privileges when they are within the
territory of another state.
The immunities are personal in the sense that they
benefit the person.
But the purpose is functional: to enable the
representatives to perform their functions properly.
The receiving state has certain obligations to protect
the representative and his property and office. The
law on diplomatic and consular immunities is
important because of the reliance that states place
on their reps in dealing with other states.
DIPLOMATIC IMMUNITIES
Diplomats are concerned with the political relations
of states.
The law on the subject is found in the Vienna
Convention on Diplomatic Relations.
Definition of Terms (Who may enjoy diplomatic
immunity):
1. head of the mission – the person charged
by the sending State with the duty of acting
in that capacity;
2. members of the mission – the head of
the mission and the members of the staff of
the mission;
3. members of the staff of the mission –
the members of the diplomatic,
administrative, technical and service staff of
the mission;
4. members of the diplomatic staff –
members of the staff of the mission having
diplomatic rank;
5. diplomatic agent – head of the mission or
a member of the diplomatic staff of the
mission
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6. members of the administrative and
technical staff – members of the staff of
the mission employed in the administrative
and technical service of the mission;
7. members of the service staff – members
of the staff of the mission in the domestic
service of the mission;
8. private servant – a person who is in the
domestic service of a member of the
mission and who is not an employee of the
sending State;
9. premises of the mission – buildings or
parts of the buildings and the land ancillary
thereto, irrespective of ownership, used for
the purposes of the mission, including the
residence of the head of the mission.
Functions of the Diplomatic Mission
1. Representing the sending State in the
receiving State;
2. Protecting in the receiving State the interest
of the sending State and of its nationals,
within the limits permitted by international
law;
3. Negotiating with the government of the
receiving State;
4. Ascertaining by all lawful means conditions
and developments in the receiving state,
and reporting thereon to the Government of
the sending State;
5. Promoting friendly relations between the
sending State and the receiving State, and
developing their economic, cultural and
scientific relations.
How diplomatic relations between states are
established:
Diplomatic relations between states are purely by
mutual consent. Before the head of mission is sent
to the receiving state, an agreement must first be
obtained.
The receiving state may refuse an agreement and
need not give any reasons for such refusal.
The receiving state may, at any time, and without
having to explain its decision, notify the sending
state that the head of the mission or any member of
the diplomatic staff of the mission is persona non
grata or that any member of the staff is not
acceptable. In this case, the sending state shall
either recall the person concerned or terminate his
functions with the mission. A person may also be
declared persona non grata or unacceptable even
before he arrives in the territory of the receiving
state.
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Rights and Privileges of the Diplomatic Mission:
Article 22 – Inviolability of Premises of the
Mission:
1. The premises of the mission shall be
inviolable. Agents of the receiving State
may not enter them, except with the
consent of the head of the mission.
2. The receiving State is under a special duty
to protect the premises of the mission
against any intrusion or damage and to
prevent any disturbance of the peace of the
mission or impairment of its dignity.
3. The premises of the mission, their
furnishings and other property thereon and
the means of transport of the mission shall
be immune from search, requisition,
attachment, or execution.
Article 23 – Exemption from Property Taxes:
1. The sending State and head of the mission
shall be exempt from all national, regional
or municipal dues and taxes in respect of
the premises of the mission, whether owned
or leased, other than such as represent
payment for specific services rendered.
2. Exemption from taxation is NOT applicable
to dues and taxes payable under the law of
the receiving State by persons contracting
with the sending State or the head of the
mission.
Article 24 – Inviolability of Archives and
Documents
Archives and documents of the mission shall be
inviolable at any time and wherever they may be.
Article 27 – Inviolability of Official
Correspondence
1. The receiving State shall permit and protect
free communication on the part of the
mission for all official purposes. The
mission may employ all appropriate means,
including diplomatic couriers and messages
in code or cipher. However, the mission
may install and use a wireless transmitter
only with the consent of the receiving state.
2. Official correspondence of the mission shall
be inviolable. Official correspondence
means all correspondence relating to the
mission and its functions.
3. The diplomatic bag shall not be opened or
detained.
4. Packages constituting the diplomatic bag
must bear visible external marks of their
character and may contain only diplomatic
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documents or articles intended for official
use.
5. The diplomatic courier shall be protected by
the receiving State in the performance of
his functions. He shall enjoy personal
inviolability and shall not be liable to any
form of arrest or detention.
6. The sending State of the mission may
designate diplomatic couriers ad hoc who
shall enjoy the immunities of a diplomatic
courier until he has delivered to the
consignee the diplomatic bag in his charge.
Article 29 – Inviolability of Person of the
Diplomatic Agent
The person of a diplomatic agent shall be inviolable.
He shall not be liable to any form of arrest or
detention. The receiving state shall treat him with
due respect and shall take appropriate steps to
prevent any attack on his person, freedom or
dignity.
Article 30 – Inviolability of the Private
Residence, Papers, Correspondence, and
Property of the Diplomatic Agent
Same protection granted to the residence, papers,
property, and correspondence of the diplomatic
agent as that granted to the premises of the mission.
Article 31 – Immunity from Criminal, Civil, and
Administrative Jurisdiction
1. A diplomatic agent shall enjoy immunity
from the criminal jurisdiction of the
receiving State.
2. He shall also enjoy immunity from its civil
and administrative jurisdiction EXCEPT:
a. in real actions relating to private
immovable property situated in the
territory of the receiving State,
unless he holds it on behalf of the
sending State for the purposes of
the mission;
b. in actions relating to succession in
which the diplomatic agent is
involved as executor,
administrator, heir, or legatee as a
private person;
c. in actions relating to any
professional or commercial activity
exercised by the diplomatic agent
in the receiving State outside of his
official functions.
3. A diplomatic agent is not obliged to give
evidence as a witness.
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 4. A diplomatic agent is exempt from
execution except if the case falls under the
three exceptions under #2, and provided
that the measures of execution can be
taken without infringing the inviolability of
his person or his residence.
5. The diplomatic agent is not exempt from the
jurisdiction of the sending state.
Article 32 – Waiver of Immunity
1. Immunity from jurisdiction of diplomatic
agents and of persons enjoying immunity
under Art. 37 may be waived by the sending
State.
2. Waiver must be express.
3. The initiation of proceedings by a diplomatic
agent or by a person enjoying immunity
from jurisdiction under Art. 37 shall
preclude him from invoking immunity in
respect of any counter-claim directly
connected with the principal claim.
4. Waiver of immunity in respect of civil or
administrative proceedings shall not be held
to imply waiver of immunity from execution
of the judgment, for which a separate
waiver is necessary.
Article 33 – Exemption from Social Security
Provisions
1. A diplomatic agent shall be exempt from
social security provisions with respect to
services rendered for the sending state.
2. The exemption also applies to private
servants who are in the sole employ of a
diplomatic agent, provided:
a. that they are not nationals or
permanent residents of the
receiving state; and
b. they are covered by the social
security provisions in force in the
sending state or a third state.
3. A diplomatic agent who employs persons to
whom the exemption in #2 does not apply,
shall not be exempt from social security
provisions of the receiving state imposed
upon employers.
4. But the diplomatic agent can voluntarily
participate in the social security system of
the receiving state, provided that it is
permitted by the receiving state.
Article 34 – Exemption from Taxation
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A diplomatic agent shall be exempt from all dues and
taxes, personal or real, national, regional or
municipal, EXCEPT:
1. indirect taxes normally incorporated in the
price of goods or services;
2. dues and taxes on private immovable
property situated in the territory of the
receiving state, unless held on behalf of the
State for the purposes of the mission;
3. estate, succession, or inheritance tax;
4. dues and taxes on private income derived
within the State and capital taxes on
investments made in commercial
undertakings in the receiving State;
5. charges levied for specific services
rendered;
6. registration, court or record fees, mortgage
dues, and stamp duty with respect to
immovable property.
Article 36 – Exemption from Customs Duties
1. The following are exempt from customs
duties, taxes and other related charges for
storage, cartage, and other similar services:
a. articles for official use of the
mission;
b. articles for the personal use of a
diplomatic agent or members of his
family forming part of his
household, including articles
intended for his establishment.
2. Personal baggage of a diplomatic agent
shall be exempt from inspection unless
there are serious grounds to presume that it
contains articles not covered by the
exempted items above, or that are
prohibited or controlled by quarantine
regulations of the receiving State. The
inspection shall be conducted only in the
presence of the diplomatic agent or his
authorized rep.
Article 37 – Immunity of members of the family
and other staff
1. Members of the family of a diplomatic agent
forming part of his household shall, if they
are not nationals of the receiving State,
enjoy the privileges and immunities in
Articles 29-36.
2. Members of the admin and technical staff of
the mission, together with their family
members, who are not nationals or
permanent residents of the receiving state
shall enjoy the immunities under Articles
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 29-35, except that the immunity from civil
and administrative jurisdiction shall not
extend to acts performed outside the course
of their duties. They shall also enjoy the
privileges under Art. 36, in respect of
articles imported at the time of first
installation.
3. Members of the service staff of the mission
who are not nationals or permanent
residents of the receiving State shall enjoy
immunity in respect of acts performed in
the course of their duties, exemption from
dues and taxes on the emoluments received
by reason of their employment, and the
exemption granted in Art. 33.
4. Private servants or members of the mission
who are not nationals or permanent
residents in the receiving State shall be
exempt from dues and taxes on
emoluments received by reason of their
employment. In other respects, they may
enjoy privileges and immunities to the
extent admitted by the receiving State.
Article 38 – Immunity of Diplomatic Agents
who are Nationals of Permanent Residents of
the Receiving State
1. If the receiving State grants additional
privileges and immunities, a diplomatic
agent who is a national of or permanent
resident in the State shall enjoy only
immunity from jurisdiction and inviolability
in respect of official acts performed in the
exercise of his functions.
2. Immunity or other members of the staff of
the mission and private servants who are
nationals or permanent residents: Only to
the extent admitted by the receiving state.
But state must exercise its jurisdiction
without unduly interfering with the
performance of the functions of the mission.
Article 39 – Commencement and Termination of
the Immunities
When do the immunities commence? From the
moment the person enjoying the immunities enters
the territory of the receiving State on proceeding to
take up his port or, if already in its territory, from
the moment when his appointment is notified to the
Ministry of Foreign Affairs.
When do they end? When the functions of a person
enjoying immunity have come to an end, the
immunities cease at the moment when he leaves the
country, or on expiry of a reasonable period in which
to do so, but shall subsist until that time, even in
case of armed conflict.
With respect to acts performed by the person in the
exercise of his functions as a member of the mission,
immunity shall continue to subsist.
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Article 41 – Duty of Persons Enjoying Immunity
Duty is to respect the laws and regulations of the
receiving State.
Article 42 – Prohibitions
They may not practice for personal profit any
professional or commercial activity in the receiving
State.
CONSULS AND CONSULAR IMMUNITIES
Consuls are not concerned with political matters.
They attend to administrative and economic issues,
such as the issuance of visas.
The governing law is the Vienna Convention on
Consular Relations.
Consular Functions
1. Protecting in the receiving State the
interests of the sending State and of its
nationals, within the limits permitted by int’l
law;
2. Furthering the dev’t of commercial,
economic, cultural, and scientific relations
bet. the sending state and the receiving
state and promoting friendly relations bet.
them;
3. Ascertaining all lawful means, conditions,
and developments in the commercial,
economic, cultural, and scientific life of the
receiving State, reporting thereon to the
Gov’t of the sending state and giving
information to interested persons;
4. Issuing passports and travel documents to
nationals of the sending State, reporting
thereon to the Gov’t of the sending State,
and visas or appropriate documents to
persons wishing to travel to the sending
State;
5. helping and assisting nationals of the
sending State;
6. acting as notary and civil registrar;
7. safeguarding the interests of national of the
sending State in case of succession mortis
causa in the territory of the receiving State;
8. safeguarding the interests of minors and
other persons lacking full capacity who are
nationals of the sending State, particularly
where any guardianship or trusteeship is
required;
9. representing or arranging appropriate
representation for nationals of the sending
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 state before the tribunals and other
authorities of the receiving state to preserve
their rights and interests;
10. transmitting judicial and extra-judicial
documents or executing letters rogatory ☺
or commissions to take evidence for the
courts of the sending state;
11. exercising rights or supervision and
inspection in respect of vessels having the
nationality of the sending state and or
aircraft registered in that state and in
respect of their crews;
12. extending assistance to vessels and aircraft
mentioned above and to their crews, taking
statements regarding the voyage of a
vessel, examining and stamping the ship’s
papers, and conducting investigations into
any incidents which occurred during the
voyage and settling disputes between
master, officers, and seamen;
13. other functions entrusted by the sending
state not prohibited by the laws and
regulations of the receiving state or to
which no objection is taken by the receiving
state or which are referred to in the
international agreements in force.
Õ Note that the above functions are always subject
to the laws and regulations of the receiving state
How the head of a consular post is admitted:
The head of a consular post is admitted to the
exercise of his functions by an authorization from the
receiving state termed exequatur. No prescribed
form, but without one, the consul may not enter
upon his duties.
The receiving State may, at any time, notify the
sending state, that a consular officer is persona non
grata or that any other member of the consular staff
is not acceptable. The sending State shall either
recall the person or terminate his functions with the
consular post.
Duty of the Receiving State
The receiving state has the duty to protect the
consular premises, archives, and interests of the
sending state. The receiving state must insure the
unimpeded functioning of the consular offices.
Rights and Privileges of Consuls and Consular
Offices
Article 34 – Freedom of Movement
Subject to its laws and regulations concerning zones
entry into which is prohibited or regulated for
reasons of national security, the receiving state shall
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ensure freedom of movement and travel in its
territory to all members of the consular post.
Article 35 – Freedom of Communication
1. The receiving State shall permit and protect
free communication on the part of the
consular post for all official purposes. The
mission may employ all appropriate means,
including diplomatic or consular couriers,
diplomatic or consular bags, and messages
in code or cipher. However, the consular
post may install and use a wireless
transmitter only with the consent of the
receiving state.
2. Official correspondence of the consular post
shall be inviolable. Official correspondence
means all correspondence relating to the
consular post and its functions.
3. The consular bag shall not be opened or
detained. But if the competent authorities
of the receiving state have serious reason to
believe that the bag contains something
other than the correspondence, documents
or articles, they may request that the bag
be opened by an authorized rep of the
sending state. If the request is refused, the
bag shall be returned to its place of origin.
4. Packages constituting the consular bag
must bear visible external marks of their
character and may contain only diplomatic
documents or articles intended for official
use.
Article 36 – Communication and Contact with
Nationals of the Sending State
1. Consular officers shall be free to
communicate with nationals of the sending
state and to have access to them. Nationals
of the sending state shall have the same
freedom to communicate and to access
consular officers of the sending state.
2. If he so requests, the competent authorities
of the receiving state shall, without delay,
inform the consular post of the sending
state if a national of that state is arrested or
committed to prison or to custody pending
trial or is detained in any other manner.
Any communication addressed to the
consular post by the person arrested shall
be forwarded by the authorities without
delay;
3. Consular officers shall have the right to visit
a national of the sending state who is in
prison, custody, or detention, to converse
and correspond with him and to arrange for
his legal representation. They shall also
have the right to visit any national of the
sending state who is in prison, custody or
detention in their district in pursuance of a
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 judgment. Nevertheless, consular officers
shall refrain from taking action on behalf of
a national who is in prison, custody or
detention if he expressly opposes such
action.
Article 41 – Personal Inviolability of Consular
Officers
Consular officers shall not be liable to arrest of
detention pending trial EXCEPT in the case of a grave
crime and pursuant to a decision by the competent
judicial authority.
Article 42 – Notification of Arrest, Detention, or
Prosecution
If a members of the consular staff is arrested or
detained, the receiving state shall notify the head of
the consular post.
Article 43 – IMMUNITY FROM JURISDICTION
1. Consular officers and employees shall be
immune from jurisdiction of the judicial and
administrative authorities of the receiving
State in respect of acts performed in the
exercise of consular functions.
2. NO IMMUNITY in civil cases, which:
a. arise out of a contract concluded
by the consular officer or employee
in which he did not contract
expressly or impliedly as an agent
of the sending state;
b. are instituted by a third party for
damage arising from accidents in
the receiving state caused by a
vehicle, vessel, or aircraft.
Article 44 – Liability to Give Evidence
1. Members of a consular post may be called
upon to attend as witnessed in judicial or
administrative proceedings.
2. A consular employee or a member of the
service staff shall not decline to give
evidence.
3. If a consular officer should decline to do so,
no coercive measure or penalty may be
applied to him.
Article 45 – Waiver of Privileges and
Immunities
The sending state may waive the privileges and
immunities.
US Diplomatic and Consular Staff in Tehran
Case (US v. Iran)
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Iranian students seized the US embassy in Tehran
and a number of consulates in outlying cities. The
Iranian authorities failed to protect the Embassy an
later appeared to adopt the students’ actions. Over
50 US nationals were held for 444 days.
HELD: Iran violated its international obligations
under the Vienna Conventions. The Iranian
authorities were fully aware of their obligations
under these conventions to protect the premises and
staff of the US Embassy from any infringement of
their inviolability and to ensure the security of such
other persons as might be present on the said
premises. They also had the means at their disposal
to perform these obligations, and yet they
completely failed to comply. They even endorsed
the action of the militants and have deliberately
maintained their occupation of the Embassy and
detention of its staff as a means of coercing the
sending state.
THE ACT OF STATE DOCTRINE
What do you understand by this “act of state
doctrine?” It means that local courts cannot pass
upon the validity of the acts of a foreign state.
Underhill v. Hernandez
In 1892, Gen. Hernandez of Venezuela led a
successful revolution against the legitimate
government. He then entered the city of Bolivar to
assume leadership of the government. George
Underhill was a US citizen who had constructed a
waterworks systems for the city of Bolivar under a
contract with the government, and was engaged in
supplying the place with water. He also operated a
machinery repair business. After Hernandez
entered, Underhill applied for a passport to leave the
city. Hernandez refused in order to coerce Underhill
to operate his waterworks and repair works for the
benefit of the community and the revolutionary
forces. After Underhill was finally allowed to leave,
he filed suit in the US to recover damages for the
detention caused by reason of the denial of his
permit to leave, for his alleged confinement to his
own house, and for certain alleged assaults and
affronts by the soldiers of Hernandez’s army.
HELD: Underhill is not entitled to damages from
Hernandez. The “act of state doctrine” was
formulated thus: Every sovereign state is bound to
respect the independence of every other sovereign
state, and the courts of one country will not sit in
judgment on the acts of the government of another,
done within its own territory. Redress of grievances
by reason of such acts must be obtained through the
means open to be availed of by sovereign powers as
between themselves.
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The doctrine is not a rule of international law but of
judicial restraint in domestic law whereby courts
refrain from making decisions in deference to the
executive who is the principal architect of foreign
relations.
The “acts of state doctrine” and separation of
powers
The doctrine arises out of the relationship between
the branches of government in a system of
separations of powers. It concerns the competency
of dissimilar institutions to make and implement
particular kinds of decisions in the area of
international relations. The act of the court in
passing on the validity of foreign acts of state may
hinder rather than further the country’s pursuit of
goals both for itself and for the community of nations
as a whole in the international sphere.
Limitations of the application of the doctrine:
Alfred Dunhill of London, Inc. v. Cuba
Dunhill mistakenly paid Cuba for cigars that had
been sold to Dunhill by certain expropriated Cuban
cigar businesses. Cuba failed to return the amounts
mistakenly paid.
ISSUE: Whether the failure to return the amounts
mistakenly paid was an act of state by Cuba.
HELD: No. The concept of an act of state should not
be extended to include the repudiation of a purely
commercial obligation owed by a foreign sovereign
or by one of its commercial instrumentalities.
Kirkpatrick Co. v. Environmental Tectonics Corp
The Nigerian government entered into a contract
with Kirkpatrick for the construction and equipment
of an aeromedical center at Kaduna Air Force Base in
Nigeria. Another company, which lost the bidding for
the contract, found out that Kirkpatrick had bribed
Nigerian officials in order to win the bidding. It
brought the matter to the attention of the Nigerian
Air Force and to the US Embassy in Lagos. The FBI
investigated, and the US Attorney for New Jersey
brought charges against Kirkpatrick for violations of
the Foreign Corrupt Practices Act. Kirkpatrick
pleaded guilty. The losing corporation then brought
a civil action against Kirkpatrick and the other
parties involved in the bribery for damages.
Defendants moved to dismiss and invoked the acts
of state doctrine.
HELD: The act of state doctrine is not applicable.
The validity of a foreign government act is NOT in
issue here. The act of state doctrine does not
establish an exception for cases and controversies
that may embarrass foreign governments, but
merely requires that, in the process of deciding, the
acts of foreign sovereigns taken within their own
jurisdiction shall be deemed valid. The doctrine has
no application to the present case because the
validity of a foreign sovereign act is not at issue.
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CHAPTER X STATE
RESPONSIBILITY
In traditional international law, individuals are
“objects” and not “subjects” of international law.
They do not possess international legal rights which
they could assert on their own. Whatever wrongs
committed against them can be redressed only by
states or organizations with international personality.
Individuals can be the subject of state versus state
litigation.
PROTECTION OF ALIENS
No state is obliged to admit aliens into its territory
unless there is a treaty requiring it. This is an aspect
of sovereignty.
But realistically, it is difficult to deny admission to
all. So what states do is to impose standards for
admission. Once admitted, at least under
democratic regimes, aliens may not be expelled
without due process.
From the perspective of the state of their nationality,
aliens are “nationals abroad.” They therefore remain
important to the state of their nationality. States
have a common interest in the protection of aliens.
The practice of the proper treatment of aliens is
based on this commonality of interest. States
protect aliens within their jurisdiction in the
expectation that their own nationals will be properly
treated when residing or sojourning abroad.
Diplomatic Protection
There is a well developed customary law for the
protection of aliens. The instrument used for the
protection of aliens is “diplomatic protection.”
The theory underlying the system is that injury to a
national abroad is injury to the individual’s state of
nationality.
The interest of the state is in the redress of the
injury to itself and not of the injury to the individual.
States enjoy discretion whether or not to espouse
claims raised by individuals in their own behalf.
Moreover, as indicated in the Nottebohm Case, in the
case of persons holding dual nationality, an “effective
nationality link” with the person must exist for a
state’s interest in an individual to be recognized by
other states.
Corporations and Shareholders
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The doctrine of “effective link” as applied to
corporations was discussed in the Barcelona Traction
Case:
Barcelona Traction and Power Co. (Belgium v.
Spain)
Barcelona Traction was a company incorporated in
Canada. Belgium filed a claim against Spain,
seeking reparation for damages allegedly sustained
by Belgian nationals, who were shareholders in the
company, as a result of acts contrary to international
law committed towards Barcelona Traction by organs
of the Spanish State.
HELD: Belgium has no jus standi to exercise
diplomatic protection of shareholders in a Canadian
company with respect to the measures taken against
it in Spain.
The breach of the obligation of Spain to protect
foreign investments and nationals in its territory, if
any, was committed against the company. Only the
company, which was endowed with legal personality,
could take action in respect of matters that were of a
corporate character. It may be true that a wrong
done to the company frequently causes prejudice to
its shareholders. But this does not imply that both
are entitled to claim compensation. Whenever a
shareholder’s interests are harmed by an act done to
the company, it is the company that he has to turn
to, to institute appropriate action. An act infringing
only the company’s rights do not involve
responsibility towards the shareholders, even if their
interests are affected. In order for the situation to
be different, the act complained of must be aimed at
the direct rights of the shareholder as such, which
was not the case here.
So who has the right to protect the corporation? It
is the state of nationality of the corporation (Canada)
which has the right, and not Belgium.
Standard for the protection of aliens
Two standards have emerged in modern times to
compete for recognition as the acceptable standard:
1. The doctrine of “national treatment” or
“equality of treatment” – Aliens are
treated in the same manner as nationals of
the state where they reside.
Advantage: Aliens would enjoy the same
benefits as local nationals.
Disadvantage: If the state is tyrannical
and its municipal laws are harsh and
violative of human right even of its own
citizens, aliens would likewise be subject to
such harsh laws.
2. “Minimum international standard” –
However harsh the municipal laws might be
against a state’s own citizens, aliens should
be protected by certain minimum standards
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of humane protection. This is now the
widely accepted standard.
But what is the “minimum international
standard?” It is abstract and not easy to
determine:
Neer Claim (US v. Mexico)
Mr. Neer was a US national working in
Mexico. He was stopped by armed men and
shot to death. The US claimed that the
Mexican government had been negligent in
their investigation of the murder.
HELD: The Mexican government was not
negligent. The treatment of an alien, in
order to constitute an international
delinquency, should amount to an outrage,
to bad faith, to willful neglect of duty, or to
an insufficiency of governmental action so
far short of international standards that
every reasonable and impartial man would
readily recognize its insufficiency.
Harvard Draft Convention on the
Responsibility of States for Damages
(denial of justice)
Article 9 of the Convention puts the
“minimum international standard” in terms
of the more limited concept of “denial of
justice.”
Denial of justice exists when there is a:
1. denial, unwarranted delay, or
obstruction of access to courts;
2. gross deficiency in the
administration of judicial or
remedial process;
3. failure to provide those guarantees
which are generally considered
indispensable to the proper
administration of justice; or
4. a manifestly unjust judgment.
Enforcement Regimes
How are issues of violations of the rights of aliens
resolved?
1. The ICJ, when its jurisdiction is appealed to
by states in conflict can resolve such issues.
2. Claims may also be settled by ad hoc
tribunals established for the purpose.
Examples:
a. US-Iran Claims Tribunal
established by US and Iran to deal
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 with claims arising from the Islamic
Revolution;
b. UN Compensation Commission
established by the Security Council
to deal with claims arising from
Iraq’s invasion of Kuwait.
3. States may also enter into lump sum
settlements
Examples:
a. US-Cambodia
b. US-Vietnam Claims Settlement
Agreements
DOCTRINE OF STATE RESPONSIBILITY
When an injury has been inflicted, there is need to
determine whether the state can be held responsible
for it.
One of the principles most strongly held by states is
that if a state violates a customary rule of
international law or a treaty obligation, it commits an
“internationally wrongful act.”
The International Law Commission adopted the
Articles on Responsibility of States for Internationally
Wrongful Acts. The draft has been referred to the
General Assembly for consideration.
Internationally Wrongful Act
Article 1 of the draft provides that “every
internationally wrongful act of a State entails the
international responsibility of that State.” What
Article 1 says is that states must accept
responsibility for actions which have an effect on
other international legal persons. No state can
escape this responsibility once it has committed an
“internationally wrongful act.”
What is an “internationally wrongful act”?
There is an internationally wrongful act of a State
when conduct consisting of an action or omission:
1. is attributable, not to the persons or
agencies who performed it, but to the State
itself (subjective element); and
2. constitutes a breach of an international
obligation of the State (objective element).
The breach may either be active (through
an act) or passive (through an omission).
There is a breach of an international obligation by a
State when an act of that State is not in conformity
with what is required of it by that obligation,
regardless of its origin or character.
What determines the wrongful character of the act is
international law and not internal or municipal law.
If an act is internationally wrongful, it does not cease
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to be such even if it is legal under the municipal law
of the State which committed it.
The international law violated can be customary or
conventional.
Attribution to the State
Acts which can be attributed to the state may be acts
of:
1. state organs,
2. other persons, or
3. revolutionaries.
Acts of State Organs: instances when the acts
of state organs are acts of the state
1. The conduct of any State organ acting in
that capacity shall be considered an act of
the State under international law, whether
the organ exercises legislative, executive,
judicial, or any other functions, whatever
position it holds in the organization of the
State, and whatever its character as an
organ of the central government of a
territorial unit of the State.
2. An organ includes any person or body
which has that status in accordance with the
internal law of the estate.
3. The conduct of an entity which is NOT an
organ of the State but which is empowered
by the law of that State to exercise
elements of the governmental authority
shall be considered an act of the State
under international law, provided the entity
was acting that capacity in the case in
question.
4. The conduct of a person or group of persons
shall be considered an act of the State
under international law if the person or
group of persons was in fact acting on the
instructions of, or under the direction or
control of, that State carrying out the
conduct.
5. The conduct of a person or group of persons
shall be considered an act of the State
under international law if the person or
group of persons was in fact exercising
elements of the governmental authority in
the absence or default of the official
authorities and in circumstances such as to
call for the exercise of those elements of
authority.
6. The conduct of an organ placed at the
disposal of a State by another State shall be
considered an act of the former State under
international law if the organ was acting in
the exercise of elements of the
governmental authority of the State at
whose disposal it had been placed.
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7. The conduct of an organ of a State or of an
entity empowered to exercise elements of
the governmental authority, such organ or
entity having acted in that capacity, shall be
considered an act of the State under
international law even if, in the particular
case, the organ or authority exceeded its
authority or contravened the instructions
concerning its exercise.
Caire Claim (France v. Mexico)
Caire, a French national, was killed in Mexico by
Mexican soldiers after they had demanded money
from him.
ISSUE: Whether Mexico is responsible for the
actions of its military personnel who acted without or
against the orders of their commanding officers.
HELD: Yes, Mexico is responsible.
Acts committed by the officials and agents of a State
entail the international responsibility of that State,
even if the perpetrator did not have specific
authorization. The responsibility of the State is
purely objective in character. It rests on the idea of
guarantee, in which the subjective notion of fault
plays no part.
But in order to admit this so-called objective
responsibility of the State for acts committed by its
officials or organs outside their competence, they
must have acted at least to all appearances as
competent officials or organs, or they must have
used powers or methods appropriate to their official
capacity.
Corfu Channel Case (UK v. Albania)
Two British destroyers struck mines in Albanian
waters and suffered damage, including serious loss
of life. The mines were allegedly laid by Yugoslav
warships.
ISSUE: Whether Albania is responsible for the
explosions, and whether there is a duty to pay
compensation.
HELD: Yes, Albania is responsible. Prior to the
incident, the Albanian Government was fully aware
of the existence of the minefield, but it did not notify
ships of its existence, as required by international
law. It also did not undertake any of the measures
incumbent on it in such a case. Moreover, based on
the geographic layout of the Albanian coast, its
authorities could have easily detected the mine-
laying. Therefore, it had no excuse for its failure to
inform the British ships passing its waters of the
existence of the mines.
The conclusion can thus be drawn that the laying of
the minefield could not have been accomplished
without the knowledge of Albania. It was its duty to
notify shipping and especially to warn the ships
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proceeding through the Strait of the danger to which
they were exposed. In fact, nothing was attempted
by Albania to prevent the disaster, and these grave
omissions involve its international responsibility.
Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. US)
According to Nicaragua, the US conceived, created,
and organized a mercenary army, the contra force,
in Nicaragua. The court found that contra force was
not created by the US, but that a number of the
operations were decided and planned, if not actually
by the US advisers, then at least in close
collaboration with them, and on the basis of the
intelligence and logistic support which the US was
able to offer. The US gave assistance to the contra
force in the form of logistic support, the supply of
information on the location and movements of the
Sandinista troops, the use of sophisticated methods
of communication, etc. However, the evidence does
not warrant a finding that the US gave direct combat
support.
ISSUE: Whether the contras can be considered as
organs of the US Government, or as acting on its
behalf.
HELD: No, the contras are not agents of the US
government.
The evidence is insufficient to demonstrate the total
dependence of the contras on US aid. A partial
dependency may be inferred from the fact that the
leaders were selected by the US, and from other
factors such as the organization, training and
equipping of the force, planning of operations, the
choosing of targets, and the operational support
provided. There is, however, no clear evidence that
the US actually exercised such a degree of control as
to justify treating the contras as acting on its behalf.
Therefore, the contras, remain responsible for their
own acts, in particular for alleged violations by them
of humanitarian law.
For the US to be legally responsible, it would have to
be proved that the State had effective control of the
operations in the course of which the alleged
violations were committed.
Acts of other persons
1. The conduct of a person or group of persons
shall be considered an act of state if the
person or group of persons was in fact
exercising elements of the governmental
authority in the absence or default of the
official authorities and in circumstances
such as to call for the exercise of those
elements of authority.
2. The conduct of an organ placed at the
disposal of a State by another State shall be
considered an act of the former State under
international law if the organ was acting in
the exercise of elements of the
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 governmental authority of the State at
whose disposal it had been placed.
US v. Iran
An armed attack on the US Embassy in Iran was
carried out by Muslim Student Followers of the
Imam’s Policy (militants). They overran its
premises, seized its occupants as hostages, and
appropriated its property and archives. The Iranian
government did nothing to prevent the attack, stop it
before it reached its completion, or oblige the
militants to withdraw from the premises and release
the hostages. Instead, expressions of approval were
immediately heard from numerous Iranian
authorities. Ayatollah Khomeini himself proclaimed
the Iranian State’s endorsement of both the seizure
of the premises and the detention of the hostages.
Khomeini declared that the detention of the hostages
would continue until the new Iranian parliament had
taken a decision as to their fate.
HELD: Iran is liable for the acts of the militants.
The events consist of two phases – the day of the
attack itself and the period after the attack, when
the militants continued to hold the premises and its
hostages with the approval of the Iranian State.
On the date when the armed attack happened, the
conduct of the militants could be directly attributed
to the Iranian State only if it were established that
they were in fact acting on its behalf. This was not
established with certainty. On the day of the attack,
the breach of duty of Iran consisted only in its
inaction and failure to protect the premises of the US
Embassy, even when it was fully aware of its
responsibilities and had the means to perform them.
After the date of the attack and the continued
occupation of the US Embassy by the militants, the
organs of the Iranian State expressed their approval
and endorsement of such acts. Once organs of the
Iranian State had given approval to the acts
complained of and decided to perpetuate them as a
means of pressure on the US, those acts were
transformed into acts of the Iranian State: the
militants became agents of the State, which itself
became internationally responsible for their acts.
Acts of Revolutionaries
1. The conduct of an insurrectional movement,
which becomes the new government of a
State, shall be considered an act of that
State under international law.
2. The conduct of a movement, insurrectional
or otherwise, which succeeds in establishing
a new State in part of the territory of a pre-
existing State or in a territory under its
administration, shall be considered an act of
the new State.
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Home Missionary Society Claim (US v. Great
Britain)
In 1898, Great Britain imposed a “hut tax” on the
natives of the Protectorate of Sierra Leone. In
protest of the tax, the natives carried out a serious
and widespread revolt. In the course of the
rebellion, all the Missions of the US were attacked
and were destroyed, and some of the missionaries
were murdered. The US filed a claim against Great
Britain on the ground that the revolt was the result
of the imposition of the “hut tax” which the British
Government knew was the object of deep native
resentment. The US alleged that the British
Government failed to take proper steps for the
maintenance of order and the protection of life and
property in the face of the danger posed by the
natives, resulting in the loss of life and damage to
property.
HELD: Great Britain is not liable to the US.
No government can be held responsible for the act of
rebellious bodies of men committed in violation of its
authority, where it is itself not guilty of breach of
good faith, or of negligence in suppressing
insurrection.
The good faith of the British Government cannot be
questioned, and as to the conditions prevailing in the
Protectorate, there is no evidence to support the
contention that it failed in its duty to afford adequate
protection for life and property.
Short v. Iran
Short, an American National, was employed by
Lockheed, an American company in Iran. Three days
before the Islamic Revolutionary Government took
office, he was evacuated from Iran on company
orders because of the deteriorating situation. He
then sought compensation from Iran for salary and
other losses resulting from his alleged expulsion.
HELD: Iran is not liable to Short.
Where a revolution leads to the establishment of a
new government, the State is held responsible for
the acts of the overthrown government insofar as
the latter maintained control of the situation. The
successor government is also held responsible for
the acts imputable to the revolutionary movement
which established it, even if those acts occurred prior
to its establishment, as a consequence of the
continuity existing between the new organization of
the State and the organization of the revolutionary
movement.
In this case, Short relies on acts committed by
revolutionaries. He is unable, however, to identify
any agent of the revolutionary movement, the
actions of which compelled him to leave Iran. The
acts of supporters of a revolution (as opposed to its
agents) cannot be attributed to the government
following the success of the revolution just as the
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acts of supporters of an existing government are not
attributable to the government.
Preliminary Objections
The claim of denial of justice brought before an
international tribunal may be dismissed by
interposing the following preliminary objections:
1. lack of nationality link
2. failure to exhaust national remedies
3. waiver
4. unreasonable delay
5. improper behavior of the private
complainant
Reparation
1. The responsible state is under an obligation
to make full reparation for the injury caused
by the internationally wrongful act.
2. Injury consists of any damage, whether
material or moral, arising in consequence of
the internationally wrongful act of a State.
3. The responsible State may not rely on the
provisions of its internal law as justification
for failure to comply with its obligations.
Chorzow Factory Case (Germany v. Poland)
Poland expropriated a factory at Chorzow, contrary
to the Geneva Convention of 1922 between Germany
and Poland. Germany filed a claim for damages
against Poland caused by the illegal expropriation.
HELD: The essential principle contained in the
notion of an illegal act is that reparation must, as far
as possible, wipe out all the consequences of the
illegal act and re-establish the situation which would,
in all probability, have existed if that act had not
been committed. Restitution in kind, or if this is not
possible, payment of a sum corresponding to the
value which a restitution in kind would bear; the
award, if need be, of damages for loss sustained
which would not be covered by restitution in kind or
payment in place of it – such are the principles which
should serve to determine the amount of
compensation due for an act contrary to international
law.
In this case, the obligation of Poland is to restore the
factory and, if this be not possible, to pay its value at
the time of the indemnification, which value is
designed to take the place of restitution which has
become impossible. In addition, Poland must pay
the compensating loss sustained as a result of the
seizure.
Calvo Clause
The “Calvo Clause” was a provision in a contract to
the effect that “under no condition shall the
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intervention of foreign diplomatic agents in any
matter related to the contract be resorted to.” This
was an attempt to limit the ability of a state to give
diplomatic protection to its nationals. The clause
was rejected in North American Dredging Company
Claim by the Mexico-US General Claims Commission.
The right to seek redress is a sovereign prerogative
of a state and a private individual has no right to
waive the state’s right.
CHAPTER XI INTERNATIONAL
HUMAN RIGHTS LAW
Human Rights (def) – In general, they are those
inalienable and fundamental rights which are
essential for life as human beings.
Three Generations of Human Rights
1. First Generation – traditional civil and
fundamental rights;
2. Second Generation – social and economic
rights;
3. Third Generation – right to peace, clean
environment, self-determination, common
heritage of mankind, development, minority
rights.
Some Asian thinkers claim that much of what are
called human rights are Western concepts alien to
Asian culture. But the common denominator is the
belief that the individual must be protected and that
the international community must contribute to the
protection.
An Emerging International Bill of Human Rights
What distinguishes port-WWII developments from
earlier human rights tradition is the growing
acceptance of the view that the way nations treat
people under their jurisdiction is no longer just a
domestic concern but also one that calls for the
attention of the international community. This view
represents the chipping away at the old concept of
sovereignty. It recognizes that individuals can be
subjects of international law and that they can find
protection and remedies within the international
community against abuses by their own government.
The UN Charter
The UN became the cradle for the development of
the new international law on human rights. The
provisions of the UN charter on human rights were
preliminary and represented a beginning which
would later develop into international law. The
provisions of the UN charter not only marked the
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internationalization of human rights but also set in
motion the gradual process of legislating
international human rights law.
The Universal Declaration of Human Rights
The UDHR was adopted and proclaimed by the
General Assembly in 1948. It was, however, not
seen as law but only as a common standard for
nations to attempt to reach. Its authority was
primarily moral and political.
It would take another 18 years before the UN could
convert the aspirations of the UDHR into
conventional international law embodied in the
International Covenant on Civil and Political Rights,
the International Covenant on Economic, Social, and
Cultural Rights, and the Optional Protocol to the
Covenant on Civil and Political Rights.
Distinction between a Declaration and a
Covenant
International Covenant – There is a meeting of
the minds of the contracting parties on the specific
duties and obligations they intend to assume, and
the agreement that the undertakings must be
effectively performed. It leaves no doubt about the
legal nature of the provisions it contains. The
vinculum juris created by a covenant, generally
absent from a declaration, places a duty on the
contracting parties to bring their laws and practices
into accord with the accepted international
obligations and not to introduce new laws or
practices which would be at variance with such
obligations.
Declaration – It admits the presumption that
something less than full effectiveness in terms of law
is intended. It is often deemed to enunciate moral
rules only.
The Covenant on Civil and Political Rights
Life, Liberty and Property, and Equality
1. The Covenant’s basic provision on the right
to life and on genocide and the general
guarantee of liberty do not go beyond what
Article III Section 1 of the Constitution of
the Philippines guarantees. The Covenant,
moreover, does not say when protected life
begins, unlike the Philippine Constitution,
which protects the “life of the unborn from
conception.”
2. There is also no provision on the right to
property in the covenant. This is because
while no one in the Commission questioned
the right itself, there were considerable
differences in opinion as to the restrictions
to which it should be subject. At a time
when property rights had lost much of their
previous sanctity, it was inevitable that the
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Commission would find it difficult to draft a
text that would command general
acceptance.
3. On the right to life, the Covenant expresses
bias for the abolition of the death penalty
and allows its imposition in countries which
still have it only after conviction for the
most serious crimes. It also says that
“nothing in this article shall be invoked to
delay or to prevent the abolition of capital
punishment by any State party to the
Covenant.”
A Second Optional Protocol to the Covenant
was signed by the General Assembly in
1989, but it has not come into force. The
Second Protocol provides that no one within
the jurisdiction of a state party to the
protocol shall be executed and that each of
the parties to the protocol shall take all
necessary measures to abolish the death
penalty within its jurisdiction.
The Philippines is not a party to the Second
Protocol and is not likely to be one in the
near future. Congress has already restored
the death penalty for heinous crimes.
4. On the more detailed aspects of physical
liberty, arrests, and detention, these are
covered by the corresponding provisions of
the Philippine Bill of Rights.
5. The rights of an accused detailed in the
Covenant have long been parts of the
Philippine accusatory system as found in the
Constitution. But the Covenant is more
restrictive in the matter of publicity of
criminal proceedings where the interest of
juvenile persons otherwise requires or the
proceedings concern matrimonial disputes
or the guardianship of children. Such
standard would not easily pass the
Philippine tests for publicity and free press.
6. The Covenant provides that “anyone who
has been a victim of unlawful arrest or
detention shall have an enforceable right of
compensation. It also provides that a
person who has been a victim of
miscarriage of justice shall be compensated
according to law. The only place in the
Philippine Constitution providing for such
compensation is in Sec 12(4) of the Bill of
Rights where Congress is asked to
compensate violations of rights of persons
under investigation.
7. The guarantee of equality under the
Covenant is of “legal equality.” It does not
embody the aspiration towards lesser
material inequality which is found in the
Covenant on Economic, Social, and Cultural
Rights.
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Torture, Ill-treatment, and Prison Conditions
The Covenant proscribes torture and other forms of
ill-treatment that offend not only against bodily
integrity but also against personal dignity. It also
imposes the requirement of humane prison
conditions.
Adequate prison conditions are embodied in Section
19(2) of the Phil. Bill of Rights, but the fact is that
prison conditions in the Philippines today are far
from adequate. The UN Human Rights Commission
has expressed the view that imprisonment in
conditions seriously detrimental to a prisoner’s
health constitutes violation of the Covenant.
Freedom of Movement
The Covenant guarantees the rights to travel within
the country, to leave the country, and to change
one’s residence.
The limitations on these rights are:
1. those provided by law;
2. those necessary to protect national security,
public health, public order, morals, or the
rights and freedoms of others
3. those which are consistent with the other
rights in the present Covenant.
Unlike in the Philippine Bill of Rights, the Covenant
does not require a court order for the impairment of
liberty of abode.
The Covenant separates the right to return to one’s
country from the right to leave one’s country. Exile
is now prohibited by customary law and the
prohibition of exile may even be jus cogens.
Legal Personality, Privacy and the Family
The right to be recognized as a person before the law
is guaranteed in Article 16.
One must distinguish between “legal personality” and
“capacity to act.” Legal personality belongs to all,
whether citizens or aliens. Capacity to act may not
be available to some by reason of infancy, minority,
or insanity. The guarantee means that state parties
must treat every human being everywhere, male or
female, young or old, alien or citizen, as a person
before the law, enjoying the protection of the law
and of the forces of the law, with power to have
rights and assume obligations.
When does one become a person? The Covenant
does not say. The Phil. Consti protects the life of the
unborn, but it does not say if the unborn is a person.
The Civil Code says that the unborn is a person for
purposes favorable to him.
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Thought, Conscience, Religion, Expression,
Political Freedom
The limits on external exercise found in the Covenant
are “to protect public safety, order, health, or morals
or the fundamental rights of others.”
The Covenant contains explicit protection of the right
of parents in the matter of religion for their children.
An established religion is not incompatible with the
covenant.
The Covenant also guarantees freedom of
expression, the right of assembly and petition, and
political freedom.
Associations and Unions
The Covenant has a detailed set of provisions
protecting the right to form associations and unions.
It is silent about the right of government employees
to form unions.
Minorities
The Covenant guarantees “ethnic, religious or
linguistic minorities” the right to enjoy their own
culture, to profess and practice their own religion, or
to use their own language.
The concern for minorities has a two-fold aspect:
1. The fear of a secessionist movement by
minorities, threatening territorial integrity of
the state, or about the danger of
interference by other states with which the
minorities are connected by ties of race,
national origin, language, or religion.
2. A genuine concern for the human rights of
minorities and the desire that minorities will
flourish so as to preserve that diversity of
the human race.
Self-determination of Peoples
Self-determination covers two important rights:
1. the right freely to determine their political
status and freely pursue their economic,
social, and cultural development; and
2. the right for their own ends, to freely
dispose of the natural wealth and resources
without prejudice to any obligations arising
out of international cooperation based upon
the principle of mutual benefit and
international law.
But minorities do not have a right of self-
determination in the sense of the right to secede.
Self-determination has an internal and external
aspect.
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 1. Internal aspect: Consists of the two rights
enumerated above;
2. External aspect: Belongs to colonies and
to the non-self-governing and trust
territories.
OPTIONAL PROTOCOL ON THE COVENANT ON
CIVIL AND POLITICAL RIGHTS
As a supplement to the Covenant on Civil and
Political Rights, the UN adopted the Protocol to the
Covenant. This separate treaty is designed to enable
private parties who are victims of human rights
violations to filed complaints against states which
have ratified the protocol.
THE COVENANT ON ECONOMIC, SOCIAL, AND
CULTURAL RIGHTS
Rights guaranteed by the Covenant are social
welfare rights:
1. to work
2. to favorable conditions of work
3. to form free trade unions
4. to social security and insurance
5. to special assistance for families
6. to adequate standard of living
7. to the highest standard of physical and
mental health
8. to education including compulsory primary
education
9. to the enjoyment of cultural and scientific
benefits and international contacts.
THE DUTY TO IMPLEMENT
Treaty commitments become part of domestic law.
The self-executing provisions of the covenants must
be implemented in domestic law. Those which are
not self-executing must be attended to by either
legislative or executive measures.
INTERNATIONAL IMPLEMENTATION OF HUMAN
RIGHTS LAW
Each country has the obligation to implement human
rights law within its jurisdiction. It can be done
through municipal courts, where proper. There now
exist also regional courts with jurisdiction over
human rights violations. The UN also has a system
for implementation.
The Human Rights Commission
The HRC is a subsidiary organ of the ECOSOC. There
are two different procedures used by the HRC for
responding to violations of human rights:
1. confidential consideration
2. public debate procedure
Both of these may be supplemented by the
designation of a “thematic rapporteur” or Working
Group to study violations of a specific character.
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The Confidential Consideration Procedure
Resolution 1503 of the ECOSOC authorizes the Sub-
Commission on Prevention of Discrimination and
Protection of Minorities to appoint a working group of
not more than 5 members to meet once a year in
private meetings to consider all communications with
a view to bringing to the attention of the Sub-
Commission those communications which appear to
reveal a pattern of gross and reliably attested
violations of human rights.
The confidential findings of the Sub-Commission are
brought to the attention of the Commission on
Human Rights, which submits its report and
recommendation to the ECOSOC. The procedure is
kept confidential until the CHR decides to make
recommendations to the ECOSOC.
The Public Debate Procedure
Resolution 1235 of the ECOSOC authorizes the CHR
and its subsidiary Commission on Prevention of
Discrimination and Protection of Minorities to
examine reports relevant to gross violations of
human right and to examine whether the violations
reveal a consistent pattern and thereafter make
recommendations to the ECOSOC.
The procedure carries out two types of activities:
1. It holds annual public debates in which
NGOs are given the opportunity to identify
publicly country-specific situations which
deserve attention.
2. It engages in studies and investigations
of particular situations through the use of
various techniques the Commission might
deem appropriate.
Possible results of these procedures:
1. embarrassment of countries referred to,
that might generate change in policy;
2. pressure on governments to take the issue
on a bilateral or multilateral level;
3. statements of exhortation from the
Commission or call from the Commission for
all available information;
4. the Commission might appoint a special
rapporteur to examine and submit a report
on the issue;
5. the Commission might ask the Security
Council to take up the issue with a view to
promulgating sanctions.
THE INTERNATIONAL CRIMINAL COURT
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The International Criminal Court was created in 1998
by the Rome Statute. The treaty came into force in
April 2002 when the 60th country needed to establish
the ICC submitted its ratification. The US, however,
refuses to ratify it. The Philippines has not ratified it
either.
Significance of the ICC
Prior to the establishment of the ICC, international
crimes were prosecuted in ad hoc criminal courts.
These tribunals were undermined and weakened by
the charges of politically motivated investigations
and selective justice. Unlike temporary tribunals,
the ICC will be established without any specific
country in mind. Thus, besides enjoying
permanency, it will be neutral. Gradually too, it will
be able to establish precedents.
Goal of the ICC
The goal of the ICC is to demand individual and not
collective accountability. It will help facilitate
reconciliation by avoiding condemnation of entire
societies.
Jurisdiction of the ICC
The jurisdiction of the ICC will be limited to the most
serious international crimes: genocide, crimes
against humanity, war crimes, and the crime of
aggression.
Principle of Complementarity
The court is meant to be a court of last resort. It
must await referral of a crime wither by a state party
or by the Security Council. The court is not allowed
to act when the local judicial system is able and
willing to prosecute. Once a state has taken the
initiative to investigate a crime, the ICC cannot
intervene.
Because of the principle of complementarity, the
effective functioning of the court will depend very
much on the cooperation of state parties. The
crimes over which the ICC has jurisdiction must first
be criminalized domestically.
CHAPTER XIII PEACEFUL
SETTLEMENT OF
INTERNATIONAL DISPUTE
International Dispute (def) – A dispute in
international law is a technical term which means a
disagreement on a point of law or fact, a conflict of
legal views or interests between two persons.
A disagreement does not amount to a dispute if its
resolution would have no practical effect on the
relationship between the parties. It means that the
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dispute may result in the severance of diplomatic
relations.
Examples of disputes: disagreements about:
1. the interpretation of a treaty
2. state boundaries
3. state responsibility
The UN Charter says that all member shall settle
their international disputes by peaceful means in
such a manner that international peace and security,
and justice, are not endangered.
PEACEFUL METHODS OF SETTLING DISPUTES
1. Non-Judicial Methods
a. negotiation
b. enquiry
c. mediation
d. conciliation
2. Quasi-Judicial Method (arbitration)
3. Judicial Method
Another way of classifying is into judicial and
diplomatic methods.
NON-JUDICIAL OR DIPLOMATIC METHODS
Negotiation
There are no set rules for negotiation. It may take
place at arm’s length or face to face. But for a
negotiated settlement to be legally binding, the
parties must agree to it. The agreement to negotiate
may be formalized in a treaty or in a simple
exchange of notes.
A preliminary step to negotiation might be “good
offices” when a third party tries to bring two
disputants together. Having been brought together,
the usual first step, often required before judicial
settlement is negotiation. It may be carried out by
diplomatic correspondence, face-to-face dialogue
between envoys or negotiators. Essentially
negotiation is a give-and-take process of looking for
a win-win solution.
Mediation
It involves the assistance by third parties who either
act as bridge between parties who do not meet, or
who may sit with the disputants to chair meetings,
suggest solutions, cajole, etc. The mediator must be
approved by both parties.
Inquiry
It is a fact-finding done by a designated group of
individuals or an institution. When undertaken with
the consent of the parties, it frequently resolves
disputes based solely on questions of fact.
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Conciliation
It is a more formal technique whereby the parties
agree to refer controversies to an individual, a group
of individuals, or an institution to make findings of
fact and recommendations. Parties do not agree to
be bound by the recommendations, but this clears
the air.
QUASI-JUDICIAL METHOD (ARBITRATION)
Arbitration (def) - It is the binding settlement of a
dispute on the basis of law by a non-permanent body
designated by the parties.
The composition, jurisdiction, and the rules of
procedure to be applied are agreed upon by the
parties in a compromis d’arbitrage. States cannot be
required to submit to arbitration unless there is a
previous agreement making arbitration compulsory.
Distinguished from judicial settlement:
In arbitration, the parties have a greater say in
deciding, for instance, the law to be applied and the
composition of the arbitral tribunal. The process is
more flexible.
Three types of arbitral agreements:
1. An arbitration clause incorporated as
part of a treaty – This is commonly found
in commercial treaties;
2. Treaties whose sole function is to
establish methods for the arbitration of
disputes – Examples are The Hague
Convention for the Pacific Settlement of
Disputes; and
3. Ad hoc arbitral agreements – Example:
the agreement for the settlement of claims
between the US and Iran.
Grounds for challenging arbitral decisions:
1. that the arbitral body exceeded its powers;
2. that there was corruption on the part of a
member of the body;
3. that there was failure to state the reasons
for the awards or a serious departure from
a fundamental rule or procedure; and
4. that the undertaking to arbitrate or the
compromis is a nullity.
Arbitral tribunals apply international law unless the
parties specify that some other law should be
applied. Domestic courts, however, may refuse to
give recognition to awards given by foreign arbitral
tribunals on the following grounds:
1. the agreement to arbitrate was not valid
under applicable law;
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2. the party against which the award was
rendered did not receive proper notice of
the proceedings or was otherwise not
afforded an opportunity to present its case;
3. the award deals with matters outside the
terms of the agreement to arbitrate;
4. the constitution of the arbitral tribunal or
the arbitral procedure was contrary to the
agreement of the parties to the law of the
state where the arbitration took place;
5. the award has not yet become binding on
the parties, or has been suspended or set
aside by a competent court in the state
where it was made;
6. under the law of the state, the subject
matter of the controversy is not capable of
pecuniary estimation; or
7. under the law of the state, recognition or
enforcement would be contrary to public
policy.
JUDICIAL METHOD: THE INTERNATIONAL
COURT OF JUSTICE (ICJ)
CARDINAL RULE: States cannot be compelled to
submit disputes to international adjudication unless
they have consented to it either before a dispute has
arisen or thereafter.
States are also free to limit their acceptance to
certain types of disputes and to attach various
conditions or reservations to their acceptance.
All members of the UN are ipso facto parties to the
Statute of the ICJ. Being party to the Statute,
however, does not mean acceptance of the
jurisdiction of the Court. It simply means that the
state may accept the jurisdiction of the court. The
Statute opens the court’s door to member states.
Only states may be parties in the court.
Composition of the Court
Number of Members
The Court shall consist of 15 members, no two of
whom may be nationals of the same state.
Qualifications of Judges
The Court shall be composed of a body of
independent judges, elected regardless of their
nationality from among persons of high moral
character, who possess the qualifications required in
their respective countries for appointment to the
highest judicial offices, or are jurisconsults of
recognized competence in international law.
Chambers
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The Court may from time to time form one or more
chambers, composed of 3 or more judges as the
Court may determine, for dealing with particular
categories of cases, such as labor cases and those
relating to transit and communications.
The Court may at any time form a chamber for
dealing with a particular case. The number of judges
to constitute such a chamber shall be determined by
the Court with the approval of the parties.
A judgment given by any of the chambers shall be
considered as rendered by the Court.
Jurisdiction of the ICJ: Contentious Jurisdiction
The Court exercises two types of jurisdiction:
contentious jurisdiction and advisory
jurisdiction.
Rules on Contentious Jurisdiction: Article 36
1. The jurisdiction of the Court comprises all
cases which the parties refer to it and all
matters specially provided for in the Charter
of the UN or in treaties and conventions in
force.
2. The states parties to the Statute of the ICJ
may at any time declare that they recognize
as compulsory ipso facto and without
special agreement, in relation to any other
state accepting the same obligation, the
jurisdiction of the Court in all legal disputes
concerning:
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact which, if
established, would constitute a
breach of an international
obligation;
d. the nature or extent of the
reparation to be made for the
breach of an international
obligation.
3. The declarations referred to above may be
made unconditionally or on condition of
reciprocity on the part of several or certain
states, or for a certain time.
4. Such declarations shall be deposited with
the Secretary General of the UN, who shall
transmit copies thereof to the parties to the
Statute and to the Registrar of the Court.
5. In the event of a dispute as to whether the
Court has jurisdiction, the matter shall be
settled by the decision of the Court.
* Jurisdiction of the ICJ is applicable only to disputes
between states.
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* The disputes are settled using international law
and not by domestic law.
* The Court has jurisdiction only when a case is
referred to it by the parties.
Ways through which a state may accept
jurisdiction of the court:
1. on an ad hoc basis;
2. by adhering to a treaty which accepts the
jurisdiction of the court on matters of
interpretation or application of the treaty;
3. by a unilateral declaration of recognition of
jurisdiction in relation to any other state
accepting the same jurisdiction in all legal
disputes. This one creates the optional
system of submitting to the jurisdiction of
the Court.
The Optional System
The optional system is operative only for states that
“at any time declare that they recognize as
compulsory ipso facto and without special
agreement, in relation to any other state accepting
the same obligation, the jurisdiction of the Court in
all legal disputes” enumerated in #2 of Article 36.
The Declaration in the optional system may be made
unconditionally or on condition of reciprocity on the
part of several or certain states, or for a certain
time. States can thus limit the extent to which they
are subjecting themselves to the jurisdiction of the
court.
Reciprocity in the case of Declarations accepting the
compulsory jurisdiction of the Court enables a Party
to invoke a reservation to that acceptance which it
has not expressed in its own Declaration but which
the other Party has expressed in its Declaration.
Thus, if a party that has made a Declaration
unconditionally is brought to the court by another
that has made a Declaration with conditions, the
former can invoke the conditions in the latter’s
Declaration.
Aerial Incident of 25 July 1955 (US v. Bulgaria)
In 1946, the US acceded to the optional clause,
thereby accepting the compulsory jurisdiction of the
ICJ. During the ratification process for that
accession, the US added a reservation, which
excluded from the jurisdiction of the ICJ “disputes
with regard to matters which are essentially within
the domestic jurisdiction of the US as determined by
the US.”
In 1955, an El Al Israel airliner was driven off course
by strong winds in very bad weather. The plane
innocently crossed over into Bulgarian air space.
Bulgarian military fighter planes shot it down, killing
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all of the passengers and crew members, including 6
Americans.
The US applied to the ICJ for action against Bulgaria
for damages based on violations of international law
and the injuries to US nationals.
Bulgaria invoked the reservation made by the US,
exempting from ICJ jurisdiction matters within its
internal competence. According to Bulgaria, its
airspace security and anti-aircraft defenses were
within its domestic jurisdiction. And under the
principle of reciprocity, it could invoke the
reservation made by the other party, the US.
The US withdrew its claim, ending the dispute.
Military and Paramilitary Activities in and
Against Nicaragua (Nicaragua v. US)
In 1946, the US made a declaration containing the
following reservation: “this declaration shall remain
in force for a period of 5 years and thereafter until
the expiration of 6 months after notice may be given
to terminate this declaration.”
In 1984, the US deposited with the UN Sec Gen a
notification referring to the 1946 declaration,
stating: “the aforesaid declaration shall not apply to
disputes with any Central American State or arising
out of or related to events in Central America, any of
which disputes shall be settled in such manner as the
parties to them may agree.”
Nicaragua filed a claim against the US for damages
in connection with military and paramilitary activities
allegedly supported by the US in and against
Nicaragua. The US argues that pursuant to the 1984
reservation that it made, the ICJ has no jurisdiction
over the controversy, since it involves a dispute with
a Central American State. Nicaragua argues that the
ICJ has jurisdiction under the 1946 declaration,
which was not terminated by the subsequent 1984
declaration, since the US never gave the 6-months
notice of termination, as required by the reservation
that it had made in 1946.
HELD: The ICJ has jurisdiction. The 1946
declaration is still binding on the US.
The US cannot derogate from the time-limit proviso
included in its 1946 declaration. The notion of
reciprocity is concerned with the scope and
substance of the commitments entered into,
including reservations, and not with formal
conditions of their creation, duration, or extinction.
Reciprocity cannot be invoked in order to excuse
departure from the terms of a State’s own
declaration. Nicaragua can invoke the six months’
notice against the US, not on the basis of reciprocity,
but because it is an undertaking which is an integral
part of the instrument that contains it. The 1984
notification cannot override the obligation of the US
to submit to the jurisdiction of the Court vis-à-vis
Nicaragua.
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Case Concerning East Timor (Portugal v.
Australia)
Australia entered into a treaty with Indonesia which
created a Zone of Cooperation in an area between
the Indonesian Province of East Timor and Northern
Australia. Portugal, as the administering power of
East Timor, instituted proceedings against Australia,
alleging that in entering into the treaty with
Indonesia, Australia had failed to observe its
obligation to respect Portugal’s status as
administering Power, East Timor’s status as a non-
self governing territory and the right of the people of
East Timor to self-determination and to permanent
sovereignty over its wealth and natural resources.
Australia contended that the ICJ had no jurisdiction
since the case would necessary involve an
adjudication of the rights and obligations of
Indonesia, which had not given its consent to submit
to the jurisdiction of the ICJ.
ISSUE: Whether the ICJ has jurisdiction.
HELD: The ICJ has no jurisdiction.
The court agreed that Indonesia’s rights and
obligations would be the very subject matter of the
proceedings. Since Indonesia has not consented to
submit itself to the jurisdiction of the ICJ, the court
cannot exercise its jurisdiction over the entire case.
It is a well-established principle of international law
that the Court can only exercise jurisdiction over a
State with its consent.
Separate Opinion of Judge Oda
Judge Oda agreed that the ICJ lacks jurisdiction, but
he argued that the dismissal should not have been
based on the absence of Indonesia’s consent but
upon the sole consideration that Portugal lacked
locus standi. It had no standing to sue because it
had not even established its status as a coastal state
entitled to the continental shelf in dispute. It did not
show that it had been entrusted with the rights and
responsibilities of an administering Power for the
Non-Self Governing Territory of East Timor. The
issue on the required consent of the third party was
therefore irrelevant.
Dissenting Opinion of Judge Weeramantry
The ICJ has jurisdiction because the matter could
have been decided on the basis entirely of the
obligations and actions of Australia alone, without
need to make an adjudication of the conduct of
Indonesia. The actions of Australia in negotiating,
concluding, and initiating performance of the treaty
with Indonesia and taking measures for its
application are justiciable on the basis of its
unilateral conduct. The Court could have proceeded
to determine whether a course of action had been
made out against Australia on such actions without
need for any adjudication concerning Indonesia.
Dissenting Opinion of Judge Skubiszewski
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The ICJ has jurisdiction in this case. To decide on all
the submissions of Portugal, the Court need not
adjudicate on any powers, rights, and duties of
Indonesia. The Court can decide on the lawfulness
of some unilateral acts of Australia leading to the
conclusion of the treaty. A decision thereon does not
imply any adjudication on Indonesia, nor does it
involve any finding on the validity of the Treaty.
PROVISIONAL MEASURES
The Court shall have the power to indicate, if it
considers that circumstances so require, any
provisional measures which ought to be taken to
preserve the respective rights of either party.
Pending the final decision, notice of the measures
suggested shall be given to the parties and to the
Security Council.
Nicaragua v. US
Nicaragua applied for the issuance of provisional
measures pending the resolution of the case.
HELD: The circumstances require that provisional
measures be granted in order to preserve the rights
claimed by Nicaragua. It must be emphasized that
the decision to grant the provisional measures in no
way prejudices the question of the ICJ’s jurisdiction
to deal with the merits of the case and leaves
unaffected the right of the US and Nicaragua to
submit arguments in respect of such jurisdiction on
the merits.
Case Concerning Legality of Use of Force
(Yugoslavia v. US)
The Federal Republic of Yugoslavia requested for
provisional measures against the NATO States
(Belgium, Canada, Italy, Netherlands, Portugal,
Spain, UK, and US) in relation to the bombings being
carried out by the NATO forces in Yugoslavia. It
based its claim on the Genocide Convention.
HELD: Request denied.
The Court need not, before deciding whether or not
to indicate them, finally satisfy itself that it has
jurisdiction on the merits of the case, yet it ought
not to indicate such measures unless the provisions
invoked by the applicant appear, prima facie, to
afford a basis on which the jurisdiction of the Court
might be established.
In this case, when the US ratified the Genocide
Convention, it made a reservation requiring that
before any dispute to which the US is a party may be
submitted to the jurisdiction of the ICJ under to
Convention, the specific consent of the US must be
obtained. Since the US did not give its consent, the
Court has no jurisdiction. And because it his no
jurisdiction to entertain Yugoslavia’s application, it
also cannot indicate any provisional measure in order
to protect the rights invoked by Yugoslavia.
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INTERVENTION
Should a state consider that it has an interest of a
legal nature which may be affected by the decision in
the case, it may submit a request to the Court to be
permitted to intervene. The Court shall decide upon
the request.
Whenever the construction of a convention to which
states other than the parties to the case is in
question, the Registrar shall notify all such states.
Every state so notified has the right to intervene in
the proceedings; but if it uses this right, the
construction given by the judgment will be equally
binding upon it.
El Salvador v. Honduras – Nicaragua
Intervention
Nicaragua sought to intervene in a Land, Island, and
Maritime Frontier Dispute between El Salvador and
Honduras.
HELD: Nicaragua is allowed to intervene.
In order to obtain permission to intervene, a State
has to show an interest of a legal nature which may
be affected by the Court’s decision in the case.
El Salvador, in opposing the permission to intervene,
argues that Nicaragua must show a valid link of
jurisdiction between Nicaragua and the Parties. The
Court held that this was not necessary in the case of
an intervention. The general rule is not other State
may involve itself in the proceedings without the
consent of the original parties. However, in the case
of an intervention, the existence of a valid link of
jurisdiction between the would-be intervenor and the
parties is not a bar to permission being given for
intervention. On the contrary, the procedure of
intervention is to ensure that a State with possibly
affected interests may be permitted to intervene
even though there is no jurisdictional link and it
therefore cannot become a party.
Procedural rights of the state permitted to intervene:
1. The intervening state does not become
party to the proceedings and does not
acquire the rights or become subject to the
obligations which attach to the status of a
party.
2. It has a right to be heard by the Chamber
through submission of a written statement
and participation in the hearings.
OBLIGATION TO COMPLY WITH DECISIONS
The decision of the ICJ has no binding force except
between the parties and in respect of that particular
case.
The judgment is final and without appeal. In the
event of dispute as to the meaning or scope of the
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judgment, the Court shall construe it upon the
request of any party.
Ground for application for revision of a
judgment:
Discovery of some fact of such a nature as to be
decisive factor, which was unknown to the Court and
to the party claiming the revision at the time when
the judgment was given.
The application for revision must be made at the
latest within 6 months from the discovery of the new
fact.
No application for revision may be made after 10
years from the date of the judgment.
Failure to perform the obligations under a
judgment:
In case of failure of one party to comply with its
obligations under a judgment of the ICJ, the other
party may have appeal to the Security Council, which
may, if it deems necessary, make recommendations
or decide upon measures to be taken to give effect
to the judgment.
This may give rise to enforcement measures, which,
however, is subject to the veto powers of the
permanent members. But the winning state may
also use alternative methods of enforcement such as
diplomatic or economic pressure.
ADVISORY JURISDICTION
The ICJ may give any advisory opinion on any legal
question at the request of whatever body authorized
by the UN Charter to make such a request. The UN
Charter empowers the General Assembly and the
Security Council to make requests for advisory
opinion. The General Assembly may also authorize
other UN agencies to seek advisory opinion.
Advisory opinions are non-binding. Acceptance or
non-acceptance of the advisory opinion is
determined by the internal law of the institution.
OTHER MORE ACTIVE INTERNATIONAL COURTS
1. Court of Justice of the European
Communities
2. The European Court of Human Rights
3. The Benelux Court of Justice
4. The Inter-American Court of Human Rights
5. International Criminal Court
CHAPTER XIV THE USE OF
FORCE SHORT OF WAR
THE USE OF FORCE
The general principle is that international law
recognizes the autonomy of individual states and
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their right to freedom from coercion and to the
integrity of their territory.
Article 2(4) of the UN Charter provides: “All Members
shall refrain in their international relations from the
threat or use of force against the territorial integrity
or political independence of any state, or in any
manner inconsistent with the Purposes of the UN.”
The text does not use the word “war.” War is a
technical terms which does not include some uses of
force. The prohibition in the Charter is broader than
the prohibition of war.
The prohibition on the use of force is also broad
enough not to cover just those used against the
territorial integrity and political independence of any
state but also those which are inconsistent with the
purposes of the UN.
Corfu Channel Case (UK v. Albania)
British warships were struck by mines while
exercising the right of innocent passage in Albanian
territory. Britain sent additional warships to sweep
the minefields within Albanian territory. Britain
stated that its objective was to secure the mines as
quickly as possible before they were taken away by
the minelayers or Albanian authorities. This was
presented either as a new and special application of
the theory of intervention or as a method of self-
protection or self-help.
HELD: The Court cannot accept the stand of the
British. It can only regard the alleged right of
intervention as the manifestation of a policy of force
which cannot find a place in international law. As
regards the notion of self-help, the Court cannot
accept it: between independent states, the respect
for territorial sovereignty is an essential foundation
for international relations.
The prohibition of the use of force is not just
conventional law; it is customary international law.
Nicaragua v. US
There exists in customary law an opinio juris as to
the binding character of the abstention from the use
of force. This opinio juris may be deduced from the
attitude of the Parties and of States toward certain
General Assembly resolutions, particularly the
“Declaration on Principles of International Law
concerning Friendly Relations and Cooperation
among States in Accordance with the Charter of the
UN. Consent to such resolutions is one of the forms
of expression of an opinio juris with regard to the
principle of customary international law,
independently of the provisions.
Separate Opinion of Judge Sette-Camara:
The non-use of force as well as non-intervention are
not only cardinal principles of customary
international law but could in addition be recognized
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as peremptory rules of customary international law
which impose obligations on all states.
THE THREAT OF FORCE
The Charter prohibits not just the use of force but
also the threat of force.
The most typical form of the threat of force is the
ultimatum in which the State to which it is addressed
is given a time limit within which to accept the
demands made upon it and is told that if it rejects
the demands, war will be declared on it or certain
coercive measures, such as naval blockade,
bombardment, or occupation of a given territory, will
be taken. The threats may also be veiled, which are
very effective but difficult to detect.
The Legality of the Threat or Use of Nuclear
Weapons (Advisory Opinion)
The use of force against the territorial integrity or
political independence of another State or in any
other manner inconsistent with the purposes of the
UN is prohibited.
But the use of force is not prohibited in cases of
individual or collective self-defense in case of an
armed attack. The use of force is also lawful in
cases where the Security Council may take military
enforcement measures. These provisions do not
refer to specific weapons. They apply to any use of
force, regardless of the weapons employed. The
Charter neither expressly prohibits, nor permits, the
use of any specific weapon, including nuclear
weapons.
The entitlement to self-defense is subject to the
conditions of necessity and proportionality. Self-
defense would warrant only measures which are
proportional to the armed attack and necessary to
respond to it.
The Proportionality Principle may not in itself exclude
the use of nuclear weapons in self-defense in all
circumstances. But at the same time, a use of force
that is proportionate under the law of self-defense,
must, in order to be lawful, also meet the
requirements of the law applicable in armed conflict
which comprise in particular the principles and rules
of humanitarian law.
To lessen or eliminate the risk of unlawful attack,
States sometimes signal that they possess certain
weapons to use in self-defense against any State
violating their territorial integrity or political
independence. Whether or not this is a “threat”
depends upon various factors. If the use of force
itself in a given case is illegal, the threat to use such
force will likewise be illegal. In short, if it is to be
lawful, the declared readiness of a State to use force
must be a use of force that is in conformity with the
Charter.
INDIVIDUAL AND COLLECTIVE SELF-DEFENSE
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The general prohibition of the use of force does not
preclude the right to self-defense. This is found in
Article 51 of the UN Charter:
“Nothing in the present Charter shall impair the
inherent right of individual or collective self-defense
if an armed attack occurs against a Member of the
UN, until the Security Council has taken measures
necessary to maintain international peace and
security….”
Nicaragua v. US
The general rule prohibiting force established in
customary law allows for certain exceptions. The
exception of the right of individual or collective self-
defense is also, in the view of States, established in
customary law. Whether the response to an attack
is lawful depends on the observance of the criteria of
the necessity and the proportionality of the
measures taken in self defense.
Self-defense can only be exercised in response to an
“armed attack.” This means not merely action by
regular armed forces across an international border
but also the sending by a State of armed bands on to
the territory of another State, if such an operation,
because of its scale and effects, would have been
classified as an armed attack had it been carried out
by regular armed forces. The concept of armed
attack does not include assistance to rebels in the
form of the provision of weapons or logistical or
other support. There is also no rule permitting the
exercise of collective self-defense in the absence of a
request by the State which is a victim of the alleged
attack, this being additional to the requirement that
the State in question should have declared itself to
have been attacked.
Anticipatory Self-Defense
Is anticipatory self-defense allowed?
Some say that it is allowed on the ground that the
phrase “if an armed attack occurs” is not exclusive.
This is reminiscent of the view that protection of
“vital interests” justifies the use of force. In practical
terms, however, states do not invoke the right
because they are afraid that it might be sued against
them too. Practice on the subject is inconclusive.
An interesting development in the wake of the 9/11
attack on the WTC is that Article 51 of the UN
Charter which recognizes the inherent right of self-
defense has been used to justify a response against
a non-state aggressor.
TRADITIONALLY ALLOWABLE COERCIVE
MEASURES
Certain forms of coercive measures of “self help”
have been traditionally allowed. These are:
page 32
 It consists of suspension of all commercial relations
1. severance of diplomatic relations with a state.
2. retorsion
3. reprisals Pacific Blockade
4. embargo
5. boycott It is a naval operation carried out in time of peace
6. non-intercourse whereby a state prevents access to or exit from
particular ports or portions of the coast of another
Severance of Diplomatic Relations state for the purpose of compelling the latter to yield
to demands by the blockading state. It is essentially
Since there is no obligation to maintain diplomatic a warlike act and therefore frowned upon by the UN
relations, severance of diplomatic relations is not Charter.
prohibited. However, this should not be resorted to
unless truly necessary because it might endanger PROTECTION OF NATIONALS ABROAD
peace.
Those who assert the right to defend nationals
Severance should be distinguished from suspension abroad argue that the right to protect nationals
of diplomatic relations. Suspension involves abroad can be defended as an aspect of the right to
withdrawal of diplomatic representation but not of self-defense in Article 51 since population is an
consular representation. essential element of statehood.

Retorsion But the legitimacy of such intervention is not firmly

It is any of the forms of counter-measures in
response to an unfriendly act. Forms of retorsion
include:
1. shutting of ports to vessels of an unfriendly
state
2. revocation of tariff concessions not
guaranteed by treaty
3. display of naval forces near the waters of an
unfriendly state
Reprisal
Any kind of forcible or coercive measures whereby
one State seeks to exercise a deterrent effect of
obtain redress of satisfaction, directly or indirectly,
for the consequences of the illegal act of another
state which has refused to make amends for such
illegal acts.
established in international law.
HUMANITARIAN INTERVENTION
Humanitarian intervention by states in response to
massive violation of human rights in another states
begins with the prohibition of force in Article 2(4).
The prohibition is now considered jus cogens.
Intervention without the authorization of the Security
Council violates international law.
If the Security Council determines that massive
violations of human rights occurring within a country
constitute a threat to the peace, and then calls for or
authorizes an enforcement action to put an end to
these violations, a “humanitarian intervention” by
military means is permissible. In the absence of
such authorization, military coercion employed to
have the target state return to a respect for human
rights constitutes a breach of the Charter.

Unlike retorsion, the acts, standing by themselves,
would normally be illegal. Moreover, reprisal must
be preceded by an unsatisfied demand for
reparation.
Embargo
It consists of seizure of vessels, even in the high
seas.
Embargo might also be pacific, as when a state
keeps its own vessels for fear that it might find their
way in foreign territory. There can also be collective
embargo, e.g., on import of drugs or of oil.
Boycott
It is a form of reprisal which consists of suspension
of trade or business relations with the nationals of an
offending state.
Non-Intercourse
As long as humanitarian crises do not transcend
borders and lead to armed attacks against other
states, recourse to Article 51 is not available. The
use of force cannot be the appropriate method to
monitor or ensure respect for human rights.
But Antonio Cassese writes that the law on the
subject has changed under the shock of genocide
and crimes against humanity. According to him,
under certain strict conditions, resort to armed force
may gradually become justified even without any
authorization by the Security Council. These
conditions are:
1. gross and egregious breaches of human
rights involving loss of life of hundreds or
thousands of innocent people, and
amounting to crimes against humanity
carried out on the territory of a sovereign
state either by the central government
authorities or with their connivance and
support;

Sheryl 2D 2003 page 33

 2. crimes against humanity resulting from
anarchy in a sovereign state;
3. when the Security Council is unable to take
any coercive action to stop the massacres
because of disagreement among the
Permanent Members of because one or
more of the exercises its veto power.
4. when all peaceful avenues which may be
explored consistent with the urgency of the
situation to achieve a solution based on
means short of force have been exhausted,
but no solution has been agreed upon;
5. when a group of states decides to try to halt
the atrocities, with the support or at least
the non-opposition of the majority of the
Member States of the UN;
6. when armed force is exclusively used to the
limited purpose of stopping the atrocities
and restoring respect for human rights, not
for any goal going beyond this limited
purpose.
CHAPTER XV WAR AND
NEUTRALITY
THE LAWS OF WAR
Article 2(4) of the UN Charter prohibits all members
from the threat or use of force against the territorial
integrity or political independence of any state. In
effect, this provision outlaws war.
However, side by side with this prohibition is the
proliferation of laws of war. Three facts can explain
this paradox:
1. those who resort to the use of arms do not
give up until they have achieved victory;
2. given the first fact, humanitarian
considerations dictate the need for rules
which curtail violence beyond what is
necessary to achieve a state’s goal;
3. there still remains in the hearts of the
soldiery an acceptance of chivalry as a
value.
THE HAGUE LAW
In 1899, 26 countries met at the Hague and
promulgated Conventions and Declarations. More
conferences were held in 1907. the principles
adopted in these conferences constitute that part of
the law or armed conflict still known as the Law of
the Hague governing land and naval warfare.
THE GENEVA CONVENTIONS
Sheryl 2D 2003
In 1949, four Geneva “Red Cross” Conventions were
adopted, governing:
1. Wounded and Sick in the Field;
2. Wounded, Sick and Shipwrecked at Sea;
3. Prisoners of War;
4. Civilians.
The essence of the Geneva conventions is that
persons not actively engaged in warfare should be
treated humanely. The rules apply to any
international armed conflict, whether a declared war
or not.
CUSTOMARY AND CONVENTIONAL LAW
Much of what is embodied in the Hague and Geneva
Conventions are customary law. Non-parties to the
Convention are covered by the customary law of
armed conflict. It is common practice for a party to
a conflict who is not a party to the convention to
make a declaration that it will abide by the terms of
the convention.
Commencement and Termination of Hostilities
Commencement
Under the Hague Convention, for an armed conflict
to be considered a war in a legal sense, the
hostilities should be preceded by a declaration of war
or an ultimatum with a fixed limit.
However, most armed conflicts have commenced
without such a declaration or ultimatum. Thus, while
the Constitution gives the legislature the power to
declare the existence of a state of war and to enact
all measures to support the war, the actual power to
make war is lodged in the executive power. The
executive power, when necessary, may make war
even in the absence of a declaration of war. And as
far as the UN Charter is concerned, there is no
provision requiring a declaration of war or an
ultimatum. Normally, however, the victims of the
attack respond with a declaration of war.
The commencement of hostilities results in the
severance of all normal relations. Political and
economic treaties are terminated. Treaties of a
humanitarian character remain in force.
Termination
The clearest method of termination is by means of a
peace treaty. But even in the absence of a peace
treaty, once the combatant states have made a
declaration that hostilities have come to an end, the
armed forces are bound by such declaration
Armistice
Armistice is an agreement to suspend hostilities,
whether local or general. It does not end the
conflict, but it puts an end to active fighting in
accordance with the terms of the agreement.
page 34

Protocol I
Protocol I to the 1949 Geneva Convention created a
new category of international armed conflict. It
includes within the definition of international armed
conflict those in which peoples are fighting against
colonial domination and alien occupation and against
racist regimes in the exercise of their right to self-
determination.
Those engaged in such a conflict receive combatant
status and are entitled to combatant rights and
duties.
METHODS OF WARFARE
The Hague Convention prohibits the employment of
arms, projectiles or material calculated to cause
unnecessary suffering. There is a need to balance
military necessity and humanitarian consideration.
Principles:
1. States must never make civilians the object
of attack and must never use weapons that
are incapable of distinguishing between
civilian and military targets.
2. It is prohibited to cause unnecessary
suffering to combatants. It is prohibited to
use weapons causing them such harm or
uselessly aggravating their suffering.
States, therefore, do not have unlimited
freedom of choice of means in the weapons
they use.
Basic Rules Governing Armed Conflicts
(I’m just putting the more important ones. Please
see pp. 385-389 of the book for the complete text)
The Soldier’s Rules
1. Do not fight enemies who are out of combat
or who surrender. Disarm them and hand
them over to your superior.
2. Collect and care for the wounded and sick,
be they friend or foe.
3. Treat all civilians and enemies in your power
with humanity.
4. Prisoners of war must be treated humanely
and are bound to give only information
about their identity. No physical or mental
torture of prisoners of war is permitted.
5. Do not take hostages.
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Fundamental Rules of International
Humanitarian Law Applicable to Armed
Conflicts
1. People out of combat and those who do not
take part in hostilities are entitled to respect
for their lives and moral and physical
integrity. They shall be protected and
treated humanely without any adverse
distinctions.
2. Don’t kill or injure an enemy who
surrenders or is out of combat.
3. Captured combatants and civilians are
entitled to respect for their lives, dignity,
personal rights, and convictions. They shall
be protected against all acts of violence and
reprisals. They shall have the rights to
correspond with their families and receive
relief.
4. No one shall be subjected to physical and
mental torture, corporal punishment, or
cruel or degrading treatment.
5. It is prohibited to employ weapons or
methods of warfare of a nature to cause
unnecessary losses or excessive suffering.
6. Attacks shall be directed only against
military objectives and not against civilians.
NEUTRALITY
In a conflict among various powers, there are always
some who prefer to stay out of the fray. They adopt
an attitude of impartiality towards the belligerents.
Such an attitude must be recognized by belligerents
and creates both rights and duties in the neutral
states.
Belligerents must respect the rights of neutral states.
For their part, neutrals must not engage in activities
which interfere with the activities of the belligerents.
From Ma’am’s lecture (I’m not sure if this is correct):
Neutral states: Neutral with respect to all conflicts
Neutralized territories: Neutral only with respect to
a particular conflict
NON-INTERNATIONAL CONFLICTS
Civil Wars
Civil wars or rebellion do not violate international
law.
Outside help for governments experiencing rebellion
is generally considered legitimate provided it is
requested by the government.
Aid to rebels is contrary to international law.
page 35
Common Article 3
Traditionally, international law on armed conflict
does not apply to internal conflicts such as civil wars
or rebellions. In 1949, it was decided that minimum
humanitarian protection should also be promulgated
to cover internal conflict. Each of the four Geneva
Conventions contain a common Article 3, which says:
In the case of armed conflict not of an international
character, each party to the conflict shall apply as a
minimum the following provisions:
1. Persons taking no active part in the
hostilities shall be treated humanely,
without any adverse distinction founded on
race, color, religion, sex, birth, wealth, or
other similar criteria.
2. The wounded and sick shall be collected and
cared for.
An impartial humanitarian body, such as the
Red Cross, may offer its services to the
parties.
This does not mean though that the conflict becomes
and international one. Therefore, it does not
preclude the possibility that any participant in the
conflict may be prosecuted for treason.
Protocol II
Protocol II is an international agreement which
regulates the conduct of parties in non-international
armed conflict. It defines a non-international armed
conflict as armed conflicts “which take place in the
territory of a High Contracting Party between its
armed forces and dissident armed forces or other
organized armed group which, under responsible
command, exercise such control over a part of its
territory as to enable them to carry out sustained
and concerted military operations and to implement
this protocol.”
The Protocol shall not apply to situations of internal
disturbances and tensions, such as riots, isolated and
sporadic acts of violence, and other acts of a similar
nature, as not being armed conflicts.
Requirements of “material field of application”
of Protocol II
1. the armed dissidents must be under
responsible command;
2. they must exercise such control over a part
of its territory as to enable them to carry
out sustained and concerted military
operations and to implement the Protocol;
INTERNATIONAL TERRORISM
Part of the problem in criminalizing terrorism in
international law is the difficulty in defining the act.
A draft of an International Convention for the
Sheryl 2D 2003
Suppression of the Financing of Terrorism makes an
attempt to define it as an act intended to cause:
1. death or serious bodily injury to any
person; or
2. serious damage to a state or government
facility with the intent to cause extensive
destruction of such a place, facility or
system, or where such destruction results
or is likely to result in major economic loss
when the purpose of such act, by its nature or
context, is to intimidate a population, or to compel a
Government or an international organization to do or
abstain from doing any act.
Is terrorism already a crime against humanity
covered by universal jurisdiction?
The attack on the WTC was characterized as a crime
against humanity by several jurists. What led them
to arrive at this conclusion was the atrocious
character exhibited by the act: its magnitude, its
gravity, the targeting of civilians as part of a well-
planned operation.
To characterize terrorism as a crime against
humanity, it would be necessary to determine what
the specific conditions should be for considering an
act as one against humanity. Not every act of
terrorism would have the magnitude and gravity of
the September 11 attack.
The importance of the characterization of the
September 11 attack as a crime against humanity is
that it led to what seems to be a development in the
international law of self-defense. The magnitude of
the attack of September 11 was such that it
persuaded the Security Council and NATO to issue
resolutions which justified resort to Article 51 of the
UN Charter on collective self-defense without waiting
for action by the Security Council.
CHAPTER XVI INTERNATIONAL
ENVIRONMENTAL LAW
ENVIRONMENTAL CONCERNS
The protection of the environment is now a concern
of international law. It is a challenge to the
development of international law because its
demands cannot be met without intrusion into the
domestic jurisdiction and sovereignty of states.
The concern of environmental protection is not just
about the atmosphere, the sea, the land, etc. It is
also about the preservation of the cultural heritage
of mankind as found in archeological and artistic
remains. The goal of environmental protectionists is
the rational use of the elements that make up the
environment through control, reduction, and
page 36
wherever possible, elimination of the causes of
environmental degradation.
Inseparable related with environmental concerns are
human rights issues. The protection of the
environment is a vital part of contemporary human
rights doctrine, for it is a sine qua non for numerous
human rights, such as the right to health and the
right to life itself.
WHO HAVE ENVIRONMENTAL RIGHTS?
In protecting the environment, the real objects of
protection are persons capable of having rights.
SUSTAINABLE DEVELOPMENT
The concept of sustainable development recognizes
the competing claims of states in the areas of
preservation of the environment and the right to
development. The concept encourages development
in a manner and according to methods which do not
compromise the ability of future generations and
other states to meet their needs.
EMERGING PRINCIPLES
Stockholm Declaration
The Conference calls upon governments and peoples
to exert common efforts for the preservation and
improvement of the human environment, for the
benefit of all the people and for their posterity.
(please see page 399-405 for the full text of the
Stockholm Declaration)
Important Provisions:
Principle 2 – The natural resources of the earth
must be safeguarded for the benefit of present and
future generations through careful planning or
management.
Principle 3 – The capacity of the earth to produce
vital renewable resources must be maintained and,
wherever practicable, restored or improved.
Principle 5 – The non-renewable resources of the
earth must be employed in such a way as to guard
against the danger of their future exhaustion and to
ensure that benefits from such employment are
shared by all mankind.
Principle 6 – The discharge of toxic substances or
of other substances and the release of heat, in such
quantities or concentrations as to exceed the
capacity of the environment to render them
harmless, must be halted in order to ensure that
serious or irreversible damage is not inflicted upon
ecosystems.
Principle 21 – States have the sovereign right to
exploit their own resources pursuant to their own
environmental policies, and the responsibility to
ensure that activities within their jurisdiction or
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control do not cause damage to the environment of
other States or of areas beyond the limits of national
jurisdiction.
Principle 26 – Man and his environment must be
spared the effects of nuclear weapons and all other
means of mass destruction. States must strive to
reach prompt agreement, in the relevant
international organs, on the elimination and
complete destruction of such weapons.
Rio Declaration
Principle 4 – In order to achieve sustainable
development, environmental protection shall
constitute an integral part of the development
process and cannot be considered in isolation from it.
Principle 5 – All States and all people shall
cooperate in the essential task of eradicating poverty
as an indispensable requirement for sustainable
development, in order to decrease the disparities in
standards of living and better meet the needs of the
majority of the people of the world.
Principle 10 – Environmental issues are best
handled with the participation of all concerned
citizens, at the relevant level. At the national level,
each individual shall have appropriate access to
information concerning the environment that is held
by public authorities, including information on
hazardous materials and activities in their
communities, and the opportunity to participate in
decision-making processes. States shall facilitate
and encourage public awareness and participation by
making information widely available.
Principle 13 – States shall develop national law
regarding liability and compensation for the victims
of pollution and other environmental damage.
States shall also cooperate in an expeditious manner
to develop further international law regarding liability
and compensation for adverse effects of
environmental damage caused by activities within
their jurisdiction or control to areas beyond their
jurisdiction.
Principle 18 – States shall immediately notify other
States of any natural disaster or other emergencies
that are likely to produce sudden harmful effects on
the environment of those States.
Principle 22 – Indigenous people and their
communities and other local communities have
a vital role in environmental management and
development because of their knowledge and
traditional practices. States should recognize and
support their identity, culture, and interests and
enable their effective participation in the
achievement of sustainable development.
Principle 24 – Warfare is inherently destructive of
sustainable development. States shall therefore
respect international law providing protection for the
environment in times of armed conflict and
cooperate in its further development, as necessary.
page 37

Principle 25 – Peace, development and
environmental protection are interdependent and
indivisible.
SOME TREATIES
The Stockholm and the Rio Declarations are just
declarations that do not have the force of law.
Some conventions which are legally binding on the
parties are:
1. Law of the Sea prohibitions on marine
pollution;
2. Vienna Convention for the Protection of the
Ozone Layer
3. UN Conference on Environment and
Development – sought to achieve
stabilization of greenhouse gas
concentration in the atmosphere at a level
that would prevent dangerous
anthropogenic interference with the climate
system;
4. Kyoto Protocol – also sought to protect the
atmosphere
5. Convention on International Trade in
Endangered Species of Wild Fauna and Flora
6. Convention on Biological Diversity
CHAPTER XVII
INTERNATIONAL ECONOMIC
LAW
International Economic Law (IEL) includes all the
international law and international agreements
governing economic transactions that cross state
boundaries or that otherwise have implications for
more than one state, such as those involving the
movement of goods, funds, persons, intangibles,
technology, vessels, or aircraft.
FOUR CHARACTERISTICS OF IEL
1. IEL is part of public international law.
Treaties alone make this so.
2. IEL is intertwined with municipal law. The
balancing of economic treaty law with
municipal law is important.
3. IEL requires multi-disciplinary thinking,
since it involves not only economics but also
political science, history, anthropology,
geography, etc.
4. Empirical research is very important for
understanding its operation.
Sheryl 2D 2003
IMPORTANT ECONOMIC INSTITUTIONS
1. The International Monetary Fund (IMF)
– provides short-term financing to countries
in balance of payments difficulties;
2. The World Bank – provides long term
capital to support growth and development;
3. International Trade Organization (ITO)
– promotes a liberal trading system by
proscribing certain protectionist trade rules.
The intended function of the ITO was taken
over by the General Agreement on
Tariffs and Trade (GATT) and its
successor the World Trade Organization
(WTO). The GATT and the WTO are the
most important trade oriented institutions.
They shape domestic import and export
laws which impact on international trade on
goods and services.
KEY PRINCIPLES OF INTERNATIONAL TRADE
LAW
1. Agreed tariff levels – The GATT contains
specified tariff levels for each state. Each
state agrees not to raise tariff levels above
those contained in the schedule. But these
can be renegotiated.
2. The most favored nation principle
(MFN) – The MFN clause embodies the
principle of non-discrimination. It means
that any special treatment given to a
product from one trading partner must be
made available for like products originating
from or destined for other contracting
partners. This generally refers to tariff
concessions.
3. Principle of National Treatment –
Prohibits discrimination between domestic
and foreign producers. It means that once
foreign producers have paid the proper
border charges, no additional burdens may
be imposed on their products.
4. Principle of tariffication – Prohibits the
use of quotas on imports or exports and the
use of licenses on importation or
exportation. The purpose is to prevent the
imposition of non-tariff barriers. But GATT
provides for exceptions on a quantitative
and temporary basis for balance of
payments or infant industry reasons in favor
of developing states
EXCEPTIONS TO KEY PRINCIPLES
General exceptions: Those referring to public
morals, public health, currency protection, products
of prison labor, national treasures of historic, artistic
page 38
or archeological value, and protection of exhaustible
natural resources.
There are also security exceptions and regional
trade exceptions. Of special significance to the
Philippines are the exceptions for developing
nations.
Tanada v. Angara
EXTENDING SCOPE OF INTERNATIONAL
ECONOMIC LAW
IEL now includes intellectual property services,
sanitary and physiosanitary measures and
investment, as well as the strengthening of the rules
on subsidies, countervailing duties, and anti-
dumping.

Petitioners argued that the Senate gravely abused its

discretion in joining the WTO because it would have
the effect of wiping out local industries and
enterprises and depriving Filipinos of control of the
economy.

HELD: There was no grave abuse of discretion.

The WTO has some built-in advantages to protect

weak and developing economies. Unlike the UN
where major states have permanent seats and veto
powers in the Security Council, in the WTO decisions
are made on the basis of sovereign equality, with
each member’s vote equal in weight to that of any
other. Poor countries can protect their common
interests more effectively through the WTO rather
than through one-on-one negotiations with
developed countries. Within the WTO developing
countries can form powerful blocs to push their
economic agenda more decisively than outside the
Organization. This is not merely a matter of
practical alliances but a negotiating strategy rooted
in law.

Moreover, the WTO Agreement grants developing

countries a more lenient treatment, giving their
domestic industries some protection from the rush of
foreign competition. With respect to tariffs in
general, preferential treatment is given to developing
countries in terms of the amount of tariff reduction
and the period within which the reduction is to be
spread out. As compared to developed countries,
the tariff reduction required of developing countries
is smaller, to be carried out over a longer period of
time.

The GATT itself has provided built-in protection from

unfair foreign competition and trade practices
including anti-dumping measures, countervailing
measures, and safeguards against import surges.
Where local businesses are jeopardized by unfair
foreign competition, the Philippines can avail of these
measures.

DISPUTE RESOLUTION

A Dispute Settlement Body (DSB) has been

established by the WTO Agreement. It consists of
the General Council of the WTO and operates under
the Understanding on Rules and Procedures
Governing the Settlement of Disputes (DSU).

Each state has a right to the establishment of a

panel. The DSU has also provided for a permanent
Appellate Body to handle appeals from a Panel
decision.

Sheryl 2D 2003 page 39