Вы находитесь на странице: 1из 171

NOTE: PLEASE

REFER TO
SUPPLEMENT #1
FOR SOME
CORRECTIONS
AND ADDITIONS
- ED.

PUBLIC
INTERNATIONAL
LAW
UP LAW A2015 reviewer for the class of

Prof. H. Harry L. Roque

AFRICA, AMABEL KAY


AMORIN, DANNIEL ROY
ARCILLA, JOHN MARK
BELTEJAR, JAN ROBERT
DE LEON, CLAIRE
FABELLA, LINDSEY
JAVELOSA, RANULFO III
PEALBER, AMIRAH

IN GENERAL .........................................................1
SOURCES OF INTERNATIONAL LAW ...............2

E.

Vienna Convention on the Law of Treaties


............................................................ 98

F.

Vienna Conventions on Diplomatic


Relations and Consular Relations, and
Optional Protocols ............................. 109

ACTORS IN INTERNATIONAL LAW ................20


States ............................................................... 23
A.

Territorial Sovereignty .......................... 24

B.

UNCLOS ................................................ 35

VIENNA CONVENTION ON DIPLOMATIC


RELATIONS ............................................. 109

BASELINES ................................................ 35

VIENNA CONVENTION ON CONSULAR


RELATIONS ............................................. 113

INTERNAL WATERS AND INNOCENT


PASSAGE................................................... 38

International Organizations ........................ 117

TERRITORIAL SEA ...................................... 40


STRAITS AND TRANSIT PASSAGE ................ 45

A.

The UN Charter and the Use of Force.. 117

B.

International Court of Justice.............. 130


APPLICABLE LAW .................................... 131

ARCHIPELAGOS ......................................... 48

JURISDICTION ......................................... 131

CONTIGUOUS ZONE .................................. 50

ADVISORY OPINIONS .............................. 131

CONTINENTAL SHELF ................................ 50

CASES ON JURISDICTION......................... 133

EXCLUSIVE ECONOMIC ZONE .................... 57

CASES ON PROVISIONAL MEASURES ....... 136

DELIMITATION OF MARITIME BOUNDARIES


................................................................. 62
HIGH SEAS ................................................ 62

CASES ON ADVISORY OPINIONS .............. 138

RIGHT OF ACCESS OF LAND-LOCKED STATES


TO AND FROM THE SEA AND FREEDOM OF
TRANSIT.................................................... 63

The Individual ............................................... 141


A.

Human Rights..................................... 141

B.

International Criminal Law.................. 143

C.

NAVIGATION............................................. 65

Foreign Investments and Natural


Resources .......................................... 145

SETTLEMENT OF DISPUTES ........................ 68

WHEN LAWFUL ...................................... 154

PEACEFUL USE OF THE OCEANS................. 68

WORLD TRADE ORGANIZATION .............. 162

THE AREA.................................................. 64

C.

CASES ON DISPUTE ................................. 136

Jurisdiction and Immunities .................. 69


JURISDICTION ........................................... 69
SOVEREIGN IMMUNITIES .......................... 71

D.

International Responsibility .................. 89

UP LAW A2015 PUBLIC INTERNATIONAL LAW REVIEWER GROUP


JAVELOSA, RANULFO III
Head

AFRICA, AMABEL KAY


AMORIN, DANNIEL ROY
ARCILLA, JOHN MARK

BELTEJAR, JAN ROBERT


DE LEON, CLAIRE
FABELLA, LINDSEY
PEALBER, AMIRAH
Members

This reviewer contains information drawn from


various sources, including primary source materials
(e.g. cases, international law references), notes
from class discussions, as well as existing reviewers.
We in no way warrant the accuracy of the
information herein provided. Neither do we give any
assurance that it would suffice with respect to
whatever end you may have for it and in satiating
ones thirst for knowledge of international law.
While useful for purposes of review, this is in no way
intended to substitute actual classroom learning and
exhaustive study of primary materials. We exhort
users to continue to study the subject matter
consistent with the (extraordinary) diligence
expected of a student of law.

PUBLIC INTERNATIONAL LAW

IN GENERAL
International Law, Defined
It is a body of legal principles, norms, and processess,
which regulates the relations of States and other
international persons, and governs their conduct affecting
the interests of the international community as a whole.
(Higgins, Chapter 1)
Shortcomings of Traditional Rules-Based Definition
Traditionally, it was defined as rules applicable to states
with their relationship with one another. There are two
limitations to this definition:
1) When there are no existing rules; and
2) Who sets the rules.
The Southwest Africa Cases (infra.) is an example of
the limitation of defining international law as a rulesbased system. In that case, the International Criminal
Court (ICJ) refused to exercise jurisdiction over the
question of whether or not the system of apartheid
was in accord with international law. The Court ruled
that,
(Despite) the various considerations of a
non-judicial character, social, humanitarian
and otherthese are matters for the
political rather than for the legal arena.
By referring strictly to international law as a corpus of
rules, it effectively deemed the moral and ethical
issues surrounding systematic racial segregation as
non-legal matters that the Court could not take
cognizance of.
This development rendered the ICJ (then) a useless
body, and has led to a push for the creation of other
tribunals (e.g. International Tribunal on the Law of
the Sea [ITLOS].)
CLASS NOTES

A2015

state practice, and decisions by a variety of authorized


decision makers. (ibid.)
Hersch Lauterpacht, an eminent expert in international
law, agrees with the position that international law is not
the mere application of rules; instead, it is a choice
between competing or conflicting claims on the basis of
superiority.

Q: Why is international law law?


States consider them law because:
1. It upholds and embodies their values;
2. It is in their national interest;
3. They consider as law that ought to be
followed
Basis of International Law
Higgins (ibid.) outlines three bases which explain
international laws binding nature:
1. Natural Law
Some writers suggest that it is in the natural
order of things that certain matters should be
regulated in compulsory manner. An obligatory
foundation to the basic precept of justice is to be
found in natural law, which gives rise to
ibligations consisting in what is essentially
necessary for subsistence and self-preservation.
2. Consent
This is based on the sovereignty of state, which
in turn emphasizes their freedom to act
unilateraly save to the extent they agreed upon
to be constrained. This advances the view that
the obligatory character of international law is
made by the concordance of the wills of states.
3. Reciprocity
States perceive a reciprocal advantage in
cautioning self-restraint in terms of committing
violations of international law norms.

International Law as a Normative System


It should be viewed as a normative system, not merely as a
set of rules. It is the process of authoritative decisionmaking part of a normative system taking into
consideration important elements that are not rules or
jurisprudence. (Higgins, Chapter 1)
Making judments on the basis of international law goes
beyond simply finding the rule and applying it. Neither
should the accumulated trend of past decisions be applied
indiscriminately.
Policy and extra-legal considerations, though different
from rules, are an integral part of that decision-making
process. It involves interest in claims and counterclaims,

PUBLIC INTERNATIONAL LAW

A2015

SOURCES OF
INTERNATIONAL LAW
ICJ Statute, Article 38.
1. The Court, whose function is to decide in
accordance with international law such disputes as
are submitted to it, shall apply:
a. international conventions, whether
general or particular, establishing rules
expressly recognized by the contesting
states;
b. international custom, as evidence of a
general practice accepted as law;
c. the general principles of law recognized
by civilized nations;
d. subject to the provisions of Article 59,
judicial decisions and the teachings of
the most highly qualified publicists of the
various nations, as subsidiary means for
the determination of rules of law.
2. This provision shall not prejudice the power of
the Court to decide a case ex aequo et bono, if the
parties agree thereto.
The ICJ statute provides an enumeration of sources that
the Court shall apply with respect to controversies.
*Note that this is not an enumeration of sources of
international law; it is only a list of things that the court
can consider in arriving at decisions.
A. International conventions
B. International custom
C. General principles of law
D. Judicial decisions and
teachings of publicists

Primary Sources

Secondary Source

There exists a hierarchy among the sources. A, B and C are


primary sources, while D is a secondary source.
The Court is not constrained to consider only one source.
Its decisions may arise as a result of a combination of
sources.
International Conventions; Treaties
International conventions and treaties are sources of
obligations in the nature of domestic contracts. These call
into operation the principle of pacta sunt servanda,
literally, agreements must be kept. These, tribunals will
merely interpret.

A treaty contrary to a custom or a general principle part of


jus cogens would be void or voidable. (Brownlie, Chapter 1)
While a treaty is principally binding only on parties, in
some cases its provisions may produce a strong, lawcreating effect at least as great as the general practice
considered sufficient to support a customary rule, given
the:

number of parties;

explicit acceptance of rules of law; and

declaratory nature of the provisions. (Brownlie,


Chapter 1)

Q: Can the resolutions of the UN General Assembly


be considered as a source of international law?

In general, UN GA resoultions are non-binding.


However, when they are concertned with general
norms of international law, an acceptance by a
majority vote constitutes evidence of the opinions of
governments in the widest forum of expression of
such opinions. (ibid.)
They are also considered as a first step in the proces
of law creation, and may be evidence of developing
trends of customary law. (Higgins, Chapter 2)
Nonetheless, resolutions cannot be a substitute for
ascertaining custom. Each resilution must be assessed
in the light of all the sircumstances and also by
reference to toher evidence of opinions of states on
the point in issue. (Brownlie, Chapter 1)
International Custom; Elements
(Brownlie, Chapter 2)
1. Duration
No particular duration is required. While passage
of time can be considered as part of the
evidence of generality and consistency, a long
practice is not necessary.
2. Consistent state practice
In invoking custom, it must be proven that there
is a constant and uniform usage of a custom
practised by the states in question. (Asylum Case,
infra.) Complete uniformity is not required;
substantial uniformity is enough.
3. Generality of practice
4. Opinio juris sive necessitatis
This refers to a recognition by states that a
certain practice is obligatory, and a belief that
such practice is required by, or consistent with
international law. They do so for the reason that
the practice is required by law, and not merely
because of courtesy or political expediency.
This exists when states must have behaved in
such a way that their conduct is evidence of a
belief that practice is rendered obligatory by the

PUBLIC INTERNATIONAL LAW

existence of a rule of law requiring it. (North


Sea Continental Shelf Cases, infra.)
A new norm cannot emerge without both practice and
opinio juris; and an existing norm does not die without the
great majority of states engaging in a contrary practice and
withdrawing their opinio juris. (Higgins, Chapter 2)
In order for a practice to crystallize into a customary
norm, class discussions and Higgins (ibid.) only point
to the following essential elements:
1. Consistent state practice; and
2. Opinio juris
CLASS NOTES

Q: What is the effect of a breach of a customary


international norm?

Generally, a breach of a customary norm can give rise


to the birth or creation of a new norm. There would
thus be instances where state conduct inconsistent
with established rules can be an indication of the
recognition of a new rule.
However, if a state acts in a way prima facie
incompatible with a recognized rule, but defends its
conduct by appealing to exceptions or justifications
contained within the rule itself,the significance of
that attitude is to confirm rather than to weaken the
rule. (Case Concerning Military and Paramilitary
Activities in and against Nicaragua [Nicaragua v.
USA], supra.)
General Principles of Law
This refers to analogies derived from general principles of
municipal law. According to Brownlie (Chapter 1), the
rationale for its inclusion is to authorize the Court to apply
municipal law principles, legal reasoning and private law
analogies insofar as they are applicable to relations
between states in order to make the law of nations a
viable system for application.
This category also contemplates principles traced to state
practice regarded as such by civilized nations. These
include principles of consent, reciprocity, equality among
states, finality of awards and settlements, legaility of
agreements, good faith, and domestic jurisdiction. (ibid.)
Judicial Decisions
Decisions of the ICJ are merely subsidiary means for the
determination of rules of law, and consitute only an
evidence of the law. The ICJ applies the law and does not
make it. However, it may be contended that a unanimous
or almost unanmous decision has a role in the progressice
development of law.
ICJ Statute, Article 59.
The decision of the Court has no binding force

A2015

except between the parties and in respect of that


particular case.
Moreover, the ICJ does not observe stare decisis or the
principle of judicial precedent, though it strives to
maintain judicial consistency.
Decisions of national tribunals also have evidential value.
They provide indirect evidene of the practice of the state
of the forum on the question involved. Writers also make
frequent reference to municipal decisions. (ibid.)
Teachings of Publicists
Teachings of publicists are also only evidence of law.
Nonetheless, they are used widely in arbitral tribunals,
national courts, and the ICJ itself, and there are cases
where writers have had a formative influence on
international law. (ibid.)
Jus Cogens Norm
A jus cogens or peremptory norm is a norm which States
cannot derogate or deviate from in their agreements. It
owes its status from the fact that the community as a
whole regards these norms as of critical importance, such
that particular states cannot contract-out of them. It is
mandatory and cannot be set aside or modified by
agreement. (Higgins, Chapter 2)

Q: Is a jus cogens norm the same as an erga omnes


obligation?

No. A jus cogens norm is a peremptory norm which


states consider as one from which no derogation is
permitted.
An erga omnes obligation, on the other hand, refers
to obligations that a state owes to the international
community as a whole. Given the importance of the
rights involved, all states can be held to have a legal
interest in their protection. (Case Concerning The
Barcelona Traction, Light and Power Company,
Limited) As such, it is used as a remedial law principle
that allows all states to have standing with respect to
its breach.
The notion of erga omnes is concerned with
standing; that of jus cogens with the non-derogable
quality of a norm. (Higgins, Chapter 9)
In the Case Concerning East Timor (Portugal v.
Australia) (infra.), Portugal invoked the erga omnes
obligation of right to self-determination in order to
press a claim against Australia in its actvities in East
Timor, though it in itself was not directly affected by
Austalias acts.
Formal v. Material Sources
1. Formal Sources consist of the methods and
procedures by which norms are created. For

PUBLIC INTERNATIONAL LAW

A2015

example, the constitutional machinery of law


making in municipal law.

Convention and the Geneva Convention


because the Philippines is not a signatory
thereto at the time of the commission of
the acts.

The ICJ cannot be considered as a formal source


because it does not have the concept of stare decisis.

The Commission had jurisdiction to try him.


UN GA Resolutions also cannot be formal sources
because they are merely restatements of customs.
CLASS NOTES
2.

Material Source they are the substantive


evidence of the existence of norms. They supply
the substance of the rule to which the formal
sources gives the force and nature of law. In
other words, they are evidence that the norm in
fact exists. For example, RA in printed form.

ICJ Statute, Article 53.


1. Whenever one of the parties does not appear
before the Court, or fails to defend its case, the
other party may call upon the Court to decide in
favor of its claim.
2. The Court must, before doing so, satisfy itself,
not only that it has jurisdiction in accordance with
Articles 36 and 37, but also that the claim is well
founded in fact and law.

Q: Does repetition play a role in the development


of international law?

Repetition is necessary because a customary


international norm arises out of repeated state
action. It is therefore basic to the formation of a rule
of conduct. Norms of international law are created by
States through definite norm-creating methods
accepted or recognized by them as a means of
expressing consent as to their binding effect. In other
words, international law is based on their normative
consent.

KURODA v. JALANDONI

The Military Commission had jurisdiction to try Petitioner


because even if the Philippines was not a signatory to the
Conventions, which both US and Japan were signatories to,
the rules and regulations of the Hague and Geneva
conventions form part of and are wholly based on the
generally accepted principles of international law. Such
rules and principles form part of the law of our nation .
Moreover, when the crimes charged against petitioner
were allegedly committed, the Philippines was under the
sovereignty of United States and thus we were equally
bound together with the United States and with Japan to
the right and obligation contained in the treaties between
the belligerent countries. These rights and obligation were
not erased by our assumption of full sovereignty. As held
in Laurel v. Misa, The change of our form government
from Commonwealth to Republic does not affect the
prosecution of those charged with the crime of treason
committed during the Commonwealth because it is an
offense against the same sovereign people.
This case illustrates the relationship between
customary law and treaty law.
On the one hand, if a treaty provides conventional
law, only the parties thereto are bound. On the other
hand, if a treaty provides customary law, all states,
signatories thereto or not, are bound.
This decision finds support in the Incorporation
Clause in Article II, Section 2 of the Philippine
Constitution. However, this case shows that even
without the said clause, general principles of
international law continue to be binding by virtue of
our membership in the community of nations,
CLASS NOTES

83 Phil 171 (1949)

YAMASHITA v. STYER
Shigenori Kuroda was formerly a Lieutenant-General of the
Japanese Imperial Army and Commanding General of the
Japanese Imperial Forces in the Philippines (1943-1944). He
was charged before a Military Commission convened by
the Chief of Staff of the Armed Forces of the Philippines for
the atrocities committed by Japanese Forces against
civilians and other conduct during the war.
Kuroda:

The Military Commission has no jurisdiction


to try him.
No jurisdiction to try him for acts
committed in violation of the Hague

75 Phil 563 (1945)

Tomoyuki Yamashita is a commanding general in the


Japanese Imperial Army in the Philippines. From being a
prisoner of war after his surrender, his status was changed
to that of an accused war criminal and was charged before
an American Military Commission for having allowed
members under his command to commit massacre of
thousands of unarmed non-combatant civilians.
Yamashita:

The Military Commission has no jurisdiction


to try him.

PUBLIC INTERNATIONAL LAW

Commission was not duly constituted;


The Philippines is not a US-occupied
territory, hence an American military
commission does not have jurisdiction
therein;
He did commit any offense against the
laws of war.
The Commission had jurisdiction to try him.
SC cannot exercise jurisdiction over the acts of the Military
Commission. Citing Raquiza v Bradford, the Court held that
any attempt of our courts to exercise jurisdiction over the
US Army before the end of a state of war would amount to
a violation of the Philippines faith. The state of war did
not end with the cessation of hostilities; incidents of war
(e.g. seizure and punishment of enemies who violate the
laws of war; creation of military tribunals) may remain
pending and should be left unimpeded until completion.
The Commission was duly constituted in accordance with
the authority of General MacArthur as commander of US
Forces and the Joint Chiefs of Staff. Per the Articles of War,
a military commander has an implied power to covene a
Military Commission for the purpose of trying offenders or
offenses against the laws of war in appropriate cases as it
is an aspect of waging war.
Jurisdiction over Yamashita was acquired by virtue of his
capture by US forces. And the charges against him brutal
atroities against unarmed civilians and other high crimes,
among others are offenses against the laws of war over
which the Commission ahs jurisdiction.
During the liberation, the Philippines was occupied by US
forces for the purpose of removing Japanese forces. The
formation of the Commission is an incident of such
liberation, and this has jurisdiction.
Perfecto, J., concurring and dissenting.:
The Philippines is bound to treat Yamashita in accord with
established rules of treating war criminals.
Impelled by irrepressible endeavors aimed towards the
ideal, by the unconquerable natural urge for improvement,
by the unquenchable thirstiness of perfection in all orders
of life, humanity has been struggling during the last two
dozen centuries to develop an international law which
could answer more and more faithfully the demands of
right and justice as expressed in principles which, weakly
enunciated at first in the rudimentary juristic sense of
peoples of antiquity, by the inherent power of their
universal appeal to human conscience, at last, were
accepted, recognized, and consecrated by all the civilized
nations of the world.
Yamashita is entitled to be accorded all the guarantees,
protections, and defenses that all prisoners should have

A2015

according to the customs and usages, convention and


treaties, judicial decisions and executive pronouncements,
and generally accepted opinions of thinkers, legal
philosophers and other expounders of just rules and
principles of international law.
Justice Perfectos separate opinion is perhaps the
best statement regarding the binding nature of
international humanitarian law and customary
norms. The excerpted paragraphs show that
humanitarian law is customary in nature by its
universal appeal to human conscience, recognized,
by all civilized nations of the world.
His disquisition predates that of the Nuremberg trials.
CLASS NOTES

KOOKOORITCHKIN v. SOLICITOR GENERAL


81 Phil 435 (1949)

Eremes Kookoorithckin is a Russian applying for


naturalization in the Philippines. He was a member of the
White Russian Army and was part of a contingent of 1,200
which fled to Manila after the Russian Revolution. He is a
resident of Camarines Sur, married to a Filipina, works for
a bus company, and had in fact fought in the guerilla war
against the Japanese. Although Russian by birth, he
disclaims Soviet citizenship.
Solicitor
General:

He is not entitled to naturalization.


There is no evidence that establishes his
legal entry into the Philippines
He cannot speak English or Bicolano
fluently;
No showing that he has lost his Russian
citizenship, or that he is stateless.

Kookooritchkin is a stateless refugee entitled to


naturalization.
No further proof of his legal entry is necessary. His arrival
as part of the group of Russian soldiers was well
documented, and his continuous residence in the
Philippines for 25 years without issue can be taken as
evidence of the legality of his residence.
It is well known that the Soviet dictatorship has left
thousands of stateless refugees and displaced persons
without country and without flag. Its oppression has made
it natural for those who were able to escape from it to
feel the loss of all bonds of attachment therefrom. As
such, there is no need for him to further prove his
statelessness apart from his testimony that he owes no
allegiance to the communist government and that he has
fled from it. He even refused to claim Russian citizenship
during the Japanese citizenship even if it meant better
conditions for him.

PUBLIC INTERNATIONAL LAW

A2015

States:
We are civilized people now so we dont do harsh
things to each other. (Karichi Notes, citing Prof.
Roque, 2010)
This case was not taken up during class.
CLASS NOTES

CASE CONCERNING MILITARY AND


PARAMILITARY ACTIVITIES IN AND AGAISNT
NICARAGUA
(NICARAGUA v. USA)

US terminated said treaty with


Nicaragua, and withdrew its agreement
to the optional clause.
US submitted a multilateral treaty
reservation, which excluded disputes
arising under multilateral treaties from
ICJ jurisdiction, unless:
o All parties to the treaty affected by
the decision are also parties to the
case before the Court; or
o US specially agrees to jurisdiction

Court has jurisdiction.

ICJ Reports 1986, p.14 (1986)

Nicaragua instituted proceedings against the United States


for the latters alleged responsibility for military and
paramilitary activities therein. It alleged that the US
violated its sovereignty by:
Recruiting, training, financing and aiding the contras
(i.e. those fighting against the Nicaraguan
government), to the point that it exercises effective
control over them;
Carrying out operations against Nicaragua through
persons under US command (e.g. mining of certain
Nicaraguan ports in early 1984, and attacks on its
ports, oil installations, a naval base, etc.)
Undertaking overflights of US aircraft over
Nicaragua, not only for intelligence gathering and
delivering supplies to the contras on the field, but
also to intimidate the population.
The US countered that its efforts were brought about by
the reports of Nicaraguan involvement in logistical support,
including provision of arms, for guerrillas in El Salvador.
Nicaragua:

United

Court has jurisdiction on the basis of the


USs acceptance of jurisdiction under:
Treaty of Friendship, Commerce and
Navigation with Nicaragua; and
Optional clause under Art. 36 par. 2 of
the ICJ statute
The United States is liable for the following:
Violation of Art. 2, Par. 4 of the UN
Charter, and the customary international
law obligation to refrain from the threat
or use of force;
Intervention in the internal affairs of
Nicaragua, breaching the Charter of the
Organization of American States and of
the rules of customary international law
forbidding intervention
Violation of Nicarguan sovereignty and a
number of other obligations established
in general customary international law
and in the inter-American system.
Court has no jurisdiction over the matter.

Once an application has been commenced at a time when


the law in force granted the Court jurisdiction over the
controversy, any lapse of the law (by expiration, lapsing, or
revocation) thereafter cannot deprive the Court of
jurisdiction already established. Therefore, despite the US
termination of the Treaty of Friendship, Commerce and
Navigation with Nicaragua, the Court may continue to
exercise jurisdiction.
Also, the US cannot take refuge in its multilateral treaty
reservation. The Court also held that customary law
operates independently of treaty law. The treaties
themselves only refer to pre-existing customary
international law. Principles such as the non-use of force,
non-intervention, respect for the independence and
territorial integrity of states, and the freedom of
navigation continue to be binding as part of customary
international law, despite the operation of provisions of
conventional law. Norms retain a separate existence;
customary international law continues to exist and to
apply, separately from international law. Therefore, a
multilateral treaty reservation would not operate to
exclude the application of any rule of customary
international law the content of which was the same as or
analogous to that of the treaty law rule.
On creation of customary norms
The Court said that the mere fact that states declare their
recognition of certain rules is not sufficient to consider
such as being part of customary international law. The
rules must exist in the opinio juris of states, which are
confirmed by practice.
It is not required that the corresponding practice must be
in absolute conformity with the rule. It is sufficient that
the conduct of states, should, in general, be consistent
with such rules and that instances of state conduct
inconsistent with a given rule should generally have been
treated as breaches of that rule, not as indications of the
recognition of a new rule. If a state acts in a way prima
facie incompatible with a recognized rule, but defends its
conduct by appealing to exceptions or justifications
contained within the rule itself, then whether or not the
States conduct is in fact justifiable on that basis, the

PUBLIC INTERNATIONAL LAW

significance of that attitude is to confirm rather than to


weaken the rule.
Opinio juris from GA resolutions
UN General Assembly Resolutions may be understood as
an acceptance of the validity of the rule or set of rules
declared by the resolution by themselves.

A2015

would lessen what it believed to be its proper share of the


area based on the proportionality to the length of its North
Sea coastline.
Denmark,
Netherlands:

On the existence of armed attack


The Court does not believe that the concept of armed
attack includes not only acts by armed bands where such
acts occur on a significant scale, but also assistance to
rebels in the form of the provision of weapons or logistical
or other support.
It is also clear that it is the State which is the victim of an
armed attack which must form and declare the view that it
has been so attacked. There is no rule in customary
international law permitting another state to exercise the
right of collective self-defense on the basis of its own
assessment of the situation.

NORTH SEA CONTINENTAL SHELF CASES


(GERMANY v. DENMARK; GERMANY v.
NETHERLANDS)
ICJ Reports 1969, p.5 (1969)

Germany:

By two Special Agreements concluded between 1)


Netherlands and Germany (1 December 1964) and 1)
Denmark and Germany (9 June 1965), the Parties
submitted to the Court certain differences concerning the
delimitation as between the Parties of [certain] areas of
the continental shelf in the North Sea which appertain to
them. The Court was asked to decide the applicable
principles and rules of international law in the
delimitation of the disputed areas. The Court was not
asked to actually delimit the boundaries as the task was
reserved to the Parties.
Most of the North Sea had already been delimited between
the Parties. However, they have been unable to agree on
the prolongation of the partial boundaries mainly because
Denmark and Netherlands wanted it to be based on the
Equidistance Principle, while Germany believed that it

The matter should be governed by a


mandatory rule of law called the
equidistance-special circumstances rule,
reflecting the language of Art. 6 of the
1958 Geneva Convention on the
Continental Shelf. In the absence of
agreement of the Parties to employ
another method, all continental shelf
boundaries had to be drawn by means of
an equidistance line, unless special
circumstances were recognized to exist.
(In other words: The boundary should be
based on the equidistance-special
circumstance rule because it is a Rule of
Customary International Law in the
absence of agreement by the statesparties to employ another method or to
proceed to a delimitation on an ad hoc
basis, all continental shelf boundaries
must be drawn by means of an
equidistance line, unless or except to the
extent which special circumstances
exist.)
The case should be decided on the basis of
equitable principles one according to
which each of the States concerned
should have a just and equitable share of
the available continental shelf, in
proportion to the length of its seafrontage (Apportionment Theory).
Alternatively, if the Equidistance Method
were held to be applicable, the
configuration of the German North Sea
coast constituted a special circumstance
that justifies not using such method in this
case.
(In other words: The equidistance
principle is not obligatory on states not
parties to the Convention. The rule that
should be applied is one according to
which each of the states concerned should
have a just and equitable share of the
available continental shelf, in proportion
to the length of its coastline or seafrontage. In any case, the Equidistance
Principle is not applicable due to the
configuration of its coastline.)

Germany is not bound to accept the equidistance


principle

PUBLIC INTERNATIONAL LAW

The Court held that Germany was not under a legal


obligation to accept the application of the Equidistance
Principle because its practical convenience and certainty of
application are not enough to convert it into a rule of law.
It ruled that the Convention was not binding on Germany
because although it was a signatory, it never ratified, and
was consequently not a party. Denmark and Netherlands
contended that the regime of Art. 6 was binding on
Germany because the latter had assumed that obligations
of the Convention by public statements, proclamations,
and in other ways. The Court held that only estoppel could
give merit to Denmark and Netherlands contention;
however, they showed no evidence of such prejudice so
Art. 6 was not applicable to this case.

A2015

The element of a reasonable degree of


proportionality between the extent of the
continental shelf areas appertaining to each state
and the length of its coast measured in the general
direction of the coastline, taking into account the
effects, actual or prospective, of any other
continental shelf delimitations in the same region.

SOUTH WEST AFRICA CASES (ETHIOPIA v.


SOUTH AFRICA; LIBERIA v. SOUTH AFRICA),
SECOND PHASE
ICJ Reports 1966, p.6 (1966)

Equidistance principle is not inherent in continental shelf


doctrine
The Court held that the equidistance principle is not
inherent in the basic doctrine of the continental shelf.
Equidistance clearly could not be identified with the
notion of natural prolongation, since the use of the
equidistance method would frequently cause areas which
were the natural prolongation of the territory of one state
to be attributed to another. Hence, the notion of
equidistance was not an inescapable a priori
accompaniment of basic continental shelf doctrine.
No customary norm providing for use of equidistance
principle
The Court also held that the Equidistance Principle was not
a rule of Customary International Law. Its non-exclusion
from the faculty of reservation leads to the inference that
it was not considered as reflective of emergent customary
law. Moreover, the number of ratifications and accessions
was hardly sufficient to make it a general rule of
international law. As regards the time element, although
the passage of only a short period of time was not
necessarily a bar to the formation of a new rule of
customary international law on the basis of what was
originally a purely conventional rule, it was indispensable
that state practice during that period, including that of
states whose interests were specially affected, should
have been both extensive and virtually uniform in the
sense of the provision invoked and should have occurred
in such a way as to show a general recognition that a rule
of law was involved.
In the course of negotiations, the factors to be taken into
account were to include:

the general configuration of the coasts of the parties,


as well as the presence of any special or unusual
features;

so far as known or readily ascertainable, the physical


and geological structure and natural resources of
the continental shelf areas involved;

South West Africa (now present-day Namibia) was a


League of Nations Mandate Territory placed under the
administration of South Africa (as mandatory). Ethiopia
and Liberia, in their capacities as former members of the
League of Nations, filed this action against the
Government of South Africa, alleging that the latter had
failed to promote the well-being of the inhabitants of
South West Africa in violation of its Mandate.
Ethiopia,
Liberia:

South Africa failed to promote the material


and moral well-being of the inhabitants of
the Territory by:
Practicing apartheid (i.e. distinction as to
race, color, national or tribal origin with
respect to rights of inhabitants) over the
Territory;
Subjecting the territory to arbitrary
legislation and decrees detrimental to
human dignity, rights and liberties
inconsistent
with
the
latters
international status.
Humanitarian considerations are sufficient
to generate legal rights and obligations,
which South Africa violated.
The Mandate system operated under a
sacred trust of civilization (i.e. aim of
aiding the well-being and development of
people not able to govern themselves), and
all civilized nations had an interest to see

PUBLIC INTERNATIONAL LAW

South
Africa:

A2015

this is carried out.


It is no longer bound to terms of the
Mandate upon the dissolution of the
League of Nations

The Court held that it could only rule on legal rights, not
on moral or ethical issues.
The ICJ is a court of law, and can take account of moral
principles only in so far as these are given legal form.
While humanitarian considerations may constitute the
inspirational basis for rules of law, they themselves do not
amount to law.
The sacred trust interest invoked has no residual
juridical content which could operate per se to give rise to
legal rights and obligations outside the system as a whole.
It must be something more than a moral or humanitarian
ideal in order to take on a legal character. In order to
generate legal rights and obligations, it must be given
juridical expression and be clothed in legal form.
This is an example of the limitation of defining
international law as a rules-based system. (see
comments, supra. p. 1)
The principles set forth in this case have been
obliterated by later cases. Fundamental equality is
now considered an erga omnes obligation since it is a
fundamental human right. (Karichi Notes, citing Prof.
Roque, 2010)
CLASS NOTES

ASYLUM CASE (COLOMBIA v. PERU)


ICJ Reports 1950, p.266 (1950)

Victor Raul Haya de la Torre, a Peruvian political figure,


applied for asylum before the Colombian Ambassador in
Lima after the Peruvian Government instituted rebellion
charges against him for leading a botched coup attempt.
The Colombian Ambassador granted him asylum, and
thereafter requested safe-conduct to enable the refugee,
whom he unilaterally qualified as a political offender, to
leave the country. Peru refused and insisted that he
committed common crimes so he was not entitled to enjoy
the benefits of asylum. The two Governments were unable
to reach an agreement so they submitted the matter to the
Court.
Colombia:

An asylum-granting state (i.e. Colombia) is


entitled to unilaterally qualify persons
seeking asylum as political refugees. The
territorial state (i.e. Peru) is bound to
respect such qualification and to give the
guarantees necessary for the departure of
the refugee.

Peru:

Such rule is based on American


international law and constant and uniform
practice among Latin American states, as
evidenced by:
Bolivarian Agreement of 1911, which
provided for the application of principles
of international law in the use of asylum;
Montevideo Convention on Political
Asylum granted the right of qualification
of a refugee to the granting State
Colombia does not have the right of
unilateral qualification of a person as a
political refugee entitled to diplomatic
asylum.
Haya de la Torre is charged with a common
crime, hence asylum cannot be granted.

Colombia is not entitled to qualify a person as a political


refugee by a unilateral decision.
A decision to grant diplomatic asylum involves a
derogation from the sovereignty of that State. It
withdraws the offender from the jurisdiction of the
territorial State and constitutes an intervention in matters
which are exclusively within the competence of that State
[Peru]. Such derogation from territorial sovereignty cannot
be recognized unless there is legal basis.
The party which relies on a custom must prove that it is
established in such a manner that it has become binding
on the other party by a constant and uniform usage.
In the instant case, principles of international law do not
recognize any rule of unilateral and definitive qualification
by the State granting asylum.
The Montevideo Convention relied on by Columbia for
unilateral qualification has been ratified by 11 states and
has not been ratified by Peru. As such, it can neither be
taken as a reliable evidence of custom, nor be invoked
against Peru.
As shown by the inconsistency and rapid succession of
asylum conventions and their acceptance and rejection by
various states, there is so much fluctuation and
discrepancy in the exercise of diplomatic asylum that it is
not possible to discern any constant and uniform usage in
support of unilateral qualification, accepted as law by all
States.
Haya de la Torre is not entitled to asylum.
While the charge of military rebellion was not a common
crime which would justify Perus objection to the asylum,
there was no urgency within the meaning of the Havana
Convention to justify a grant of asylum as there was no
imminence or persistence of a danger to the refugee.

PUBLIC INTERNATIONAL LAW

Three months had elapsed between the military rebellion


and grant of the asylum. It was not proved that the
situation in Peru at the time implied the subordination of
justice to the executive or the abolition of judicial
guarantees to warrant the granting of asylum.
Extradition v. Asylum
Extradition. The refugee is within the territory of the
State of refuge. Also, the refugee is outside the
territory of the State where the offense was
committed. The decision to grant the refugee asylum
in no way derogates from the sovereignty of that State.
Diplomatic Asylum. The refugee is within the
territory of the State where the offense was
committed. A decision to grant diplomatic asylum
involves a derogation from the sovereignty of that
State.
Colombia failed to prove the existence of a
customary international norm allowing unilateral
qualification.
Asylum. It is a fundamental human right to enter
another state in the ground of an unreasonable
persecution in a territorial state because of religious
belief, ethnicity, political ideology, etc.
It involves 2 basic rights:
1. Right of non-refoulement right of the
individual seeking asylum not to be brought
back to the territorial state pending an
administrative inquiry as to his eligibility for
refugee status; and
2. Right not to be prosecuted when the individual
seeking asylum is granted refugee status.
CLASS NOTES

NUCLEAR TESTS CASE (NEW ZEALAND v.


FRANCE)
ICJ Reports 1974, p.457 (1974)

New Zealand instituted proceedings against France over


the latters atmospheric nuclear tests in the South Pacific
which had entailed the release of radioactive matter into
the atmosphere. It sought interim measures of protection
from the ICJ which would bar France from conducting
further nuclear tests.
New
Zealand:

France:

New Zealand was affected by radioactive


fallout from the atmospheric tests, and
this constituted a violation of its rights
under international law.
ICJ has no jurisdiction over the case;
France did not even appoint an agent to
represent it therein.
Radioactive matter from the tests are
insignificant

A2015

Court need not decide on the matter due to assurances


from the French Government that atmospheric nuclear
tests would end.
Court observed from statements of the New Zealand
Prime Minister that an assurance from France that
atmospheric testing is finished for good would bring the
dispute to an end.
French authorities have made a number of consistent
public statements in public concerning future tests:
Statement of the French President that France would
be able to commence underground testing as soon as
the last round of atmospheric tests were completed,
and that he had made clear to his government that
such round would be the last;
Statement by the French Ambassador to New Zealand,
that the 1974 atmospheric tests would be the last of its
kind;
Statement by the French Minister of Defense that
underground testing would commence the following
year
These conveyed the message that France, following the
conclusion of the 1974 tests, would cease the conduct of
atmospheric nuclear tests.
Declarations made by way of unilateral acts, concerning
legal or factual situations, may have the effect of creating
legal obligations. Nothing in the nature of a quid pro quo,
nor any subsequent acceptance, nor even any reaction
from other States is required for such declaration to take
effect. Form is not decisive. The intention of being bound
is to be ascertained by an interpretation of the act. The
binding character of the undertaking results from the
terms of the act and is based on good faith interested
States are entitled to require that the obligation be
respected.
France, in conveying to the world its intention effectively
to terminate its atmospheric tests, was bound to assume
that other States might take note of these statements and
rely on their being effective. It is true that France has not
recognized that it is bound by any rule of international law
to terminate its tests, but this does not affect the legal
consequences of the statements in question.
Once the Court has found that a State has entered into a
commitment concerning its future conduct, it is not the
Court's function to contemplate that it will not comply
with it. However, if the basis of the Judgment were to be
affected, the Applicant could request an examination of
the situation in accordance with the provisions of the
Statute. (See Request For An Examination of the Situation
in accordance with Par. 63 of the Courts Judgment Of 20
December 1974 in the Nuclear Tests [New Zealand v.
France] Case, infra., p. 11)

10

PUBLIC INTERNATIONAL LAW

NUCLEAR TESTS CASE (AUSTRALIA v. FRANCE)

A2015

cognizance of the same and are entitled to require that


the obligation thus created be respected.

ICJ Reports 1974, p.253 (1974)

(Note that this case contemplates a similar set of facts as


in the Nuclear Tests Case [New Zealand v. France], supra.)
The French Government had been carrying out
atmospheric tests of nuclear devices in the South Pacific, in
the years 1966, 1967, 1968, 1970, 1971 and 1972. Prior to
the initiation of the proceedings, Australia had already
sent several Notes inviting the French Government to
refrain from further atmospheric nuclear tests and to
formally assure the Australian Government that no such
tests will be held in the Pacific, but the latter only asserted
the legality of its conduct and gave no indication that it
would cease from conducting tests.
Australia

France:

The tests have caused fallout of


measurable quantities of radioactive
matter to be deposited on Australian
territory.
ICJ has no jurisdiction over the case;
France did not even appoint an agent to
represent it therein.
Radioactive matter from the tests are
insignificant

Court need not decide on the matter due to assurances


from the French Government that atmospheric nuclear
tests would end.
France had effectively assumed an obligation to cease
conducting atmospheric nuclear tests by way of unilateral
statements made by its government officials. The Court
appreciated the following statements:
Statement from the French President, in part saying
that France will be in a position to move to the stage
of underground tests, that atmospheric tests soon to
be carried out will, in the normal course of events, be
the last of this type, and that I had myself made it
clear that this round of atmospheric tests will be the
last.
Statements made by the French Minister of Defense in
a television interview and press conference where he
announced that the French Government had done its
best to ensure that the 1974 nuclear tests would be
the last atmospheric tests and that it was ready to
proceed with underground testing were considered.
Therefore, Australias objective could be deemed to have
been met. When it is the intention of the state making a
declaration that it should become bound according to its
terms, such intention confers on the declaration the
character of a legal obligation. Such unilateral declarations
would require no reply or subsequent acceptance to take
effect. Under the principle of good faith, States may take

Unilateral declarations from States are not sources of


international law; but they form a basis for the
operation of estoppel.
CLASS NOTES

REQUEST FOR AN EXAMINATION OF THE


SITUATION IN ACCORDANCE WITH PAR. 63
OF THE COURTS JUDGMENT OF 20 DECEMBER
1974 IN THE NUCLEAR TESTS (NEW ZEALAND
v. FRANCE) CASE
ICJ Reports 1995, p.288 (1995)

Two decades after the 1974 judgment on the Nuclear Tests


Case (New Zealand v. France), France announced that it
would conduct a series of UNDERGROUND nuclear tests in
two South Pacific islands. New Zealand thus filed this
request for an examination, pursuant to paragraph 63 of
the 1974 judgment (see last paragraph of Nuclear Tests
Case [New Zealand v. France], supra, p. 10)
New
Zealand:

Scientific data today shows that


underground testing can also have
adverse effects, and thus be considered
within the purview of the 1974 judgment;
and
It is unlawful for France to conduct such
nuclear tests before it has undertaken an
Environmental
Impact
Assessment
according to accepted international
standards.

The Request does not fall within the 1974 decision, which
applies only to atmospheric tests; it does not pertain to
other forms of nuclear testing (i.e. underground testing).
Since the basis of the 1974 Judgment pertains to nuclear
tests in the atmosphere, only upon resumption of
atmospheric tests will the basis of the Judgment be
deemed affected. Thus, the Court held that it cannot
take into consideration questions relating to underground
nuclear tests.
The Court pointed out, however, that this Order is without
prejudice to the obligations of States to respect and
protect the natural environment, obligations to which
both New Zealand and France have in the present instance
reaffirmed their commitment.
Judge Weeramantry, dissenting:
Through Par. 63, the ICJ in the 1974 judgment created a
procedure sui generis allowing New Zealand to reopen the
case, in the event that France fails to fulfill its unilateral
undertaking to cease the atmospheric nuclear tests. The

11

PUBLIC INTERNATIONAL LAW

issue during that time was focused only on atmospheric


tests because in 1974, those were the only type of nuclear
tests being undertaken by France. However, had the Court
the knowledge available today, it would not have viewed
New Zealands grievances as having come to an end in the
consequence of shifting the venue of the explosions (from
atmospheric to underground testing).
New Zealands complaint in 1973 was that damage was
caused by French nuclear explosions in the Pacific. New
Zealand's complaint today is the same. The cause is the
same, namely, French nuclear tests in the Pacific. The
damage is the same, namely, radioactive contamination.
The only difference is that the weapons are detonated
underground.
New Zealand had made out a prima facie case of danger
from French nuclear tests, on which it has shown that the
basis of the 1974 Judgment is now affected. This gave
New Zealand a right to request the examination of the
situation, and placed the Court under a duty to consider its
Request and interim measure, and also the applications for
permission to intervene of Australia, Samoa, Solomon
Islands, the Marshall Islands and the Federated States of
Micronesia.
Important principles of environmental law were stated in
this case:

Inter-temporal Principle the Court must apply


scientific knowledge now available and not limit
itself to what was known at the time the issue came
about.

Inter-generational rights each generation is both a


custodian and a user of our common natural and
cultural patrimony. As custodians of this planet, we
have certain moral obligations to future generations
which can be transformed into legally enforceable
norms. Considering that the half-life of radioactive
by-products would last for thousands of years, it is
the responsibility of the people today to protect the
interest of the future generations.

Precautionary principle when there is a complaint


regarding environmental damage being committed
by another party, the proof or disproof likely lies
with
the
other
party.
Several
conventions/declarations had been entered into
using this principle, that environmental measures
must anticipate, prevent and attack the causes of
environmental degradation. Under the Bergen
Declaration, prior assessment and reporting of the
environmental impact of projects or programs of
states shall be undertaken by parties. This principle
is important because it should have prompted the
ICJ to decide this case and not postpone the
examination of the case presented by NZ until full
scientific evidence is available that can either
support or refute NZs contention.

A2015

Environmental Impact Assessment an ancillary of


the precautionary principle which requires states to
assess the possible impact of a program to the
environment prior to its undertaking.
Principle that damage must not be caused to other
nations no nation is entitled by its own activities to
cause damage to the environment of any other
nation.

LEGALITY OF THE THREAT OR USE OF


NUCLEAR WEAPONS (ADVISORY OPINION)
ICJ Reports 1996, p.226 (1996)

WHO submitted a request to the ICJ for an advisory opinion.


The question was in view of the health and environmental
effects, would the use of nuclear weapons by a State in
war or other armed conflict be a breach of its obligations
under international law including the WHO Constitution?
Against
Nuclear
Weapons:

Existence of a rule of international


customary law which prohibits recourse to
those weapons.
Treaties which can be interpreted to
prohibit use of nuclear weapons (e.g.
genocide, right to life, environmental
protection);
Consistent practice of non-utilization of
nuclear weapons by States since 1945;
UN General Assembly resolutions that deal
with nuclear weapons and that affirm,
with consistent regularity, the illegality of
nuclear weapons.

There is no customary international law which authorizes


the threat or use of nuclear weapons.
Customary international law and treaty law do not contain
any specific prescription authorizing the threat or use of
nuclear weapons or any other weapon in general or in
certain circumstances, in particular those in the exercise of
legitimate self- defense.
However, neither is there customary international law
which provides a universal prohibition of the threat or
use of nuclear weapons.
As to the treaties. Although there are treaties which deal
exclusively with the acquisition, manufacture, possession
and deployment of nuclear weapons, the treaties do not
constitute such prohibition of the weapons themselves.
While these may foreshadow a future general prohibition
of the use and indicate an increasing awareness of the
dangers of such weapons, these do not amount to a
prohibition on the use or threat of use of the same.
As to the non-utilization of nuclear weapons. The
international community remains divided on whether the
non-recourse to use of nuclear weapons constitutes an

12

PUBLIC INTERNATIONAL LAW

A2015

expression of opinion juris. While it has been argued that


non-use since 1945 (Hiroshima and Nagasaki bombings)
was indicative of aversion to nuclear weapon utilization,
others countered that the role of such weapons in the
policy of nuclear deterrence (i.e. mutually assured
destruction) constituted a valid use. As such, the Court
ruled that there is no such opinion juris expression.
As to the UN General Assembly Resolutions. While General
Assembly resolutions have no binding effect, they may
sometimes have normative value. They can, in certain
circumstances, provide evidence important for
establishing the existence of a rule or the emergence of an
opinio juris. To establish whether this is true of a given
General Assembly resolution, it is necessary to look at its
content and the conditions of its adoption. It is also
necessary to see whether an opinio juris exists as to its
normative character.

Various legal writings and treatises of legal experts


and luminaries which provide for the exemption of
fishing/commercial vessels
Customary international norms are self-executory;
there need not be any treaty or agreement to bring
them into force.
CLASS NOTES

CASE CONCERNING RIGHT OF PASSAGE OVER


INDIAN TERRITORY (PORTUGAL v. INDIA)
ICJ Reports 1960, p.6 (1960)

In the instant case, the General Assembly resolutions


presented were adopted with substantial numbers of
negative votes and abstentions. Although these are
indicative of a deep concern over use of nuclear weapons,
they still fall short of establishing the existence of an
opinion juris on the illegality of the use of such weapons.

THE PAQUETE HABANA


175 US 677 (1900)

Two Spanish fishing vessels from Cuba the Paquete


Habana and the Lola and their cargoes were captured
by US gunboats during the Spanish-American War and
condemned as a prize of war. A final decree of
condemnation and sale was entered wherein the vessels
were considered as not exempt from seizure

India placed some obstacles through the Indian Peninsula


which prevented the right of passage of Portugal to its
enclave territories Dadra and Nagar Haveli. The
representative of Portugal asserted that their territory
surrounded by the Indian Peninsula, and that India
allegedly refused entry to certain Portuguese individuals by
refusing to grant their visas. According to Portugal, this
deprived them of their right to exercise sovereignty over
their territories.
Portugal:

The fishing vessels are not subject to capture by the US


armed vessels.
By ancient usage among civilized nations coast-fishing
vessels pursuing their vocation of catching and bringing in
fresh fish have been recognized as exempt, with their
cargoes and crews, from capture as prize of war. The
seizures were therefore unlawful and without probable
cause.
This ancient usage has gradually ripened into a rule of
international law.
Evidence why there is customary international law:

King Henry IVs orders to his admirals in 1403


exempting coastal fishers from capture

Treaty of Calais (between UK and France, which


excluded fishing vessels from seizure during war)

US-Prussia Treaty (against seizure of fishing


vessels)

India:

The Treaty of Poona of 1779 issued by the


Maratha ruler (Indian) granted it
sovereignty over the enclaves and with
such right of passage;
A right of passage exists through the
Indian Peninsula in their favor;
India has a correlative obligation to
respect such right.
The Treaty of Poona was not validly
entered into and it never became a treaty
with respect to them;
No international law conferring the right
of passage and there is also no correlative
obligation on its part to respect it;
No established local custom between
them.

Portugal has a right of passage through the Indian


Peninsula.
There was a constant and uniform practice which dates
back to the British and post-British periods:

13

PUBLIC INTERNATIONAL LAW

Treaty of 1779 The Marathas (Indians)


themselves regarded the treaty as valid and
binding. The treaty was also frequently referred to
in subsequent formal documents by the Marathas.
The British, as successors of the Marathas,
recognized Portuguese sovereignty over the
enclave territories and never questioned it. By
implication it was subsequently recognized by India.
As a consequence the villages comprised in the
Maratha grant acquired the character of
Portuguese enclaves within Indian territory.

A2015

Thailand is under an obligation to withdraw the


detachments of armed forces it has stationed therein.
Thailand, however, counters that that the temple is in Thai
territory.
Cambodia:

However, with regard to armed forces, police and arms


and ammunitions, there is no such right of passage.

During the British period up to 1878 passage of


armed forces and armed police between British
and Portuguese possessions was regulated on a
basis of reciprocity.

Article XVIII of the Treaty of Commerce and


Extradition of 26 December 1878 between Great
Britain and Portugal laid down that the armed
forces of the two Governments should not enter
the Indian dominions of the other, except for the
purposes specified in former Treaties, or for the
rendering of mutual assistance as provided for in
the Treaty itself, or in consequence of a formal
request made by the Party desiring such entry.
Constant and uniform practice between States is also
a source of international law. There is no need to
resort to general international custom or to general
principles of law in disposing of such cases when
there is an established between the parties.
CLASS NOTES
Thailand:

GENERAL PRINCIPLES OF LAW


Estoppel
Estoppel and acquiescence are general principles of law
which can be a basis of international law. The requisites of
this principle are the same as those provided for by the
Civil Code, namely:
1) Act or representation;
2) Reliance on the act; and
3) Damage to other party stemming from such
reliance. (Civil Code, Art. 1437)

CASE CONCERNING THE TEMPLE OF PREAH


VIHEAR (CAMBODIA v. THAILAND)
ICJ Reports 1962, p.6 (1962)

The Temple of Preah Vihear is an ancient Hindu Temple


subject to a lengthy dispute on ownership between
Cambodia and Thailand. Both states stationed troops to
enforce their claim. Cambodia claims that the territorial
sovereignty over Preah Vihear belongs to Cambodia, and

Maps printed and published by a French


cartographical firm;
Publication and communication of 11
maps to the Siamese government;
The map traced a frontier line purporting
to be the outcome of the work of
delimitation of the Mixed Commission. It
showed that the whole Temple area is on
the Cambodian side;
There was an acknowledgement by
conduct by Thai authorities because they
never questioned or disagreed about the
maps within a reasonable time.
Therefore, they must be deemed to have
acquiesced;
When the Siamese authorities received
the maps, the Minister of Interior
thanked the French Minister of Bangkok
for the maps and asked for another 15
copies for the transmission to Siamese
governors;
The Siamese authorities did not raise any
query about the map as between
themselves and France or Cambodia, or
expressly repudiate it as such, until the
1958 negotiations in Bangkok, when the
question of Preah Vihear came under
discussion between Thailand and
Cambodia.
At all material times, Thailand has
exercised full sovereignty in the area of
the Temple;
The general nature of the area allows
access from Thailand to the Temple,
whereas access from Cambodia involves
the scaling of a high cliff from the
Cambodian plain.

The Temple is situated in territory under the sovereignty


of Cambodia. Therefore, Thailand is under an obligation
to withdraw any military or police forces stationed at the
Temple.
From the foregoing facts, it was concluded that Thailand
had accepted the map. Thailand was precluded from
asserting that she had not accepted the map since for 50
years she did not raise any question or disagreement with
the delimitation of the frontiers.
The signing of the map by Thai officials is a positive
act which constituted estoppel.
CLASS NOTES

14

PUBLIC INTERNATIONAL LAW

Indirect Evidence Leading to one Conclusion;


Totality of Evidence
Remedial principles such as the allowance for the
admission of circumstantial or indirect evidence can be a
basis for resolving factual disputes. Indirect evidence may
be given probative value especially when it is based on a
series of facts, and if linked together will logically lead to a
single conclusion.

THE CORFU CHANNEL CASE


ICJ Reports 1949, p. 4 (1949)

(First Incident) Albanian ships fired at Royal Navy Ships


while the latter was crossing the Corfu Channel after they
had conducted an inspection of the area. (Second Incident)
Subsequently, when the Royal Navy Ships crossed again,
they werent fired at but they struck mines. (Third incident)
The UK swept the Albanian territorial waters for mines
without Albanian consent and over its clear objection.
United
Kingdom:

Albania:

Albanian government intentionally laid


down the mines in the Corfu Channel;
Albania and Yugoslavia worked together in
laying the new mines after the channel
was already swept by the UK ships;
Regardless of who put the mines, the
Albanian government knew of this act.
Albania did not lay the mines but it was
the Yugoslavian minelayers who did so
without their knowledge;
The acts of the Royal Navy were violative
of Albanian sovereignty

Albania was liable for damages for the First and Second
incidents. UKs mine-clearing operation (third incident)
was illegal.
The laying of the minefield which caused the explosions
could not have been accomplished without the knowledge
of Albania.
However, since Albania has exclusive control over its
waters, UK as the victim of breach, would be unable to

A2015

furnish direct proof of facts giving rise to Albanias


responsibility. In this case, the ICJ considered indirect
proof which leads to the sole conclusion that Albania had
knowledge.
The following circumstances show a totality of evidence to
support the conclusion that there was a breach of
international law:

Albania constantly kept a close watch over the


waters of the North Corfu Channel as evidenced by
the Albanian Delegate in the Security Council and
the diplomatic notes of the Albanian government
concerning the passage of foreign ships through its
territorial waters;

Albania never notified anyone about the mines in its


waters. It can be concluded that they wanted to
keep the mines in the channel a secret; and

Albania had lookouts in different locations which


were strategic places to watch the channel. The
lookouts would have seen whoever laid the mines in
the channel.
Therefore, Albania had the obligation to warn the UK ships
regarding the existence of mines. The obligation is based
on the general principles of:

Elementary considerations of humanity

Freedom of maritime communication

Every States obligation not to allow knowingly its


territory to be used for acts contrary to the rights of
other States
(For a discussion on the strait/right of passage aspect of
the case, refer to p. 48)

SUBSTANTIVE PRINCIPLES OF LAW


Reparation
It is an indispensable consequence of the failure of a State
to conform to its obligations. It must, as far as possible,
wipe-out all the consequences of the illegal act and reestablish the situation which would, in all probability, have
existed if the act has not been committed. (The Factory at
Chorzow Case)
The reparation of a wrong may consist in:
1. Restoration to status quo ante.
2. Compensation. If restoration is not possible, the
remedy is compensation to such amount of
indemnity as to necessarily wipe out all the effects
of the illegal act.

THE FACTORY AT CHORZOW (GERMANY v.


POLAND)
1928 PCIJ (ser. A) No. 17 (1928)

15

PUBLIC INTERNATIONAL LAW

The Government of German Reich submitted to the


Permanent Court of International Justice a suit for
reparation against the Polish Government for the Polish
governments taking possession of the nitrate factory in
Chorzow, Poland (constructed by Germany), resulting to
damage of 2 companies controlled by Germans. It was
alleged that the taking was in violation of Article 6 of the
Geneva Convention.

A2015

Belgium:

Spain:

On behalf of natural and juristic persons


alleged to be Belgian nationals and
shareholders in BT, it is entitled to
reparation for damage caused to these
persons by the conduct, which is contrary to
international law, of the various organs of
Spain towards BT.
Belgium does not have jus standi.

Poland violated the Geneva Convention by taking the


factory. Therefore, Poland is obliged to pay the German
Reich as reparation a compensation for the damage
sustained by the 2 companies.

Belgium did not have jus standi to intervene or make a


judicial claim on behalf of Belgian interests in a Canadian
Company.

Reparation is the corollary of the violation of the


obligations resulting from an engagement between States.
In determining reparation, the following must be
considered:
a. Existence of the obligation to make reparation;
b. Existence of the damage which must serve as the
basis for the amount of the indemnity;
c. Extent of the damage.

Although a State can make a claim when investments by


its nationals abroad (such investments being part of a
States national economic resources) were prejudicially
affected in violation of the right of the State itself to have
its nationals enjoy a certain treatment, such right could
only result from a treaty or special agreement. There is no
instrument of such kind which was in force between
Belgium and Spain.

The essential principle in determining compensation for an


act contrary to international law:
Reparation must wipe out all the consequences,
as far as possible, of the illegal act and reestablish the situation which would, in all
probability, have existed if the act had not been
committed.

A corporation enjoys a separate personality from its


shareholders and from the State in which it is
organized.
CLASS NOTES

Since the seizure of the factory and the undertaking


therein is prohibited by the Geneva Convention, the
obligation to restore the undertaking is incumbent or, if
not possible, to pay indemnity. Since it is already
impossible to restore the factory to its owners, then
compensation for the loss sustained as a result of the
seizure and payment of indemnity is incumbent upon
Poland.
Domestic Corporations are Separate Entities from
their Respective States

CASE CONCERNING THE BARCELONA


TRACTION, LIGHT AND POWER COMPANY,
LIMITED (BELGIUM v. SPAIN)
ICJ Reports 1970, p.3 (1970)

Barcelona Traction and its subsidiaries are incorporated in


Canada and Spain. BTs share is largely held by Belgian
nationals. After the Spanish Civil War, the Spanish
government refused the authorization for the transfer of
foreign currency necessary for the servicing of bonds issued
by BT. BT incurred debt for the payment of interest on the
bonds and subsequently, it was declared bankrupt.
Belgium filed an Application with the ICJ.

Principle of Acquired or Vested Rights


The principle of respect for acquired rights is one of the
fundamental principles of both public international law
and municipal law of most civilized States.

SAUDI ARABIA v. ARABIAN AMERICAN OIL


COMPANY (ARAMCO)
27 ILR 117

The Government of the State of Saudi Arabia made a


concession agreement with the Arabian American Oil
Company (ARAMCO), which includes the exclusive right to
transport oil which it had extracted from its concession
area in Saudi Arabia. Subsequently, Saudi Arabia concluded
another concession agreement with Mr. Onassis and his
company (Saudi Arabian Maritime Tankers) which gave the
latter a 30-year right of priority for the transport of Saudi
Arabian oil. An issue therefore arose regarding those
provisions and the agreement between Aramco, which was
previously given the
In its capacity as first concessionaire, Aramco enjoys
exclusive rights which have the character of acquired or '
vested ' rights and which cannot be taken away from it by
the Government by means of a contract concluded with a
second concessionaire, even if that contract were equal to
its own contract from a legal point of view. The principle of
respect for acquired rights is one of the fundamental

16

PUBLIC INTERNATIONAL LAW

principles both of public international law and of the


municipal law of most civilized States. The taking,
therefore, must have just, adequate and prompt
compensation
Distinction between a franchise and concession
agreement: A franchise for the extraction of wealth is
imbued with public interest. A concession agreement,
however, involves no public service as there is no
public end-user.
CLASS NOTES
Principle of Nullem Crimen, Nulla Poena Sine
Lege
There is no crime when there is no law punishing it.

A2015

proscribed acts alleged to have occurred, nor is it


necessary that the crime alleged takes place during
combat, that it be part of a policy or of a practice officially
endorsed or tolerated by one of the parties to the conflict,
or that the act be in actual furtherance of a policy
associated with the conduct of war or in the actual interest
of a party to the conflict; the obligations of individuals
under international humanitarian law are independent
and apply without prejudice to any questions of the
responsibility of States under international law.

NATIONALIZATION CASES
TEXACO v. LIBYA
53 ILR 389 (1978)

PROSECUTOR v. TADI
ICTY Judgment of 2 October 1995 (1995)

Dusko Tadid [tah-dich] was the first individual to be tried


by the International Criminal Tribunal for the Former
Yugoslavia (ICTY). He was tried for war crimes and was
accused of committing atrocities at the Serb-run Omarska
concentration camp in Bosnia-Herzegovina in 1992. Tadid
challenged the jurisdiction of the International Tribunal.
Tadid claims that to be duly established by law, the
International Tribunal should have been created either by
treaty, the consensual act of nations, or by amendment of
the Charter of the United Nations, not by resolution of the
Security Council.
Tadid:

To be a duly established tribunal which could


try him, the International Tribunal should have
been created either by treaty, the consensual
act of nations, or by amendment of the
Charter of the United Nations, not by
resolution of the Security Council.

The International Tribunal has jurisdiction over the acts of


Tadid. Article 2 of the Statute provides that:
International Tribunal shall have the power to
prosecute persons committing or ordering to be
committed grave breaches of the Geneva
Conventions of 12 August 1949,
and there follows a list of the specific crimes proscribed.
Geneva Conventions are a part of customary international
law, and as such their application in the present case does
not violate the principle of nullum crimen sine lege.
It would be sufficient to prove that the crime was
committed in the course of or as part of the hostilities in,
or occupation of, an area controlled by one of the parties.
It is not, however, necessary to show that armed conflict
was occurring at the exact time and place of the

Deeds of Concession were concluded between the Libyan


Government and 2 American companies. A Decree of
Nationalization nationalized 51% of the properties, rights
and assets of the companies relating to the Deeds of
Concession.
Amoseas, a company governed by foreign law, which was
formed jointly by the Companies to be their operating
entity in Libya, was to continue to carry out its activities for
the account of the Companies to the extent of 49%, and for
the account of the Libyan National Oil Company (N.O.C.),
to the extent of 51%. The Nationalization Decree converted
Amoseas into a non-profit company, the assets of which
were completely owned by N.O.C. Amoseas lost its name
and was renamed. The Companies notified the Libyan
Government that recourse would be taken to arbitration by
virtue of clause 28 of the Deeds of Concession.
The dispute, relating to nationalization, should be
resolved in concurrence with the principles of
international law and not to be based solely on the law of
the nationalizing state.
When contractual relations is governed by international
law between a State and a foreign private party means
that for the purposes of interpretation and performance of
the contract, it should be recognized that a private
contracting party has specific international capacities.
Considering that some contracts may be governed both by
municipal law and by international law, the arbitrator held
that the choice of law clause referred to the principles of
Libyan law rather than to the rules of Libyan law.
The application of the principles of Libyan law does not
have the effect of ruling out the application of the
principles of international law. It simply requires the
combination of the two in verifying the conformity of the
first with the second.

17

PUBLIC INTERNATIONAL LAW

A2015

The arbitrator ruled that he would refer on the one hand


to the principle of the binding force of contracts
recognized by Libyan law, and on the other to the principle
of pacta sunt servanda (i.e. agreements must be kept)
which is a general principle of law of international law. The
principles of Libyan law were in conformity with
international law and the Deeds of Concession in dispute
had a binding force.
Also, the Resolutions of the UN General Assembly have
binding effect in resolving international disputes. In
determining the legal validity of the resolutions, the voting
patterns and conditions are considered:

Resolution No. 1803: On the right of States to


nationalize but always in accordance with
international law
o Voting Pattern: 87 For, 2 Against, 12 Abstain
o Supported by many states of the Third World
and several Western developed countries with
market economies, including the most important
US.
o Hence, all geographical areas and all economic
systems were represented.

Resolution No. 3171: No recourse to international law;


exclusive and unlimited competence on the
legislation and courts of the host country.
o Voting Pattern: 86 For, 11 Against, 28 Abstain
o Not consented to by the most important
Western countries and caused a number of
developing countries to abstain.

BRITISH PETROLEUM v. LIBYA


53 ILR 297 (1978)

British Petroleum had a contract with Libya to extract,


process and export oil. Libya passed a Nationalization Law
which restored ownership of all properties, rights and
assets to the nation and transferred them to the Arabian
Gulf Exploration Company.
BP protested the
nationalization.
BP:

Cited Clause 28 of their Agreement which


provides that:

The applicable law in resolving disputes


between Libya and BP would be Libyan
principles of law common to the principles
of international law;

If there are no common principles, general


principles of law will apply;

General principles of law will be preferred


over Libyan principles of law.

When a State breaches a concession agreement through


sovereign power in the form of nationalization, the
concessionaire does not have the right to ask for specific

performance or restitution in integrum. Its only remedy is


an action for damages.
States, because of their sovereignty, have the power
to expropriate. The only exception to this rule is if the
taking was down without prompt, adequate and just
compensation.
CLASS NOTES

INTERNATIONAL TREATIES
SALONGA v. EXECUTIVE SECRETARY
GR No. 176051 (2009)

Daniel Smith was a member of the US Armed Forces who


was charged with rape against Suzette Nicolas. Pursuant
to the Visiting Forces Agreement, US was granted custody
of Smith pending the proceedings. RTC found Smith guilty.
Pursuant to the VFA, he shall serve his sentence in a facility
that shall be agreed upon by the Philippines and US
authorities. The Romulo-Kenney agreement was entered
into which provided that Smith will be detained at the 1st
floor, Rowe (JUSMAG) Building, US Embassy.
The
Philippine police & jail authorities shall have access to the
place of detention in order to ensure the compliance of the
US with the terms of the VFA. Therefore, Smith was taken
out of the Makati jail by Philippine law enforcement agents
and brought to the US Embassy. The VFA is being assailed
for being void and unconstitutional.
The VFA is constitutional.
In Bayan vs. Zamora, the SC upheld the constitutionality of
the VFA stating that the VFA was duly concurred in by the
Philippine senate and has been recognized as a treaty by
the US. Though the VFA was not submitted for advice and
consent of the US Senate, it is still a binding international
agreement or treaty recognized by the US because:

Only policymaking agreements are submitted to the


US Senate;

Those that carry out or further implement


policymaking agreements are submitted to Congress
under the provisions of Case-Zablocki Act. Submission
of this kind of agreement to the US Senate is not
necessary;

The RP-US Military Defense Treaty is the policymaking


agreement, while the VFA is its implementing
agreement. The RP-US Military Defense Treaty has
been ratified & concurred by both Philippine & US
senates.
The VFA is different from Medellin vs. Texas because in
Medellin vs. Texas, the US SC held that treaties entered
into by the US are not automatically part of their domestic
law unless these treaties are self-executing or there is an
implementing legislation to make them enforceable.

18

PUBLIC INTERNATIONAL LAW

A2015

Comparing the VFA with the Vienna Convention on


Consular Relations & the Avena decision of the
International Court of Justice (which is subject matter of
the Medellin decision), the VFA is (1) self- executing
agreement because the parties intend its provisions to be
enforceable and (2) it is covered by implementing
legislation which is the Case-Zablocki Act. These two
characteristics are absent in the subject matter of the
Medellin decision.

MEDELLIN v. TEXAS
552 US 491 (2008)

The terms of the agreement must be couched in such a


way that it reveals the intention for its provisions to be
self-executory; or
Congress must enact implementing legislation.

In the instant case, while Avena constitutes an


international law obligation on the part of the United
States, it does not help Medellin because not all
international law obligations automatically constitute
binding federal law. The Vienna Convention on Consular
Affairs which Avena seeks to enforce does not have
automatic domestic legal effect, as its terms were not selfexecutory, and neither is there implementing legislation
passed by Congress.

Jose Medellin is a Mexican national who was convicted and


sentenced to death for participating in the gang rape and
murder of two teenage girls in Houston.
The International Court of Justice in the Case Concerning
Avena and Other Mexican Nationals held that the United
States had violated the Vienna Convention rights of 51
Mexican nationals (including Medellin) and that their
state-court convictions must be reconsidered, regardless of
any forfeiture of the right to raise the Vienna Convention
claims because of a failure to follow state rules governing
criminal convictions.
Medellin:

The state had violated his rights under


the Vienna Convention on Consular
Affairs, to which the United States is a
party. Article 36 of the Vienna
Convention gives any foreign national
detained for a crime the right to contact
his consulate;
The Vienna Convention granted him an
individual right that state courts must
respect;
There is a memorandum from the U.S.
President that instructed state courts to
comply with the ICJ's rulings by
rehearing the cases;
The Constitution gives the President
broad power to ensure that treaties are
enforced, and that this power extends
to the treatment of treaties in state
court proceedings.

The ICJ judgment is not automatically enforceable


domestic law.
While an international treaty may constitute an
international commitment, it is not binding domestic law
unless Congress has enacted statutes implementing it or
unless the treaty itself is self-executing.
In order for a treaty or binding international obligation to
have domestic effect:

19

PUBLIC INTERNATIONAL LAW

ACTORS IN
INTERNATIONAL LAW
An actor of international law is an entity of a type
recognized by customary law as:
1. capable of possessing rights and duties;
2. capable of bringing international claims; and
3. Having these capacities conferred upon it.
(Brownlie, Chapter 3)
If an entity is not a subject of international law, it may still
have legal personality of a very restricted kind depending
on the agreement or acquiescence of recognized legal
persons. (Magallona, 2005)
There are now many subjects because recognition and
acquiescence may sustain an entity which is anomalous,
and yet has a web of legal relations on the international
plane.

ESTABLISHED LEGAL PERSONS


States
They are the repositories of legitimated authority over
peoples and territories. (infra.)
Political Entities Legally Proximate to States
This refers to political settlements (not sovereign states)
both in multilateral and bilateral treaties. They possess
certain autonomy, fixed territory and population, and
some legal capacities on the international plane. They are
like states but politically such entities are not sovereign
states.
Example: former Free City of Danzig. It had
international personality but it was placed under the
protectorate of Poland.
Condominium
This refers to a joint exercise of state power within a
particular territory by means of an autonomous local
administration. However, the local administration can only
act as an agency of the states participating in the
condominium.
Example: Nauru. A tripartite condominium mandate
territory administered by Australia, New Zealand and
United Kingdom from 1923 to 1942.
Internationalized Territories
This is applied in cases where:

A special status was created by multilateral


treaty and protected by an international
organization; or where

A2015

Exclusive administration of a territory is done by


an international organization or an organ thereof.

Example: United Nations Transitional Administration


in East Timor (UNTAET). An entity established by the
UN Security Council which administered present-day
East Timor prior to independence.
International Organizations
These organizations are required to comply with certain
conditions so that they may acquire legal personality on an
international plane, and not merely as a legal person
within a particular system of national law. (infra.)
Example: the United Nations.
Agencies of States
These agents may have the appearance of enjoying
separate personality. The components of federal states
probably have treaty-making capacity, where this is
provided for internally, as agents of the federal state. By
agreement, states may create joint agencies with
delegated powers of a supervisory, rule-making and even
judicial nature.
Agencies of Organizations
These are subsidiary organs of international organizations.
They may be created by the constituent treaty or the
exercise of powers conferred by the constituent treaty.
Such organs have a significant amount of independence
and are invested with considerable administrative, rulemaking and judicial powers without themselves acquiring a
distinct legal personality.
Example: World Health Organization. A subsidiary
organ of the United Nations.

SPECIAL TYPES OF PERSONALITY


Non-Self-Governing Peoples
They have a special type of legal personality, and it
depends on the principle of self-determination. The claim
to represent such non-self-governing peoples may be
given recognition by individual state action or collectively
in the form of UN General Assembly resolutions.
State in statu nascendi
It is a political entity, which aspires for political
independence and recognition of its status of statehood,
while statehood has yet to be realized. This assumes
continuity after statehood has been attained, and gives
effect to legal acts occurring before independence.
Example: Palestinian Liberation Organization. An
organization created for the purpose of creating an
independent state in Palestine. Many authors are of
the opinion that in the event Palestinian statehood is

20

PUBLIC INTERNATIONAL LAW

realized, the acts of the PLO can be considered acts of


a state in statu nascendi.
Legal Constructions
A state's legal order may be projected on the plane of time
for certain purposes although politically it has ceased to
exist.
Belligerent and Insurgent Communities
This refers to de facto authorities in control of a specific
territory. Parastatal entities are recognized as possessing a
definite if limited form of international responsibility
attributed with treaty-making capacity.
Entities sui generis
These are entities which maintain some sort of existence
on the international legal plane in spite of their anomalous
character. This anomalous character may be negated by
acquiescence, recognition and the incidence of voluntary
bilateral relations, provided no rule of jus cogens is broken.
Example: The Sovereignty of the Holy See. its
personality seems to rest partly on its approximation
to a state in function, and partly on its approximation
to a state in function, and partly on acquiescence and
recognition by existing legal person, as evidenced by
the fact that a number of states have diplomatic
relation with it and it has been a party to multilateral
conventions.
Example: Exile governments. they are also accorded
considerable powers within the territory of most
states; the legal status of such entities is
consequential on the legal condition of the
community it claims to represent, which may be a
state, belligerent community or non-self-governing
peoples.
Example: Taiwan. It is a territory the title of which is
undetermined, inhabited and has an independent
administration. It is treated as having a modified
personality, approximating that of a state.
Individuals
There is no general rule that individuals cannot be a
subject of international law. However, this implies the
existence of certain capacities. (infra., p. 141) (Brownlie,
Chapter 3)

CASE CONCERNING THE BARCELONA


TRACTION, LIGHT AND POWER COMPANY,
LIMITED (BELGIUM v. SPAIN)
ICJ Reports 1970, p.3 (1970), supra.

Barcelona Traction is a holding company incorporated in


Toronto, Canada for the purpose of creating and
developing electric power production and distribution

A2015

systems in Spain. It later formed subsidiary companies


incorporated in either in Canada or Spain. After the First
World War, majority of Barcelona Tractions share capital
were held by Belgian nationals. Barcelona Traction issued
several sterling bonds however the servicing of these bonds
were suspended because of the Spanish Civil War. When
the war ended, Spanish authorities still refused to
authorize the transfer of foreign currency necessary to
resume the servicing of the bonds. The company was
eventually declared bankrupt.
Belgium then initiated an application before the ICJ against
the Spanish government for damages allegedly caused by
the latter to the Belgian shareholders of Barcelona
Traction.
Belgium:

Spain:

It has jus standi because injury was sustained


by Belgian nationals who had interests in the
company bankrupted by acts of Spain.
Belgian Government lacks the jus standi to
intervene or make a judicial claim on behalf of
Belgian interests in a Canadian company even
assuming that the Belgian character of those
interests was established.

Belgium did not have jus standi to sue in behalf of


Barcelona Tractions Belgian shareholders.
The acts complained of did not affect any Belgian
naturalistic or juristic person but in fact concerned a
juristic entity registered in Canada. The Belgian interests
in this case were in the nature of shareholding interests.
Changes in the international arena have given birth to
municipal institutions that have transcended frontiers and
play an important role in international relations, which in
this case is the corporate entity. However, since corporate
entities are essentially created by States within their
domestic jurisdiction, municipal laws should be considered
in resolving disputes concerning them. Pertinent to this
case, municipal law places a firm distinction between the
rights of the company and those of the shareholder. Only
the company, which was endowed with legal personality,
could take action in respect of matters that were of a
corporate character. A wrong done to the company
frequently caused prejudice to its shareholders, but this
did not imply that both were entitled to claim
compensation.
A State could make a claim when investments (which are
part of the States economic resources) made by its
nationals abroad were prejudicially affected in violation of
its right to have its nationals enjoy a certain treatment.
However, at present, this could only be enforced through a
treaty and it was not found that there was such an
instrument in force between Belgium and Spain.

21

PUBLIC INTERNATIONAL LAW

A2015

REPARATION FOR INJURIES SUFFERED IN THE


SERVICE OF THE UNITED NATIONS (ADVISORY
OPINION)
ICJ Reports 1949, p. 174 (1949)

By virtue of a general assembly resolution, the UN asked


the ICJ to determine whether the UN can make
arrangements regarding reparations in behalf of its agents
for injuries suffered in connection with their duties. They
also asked WON they had the capacity to bring an
international claim against the responsible de jure or de
facto government with regards to obtaining said
reparations for damages caused to the UN itself, the victim,
and the heirs of said victim.
The UN is an international person and has the capacity to
bring international claims.
The UN is an organization and as such, it is as an
international person subject to international law. It is
therefore capable of possessing international rights and
duties, including the capacity of maintaining its rights by
bringing international claims. Such claim can be based on
the breach of an international obligation on the part of the
member held responsible for such against the interests of
the UN itself, its administrative machine, its property and
assets, and the interests of which it is the guardian.
As regards the damages caused to the victim (UN agents),
while it is not expressly stated in the UN Charter that the
organization can include such interests in their claims, the
UN is deemed to have those powers which although not
expressly provided in the charter, is conferred upon it by
necessary implication as being essential in the
performance of its duties. In this case, in order to ensure
the independence of the agent, which in turn ensures the
independence of the UN itself, it is essential that the agent
in performing his duties need not have to rely on any other
protection other than that of the organization.
ICJ rejected the doctrine that only states are subjects
of international law.
CLASS NOTES

THE MAVROMMATIS PALESTINE CONCESSIONS


PCIJ, Ser. A, No. 2, (1924)

The Greek Republic filed a case before the ICJ alleging the
refusal of the Government of Palestine and the British
Government who holds the mandate over Palestine, to
recognize the rights acquired by Mavrommatis (a Greek
subject). Prior to the controversy, Mavrommatis concluded
contracts and agreements with the Ottoman authorities in
regard to concessions for certain public works to be
constructed in Palestine. The dispute was in the beginning
between a private person (Mavrommatis) and a State
(Britain).

Mavrommatis failed to obtain satisfaction for his claim


through ordinary channels. Being a Greek subject, the
Republic of Greece took up Mavrommatis case and
pursued reparations in his behalf.
Greece:

Britain:

It is entitled to protect its subjects such as


Mavrommatis in this case, when they have
been injured by acts contrary to international
law by another state.
Greece had no standing in this case.

Greece had standing to bring the present claim in the


capacity of a sole claimant.
A State like Greece can take up the case of its subjects
when they are injured by acts contrary to international law
committed by another State, from who said subject had
been unable to obtain satisfaction through the ordinary
channels. This is founded on Greeces right to ensure
respect for rules of international law, a right which in this
case appears to have been violated by Britain. It should
not be looked at not as a substitution between Greece and
its subject, but as assertion of its own rights as a State.
This will lead to the conclusion that Greece is the sole
claimant in this case. The court deemed as irrelevant
whether the dispute originated from a personal injury or
not.

CERTAIN EXPENSES OF THE UNITED NATIONS


(ARTICLE 17, PARAGRAPH 2, OF THE CHARTER)
(ADVISORY OPINION)
ICJ Reports 1962, p. 151 (1962)

The Acting Secretary-General of the UN wrote a letter to


the President of the ICJ requesting the latter to give an
advisory opinion on the following question:
Do the expenditures authorized in General
Assembly resolutions relating to the UN
operations in the Congo undertaken in pursuance
of the Security Council resolutions and the
expenditures authorized in the General Assembly
resolutions relating to the operations of the UN
Emergency Force constitute expenses of the
Organization within the meaning of Article 17,
paragraph 2, of the Charter of the United
Nations?
Yes, they were expenses of the organization within the
meaning of the UN charter.
Article 17, paragraph 2 states:
The expenses of the Organization shall be borne
by the Members as apportioned by the General
Assembly.

22

PUBLIC INTERNATIONAL LAW

The aforementioned provision refers to "the expenses of


the Organization" without any further explicit definition of
such expenses and would thus lead to the interpretation
that expenses of any organization are the amounts paid
out to defray the costs of carrying out its purposes, in this
case, the political, economic, social, humanitarian and
other purposes of the UN pursuant to its Charter.
The test is to determine the relationship of the
expenditures to the purposes of the UN set forth in Art. 1
of the Charter. The purposes may be summarized as:
1) goal of international peace and security;
2) friendly relations;
3) achievement of economic, social, cultural, and
humanitarian goals, and respect for human
rights; and
4) to be a center for harmonizing the actions of
nations in the attainment of these common ends.
When the Organization takes action which warrants the
assertion that it was appropriate for the fulfillment of one
of the stated purposes of the UN, the presumption is that
such action is not ultra vires to the Organization. In fact,
both national and international law contemplate cases in
which body corporate or politic may be bound by an ultra
vires act of its agent as to third parties.
In this case, the financial obligations incurred by the
Secretary-General of the General Assembly pursuant to
resolutions of the Security Council for the maintenance of
international peace and security (included in UNs
purposes) must be presumed to, as in fact they did,
constitute expenses of the Organization.

States
A State is regarded as a subject of international law in that
it has the capacity to be a bearer of rights and duties
under international law.
It possesses objective or erga omnes personality, or that
which exists wherever rights and obligations of an entity
are established by general international law. (Magallona,
2005)
Primacy of States as Subjects of International Law
There is a position that states are the primary actors in
international law. This view holds that the world is today
organized on the co-existence of States, and that
fundamental changes will take place only through State
action. (Magallona, citing Friedmann, 2005)
Basic Criteria for Statehood
1933 Montevideo Convention on the Rights and
Duties of States, Article 1.

A2015

The state as a person of international law should


possess the following qualifications:
a) a permanent population;
b) a defined territory;
c) government; and
d) capacity to enter into relations with the
other states.
The 1933 Montevideo Convention on the Rights and
Duties of States provides four qualifications which must be
present in order for an entity to be considered a State:
a) a permanent population;
b) a defined territory;
c) government; and
d) Capacity to enter into relations with the other
states.

Q: As to government as an element of the state:


Does it have to be functioning?

No, it does not. An example is Somalia. It is sufficient


that it is organized, such as a government in exile.
Also, if functioning would be required, the PH will
cease to be a state in case it is inundated by high tide.
State Succession
State succession occurs when one state replaces another
with respect to a particular territory, and thus involves a
permanent displacement of the sovereignty of one state
by the sovereign power of the successor state. (Magallona,
2005)
It also involves the replacement of one state by another
in the responsibility for the international relations of the
territory.

RECOGNITION
Recognition
It is the act by which another State acknowledges that the
political entity recognized possesses the attributes of
statehood.
Effect; Not an Element of Statehood
There are two theories on the nature and effect of
recognition:
1. Constructive School maintains that it is the act
of recognition which constitutes or creates the
status of a State as a subject of law and thus
gives it legal personality. The international
status of any entity is to be determined by the
will and consent of already existing States.
2. Declaratory Theory - asserts that the recognition
merely confirms the acceptance by States of the
status of an entity as a State.

23

PUBLIC INTERNATIONAL LAW

Practice of States and opinion of publicists indicate


that the declaratory school is the preferred approach,
the prevailing view being that recognition is not an
element of statehood. (Magallona, 2005)

Q: Is recognition from other states necessary for


ones statehood

No, this would be violative of the sovereign equality


of states as found in the UN Charter. Otherwise, there
will be a situation when affirmative action of other
states will allow them to assert dominance.

A2015

Modes of Acquiring Territorial Title


1. Occupation not the mere discovery but
effective exercise of sovereignty over a territory
which is terra nullius (i.e. not under the
sovereignty of another state).
Effective
occupation means continued display of
authority which involves two elements: the
intention and will to act as a sovereign, and
some actual exercise or display of such authority
(Eastern Greenland Case).
Animus occupandi must be demonstrated and
evidenced by some administrative or political
acts in relation to the territory in question and
such act must be under the title of sovereignty.

Recognition by other states is determinative, not


constitutive of statehood. While recognition is no
longer necessary for a state to exist as such, it is still
important because it signifies other states
confidence in another. It also shows intention to have
diplomatic relations.
Functions
1. Determination of statehood
(While not a criteria, it may have evidential
effect before a tribunal in establishing presence
of statehood)
2. Condition for the establishment of diplomatic
relations and the conclusion of treaties

Territories inhabited by tribes or peoples having


a social and political organization are not
regarded as terra nullius, and hence may not be
subject to valid occupation. (Western Sahara
Case)
2.

Accession or Accretion natural process of land


formation resulting in increase of territory.

3.

Cession mode of transfer of title to territory


from one state to another by way of treaty
whereby the ceding state renounces its title to
such territory. It is thus a bilateral mode of
acquisition, the other modes being unilateral. It
is a derivative mode since its validity depends on
the valid title of the ceding state; the cessionary
state cannot have more rights than what the
ceding state possessed.

4.

Prescription acquisition of sovereignty over a


territory through continuous and undisturbed
exercise of sovereignty over it during such period
as is necessary to create under the influence of
historical development the general conviction
that the present condition of things is in
conformity with international order.

No Duty to Give Recognition


Recognition, as a public act of a state, is an optional and
political act. There is no legal duty for such state to give
another state recognition. (Brownlie, Chapter 4)

A. Territorial Sovereignty
Territory
It is that defined portion of the surface of the globe which
is subjected to the sovereignty of the state. (Magallona,
citing Oppenheim)
There are four types of regimes of territory in law:
1. Territorial Sovereignty
This extends over land territory, territorial sea,
the seabed and subsoil of the territorial sea.
Territory includes islands, islets, rocks and reeds.
2. Territory not subject to the sovereignty of any
state and has a status of its own.
3. Res nullius
Covers the same subject matter legally
susceptible to acquisition by states but not yet
placed under territorial sovereignty.
4. Res communis
Consist of high seas and the outer space which
are not capable of being placed under state
sovereignty. (Brownlie, Chapter 4)

Requisites:
a) Possession that must be exercised under
the title of sovereign.
b) Peaceful and uninterrupted possession.
c) Possession must also be public.
d) It must endure for a certain length of time.
The Vienna Convention and UN Charter now prohibit the
use of force or conquest as a mode of acquiring territorial
sovereignty. (Magallona, 2005)
Relation of State Sovereignty to the International
Independence and Equality of States
From the standpoint of the national legal order, state
sovereignty is the supreme legal authority in relation to
subjects within its territorial domain. This is the traditional

24

PUBLIC INTERNATIONAL LAW

A2015

context referring to sovereignty as absolute. However,


in the international sphere, sovereignty realizes itself in
the existence of a large number of sovereignties, such that
there prevails in fact co-existence of sovereignties under
conditions of independence and equality.

The sovereignty of one state ends where the sovereignty


of another begins. That limitation is built into the nature
of state sovereignty under international law. To conceive
it as unlimited is to negate its existence in the context of
the co-existence of sovereignties, resulting in the negation
of the international community composed of juridically
equal states.
State Sovereignty as defined in International Law
It is the right to exercise in a definite portion of the globe
the functions of a State to the exclusion of another state.
According to the widely accepted opinion Of Judge Huber
in the Island of Las Palmas case, Sovereignty in the
relations between states signifies independence. The
development of the national organization of States during
the last few centuries, as, as a corollary, the development
of international law, have established this principle of the
exclusive competence of the State in regard to its own
territory I such a way as to make it the point of departure
in settling most questions that concern international
relations.

ISLANDS OF LAS PALMAS CASE (U.S. v.


NETHERLANDS)
2 RIAA 829 (1930)

Netherlands:

placed the latter in estoppel because


said treaty kept Spains title over the
area in dispute intact.
The Treaty of Paris wherein Spain ceded
the Philippines to the United States and
by virtue of which the latter became the
successor of Spain.
It has constructive possession over Las
Palmas pursuant to the principle of
contiguity in that the island forms a
geographical part of the Philippines and
therefore is under the power exercising
sovereignty over the Philippines.
Discovery by Spain, or any other
method of acquisition over the disputed
territory, has not been adequately
proven.
Assuming arguendo that Spain indeed
had title over Las Palmas, it has lost
such title thru acquiescence because it
did not exercise sovereignty over the
disputed territory.
It has been represented by the East
India Company through which it
possessed and exercised sovereignty
over Las Palmas from 1648 onwards.
Contracts of Suzerainty wherein it
established conventions with natives
(included collection of taxes, etc.) which
show
Netherlands
exercise
of
sovereignty over the territories of the
native princes of the island.

Netherlands has a stronger claim over Las Palmas by


virtue of effective occupation.

Las Palmas is a single, isolated island in the middle of


Mindanao and East Indies (controlled by the Netherlands).
Both the United States and the Netherlands claim that the
island of Las Palmas should belong to their respective
territories. The matter was submitted to arbitration with
Swiss Max Huber as arbitrator.
United
States:

The island was discovered by Spain as


confirmed by cartographers and
authors.
The Treaty of Munster to which both
Spain and Netherlands were parties

Sovereignty signifies independence in the relations


between states and independence which, in turn, is the
right to exercise the functions of a state over ones
territory to the exclusion of all others. In case of dispute as
to who should exercise sovereignty over a given territory,
the test is to determine whether there is acquisition of
territory coupled with continuous and peaceful display of
sovereignty. Using the critical period technique, the
period to consider in this case is that prior to the 1898
(Treaty of Paris).
While Spain ceded its territory to the US by virtue of the
Treaty of Paris, it could not transfer to the latter rights that
it did not have. It was not proven that Spain indeed had
possession and exercised sovereignty over Las Palmas
therefore the US cannot claim Las Palmas as successor to
Spain. The fact that in the 16th century, international law
allowed for seeing without occupation as equivalent to
discovery, this should be subjected to the concept of
intertemporal law which provides that while the act that
creates a right is subjected to the law in force at the time it

25

PUBLIC INTERNATIONAL LAW

A2015

arises, its continued existence must follow the conditions


th
required by the evolution of law. Therefore, said 16
th
century international law is qualified by 19 century
international law which requires not only discovery but
also effective occupation.
Spains discovery merely
created an inchoate title and without any external
manifestation, said title was not perfected.
US claim of contiguity was rejected, as this was
inapplicable in cases of territorial sovereignty because it is
not precise and could lead to arbitrary results. In the end,
this inchoate title cannot prevail over Netherlands open
and public display of sovereignty which is evidence of its
effective occupation over Las Palmas.
Critical Period. It is a judicial technique in the use or
exclusion of evidence consisting of self-serving acts of
parties at a stage when it was evident that a dispute
existed. Regardless of subsequent events, the court will
freeze the period of the controversy to the date when the
issue because ripe for adjudication.
Intertemporal law. Where different legal rules existed
over a period of time, both the rule at the creation of the
right and rule at time of its existence should be applied.
Discovery alone merely gives rise to a mere inchoate
right. Effective occupation must be proven.
US could have won the case if they had shown that at
that time there was no separation of church and
state. By showing that there were priests, civil
registrar, collection of tribunes, etc., they would have
been able to show Spanish occupation of the island.
Also, this case is disturbing because the US lost
something that they did not have. By December
1898, Filipinos were already in control of the state.
CLASS NOTES

LAS PALMAS ARBITRATION REVISTED


by H. Harry Roque

CONTEXT
This is in context of the continued dispute between the
Philippines and Indonesia as to which territory Las Palmas
should belong to. In 2002, amidst negotiations between
the two states, Indonesia enacted a new Baselines Law
wherein it used Las Palmas as a basepoint in drawing its
archipelagic baselines. If the this new law was to be
followed, the Philippines will not only lose Las Palmas but
also around 15,000 square miles of archipelagic and
territorial waters which are currently defined as Philippine
territory under the Treaty of Paris. Said law is contrary to
Indonesias former commitment to delimit the area in
dispute only after negotiations with the Philippines have
concluded. Accordingly, the Baselines Law was equivalent

to an official claim to the land and territorial waters of the


island. This renewed the controversy settled in the 1928
Las Palmas Arbitration wherein the Netherlands was
declared to have superior title over the disputed territory.
REASONS WHY PHILIPPINES SHOULD CLAIM LAS PALMAS
According to the author, there are several reasons why the
Philippines should claim the area of Las Palmas. First, it is
very close to the strategic axis linking the Pacific and
Indian oceans. It will enable the Philippines, possibly in
cooperation with Indonesia, to establish archipelagic sealanes and control, monitor and maintain surveillance of
sensitive maritime jurisdictions. Many population centers,
industrial zones and ports are accessible from that area.
Second, it is close to the critical spawning areas of
economically important fish like the yellow fin tuna. The
area has also been declared as a maritime eco-region by
the WWF because of its distinct and outstanding
biodiversity.
Third, the area in dispute is also a warm pool of the
worlds oceans making it suitable for large scale ocean
terminal plants. The author also said that the
aforementioned reasons, plus the sheer amount of area
that the Philippines will lose, warrant a re-examination of
the 1928 Las Palmas Arbitration which is the root of
Indonesias claim to Las Palmas.
CRITICISMS TOWARD THE 1928 ARBITRATION
The author cited Jessups criticisms of the substantive and
procedural aspects of Hubers arbitration. According to
Jessup, the use of Intertemporal Law is non-sequitur and is
without precedent.
Jurisprudence abounds in
international law which respects the Principle of Acquired
Rights or applies the law at the time of the creation of a
right. Thus, a states title over territory cannot be
extinguished simply by virtue of the rise of a contemporary
norm. If this was the case, the retroactive effect of law
would be highly disturbing in that every state would have
to re-examine its title to each part of its territory to
determine whether a change in the law has necessitated a
reacquisition. In Spains case, when it acquired Las Palmas
by virtue of discovery which was valid in 16th century
international law, it already acquired a right over said
territory regardless of the evolution underwent by
international law.
As to Hubers ruling that US failed to show effective
occupation, Jessup criticized this using the Theory of
Constructive Possession which provides that the
possession of the whole is tantamount to the possession
of the parts of the whole. In occupying Mindanao, Spain
also occupied Las Palmas as part of the Philippine
archipelago. Jessup also criticized Hubers rejection of the
Principle of Contiguity which is actually recognized in
international law and has been prominently practiced in
1928 (time of the arbitration) especially in dealing with a

26

PUBLIC INTERNATIONAL LAW

A2015

desolate, uninhabited island. This was even used by the


PCIJ in deciding the Eastern Greenland case. Other
authorities like Lauterpacht and OConnell join Jessup in
criticizing the arbitration and Netherlands claim to Las
Palmas.
UNITED STATES STANDING TO ARBITRATE
The United States also did not have standing to arbitrate
or personality to advance a right in the 1928 Arbitration
based only on Spains 1898 cession of title to it. While
acquiring title through cession is a valid, the United States
title is only as good as its predecessor. In this case, Spain
no longer had title over the Philippines in December 1898
because the Philippines was already independent as of
June 12, 1898. It already had all the elements of a state
even before the Treaty of Paris.
NON-TRANSFERRABILITY OF ARBITRAL AWARDS
As a general rule of state succession, successor states are
not bound by obligations entered into by its predecessor
and they are at a complete liberty WON to undertake such
obligations since they are a completely new entity. The
only exception to this would be obligations in relation to
territorial boundaries pursuant to a treaty. However, Las
Palmas was awarded to the Netherlands by virtue of an
arbitration to which the Philippines was not a party to. It is
therefore not bound by Hubers ruling. The Philippines has
also never acknowledge that it has automatically
succeeded the US is said arbitration.
CONCLUSION
The author concluded by saying that even assuming that
Indonesias title to Las Palmas is indisputable pursuant to
the 1928 Arbitration, this does not justify the formers use
of said island in its 2002 Baselines Law as a base point for
drawing its archipelagic baselines. This is because
Netherlands, as Indonesias predecessor-in-interest, never
alleged in the arbitration that Las Palmas formed part of
the Indonesian archipelago. Therefore, Las Palmas should
be treated as an island independent of the Indonesian
archipelago if not an actual part of the Philippines.
Concept of constructive occupation. A State should
not have to physically occupy every nook and cranny
of land in order to prove its occupation; this should
also apply to archipelagos.
CLASS NOTES

ARIGO v. EXECUTIVE SECRETARY


(PETITIONERS PLEADING)

The controversy arose when the government entered into


Service Contract No. 38 with Shell, Chevron and PNOC for
the exploration, development, and production of
petroleum resources in the Camago-Malampaya Reservoir
about 80 km off the coast of Palawan in the West
Philippine Sea. Because of this project, there arose a
dispute between the national government and the
provincial government of Palawan with regard to the
sharing of the proceeds.
Palawan claims that it is entitled to a 40% of the proceeds
pursuant to the Local Government Code. It also based its
claim in the assertion that the Camago-Malampaya gas
fields are located within the territorial jurisdiction of
Palawan. However, according to the national government,
the area in dispute is outside Palawans jurisdiction and
therefore it is only the national government which is
entitled to the proceeds of the contract.
Pres. Arroyo later issued EO 683 which provided for a
Provisional Implementation Agreement (PIA) that would
allow 50% of the disputed 40% of the net government
share in the proceeds of SC 38 to be utilized for the
immediate and effective implementation of the
development projects for the people of Palawan.
Petitioners assail the constitutionality of said executive
order. CA dismissed their petition so they appealed to the
SC.
Arguments raised in the pleadings:
TERRITORIAL BOUNDARIES OF THE PHILIPPINES ALREADY
DEFINED BY LAW
RA 3046 of 1961, as amended by RA 5446 of 1968 MUST
GOVERN TERRITORIAL BOUNDARIES OF THE PHILIPPINES
The CA was wrong in dismissing their petition pursuant to
the ongoing efforts of both the legislative and executive
departments to arrive at a common position in redefining
the countrys baseline which should not be encroached
upon by judicial adjudication. Petitioners assert that the
CA itself has acknowledged that there is already an

27

PUBLIC INTERNATIONAL LAW

existing law defining the countrys territory (mentioned in


the heading) which is still good law and must therefore
govern the territorial boundaries of the state, not the
efforts being undertaken by the legislative and executive
departments. Also, Article 1 of the 1987 Constitution is
another good law which already defines the metes and
bounds of our national territory.
IMPLICATION OF EO 683 ON PHILIPPINE CLAIMS UNDER
UNCLOS
Since Palawan is the strong and secure anchor on which
the Philippines claim to an Extended Continental Shelf
(extending up to 350 n.m. from the baseline) under
UNCLOS stands, EO 683, by saying that CamagoMalampaya is outside Palawans jurisdiction, dismembers
national territory because it cuts away the Philippine claim
to an ECS. According to petitioners, the oil and gas in the
area are not found in the waters off Palawan but in the
continental shelf of Palawan. Accordingly, the delineation
of the limits of the countrys continental shelf will assure
its sovereign rights over the petroleum, natural gas, and
other resources found in the area. An ECS means a much
expanded claim to rich natural resources in the region and
a greater access to these resources.
PROJECT TO DELIMIT THE OUTER LIMITS OF THE
PHILIPPINE CONTINENTAL SHELF
Petitioner also mention the research efforts being
conducted by various agencies (UP Law Center, NIGS, etc.)
to fortify the Philippine assertion to a right to an ECS in
preparation for its claim before the UN. The project has
identified that the Kalayaan Group of Islands, the Benham
Rise, and the Scarborough Shoal are three areas where the
possible ECS exists. According to experts, the best way to
claim an ECS is to consider the Malampaya fields and the
KIG or the Spratlys as a unified extension or a natural
prolongation of the continental shelf of Palawan. Notably,
the KIG area is very promising with respect to petroleum
and natural gas.
PHILIPPINE CLAIM TO KIG DEPENDENT ON THE CAMAGOMALAMPAYA AREA BEING PART OF PALAWANS
CONTINENTAL SHELF
According to petitioners, to say that the CamagoMalampaya fields are not part of Palawan is to say that the
Philippines does not have any claim to an ECS, or much
less, to an inner continental shelf that is all of 200 n.m.
extending seaward. In effect, it is to deny the existence of
a continental shelf appurtenant to Palawan, and such is
also a surrender of Philippine claims to sovereign rights
over a large region that Filipinos have long considered as
belonging to Philippine national territory, including the KIG.
This may result in the bargaining away the Filipino
peoples rightful claim to the rich marine resources in the
region, in contravention of the national interest in the
integrity of the national territory as well as the peoples
right to enjoy the benefits of the natural resources of the
country. This is also violative of the Constitution.

A2015

LEGAL STATUS OF EASTERN GREENLAND


PCIJ Ser. A/B No. 53 (1933)

In June 10, 1931, Norway issued a Royal Resolution


declaring that it is taking possession of certain territory
(Elrik Raudes Land) of Eastern Greenland. Denmark
opposed this and the matter as to who had titled over the
area in dispute was submitted to the ICJ.
Denmark:

Norway:

Effective occupation or the continuous and


peaceful occupation of the area which has
existed for a long time before the dispute.
The evidence it presented are:

Imposition of taxes;

Settlements;

Taking over trade monopolies;

Granting of concessions;

Fixing of territorial waters by


legislation;

Promulgation
of
laws
of
administration;

Building trading and research stations;

Multilateral and bilateral treaties


entered wherein Norway recognized
Danish authority over the area;

Granting of permits to visitors;

Ihlen Declaration (Norwegian Minister


of Foreign Affairs speaking in behalf of
his government) stating that Norway
would not make it difficult for
Denmark to settle in Eastern
Greenland
Eastern Greenland was terra nullius and it
was the first to exercise sovereignty over
said area. The evidence it presented are:

Expeditions;

Involvement in hunting and trading;

Continuous rejection of Denmarks


claim;

Wire stations; and

28

PUBLIC INTERNATIONAL LAW

A2015

Construction of cabins.

Denmark had a stronger claim than Norway.


A claim to sovereignty based upon continued display of
authority has two elements that must be shown to exist:

Intention and will to act as a sovereign; and

Some actual exercise or display of such authority.


Denmark has met these two requirements as proven by
the evidence it presented. Notably, before Norway issued
its 1931 declaration, no other power disputed Danish
sovereignty over the area.
There was also not enough evidence to support Norways
position that Denmark lost sovereignty over the disputed
area by voluntary abandonment. While there was a period
wherein Denmark no longer had intercourse with
Greenland, the interest in the latter was eventually revived.
Norways claim that Denmark only possessed he western
coast of Denmark was also rejected. Denmark had
constructive possession over Greenland regardless of
Norways assertion that the formers legislative and
administrative acts only concerned Danish colonies (which
were located on the western coast) because the word
Greenland in these acts should be given their ordinary
meaning as encompassing the whole of Greenland.
Norway failed to prove otherwise.
Norway has acquiesced and was in fact in estoppel with
regards to Denmarks claim over Greenland. Prior to the
dispute, Norways government had on many occasions
recognized Denmark as the sovereign over Greenland. A
prime example of this is the Ihlen Declaration (mentioned
in the position of the parties above).
If the area is thinly populated or unsettled, little
actual exercise of sovereign rights is sufficient.
Although both sides were able to present evidence
establishing their sovereignty over the area, what
won it for Denmark was the estoppel or acquiescence
in the part of Norway because of the Ihlen
Declaration. Although acquiescence is not a means
of acquiring title, it is proof of a better claim.
Also, this case was decided five years after the Island
of Las Palmas case by the PCIJ still headed by Max
Huber. Interestingly, unlike in the Las Palmas
Arbitration, Huber applied the concept of
constructive occupation in this case.
CLASS NOTES

THE CASE OF THE S.S. LOTUS


PCIJ Ser. A No. 10(1927)

A collision occurred at the high seas between a French mail


steamer Lotus with and a Turkish collier Boz Kourt. The
Boz Court split in half and it eventually sank, resulting to
the death of 8 Turkish nationals. The officer on board
Lotus was the French Lt. Demons.
Lt. Demons was requested by Turkish authorities to go
ashore 3 days after the incident to give evidence regarding
the matter. He was then arrested by Turkish authorities
without notice to France to ensure his criminal prosecution
for manslaughter under Turkish law. He was convicted.
The French government eventually protested the actions of
the Turkish authorities and demanded the release of Lt.
Demons. Upon failure to settle the matter, they submitted
the issue to the PCIJ.
France:

Turkey:

In case of breach of navigation regulations,


exclusive jurisdiction lies with the flag state
under whose flag the vessel sails. France
also invoked the Treaty of Lausanne which
stated that all questions regarding
jurisdiction between Turkey and other
contracting states must be governed by the
principles of international law.
Claimed jurisdiction on the basis of Article 6
of its Penal Code which provides that any
foreigner who commits an offense abroad to
a prejudice of Turkey or a Turkish national
shall be punished in accordance with the
Turkish Penal Code provided that he is
arrested in Turkey.

Turkey did not act contrary to international law.


There is no principle of international law that prohibits
Turkey from exercising jurisdiction over Demons and that
there was no presumption of restriction against its acts.
The court rejected Frances contention that the
territoriality of criminal laws prohibits the exercise of ones
power outside ones territory without a permissive rule of
convention or international custom.
There is also no general prohibition on a state to extend
the application of their law outside of their territory. This
is because the territoriality of criminal law is not an
absolute principle of international law and by no means
coincides with territorial sovereignty.
Furthermore,

29

PUBLIC INTERNATIONAL LAW

France is without basis in saying that international law


prohibits proceedings by a state as to offenses committed
by foreigners based only on the nationality of the victim
because this is not the only criterion on which Turkeys
jurisdiction is based. Notably, Turkey could also base its
jurisdiction on the fact that the collision also affected
Turkeys vessel.
Even states which strictly apply the territoriality of criminal
laws concede that if one of the elements of an offense
(most especially its effects) has taken place in their
national territory, the crime is to be regarded as having
been committed there despite the fact that the author of
the crime was in the territory of another state at the time
of the commission of the act.
The court also rejected the exclusive jurisdiction of the flag
state in this case because such principle is not universally
accepted leaving the states a free hand.
This case has already been overturned by the
UNCLOS in Article 97 [1], which provides for
concurrent jurisdiction of the flag state and the state
of the persons nationality in such instances.
CLASS NOTES

THEMATIC LIGHTHOUSES
Lighthouses are important with regard to claims of
sovereignty because their construction and
maintenance is a discharge of a state obligation to
ensure safety in the seas.
CLASS NOTES

THE MINQUIERS AND ECREHOS CASE (FRANCE


v. UNITED KINGDOM)
ICJ Reports 1953, p. 47 (1953)

A2015

France:

United
Kingdom:

Prohibition of fishing;
Restriction of visits to Ecrehos;
Diplomatic exchanges;
Granting of concessions;
Building of lighthouses and buoying;
Official visits by French officials;
Erection of a house.
Jersey
courts
exercising
criminal
jurisdiction for nearly 100 years;
Jersey law requiring holding of inquests on
corpses found in the area;
Houses built in the area were assessed for
the levying of taxes;
Licensing of fishing boats;
Real estate contracts relating to property
in the area were registered in the public
registry of deeds;
Jersey customs authorities established a
custom house for the purpose of a census.

United Kingdom has produced the more convincing proof


of title.
UK won because of ordinary local administration, and its
claim was able to establish the exercise of state function of
jurisdiction, administration, and legislation over the islands.
As to the French claim that its installation of lighthouses,
beacons and other navigational aids evinces sovereignty
over the island groups, the court held that such acts can
hardly be considered as sufficient evidence of the intention
of that Government to act as sovereign over the islets; nor
are those acts of such a character that they can be
considered as involving a manifestation of State authority
in respect of the islets.

CASE CONCERNING SOVEREIGNTY OVER


PULAU LIGITAN AND PULAU SIPADAN
(INDONESIA v. MALAYSIA)
ICJ Reports 2002, p. 625 (2002)

The Minquiers and Ecrehos group of Islet and rocks are


found in the English Channel. Both parties contend that
they have respectively an ancient or original title to the
Minquiers and Ecrehos, and that their title has always
maintained and was never lost.

Indonesia and Malaysia lay claim over the islands of


Ligitan and Sipadan. Both countries cite treaties, colonial
effectivites, and title by succession as proof of ownership.

30

PUBLIC INTERNATIONAL LAW

Indonesia:

Malaysia:

In 1895 and 1928, Dutch Royal Nay


deployed ships in the area;
Indonesian fishermen fished in the area;
and
Non-inclusion of the islands in their maps
immaterial because they were prepared in
haste.
As early as 1914, the Great Britain
regulated the control and collection of
turtle eggs in the area;
It established licensing for boats;
Established
reservations
for
bird
sanctuaries;
British
North
Borneo
authorities
constructed lighthouses in the 1960s
which were under the control of the
Malaysian authorities.

A2015

Yemen:

Ethiopia, which had in turn inherited its


title from Italy;
Construction and
maintenance
of
lighthouses in different islands.
Historic title. This title can be traced to the
Bilad el-Yemen, which is said to have
existed as early as the 6th Century AD.
Automatic reversion. When the Ottoman
Empire collapsed, ending its occupation of
the area, the title reverted back to Yemen.
Construction and
maintenance
of
lighthouses in different islands.

No title by succession. Italy, Eritreas predecessor, did not


obtain title to the territory under the Treaty of Lausanne
because it was provided that the allied powers have yet to
agree on who can claim sovereignty over the territory.

The court ruled for Malaysia because of its effective acts


of administration

No historic title. Medieval Yemen had no concept of


territorial sovereignty. Therefore, Yemen cannot claim title
by automatic reversion.

Among other evidence presented, Malaysias construction


of lighthouses in 1962 and 1963 was considered by the
Court. While they are not usually used as an indicator of
state authority (as in the Minquiers and Ecrehos Case),
they are legally relevant in the case of small islands.

The tribunal found out that none of them presented a


better claim, so it decided based on effective occupation,
since occupation is the prima facie evidence of title.

The Court rejected Indonesias claim that they merely


tolerated the construction of the lighthouses because they
are useful for safe navigation. According to the Court,
these lighthouses are very important to people in North
Borneo, and the silence of Indonesia over this construction
is highly unusual.

ERITREA-YEMEN ARBITRATION
(1996)

Portico Doctrine. A method by which off-shore islands


can be attributed to a States sovereignty. Islands near
coastal states must pertain to such states.
Both parties have constructed and operated lighthouses in
different islands. The significance of these lighthouses
would thus have to be considered separately, on a per
island basis.
Eritrea was found to be sovereign over the Mohabbakah
islands, the Haycock islands and Southwest Rocks owing to
their proximity to the Eritrean mainland and presumption
of natural unity.
Yemen was found to be sovereign over the Zubayr group
of islands and the Zuqar-Hanish group on the balance of
the evidence from the Parties regarding the exercise of the
functions of state authority.
The delimitation was contentious due to significant
oil reserves and oil shipping lanes in the area.
This case is most analogous to the issue on Spratlys.
CLASS NOTES

The dispute relates to ownership over the Red Sea islands


between Eritrea which claims title by succession, and
Yemen which claims title by automatic reversion and
historic title.
Eritrea:

Succession. It inherited title to the Islands


in 1993, when the State of Eritrea became
legally independent from the State of

MAP CASES
ERITREA-YEMEN ARBITRATION
(1996), supra.

31

PUBLIC INTERNATIONAL LAW

A2015

(This section deals with the parties claims relating to maps.


For a more exhaustive discussion, refer to p. 31)

(This section deals with the parties claims relating to maps.


For a more exhaustive discussion, refer to p. 14)

Claims relating to maps:


Eritrea: Maps from the 20th century that Italy (its
predecessor state) was sovereign over the
islands.
Yemen: Maps from the 18th to 19th centuries show
that the islands once belonged to Yemen,
proving its historical title.
UN maps from the 1950s show that the
islands were not considered part of
Ethiopia (present-day Eritrea)

Two treaties were entered into by France and Siam which


involved delimitation of certain areas. A commission was
tasked to survey the delimitation points and the final stage
of the delimitation was the preparation of maps. Siam did
not possess adequate technical means to do so, prompting
it to ask French officers to do the mapping for them. The
maps were drawn by a well-known French cartographer
and given wide publicity. It was communicated to the
government of Siam.

As to the pre-19th century maps, Court ruled that there


was no attribution of the islands to Yemen.
As to the use of maps to prove Italian sovereignty during
the 20th century, it appears that official Italian cartography
did not wish formally to portray the Islands as being under
Italian sovereignty in the inter-war period. However, the
map evidence whilst supportive of and consistent with
the conclusions reached is not itself determinative.
Were there no other evidence in the record concerning
the attitude or intentions of Italy, this evidence would be
of greater importance.
As to the UN maps, it is UN practice that its publication of
maps does not constitute a recognition of sovereign title
over territory. Hence, they cannot be relied upon by either
party.

The principle of estoppel was applicable. The maps were


communicated to Siam as purporting to represent the
outcome of the work of delimitation. Since there was no
reaction on the part of Siam, either then or for many years,
and that France (later, Cambodia) relied on this nonobjection of Siam, Siam (later, Thailand) is estopped from
claiming otherwise. The uti possidetis juris principle is
applicable as to the successor states i.e. Cambodia and
Thailand.
Principle of Uti Possidetis Juris. Successor states shall
respect colonial boundaries of colonial rulers.

CASE CONCERNING THE TERRITORIAL


DISPUTE (LIBYAN ARAB JAMAHIRIYA v. CHAD)
ICJ Reports 1994, p. 6 (1994)

Also, the Court considered the 20th century maps as


tending to show the superiority of Yemeni map evidence,
and that Eritrean cartography described the islands as
non-Eritrean.
These conclusions were considered in arriving at the
determinations made as to which islands go to each party.
(discussed supra.)

CASE CONCERNING THE TEMPLE OF PREAH


VIHEAR (CAMBODIA v. THAILAND)
ICJ Reports 1962, p. 6 (1962)

In 1955, a treaty was concluded between France and Libya.


France was previously the colonial power exercising
sovereignty over Chad, while Libya was a former colony of
Italy and has just gained independence when it entered
into a treaty with France. The treaty states that the
frontiers of the two territories are those that result from
international instruments in force on the date of
constitution of Libya.
A territorial dispute erupted between the parties, thus they
agreed to submit the matter to the ICJ to decide upon the
limits of the territories of the respective parties in
accordance with the rules of international law.

32

PUBLIC INTERNATIONAL LAW

Libya:

Chad:

There is no border because the 1955


treaty has already expired;
This case concerns a dispute regarding
attribution of territory;
Court must fix the boundaries on the basis
of effective occupation.
Libya is bound by the 1955 treaty;
This case concerns a dispute regarding
attribution of territory;
Court needs only to locate where the
boundaries are, applying the uti possidetis
juris principle.

The terms of the treaty signified that the parties recognize


the complete frontier between their respective territories.
No subsequent agreement, either between France and
Libya, or between Chad and Libya, has called in question
the frontier in this region deriving from the 1955 Treaty.
Libya never challenged the territorial dimensions of Chad
as set out by France which is reflected by UN publications
even after 1960.
The establishment of this boundary is a fact which, from
the outset, has had a legal life of its own, independently of
the fate of the 1955 Treaty. Once agreed, the boundary
stands, for any other approach would vitiate the
fundamental principle of the stability of boundaries, the
importance of which has been repeatedly emphasized by
the Court. In effect, a boundary established by treaty thus
achieves a permanence which the treaty itself does not
necessarily enjoy. The treaty can cease to be in force
without in any way affecting the continuance of the
boundary.
The Court applied the principle of uti possidetis juris
which provides that successor states must respect the
colonial boundaries of colonial rulers, and such boundaries
would survive after independence.
With respect to the fact that the treaty itself specified that
it has a life of only 20 years, the Court applied the theory
of auto-limitation which provides that boundaries have a
life of its own, separate from the treaty itself. A boundary
established by treaty achieves permanence which the
treaty itself does not necessarily enjoy.

ANGLO-NORWEIGIAN FISHERIES CASE (UNITED


KINGDOM v. NORWAY)

A2015

In 1935, a Norwegian Royal Decree was enacted delimiting


the Norwegian fisheries zone. This delimitation made use
of straight baselines drawn between fixed points on the
Norwegian coastal zone a zone which includes its
mainland, and the various islands, islets and reefs, fjords
and bays which comprise a distinctive archipelago known
as the skjaergaard. [skahr-jard]
The United Kingdom, in light of its various fishing interests
in that area, protested the delimitation, claiming that it
was contrary to international law principles.
United
Kingdom:
Norway:

Norways baselines must be reckoned


from the low-water mark on the mainland;
Baselines must be reckoned from the lowwater mark of the skjaergaard;

The baseline shall be determined using the straight


baseline method, following the outline of the
skjaergaard.
The Norwegian mainland is bordered in its western sector
by the "skjaergaard", which constitutes a whole with the
mainland. This being so, it is the outer line of the
"skjaergaard" which must be taken into account in
delimiting the belt of Norwegian territorial waters.
Straight baseline method. This method consists of
selecting appropriate points on the low-water mark and
drawing straight lines between them.
Following this method, there is no need to follow all of the
indentations or sinuosities in drawing the baseline.
Straight baselines shall be drawn connecting appropriate
points along the skjaergaard. It is from this line that the
territorial sea shall be reckoned.

ICJ Reports 1951, p. 116 (1951)

33

PUBLIC INTERNATIONAL LAW

A2015

Spain:
Morocco:

Mauritania:

Terra nullius during colonization, hence


part of its Empire;
Immemorial possession of the territory;
Uninterrupted exercise of authority;
Allegiance of local tribes;
Ties with a historical Mauritanian
Entity;
Common way of life with the nomads

None of the parties had a better claim over the others.


(Magallona, 2005)

In using the straight baseline method, the Court provided


the following guidelines:
1) the baseline must not depart to any appreciable
extent from the general direction of the coast;
2) the sea areas lying within the landward side of
the baseline must be closely linked to the land
domain and are internal waters;
3) The economic interest peculiar to the region, as
evidenced by long usage, should be considered.
The Court also noted that the delimitation of sea areas
always has an international aspect. It cannot be
dependent merely upon the will of the coastal State as
expressed in its municipal law. Although the act of
delimitation is necessarily a unilateral act, the validity of
the delimitation with regard other States depends upon
international law.

WESTERN SAHARA (ADVISORY OPINION)


ICJ Reports 1975, p. 12 (1975)

Territories inhabited by the tribes or peoples having a


social and political organization were not regarded as terra
nullius. In this case, at the time of the colonization
Western Sahara was inhabited by peoples who, though
nomadic, were socially and politically organized in tribes
and under chiefs competent to represent them. It also
shows that, in colonizing Western Sahara, Spain did not
proceed on the basis that it was establishing its
sovereignty over a terra nullius.
What is essential is a showing of effective display of
authority during Spanish colonization and immediately
after. Morocco failed to display any effective and exclusive
State activity in Western Sahara. The allegiance it claims
from people therein is limited to only a few tribes.
The historical Mauritanian Entity used by Mauritania has
not been shown to have any sovereign ties with Western
Sahara. It has no separate identity from that of the tribes
which composed it, whose nomadic way of life knew no
territorial frontiers. Neither were these tribes distinct and
independent in relation to each other, and there was no
common institution that they recognized.

THE CASE CONCERNING THE LAND, ISLAND


AND MARITIME FRONTIER DISPUTE (EL
SALVADOR v. HONDURAS, with NICARAGUA
intervening)
ICJ Reports 1992, p. 351(1992)

Spain, Morocco and Mauritania were embroiled in a


territorial dispute over territory known as Western
Sahara. The UN General Assembly requested the ICJ to
answer two questions re: the Western Sahara (WS):
(1) Was Western Sahara at the time of colonization by
Spain terra nullius?; and
(2) What were the legal ties between this territory
and the Kingdom of Morocco and the Mauritanian
entity?

The Parties, El Salvador, Honduras, and intervenor


Nicaragua, were all former administrative subdivisions
(provinces) of the Spanish empire in Central America. El
Salvador and Honduras became independent states after
the disintegration of the Spanish empire in Central America.
Even before their independence, Spanish Central America
had overlapping administrative boundaries. The Court was
tasked to find where the boundaries are.
The uti possidetis juris principle was applied. The Court
said that if the colonial boundaries are clear, it will not
look at colonial effectivites. In this case, there are cases of
overlaps because of lack of sophisticated means for
surveying.

34

PUBLIC INTERNATIONAL LAW

A2015

Contemporaneous acts (belief of one that he belongs to


this particular unit) are considered because it is useless to
look at effective occupation, for the territories are subject
to only one colonial rule. The Court looked at the Republic
Titles submitted to them and the subsequent acts of
parties after independence, referring to post-colonial
effectivites as proof of colonial boundaries. The Court said
that principle acquiescence by recognition will also apply if
a party does not object. Uti possidetis still applied to the
islands (El Tigre, Meanguera & Meanguerita) because none
of them are terra nullius which can be acquired through
occupation.

occupation. Physical occupation is merely procedural to


the taking of possession and is not identical to the latter.

CLIPPERTON ISLAND ARBITRATION (FRANCE v.


MEXICO) (1931)

B. UNCLOS

If a territory is uninhabited, from the moment when the


occupying state makes its appearance there, at the
absolute and undisputed disposition of that state, from
that moment the taking of possession must be considered
as accomplished, and the occupation is thereby completed.
Physical occupation is not required in this case. The
published declaration of occupation was sufficient to show
taking of possession and intent to possess.

The United Nations Convention on the Law of the Sea


(UNCLOS) is the ultimate constitution governing the use of
the sea.
It took 80 years to be codified. While taken to be a mere
restatement of customary international law, it goes
beyond being a mere codification of opinio juris. It was
agreed upon by states on the basis of consensus and
compromise, and in effect may be taken to constitute
state practice binding even on non-parties.
Clipperton Island, apparently uninhabitable, is a low coral
reef in the Pacific Ocean. In 1858, the French Navy, while
cruising about half a mile off Clipperton, declared that the
sovereignty of the island beginning from that date belongs
to Emperor Napoleon III. The vessel didn't reach the shore
and it left without leaving on the island any sign of
sovereignty. The declaration was communicated to the
government of Hawaii and was published in the journal
The Polynesian of Honolulu. The island remained without
population and no administration. Later, Mexico arrived
and ignored the occupation claimed by France and hoisted
their own flag. It claimed that the islands belong to it.
France:

Mexico:

1858 landing, and hoisting of French flag;


Declaration of sovereignty communicated
to the Government of Hawaii through the
journal, The Polynesian;
Spain discovered it and by virtue of the
Papal Bull of Alexander VI, it belonged to
Spain and, in 1836, to Mexico as Spains
successor.

France has title over the islands.


There is no proof that Spain discovered the island first and
that Spain effectively exercised such right. It presented a
map but the official character of such map cannot be
affirmed. Also, proof of historic right is not supported by
manifestation of sovereignty over the island. The tribunal
found that the island was terra nullius and susceptible of

Its roots can be traced to the treatise Mare Liberum by


Portuguese Hugo Grotius, which advanced the principle
that the sea is owned by everyone and that it was under
the regime of the common heritage of mankind.
It divides the oceans and seas into the following maritime
zones:

Internal Waters

Territorial Sea

Contiguous Zone

Exclusive Economic Zone

High Seas

BASELINES
Baseline
It is a line from which the breadth of the territorial sea and
other maritime zones is measured. It is essential for the
determination of the maritime boundary of the coastal
state.
There are two types:
1. Normal Baseline
2. Straight Baseline
UNCLOS, Art. 5.
Normal baseline
Except

where

otherwise

provided

in

this

35

PUBLIC INTERNATIONAL LAW

Convention, the normal baseline for measuring the


breadth of the territorial sea is the low-water line
along the coast as marked on large-scale charts
officially recognized by the coastal State.
Normal Baseline
It is the low-water line along the coast as marked on largescale charts officially recognized by the coastal state. (Art.
5)
There is no fixed or definitive method to determine the
location of the low-water line. One way is to mark it on the
lowest ebb tide or on the lowest astronomical tide.
Another way, as suggested in the Anglo-Norwegian
Fisheries Case, is to use the mean between the high and
low tides.

A2015

4. Straight baselines shall not be drawn to and


from low-tide elevations, unless lighthouses or
similar installations which are permanently above
sea level have been built on them or except in
instances where the drawing of baselines to and
from such elevations has received general
international recognition.
5. Where the method of straight baselines is
applicable under paragraph 1, account may be
taken, in determining particular baselines, of
economic interests peculiar to the region
concerned, the reality and the importance of
which are clearly evidenced by long usage.
6. The system of straight baselines may not be
applied by a State in such a manner as to cut off
the territorial sea of another State from the high
seas or an exclusive economic zone.
Straight Baseline
It is used where the coastline is deeply indented and cut
into or if there is a fringe of islands along the coast in its
immediate vicinity, by joining the appropriate points of
these features using straight lines. (Art. 7 [1])

Fig.. (Magallona, 2005)

UNCLOS, Art. 7.
Straight baselines
1. In localities where the coastline is deeply
indented and cut into, or if there is a fringe of
islands along the coast in its immediate vicinity,
the method of straight baselines joining
appropriate points may be employed in drawing
the baseline from which the breadth of the
territorial sea is measured.
2. Where because of the presence of a delta and
other natural conditions the coastline is highly
unstable, the appropriate points may be selected
along the furthest seaward extent of the lowwater line and, notwithstanding subsequent
regression of the low-water line, the straight
baselines shall remain effective until changed by
the coastal State in accordance with this
Convention.

UNCLOS sets forth limitations on the use of the straight


baseline method:
1. Must not depart to any appreciable extent from
the general direction of the coast; (Art. 7 [3])
2. Sea areas lying within the straight baselines must
be sufficiently close to the land domain to be
subject to the regime of internal waters; (ibid.)
3. Must not be drawn to and from low-tide
elevations;

UNLESS, lighthouses or similar


installations permanently above sea
level have been built on them; and

UNLESS such use of baselines on lowtide elevations have received general


international recognition. (Art. 7 [4])
4. Cannot be applied by a state in such a manner as
to cut off the territorial sea of another from the
high seas or an EEZ. (Art. 7 [6])
The drawing of straight baselines may take into account
economic interests peculiar to the region concerned, the
realty and importance of which are clearly evidence by a
long usage. (Art. 7 [5]) This has likewise seen application in
the Anglo-Norwegian Fisheries Case.

3. The drawing of straight baselines must not


depart to any appreciable extent from the general
direction of the coast, and the sea areas lying
within the lines must be sufficiently closely linked
to the land domain to be subject to the regime of
internal waters.

36

PUBLIC INTERNATIONAL LAW

A2015

of islands, an indentation has more than one


mouth, the semi-circle shall be drawn on a line as
long as the sum total of the lengths of the lines
across the different mouths. Islands within an
indentation shall be included as if they were part
of the water area of the indentation.

Fig.. (Magallona, 2005)

Baselines for Mouths of Rivers


UNCLOS, Art. 9.
Mouths of rivers
If a river flows directly into the sea, the baseline
shall be a straight line across the mouth of the
river between points on the low-water line of its
banks.

4. If the distance between the low-water marks of


the natural entrance points of a bay does not
exceed 24 nautical miles, a closing line may be
drawn between these two low-water marks, and
the waters enclosed thereby shall be considered as
internal waters.
5. Where the distance between the low-water
marks of the natural entrance points of a bay
exceeds 24 nautical miles, a straight baseline of
24 nautical miles shall be drawn within the bay in
such a manner as to enclose the maximum area of
water that is possible with a line of that length.
6. The foregoing provisions do not apply to socalled "historic" bays, or in any case where the
system of straight baselines provided for in
article 7 is applied.
A bay is a well-marked indentation in the coast which
satisfies the semi-circle test. (Art. 10 [2])

Fig. (Magallona, 2005)

Baselines for Bays


UNCLOS, Art. 10.
Bays
1. This article relates only to bays the coasts of
which belong to a single State.
2. For the purposes of this Convention, a bay is a
well-marked indentation whose penetration is in
such proportion to the width of its mouth as to
contain land-locked waters and constitute more
than a mere curvature of the coast. An indentation
shall not, however, be regarded as a bay unless its
area is as large as, or larger than, that of the semicircle whose diameter is a line drawn across the
mouth of that indentation.
3. For the purpose of measurement, the area of an
indentation is that lying between the low-water
mark around the shore of the indentation and a
line joining the low-water mark of its natural
entrance points. Where, because of the presence

Semi-Circle Test. The indentation in question must have


an area as large as or larger than that of a semi-circle,
whose diameter (which constitutes the straight baseline) is
a line drawn across the mouth of the indentation.

Baseline:
o A closing line drawn across the natural
entrance of the bay
o May not exceed 24 nautical miles.

Arc:
o Drawn from the endpoints of the
baseline

Fig. (Magallona, 2005)

If the baseline exceeds 24 nautical miles:


A straight baseline shall be drawn within the bay
such that it encloses the maximum area of water
that is possible with a line not exceeding 24
nautical miles. (Art. 10 [5])

37

PUBLIC INTERNATIONAL LAW

A2015

Fig.
Fig. (Magallona, 2005)

If the bay has more than one mouth because of the


presence of islands:
The baseline shall be drawn on a line as long as
the sum total of the lengths of the lines across
different mouths.

Fig. (Magallona, 2005)

Baselines for Low-tide Elevations


UNCLOS, Art. 13.
Low-tide elevations
1. A low-tide elevation is a naturally formed area
of land which is surrounded by and above water at
low tide but submerged at high tide. Where a lowtide elevation is situated wholly or partly at a
distance not exceeding the breadth of the
territorial sea from the mainland or an island, the
low-water line on that elevation may be used as
the baseline for measuring the breadth of the
territorial sea.
2. Where a low-tide elevation is wholly situated at
a distance exceeding the breadth of the territorial
sea from the mainland or an island, it has no
territorial sea of its own.
A low-tide elevation (LTE) is a naturally formed area of
land surrounded by water, which is above water at low
tide but submerged at high tide.

Baselines for Ports


UNCLOS, Art. 11.
Ports
For the purpose of delimiting the territorial sea,
the outermost permanent harbor works which
form an integral part of the harbor system are
regarded as forming part of the coast. Off-shore
installations and artificial islands shall not be
considered as permanent harbor works.
Port installations forming an integral part of a harbor
system, such as breakwaters, wharves and loading bays,
are regarded as forming part of the coast. (Art. 11 [5])
Baselines shall be drawn from their openings.

Baselines may be reckoned from such low-tide elevations


when such LTE lies wholly or partly within the breadth of
the territorial sea (i.e. 12 nautical miles) from the
mainland or an island.

INTERNAL WATERS AND INNOCENT


PASSAGE
UNCLOS, Art. 8.
Internal waters
1. Except as provided in Part IV, waters on the
landward side of the baseline of the territorial sea
form part of the internal waters of the State.
2. Where the establishment of a straight baseline
in accordance with the method set forth in article
7 has the effect of enclosing as internal waters
areas which had not previously been considered as

38

PUBLIC INTERNATIONAL LAW

such, a right of innocent passage as provided in


this Convention shall exist in those waters.
Internal Waters, Defined
Internal waters are waters of lakes, rivers found within the
coastal state and those waters on the landward side of the
baseline of a coastal state.
Coastal State Has Sovereignty
Over these waters the coastal state has sovereignty as if it
were part of its land territory. This extends to the airspace
over it and to its seabed and subsoil.
No Right of Innocent Passage
There is no right of innocent passage in internal waters, as
such right applies only to the territorial sea and the
archipelagic waters. (Art. 52)
However, if through the use of the straight baseline
method a coastal state is able to enclose as its internal
waters areas which were previously part of the territorial
sea (Art. 8 [2]) or straits used for international navigation
(Art. 35 [a]), the right of innocent passage continues to
exist in such extended internal waters.

CASE CONERNING MILITARY AND


PARAMILITARY ACTIVITIES IN AND AGAINST
NICARAGUA (NICARAGUA v. UNITED STATES)

A2015

Violation of freedom of maritime conference. Any state


whose vessels enjoy a right to innocent passage in
territorial waters of another state also enjoys all the
freedom necessary for maritime navigation.
To lay mines in the territorial waters of another state
during peacetime is an unlawful act. In addition, if a state
lays mines in any waters in which foreign vessels have
rights of access or passage, and fails to give any warning or
notification with regard to such mines, such state is in
breach of international law and acts against the freedom
of navigation and maritime commerce.

SAUDI ARABIA v. ARABIAN AMERICAN OIL


COMPANY
27 ILR 117, supra.

(For a thorough treatment of the case, refer to p. 16)


(*Note: The parts of the case concerning internal waters
are missing. A due search only produced excerpts from the
case relevant only to the contractual issues therein, and
none on internal waters. Hence, no original discussion on
the matter could be included.)
Harbors are internal waters, not territorial seas.
CLASS NOTES

ICJ Reports 1986, p.14 (1986), supra.

MAGALLONA et.al. v. EXECUTIVE SECRETARY


G.R No. 187167 (2011)

(supra. For a more exhaustive discussion, refer to p. 6)


Nicaragua alleges that the United States was in breach of
its obligation under general and customary international
law in violating the sovereignty of Nicaragua. One of the
acts imputed by Nicaragua which are directly attributable
to the United States is the alleged mining (i.e. laying of
mines) of Nicaraguan ports and territorial waters, which
has destroyed 12 vessels, Nicaraguan and foreign alike.
The laying of mines in the internal and territorial waters
of Nicaragua rendered the US in breach of its CIL
obligations not to violate Nicaraguan sovereignty and not
to interrupt peaceful maritime conference.
Evidence shows that the mining was authorized by US
President Reagan, and conducted under the supervision of
US agents.

Congress passed RA 9522, which amended the old


baselines law (RA 3046). The new law, passed under the
pretense that there was a May 2009 deadline set by the
UNCLOS to beat, shortened one baseline, optimized the
location of some basepoints around the Philippine
archipelago and classified adjacent territories (Kalayaan
Group of Islands and Scarborough Shoal) as regimes of
islands.
Petitioners assailed the constitutionality of RA 9522.
Petitioners:

RA 9522 reduces the Philippine maritime


territory by discarding pre-UNCLOS
demarcations embracing the rectangular
area delineated by the Treaty of Paris and
other treaties (and encoded in the
Constitution);

Violation of Sovereignty. The laying of mines within the


ports of a state is governed by the law relating to internal
waters and subject to the sovereignty of the coastal state.
It is therefore that sovereignty which is affected. Such
operations not only constitute breaches of the principle of
non-use of force, but also constitute a violation of
Nicaraguas sovereignty.

39

PUBLIC INTERNATIONAL LAW

It unconstitutionally converts countrys


internal waters into archipelagic waters,
which are subject to maritime passage
and overflight. This exposes Philippine
waters to nuclear and maritime pollution
hazards;
Failure of the law to enclose the Kalayaan
Group of Islands and Scarborough Shoal
within the baselines in favor of their
treatment as regimes of islands takes the
same outside PH territory and
undermines the Philippine claim thereto.
RA 9522 is constitutional.
No diminution of territory. RA 9522 does not delineate
Philippine territory. It is only a baseline law which is, in
turn, but a statutory mechanism to delimit with precision
PH maritime zones and continental shelves pursuant to
UNCLOS. The law and UNCLOS play no role in the
acquisition, enlargement or diminution of territory.
In fact, RA 9522 increased PH total maritime space. While
having reduced territorial seas from (271,136 sq. nm 32,
106 sq. nm), it allowed the country to claim 382,669 sq.
nm of EEZ. This EEZ even extends beyond the waters
covered under the old baselines law. (Caveat: subject to
delineation of boundaries in accordance with UNCLOS in
case of overlapping EEZs)

A2015

Delineation of archipelagic waters valid. Philippine


sovereignty is maintained in archipelagic waters, their
airspace, bed and subsoil. However, this fact of
sovereignty does not preclude the operation of
international law norms subjecting archipelagic waters to
marginal burdens (i.e. right of innocent passage,
archipelagic sea lanes passage) in the interest of
maintaining expeditious international navigation. Rights of
innocent passage are customary norms automatically
incorporated into Philippine Law, and such rights are
concessions to archipelagic states in exchange for their
right to claim archipelagic waters subject to territorial
sovereignty. This notwithstanding, Congress may pass
legislation regulating innocent and sea lanes passage.
Regime of Islands classification valid. KIG and Scarborough
Shoal cannot be enclosed within the baselines because
such areas are located at an appreciable distance from the
nearest shoreline of the Philippines. To enclose them
would constitute a breach of the UNCLOS, particularly:
Art. 47 (3) the drawing of such baselines shall
not depart to any appreciable extent from the
general configuration of the archipelago.
The decision to classify them as regimes of islands
manifests the Philippines observance of its pacta sunt
servanda obligation under UNCLOS. Such areas fall under
Art. 121, which covers any naturally formed area of land,
surrounded by water, which is above water at high tide.
While the Court recognized the move to become an
archipelagic state pursuant to UNCLOS was optional, it
held that Congress could properly do so.
The UNCLOS did not require any new baseline law.
The language of the convention is permissive.
Contrary to the Arroyo Administrations insistence,
the May 2009 deadline was not for archipelagic
states to revise their baselines. It was for purposes of
making claims to an extended continental shelf
(which we did for Benham Rise).
RA 9522 led to a reduction 229,000 sq. nm loss of
territorial waters.
CLASS NOTES

TERRITORIAL SEA
UNCLOS, Art. 3.
Breadth of the territorial sea

Fig.. Delimitation of maritime zones under RA 9522.

Every State has the right to establish the breadth


of its territorial sea up to a limit not exceeding 12
nautical miles, measured from baselines
determined in accordance with this Convention.

40

PUBLIC INTERNATIONAL LAW

A2015

xxxx
UNCLOS, Art. 4
Outer limit of the territorial sea
The outer limit of the territorial sea is the line
every point of which is at a distance from the
nearest point of the baseline equal to the breadth
of the territorial sea.
Territorial Sea, Defined
It is a belt of sea adjacent to internal waters or archipelagic
waters, as the case may be, whose breadth extends up to
a limit not exceeding 12 nautical miles from a coastal
states baselines.

Fig. (Magallona, 2005)

Coastal State Has Sovereignty


A coastal states sovereignty covers the territorial sea,
which extends to the airspace over the same as well as to
its bed and subsoil. (Art. 2 [2])
Right of Innocent Passage
Passage means navigation through the territorial sea for
the purpose of:
a) Traversing that sea without entering internal
waters; or
b) Proceeding to or from internal waters. (Art. 18
[1])
Passage must be continuous and expeditious. But a ship is
allowed to stop and anchor if:
a) Such anchoring or stopping is incidental to
ordinary navigation; or
b) Rendered necessary on account of force majeure
or for the purpose of rendering assistance to
persons, ships or aircraft in danger or distress.
(Art. 18 [2])
UNCLOS, Art. 19.
Meaning of innocent passage
1. Passage is innocent so long as it is not
prejudicial to the peace, good order or security of
the coastal State. Such passage shall take place in
conformity with this Convention and with other
rules of international law.

There is innocent passage if such passage is not prejudicial


to the peace, good order or security of the coastal state.
Non-innocent passage. Passage shall NOT be innocent if
a foreign ship, without the consent of the coastal state,
engages in any of the following acts while passing though
the territorial sea:
a) any threat or use of force against the
sovereignty, territorial integrity or political
independence of the coastal State, or in any
other manner in violation of the principles of
international law embodied in the Charter of the
United Nations;
b) any exercise or practice with weapons of any
kind;
c) any act aimed at collecting information to the
prejudice of the defense or security of the
coastal State;
d) any act of propaganda aimed at affecting the
defense or security of the coastal State;
e) the launching, landing or taking on board of any
aircraft;
f) the launching, landing or taking on board of any
military device;
g) the loading or unloading of any commodity,
currency or person contrary to the customs,
fiscal, immigration or sanitary laws and
regulations of the coastal State;
h) any act of willful and serious pollution contrary
to this Convention;
i) any fishing activities;
j) the carrying out of research or survey activities;
k) any act aimed at interfering with any systems of
communication or any other facilities or
installations of the coastal State;
l) any other activity not having a direct bearing on
passage. (Art. 19 [2])
Rights of protection for the coastal state. A coastal state
is given the following rights of protection with regard to
the right of innocent passage. It may:
1) Take necessary steps in its territorial sea to
prevent non-innocent passage;
2) Take measures to prevent any breach of the
conditions for the admission of ships to internal
waters, with respect to ships proceeding to
internal waters or ports or to ships calling at a
port facility outside internal waters; and
3) Suspend temporarily the innocent passage of
foreign ships in specified areas of the territorial
sea

IF, such suspension is essential for the


protection of its security

Such suspension may take effect only


after publication. (Art. 25)

41

PUBLIC INTERNATIONAL LAW

Duties of a coastal state. The coastal state must not


hamper the innocent passage of foreign ships. While it is
given the right to enforce laws and regulations (infra.)
relating to innocent passage, the coastal state is barred
from:
a) imposing requirements on foreign ships which
have the practical effect of denying or impairing
the right of innocent passage; or
b) discriminating in form or in fact against the ships
of any State or against ships carrying cargoes to,
from or on behalf of any State.
It is also the coastal states duty to give appropriate
publicity to any danger to navigation, of which it has
knowledge, within its territorial sea. (Art. 24)
Laws and regulations by coastal state. A coastal state
may adopt laws and regulations relating to innocent
passage relating to any or all of the following:
a) the safety of navigation and the regulation of
maritime traffic;
b) the protection of navigational aids and facilities
and other facilities or installations;
c) the protection of cables and pipelines;
d) the conservation of the living resources of the
sea;
e) the prevention of infringement of the fisheries
laws and regulations of the coastal State;
f) the preservation of the environment of the
coastal State and the prevention, reduction and
control of pollution thereof;
g) marine scientific research and hydrographic
surveys; and
h) the prevention of infringement of the customs,
fiscal, immigration or sanitary laws and
regulations of the coastal State. (Art. 21)
The coastal state must give due publicity to such laws and
regulations.
The coastal state may not apply law and regulations on the
design, construction, manning and equipment of foreign
ships.
UNLESS, such laws and regulations only give
effect to generally accepted international rules
or standards. (Art. 21)
Sea lanes and traffic separation schemes. The coastal
state, when necessary for the safety of navigation, may
require foreign ships exercising their right to innocent
passage to use designated sea lanes or follow prescribed
traffic separation schemes.
Tankers, nuclear-powered ships and ships carrying nuclear
or other inherently dangerous or noxious substances or
materials may be required to confine their passage to sea
lanes designated by the coastal state.

A2015

In designating sea lanes and prescribing traffic schemes,


the coastal state shall take into account:
a) Recommendations
of
the
competent
international organization;
b) Any channels customarily used for international
navigation;
c) Special characteristics of particular ships and
channels; and
d) Density of traffic.
These must be clearly indicated on charts and given due
publicity. (Art. 22)
Charges which may be levied on foreign ships.
General Rule: No charge for passage.
Exception: Charges for payment of specific services
rendered to the ship. (Art. 26)
Exercise of criminal jurisdiction.
General Rule: Coastal State should NOT exercise
criminal jurisdiction on board a foreign
ship passing through the territorial sea to
arrest any person or to conduct any
investigation in connection with any
crime committed on board the ship
during its passage.
Exceptions: a) if the consequences of the crime
extend to the coastal State;*
b) if the crime is of a kind to disturb the
peace of the country or the good
order of the territorial sea;*
c) if the assistance of the local
authorities has been requested by
the master of the ship or by a
diplomatic agent or consular officer
of the flag State; or
d) if such measures are necessary for
the suppression of illicit traffic in
narcotic drugs or psychotropic
substances. (Art. 27 [1])
*For exceptions A and B, if the ship master so requests,
the coastal state shall notify the diplomatic agent or
consular officer of the flag state before taking any steps.
(Art. 27 [3])
Article 27 also provides for particular situations:
Ship passing though Coastal state has the
the territorial sea
right to take any steps
AFTER LEAVING
authorized by its laws for
internal waters:
the purpose of an arrest
or
investigation
on
board. (Art. 27 [2])
Ship, proceeding Coastal state may not
from a foreign port,
take any steps on board
passing through the
to arrest any person or to
territorial sea
conduct any investigation
WITHOUT
in connection with any

42

PUBLIC INTERNATIONAL LAW

ENTERING internal
waters:

crime committed before


the ship entered the
territorial sea. (Art. 27
[5])

A2015

Q: Which rule does the UNCLOS follow with respect

to criminal jurisdiction over acts committed


during innocent passage?
It seems that the UNCLOS per Art. 27 (1) (a) and (b),
follows the French Rule crimes committed aboard a
foreign merchant vessels 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.

Exercise of civil jurisdiction. A coastal state may not stop


or divert a foreign ship passing through the territorial sea
for the purpose of exercising civil jurisdiction in relation to
a person on board the ship. (Art. 28 [1])
It may likewise not levy execution against or arrest the
ship for the purpose of any civil proceedings, except:
1. with respect to obligations or liabilities assumed
or incurred by the ship itself in the course or for
the purpose of its voyage through the waters of
the coastal State; (Art. 28 [2]) or
2. For the purpose of any civil proceedings, a
foreign ship lying in the territorial sea, or passing
through the territorial sea after leaving internal
waters. (Art. 28 [3])

Belonging to the armed forces of a State bearing


the external marks distinguishing such ships of
its nationality;
Under the command of an officer duly
commissioned by the government of the State
and whose name appears in the appropriate
service list or its equivalent; and
Manned by a crew which is under regular armed
forces discipline. (Art. 29)

The coastal state may require any warship to leave the


territorial sea immediately if:

It does not comply with the laws and regulations


of the coastal State concerning passage through
the territorial sea; and

Disregards any request for compliance therewith


which is made to it. (Art. 30)
A warships flag state shall bear international responsibility
for any loss or damage to the coastal state resulting from
the non-compliance by a warship or other government
ship operated for non-commercial purposes with the laws
and regulations of the coastal state concerning passage
through the territorial sea or with the provisions of this
Convention or other rules of international law. (Art. 31)

THE GULF OF SIDRA INCIDENT

Rules for special ships. UNCLOS provides for special


rules governing particular ships exercise of the right to
innocent passage.
Submarines,
Underwater
Vehicles
Foreign nuclearpowered ships, and
ships carrying
nuclear or other
inherently
dangerous or
noxious substances

Navigate on the surface; and


Show their flag (Art. 20)

Carry documents; and


Observe special precautionary
measures established for such
ships by international
agreements (Art. 23)

Q: Are warships allowed innocent passage through


the territorial sea?

Yes. The right to innocent passage pertains to all


ships, including warships. UNCLOS lays down in
Articles 29-32 special rules applicable only to
warships and other government ships operated for
non-commercial purposes. (infra)
Rules on warships. - A "warship" means a ship:

The Gulf of Sidra is a maritime area situated north of Libya


covering an area of 22,000 sq. mi. In 1973, the Libyan
government announced that the Gulf of Sidra is an integral
part of the Libyan Arab Republic, with sovereignty thereon
having been exercised through history, and thus it
constituted internal waters. It proceeded to delimit its
claimed territorial waters by drawing the gulfs closing line
300 miles across its mouth, with the warning that any
foreign vessel that would breach the line without
authorization would be in violation of Libyan sovereignty.
Further, it claimed that its 12mi territorial sea limit was to
be reckoned from this line. This position has led to several
incidents involving US ships.
Libya:

The gulf is a historic bay over which


Libya has exercised sovereignty through
history. As such, the Gulfs closing line

43

PUBLIC INTERNATIONAL LAW

US:

A2015

need not satisfy UNCLOS provisions;


Libya may restrict access to the waters
pursuant to its sovereignty.
The gulf cannot be regarded as internal
waters;
Requirement of prior authorization for
entry is contrary to the international
principles of freedom of navigation.

Gulf of Sidra is not a historic bay, and waters within it are


not internal waters. It may not validly restrict access
thereto.
UNCLOS lays down rules on for a body of water to be
properly considered as a bay (i.e. semi-circle test, supra.).
An exception to this requirement is if a body of water is a
historic bay. (UNCLOS, Art. 10 *6+)
Claims to historic waters in general are relics of an older
and by now a largely obsolete legal regime, and the
international community has firmly rejected any attempts
to establish any new maritime claims. Such claims
encroach on what would otherwise be considered the
common domain of the international community and
would hence deprive the international community of
certain portions of the high seas.
In the instant case, Libya drew a 300 mile closing line at
the mouth of the gulf, well exceeding the 24mi limit set by
the UNCLOS., under the premise that the gulf fell under
the historic bay exception. However, this claimed
exception must fail because Libya has failed to offer any
evidence to substantiate its claim of historical sovereignty
over the gulf. In fact, prior to 1973, it did not claim the gulf
as a historic bay. Neither is their mention of the Gulf in the
survey of historic bays conducted by the UN.
As such, the acts of Libya in restricting access to the waters
of the gulf beyond 12mi from its coast (not the Libyandrawn closing line) constitutes illegal interference of
international navigation and is incompatible with the
international legal regime of the high seas.

ANGLO-NORWEIGIAN FISHERIES CASE (UNITED


KINGDOM v. NORWAY)
ICJ Reports 1951, p. 116 (1951), supra.

(supra. For an exhaustive discussion, refer to p. 8)

THE CASE CONCERNING THE LAND, ISLAND


AND MARITIME FRONTIER DISPUTE (EL
SALVADOR v. HONDURAS, with NICARAGUA
intervening)
(1992), supra.

(supra. For a more exhaustive discussion, refer to p. 34)

UNITED STATES v. CALIFORNIA


382 US 448 (1966)

(This is the third of a line of cases concerning the


delimitation of California internal waters as against federal
waters.)
In a 1947 decision (United States v. California, 332 US 804),
the Court granted the US Federal government dominion
over submerged lands and mineral rights underlying the
Pacific Ocean beyond 3 nautical miles seaward from the
ordinary low water mark of the coast of California. Areas
within the 3 mile belt would constitute internal waters of
the state, and those without would constitute federal
waters.
This was followed by a 1965 (United States v. California,
381 US 139) decision which included bays and other
coastal features which satisfied the semi-circle test (supra.
p. 37) as well as historic bays as part of internal waters of
California.
This 1966 decision is a supplemental decree, which held
that the subsoil and seabed of the continental shelf:
Within 3 nautical miles seaward, from the COASTLINE
of California (not just from the low water mark as in
the 1947 decision) appertains to CALIFORNIA; and
Those beyond 3 nautical miles appertains to the
UNITED STATES.
The Court made use of the following definitions:
Coastline

Line of mean lower low water on the mainland,


islands, and on low tide elevations within 3
geographic miles from the line of mean lower low
water; or
Line marking seaward limit of inland waters; and
Includes outermost permanent harbour works that
form an integral part of harbour system.

Island
It is a naturally formed area of land surrounded by water,
which is above the level of mean high water
Low Tide Elevation
A naturally formed area of land surrounded by water at
mean lower low water:
above the level of mean lower low water; but
not above the level of mean high water
Mean Lower Low Water
The average elevation of all daily lower low tides
Mean High Water

44

PUBLIC INTERNATIONAL LAW

The average elevation of all high tides


Inland Water
Waters landward of the baseline of the territorial sea,
which are recognized as internal waters of the US under
the Convention on the Territorial Sea and the Contiguous
Zone:
a) Any river or stream flowing directly into the sea,
landward of a straight line across its mouth;
b) Any port, landward of its outermost permanent
harbour works and a straight line across its
entrance;
c) Any historic bay, over which the US has
traditionally asserted and maintained dominion
with the acquiescence of foreign nations;
d) Any other bay which satisfies the semi-circle test.
(supra)

A2015

The Inland Water Line shall be drawn in accordance


with the definitions of the ICTS.
The ICTS definition of the inland water line provides:
"The line of ordinary low water along that
portion of the coast which is in direct contact
with the open sea and the line marking the
seaward limit of inland waters."
The case also proceeds to consider whether certain
features of Louisiana coastal features or artificial works fell
within the term inland waters. To wit:
Dredged
Channels
leading to
inland
harbors:

This case was decided before UNCLOS.


The importance of this case is the definitions of terms
used in maritime delimitation that it provides.
CLASS NOTES

UNITED STATES v. LOUISIANA


394 US 11 (1969)
In a previous case between U.S. vs. Louisiana, the Court
held that based on the Submerged Lands Act of 1953, U.S.
quitclaimed to Louisiana the lands underlying the Gulf of
Mexico within 3 geographical miles of the coastline. In that
Act, the coast line was defined as the line marking the
seaward limit of inland waters.

Historic
Bays:

NOT INLAND WATERS.


The permanent harbor works contemplated
are "raised structures" and "installations"
which were "part of the land" and which, in
some sense enclosed and sheltered the
waters within.
Historic bays are not defined in the
Convention. The national government, may,
if it chooses, rely on State action to support
its own historic claim as against other
nations. But, a State cannot oblige it to do so
or accept State action as binding in a
domestic case such as the present one

STRAITS AND TRANSIT PASSAGE


Straits, In General
It is a comparatively narrow passageway connecting two
large bodies of water. (Merriam-Websters 11th Collegiate
Dictionary, 2003)

U.S. and Louisiana asks for a supplemental decree


designating the boundary of the lands under the Gulf
owned by Louisiana, the parties differing primarily with
respect the part of the coastline.
US:

Louisiana:

Location of the line should be determined


by definitions of inland waters contained
in the International Convention on the
Territorial Sea and the Contiguous Zone
(ICTS) and the US v. California (1966) case
(supra.).
Location of the line should be determined
by the Inland Water Line fixed by the
Commandant of the Coast Guard pursuant
to a 1895 Federal statute which directed
the drawing of lines dividing the high seas
from rivers, harbors, and inland waters;
ICTS was not intended to be the exclusive
determinant of inland or territorial waters
or to divest a nation of waters which it had
long considered subject of its sole
jurisdiction.

Mediterranean
Sea

Atlantic
Ocean
Fig.

Straits used for International Navigation


This pertains to water between two areas of the high seas
or between two exclusive economic zones. (Art. 37)
UNCLOS, Art. 19.
Right of transit passage
1. In straits referred to in article 37, all ships and
aircraft enjoy the right of transit passage, which

45

PUBLIC INTERNATIONAL LAW

shall not be impeded; except that, if the strait is


formed by an island of a State bordering the strait
and its mainland, transit passage shall not apply if
there exists seaward of the island a route through
the high seas or through an exclusive economic
zone of similar convenience with respect to
navigational and hydrographical characteristics.
2. Transit passage means the exercise in
accordance with this Part of the freedom of
navigation and overflight solely for the purpose of
continuous and expeditious transit of the strait
between one part of the high seas or an exclusive
economic zone and another part of the high seas
or an exclusive economic zone. However, the
requirement of continuous and expeditious transit
does not preclude passage through the strait for
the purpose of entering, leaving or returning from
a State bordering the strait, subject to the
conditions of entry to that State.

A2015

the regime of freedom of navigation will come


into play)
Strait connects the high seas or exclusive
economic zone with the territorial sea of a third
(foreign) state; (Art. 45 [1b])
Strait is formed by an island of a State bordering
the strait and its mainland, and there exists
seaward of the island a route through the high
seas or through an EEZ of similar convenience.
(Art. 38 [1])

Illustrations.

3. Any activity which is not an exercise of the right


of transit passage through a strait remains subject
to the other applicable provisions of this
Convention.
Fig.

Right of Transit Passage


It is the right of ships and aircraft to exercise freedom of
navigation and overflight solely for the purpose of
continuous and expeditious transit through straits used for
international navigation (i.e. strait between one part of
the high seas or an EEZ and another part of the high seas
or EEZ). (Art. 38 [2])
When applicable. Provisions for transit passage will
apply given the following:

The strait is used for international navigation (i.e.


provides access between a high sea/EEZ and
another high sea/EEZ); (Art. 37)

Such use is an unavoidable consequence of


convenience of navigation (i.e. there is no other
route of similar convenience); (Art. 36)

The strait lies within the territorial seas of


bordering states; (implied from the exception in
Art. 36, infra.; see discussion in the illustrations)

The vessel traverses a strait in a continuous and


expeditious manner. (Art. 37 [2])
When not applicable. No right of transit passage exists
in the following instances:

Strait is not used for international navigation;


(Art. 37)

Passage through the strait is regulated by a longstanding international convention; (Art. 35 [c])

Another route of similar convenience exists in


the high seas or exclusive economic zone lying
within the strait; (Art. 36) (because in such cases,

In this illustration, a right to transit passage may be


invoked because you have a situation where:

The strait (in bracket) provides access between


two bodies of high seas/EEZ;

There is no other route of similar convenience


save for the use of this strait;

There is no high sea zone/EEZ within the strait


that vessels may use.
o Hence, in this students opinion, the
strait cannot have bodies of water not
covered by the territorial sea of any
bordering state.

Fig.

In this next illustration, there can be no transit passage


because there exists through the strait a route through
the high seas or through an exclusive economic zone of
similar convenience (Art. 36). The vessel can thus pass

46

PUBLIC INTERNATIONAL LAW

A2015

through the strait using high sea/EEZ waters by invoking


freedom of navigation (constituting a route of similar
convenience), eliminating the need to use transit passage.
Duties of states bordering straits used for international
navigation. Bordering states have the following
obligations under the regime of transit passage:

Not to impede or hamper transit passage; (Art.


38 [1]; 44)

Give appropriate publicity to any danger to


navigation or overflight within or over the strait
of which they have knowledge. (Art. 44)
No suspension of transit passage. Unlike in innocent
passage (supra, p. 41), transit passage cannot be
suspended unilaterally. (Art. 44)
Transit passage is
innocent passage.

basically

non-suspendible
CLASS NOTES

Duties of vessels in transit passage. Ships and aircraft,


while exercising the right of transit passage, shall:
a) proceed without delay through or over the strait;
b) refrain from any threat or use of force against
the sovereignty, territorial integrity or political
independence of bordering states, or in any
other manner in violation of the principles of
international law embodied in the UN Charter;
and
c) refrain from any activities other than those
incident to their normal modes of continuous
and expeditious transit unless rendered
necessary by force majeure or by distress;
For Ships:
comply with generally accepted international
regulations, procedures and practices for safety
at sea, including the International Regulations
for Preventing Collisions at Sea;
Comply with generally accepted international
regulations, procedures and practices for the
prevention, reduction and control of pollution
from ships.
For Aircraft:
observe the Rules of the Air established by the
International Civil Aviation Organization as they
apply to civil aircraft; state aircraft will normally
comply with such safety measures and will at all
times operate with due regard for the safety of
navigation;
At all times monitor the radio frequency
assigned by the competent internationally
designated air traffic control authority or the
appropriate
international
distress
radio
frequency. (Art. 39)

Authorization for research and survey activities. Prior


authorization from the bordering states is required for
foreign vessels, including marine scientific research and
hydrographic survey ships, to carry out any research and
survey activities during transit passage. (Art. 40)
Sea lanes and traffic separation schemes. Bordering
states may designate sea lanes and prescribe traffic
separation schemes for navigation in straits where
necessary to promote the safe passage of ships. (Art. 41
[1]) They shall:

Such schemes shall conform to generally


accepted international regulations; (Art. 41 [3])
and

Must be indicated on charts and given due


publicity. (Art. 41 [6])
Such designation or prescription, upon referral by a
bordering state, is subject to:
1. adoption by the competent international
organization; and
2. agreement by the bordering states (Art. 41 [4])
Laws and regulations by coastal state. A bordering state
may adopt laws and regulations relating to innocent
passage relating to any or all of the following:
a) the safety of navigation and the regulation of
maritime traffic;
b) the prevention, reduction and control of
pollution, by giving effect to applicable
international regulations regarding the discharge
of oil, oily wastes and other noxious substances
in the strait;
c) with respect to fishing vessels, the prevention of
fishing; and
d) the loading or unloading of any commodity,
currency or person in contravention of the
customs, fiscal, immigration or sanitary laws and
regulations of States bordering straits.
The coastal state must give due publicity to such laws and
regulations.
Flag state/state of registry liability. Violation of the
bordering states laws and regulations and other UNCLOS
provisions imputes international responsibility on the flag
state of a ship or the state of registry of an aircraft for any
resulting loss or damage to the bordering states. (Art. 42)

Q: Why cannot we simply rely on the right to


innocent passage over territorial seas in passing
through the straits? Why bother with transit
passage?
Application of the regime of innocent passage to
situations covered by transit passage (i.e. passage
through a strait where there is no other route of
similar convenience) would give a coastal state the
power to suspend passage over critical straits used

47

PUBLIC INTERNATIONAL LAW

for international navigation a power not given to


coastal states under the regime of transit passage.
Imagine the implication to international navigation if
Spain or Morocco were given the power to restrict
passage over the Strait of Gibraltar the body
connecting the Mediterranean Sea to the Atlantic
Ocean.

Q: How does transit passage differ from innocent


passage?

Transit Passage
Navigation, overflight
Submarines in normal
mode
Cannot be suspended
Sea lanes/traffic separation
schemes subject to IO
adoption and agreement
among bordering states

Innocent Passage
Navigation only
Submarines surfaced and
showing flag
Can
be
temporarily
suspended
Sea lanes/traffic separation
only need to take into
account
IO
recommendations

CORFU CHANNEL CASE


ICJ Reports 1949, p. 4 (1949), supra.

(supra. For a discussion on the other aspects of the


decision, refer to p.15)
(The following discussion pertains to the first of three
incidents in the Corfu Channel, i.e. Albania prohibited Royal
Navy ships from passing through Corfu Channel and the
former fired on the latter during passage.)
UK:
Albania:

Innocent passage through straits is a right


under international law
While Corfu Channel is a strait
geographically, it is not an international
highway where right of passage exists
because:
o It is not a necessary route between
two high seas;
o Hardly
used
in
international
navigation; used exclusively for local
traffic.
Foreign warships have no right to pass
through Albanian territorial waters without
prior authorization from Albania;
o Having been at war with Greece at
the time, it had a right to restrict the
passage of warships;
o The Royal Navy ships sailed in combat
formation, and number of guns and
ships used betrayed an absence of
innocence and showed an intention
to intimidate Albania

A2015

Corfu Channel is a strait where right of passage exists.


The test in determining whether a body of water is a strait
as contemplated in international law is:

Its geographical situation as connecting two parts of


the high seas; and

The fact of its being used for international navigation.


The volume of traffic passing through the strait is not so
much of a criterion. Also, it was shown that it is an
important route between the Aegean and Adriatic seas
used by vessels of different flags, both merchant and
military.
Warships have a right to transit passage in times of peace.
States in time of peace have a right to send their warships
through straits used for international navigation between
two parts of the high seas without the previous
authorization of a coastal state, provided that passage is
innocent.
While Albania may have been justified in issuing
regulations with respect to the passage of warships, it
could not prohibit such passage or in subjecting it to the
requirement of special authorization.
The allegation that the Royal Navy ships conduct
threatened Albanian security is without basis. The ships
passed through the channel in a straight line formation,
and guns were not loaded in in proper stowage position. It
was only when the mines exploded (second incident) that
the group went into combat formation, which was a
natural reaction thereto.

ARCHIPELAGOS
Archipelago, Defined
It is a group of islands, including parts of islands
interconnecting waters and other natural features which
are so closely interrelated that such islands, waters and
natural features form an intrinsic geographical, economic
and political entity, or which historically have been
regarded as such. (Art. 46 [b])
Archipelagic State
It is a state made up wholly of one or more archipelagos. It
may include other islands. (Art. 46 [a])
Straight Archipelagic Baselines; How Drawn
An archipelagic state may draw straight baselines by
joining the outermost points of the outermost islands and
drying reefs of the archipelago. (Art. 47 [1])

Limitation in drawing straight baselines.

48

PUBLIC INTERNATIONAL LAW

1)

2)
3)

Within such baselines, the main islands must be


included and an area in which the ratio of the
area of the water to the area of the land,
including atolls is between 1:1 and 9:1; (ibid.)
Baselines shall not exceed 100 nautical miles;
(Art. 47 [2])
Baselines drawn shall not depart to any
appreciable
extent
from
the
general
configuration of the archipelago; (Art. 47 [5])
(Refer to Art. 47 for other limitations)

The breadths of the following maritime zones are


measured from the archipelagic baselines:

Territorial sea

Contiguous zone

Exclusive economic zone

Continental shelf (Art. 48)

A2015

All ships and aircraft are entitled to this right. (Art. 53.2)
These include warships and submarines. Navigation of
such ships is meant to be in normal mode; as such,
submarines need not surface (unlike in innocent passage.)
No suspension of archipelagic sea lanes passage. Like in
transit passage (supra, p. 47), archipelagic sea lanes
passage cannot be suspended unilaterally. (Art. 54,
applying 44)
Archipelagic sea lanes passage may not suspended by
the archipelagic state. This differs from the right of
temporary suspension granted to archipelagic states
with respect to right of innocent passage over
archipelagic waters.
CLASS NOTES

Archipelagic Waters
This refers to the waters enclosed by the archipelagic
baselines, regardless of their depth or distance from the
coast. (Art. 49 [1])

Designation of sea lanes and air routes. It is the


archipelagic state that designates sea lanes and air routes,
and prescribes traffic separation schemes, subject to the
approval of a competent international organization (i.e.
International Maritime Organization). (Art. 53 [9])

Archipelagic State Has Sovereignty


The sovereignty of the archipelagic state extends to the
archipelagic waters, its superadjacent airspace, bed and
subsoil, and the resources contained therein. (Art. 49 [1; 2])

If the archipelagic state does not designate such lanes or


routes, ships and aircraft may exercise the right through
the routes normally used for international navigation. (Art.
53 [12])

Right of Innocent Passage over Archipelagic Waters


Ships of all states have the right of innocent passage
through archipelagic waters as it applies to territorial seas
(supra. p. 47). (Art. 52)

Application of Rules of Transit Passage. The rules of


transit passage governing the following apply to
archipelagic sea lanes passage: (Art. 54)

Duties of vessels in transit passage (Art. 39) (supra. p.


47)

Authorization for research and survey activities (Art.


40) (supra. p. 47)

Laws and regulations by coastal state. (Art. 42)


(supra. p. 47)

Duties of states bordering straits used for


international navigation. (Art. 44) (supra. p. 47)

Right may be suspended. the archipelagic state may


temporarily suspend the right of innocent passage subject
to the following conditions:
1. only with respect to specified areas of the
archipelagic waters;
2. if it is essential for the protection of the security of
the state; and
3. without discrimination among foreign ships. (Art. 52
[2])
Note that what can be suspended is the right of
innocent passage over archipelagic waters, NOT the
right of archipelagic sea lanes passage.
CLASS NOTES
Right of Archipelagic Sea Lanes Passage
It is the right of all foreign ships and aircraft to have
continuous, expeditious and unobstructed passage in
designated sea lanes and air routes through or over
archipelagic waters and the adjacent territorial sea of the
archipelagic state, (Art. 53 [1])
Such passage contemplates transit between one part of
the high seas or an EEZ and another part of the high seas
or an EEZ. (Art. 53 *3+)

Q: How does archipelagic sea lanes passage differ


from transit passage?

Archipelagic Sea Lanes


Transit Passage
Passage
Navigation; Overflight
Purpose of continuous, expeditious and unobstructed
transit
Submarines in normal mode
Cannot be suspended
Over archipelagic waters Over straits used for
and superadjacent airspace international
navigation
and superadjacent airspace
Sea lanes/traffic separation Sea lanes/traffic separation
schemes subject to IO schemes subject to IO
adoption and agreement adoption and agreement
between
IO
and among bordering states
archipelagic state

49

PUBLIC INTERNATIONAL LAW

A2015

Other Rights With Respect to Archipelagic Waters

Rights under existing agreement on the part of the


third states should be respected by the archipelagic
state; (Art. 51 [1])

Archipelagic state shall recognize traditional fishing


rights and other legitimate activities of the
immediately adjacent neighboring states; and (Art.
51 [1])

Respect existing submarine cables laid by other


States and passing through its waters without
making a windfall. (Art. 51 [2])

Protective Jurisdiction; Not Sovereignty


A coastal state does not have sovereignty over the
contiguous zone, and instead may only exercise
jurisdiction for particular purposes laid down by UNCLOS.

UNCLOS rules on archipelagos and archipelagic


waters present significant concerns for the
Philippines:

It reduces Philippine territorial waters to 12


nautical miles from the archipelagic
baselines (from all the waters within the
baselines under the RA 3046 or the old
baselines law)

Philippine archipelagic waters are subjected


to archipelagic sea lanes passage, which
conflicts with the Philippine Constitutions
treatment of such waters as internal
waters of the Philippines, (which precludes
the application of innocent passage).

The concept of the Contiguous Zone was based on


the historical extent of a coastal states sovereignty is
that within the reach of a cannonball. This exercise
of limited protective jurisdiction was deemed
necessary in order to combat smuggling.
CLASS NOTES

These objections were passed upon by the Supreme


Court in the case of Magallona v. Executive Secretary.
(supra., p. 39)
CLASS NOTES

CONTIGUOUS ZONE

Such protective jurisdiction may only be exercised by the


coastal state for:
a) Prevention of infringement, and
b) Punishment of infringement of customs, fiscal,
immigration or sanitary laws and regulations.
(Art. 19)

CONTINENTAL SHELF
UNCLOS, Art. 76.
Definition of the continental shelf
1. The continental shelf of a coastal State
comprises the seabed and subsoil of the
submarine areas that extend beyond its territorial
sea throughout the natural prolongation of its land
territory to the outer edge of the continental
margin, or to a distance of 200 nautical miles from
the baselines from which the breadth of the
territorial sea is measured where the outer edge of
the continental margin does not extend up to that
distance.

UNCLOS, Art. 19.


Contiguous zone
1. In a zone contiguous to its territorial sea,
described as the contiguous zone, the coastal State
may exercise the control necessary to:
a) prevent infringement of its customs, fiscal,
immigration or sanitary laws and regulations
within its territory or territorial sea;
b) punish infringement of the above laws and
regulations committed within its territory or
territorial sea.
2. The contiguous zone may not extend beyond 24
nautical miles from the baselines from which the
breadth of the territorial sea is measured.
Contiguous Zone, Defined
It is a maritime zone adjacent to the territorial sea where
the coastal state may exercise protective jurisdiction,
whose breadth extends up to a limit not exceeding 24
nautical miles from a coastal states baselines.

Continental Shelf, Defined


It is the seabed and subsoil of the submarine areas
extending beyond the territorial sea of the coastal state
throughout the natural prolongation of its land territory
up to:
1) A distance of 200 nautical miles from the
baselines of the territorial sea where the outer
edge of the continental margin does not extend
up to that distance; OR
2) The outer edge of the continental margin.
Continental Margin
It is the submerged prolongation of the land mass of the
coastal state, consisting of the:

Continental Shelf Proper

Continental Slope

Continental Rise (Art. 76 [3])


Re: 1)

50

PUBLIC INTERNATIONAL LAW

A2015

Continental margin
extends less than 200
nautical miles

Continental shelf will extend


up to the maximum 200
nautical miles (by provision
of UNCLOS)
territorial sovereignty of the coastal state. (Aegean Sea
Continental Shelf Case, infra.)

Fig..

Re: 2)
Continental margin
extends more than 200
nautical miles:

Continental shelf will extend


up to the outer edge of the
continental margin

Outer Edge of the Continental Margin. It shall be


determined using either of the following: (Art. 76 [4])
The lines drawn using either of the two options stated
above must not exceed:
A. 350 nautical miles from the baselines; (Point A) OR
B. 100 nautical miles from the 2500 meter isobath (i.e.
the point where the waters are 2500 meters deep)
(Point B)

Natural resources covered. The coastal state has rights


over the following natural resources:

Mineral and other non-living resources of the


seabed and subsoil;

Living organisms belonging to sedentary species


(i.e. organisms which, at the harvestable stage,
either are immobile on or under the seabed or
are unable to move except in constant physical
contact with the seabed or the subsoil.)
Artificial Islands, Installations and Other Structures. The
rights of the coastal state with regard to artificial islands,
installations and other structures on the continental shelf
are the same as those of coastal states in EEZs.(Art. 80)
(refer to Art. 60, infra. p. 59)
Drilling. The coastal State shall have the exclusive right
to authorize and regulate drilling on the continental shelf
for all purposes. (Art. 81)
Marine Scientific Research. This may only be conducted
on the continental shelf with the consent of the coastal
state. (Art. 242 [2])
Does Not Affect the Legal Status of the
Superadjacent Waters and/or Airspace
Note that the continental shelf pertains to the seabed
and subsoil of submarine areas, and does not involve the
superadjacent waters and/or airspace. As such, the coastal
states rights over the shelf do not affect the legal status of
the superadjacent waters or of the airspace above them.
(Art. 78 [1])

Fig..

Rights of the Coastal State


Natural resources. The coastal state exercises exclusive
sovereign rights over the continental shelf for the purpose
of exploring it and exploiting its natural resources. (Art. 77
[1])
They are exclusive in the sense that if the coastal state
does not explore the continental shelf or exploit its
resources, no one may undertake such activities without
its express consent. (Art. 77 [2])
These exist as inherent rights, ipso facto and ab initio, by
virtue of its (coastal states) sovereignty over the land, and
as an extension of it in an exercise of sovereign rights.
(North Sea Continental Shelf Case, infra.) They are an
emanation from and an automatic adjunct of the

Hence, such rights must be exercised that does not


infringe the freedoms of other states provided for by
UNCLOS (e.g. navigation and overflight, right to law
submarine cables and pipelines [Art. 79])
Right to Law Submarine Cables and Pipelines
All States are entitled to lay submarine cables and
pipelines on the continental shelf.
Non-interference by coastal state.
General Rule: Coastal state may not impede the laying
or maintenance of such cables or
pipelines
Exception: The coastal state may do the following:
1) Take reasonable measures for
a. Exploration of the continental
shelf;
b. Exploitation
of
natural

51

PUBLIC INTERNATIONAL LAW

resources;
Prevention, reduction and
control of pollution from
pipelines
(For
pipelines)
Give/withhold
consent with regard to the route of
such pipelines.
c.

2)

Q: What are the differences in rights and duties

existing between the continental shelf and the


exclusive economic zone given that both extend
200 nautical miles from the baseline?

Continental Shelf
Rights over living and nonliving resources, excluding
sedentary species
Rights to resources of the
superadjacent
waters,
seabed and subsoil

EEZ
Rights over mineral and
non-living resources, and
sedentary species
Rights to resources of the
seabed and subsoil only.
Duty of the coastal state to
conserve
or
share
resources

NORTH SEA CONTINENTAL SHELF CASES


(GERMANY v. DENMARK; GERMANY v.
NETHERLANDS)

A2015

In making delimitations, the factors to be taken into


account were to include:

the general configuration of the coasts of the parties,


as well as the presence of any special or unusual
features;

so far as known or readily ascertainable, the physical


and geological structure and natural resources of
the continental shelf areas involved;

the element of a reasonable degree of


proportionality between the extent of the
continental shelf areas appertaining to each state
and the length of its coast measured in the general
direction of the coastline, taking into account the
effects, actual or prospective, of any other
continental shelf delimitations in the same region.

CASE CONCERNING THE CONTINENTAL SHELF


(LIBYA v. MALTA)
ICJ Reports 1985, p. 13. (1985)

By a Special Agreement, Libya (a North African state) and


Malta (an island state in the Mediterranean Sea)
submitted their dispute concerning the delimitation of the
continental shelf between them to the ICJ.
Libya:

ICJ Reports 1969, p.5 (1969), supra.

(supra. For a more exhaustive discussion, refer to p. 7)

Germany:

Denmark,
Netherlands:

Delimitation must be based on giving


parties their just and equitable share
in proportion to the length of their
coastline;
Use of equidistance principle is not a
rule of customary international law;
Use of the equidistance principle would
lead to inequitable outcomes for
Germany (i.e. it would curtail what it
deems to be its proper share on the
basis of its proportionality to the length
of its coastline along the North Sea)
The Geneva Convention does not bind
states which are not parties thereto;
Delimitations should be governed by the
equidistance principle, per Art. 6 (2) of
the Geneva Convention on the
Continental Shelf;

Points to remember:
There is no rule of customary international law requiring
the use of the equidistance principle.

Malta:

Geological criteria should be the basis;


o The natural prolongation of their land
territories should be used as a basis
for the delimitation;
o There exists in the area between
them a rift-zone a series of
features in the seabed (e.g. trenches,
troughs) which suggest a geological
discontinuity between them; this
should be used as the boundary;
o Principle of proportionality should be
used (i.e. state with a longer coastline
should get more vis--vis one with a
shorter coastline);
Application of the equidistance method is
not obligatory.
Distance principle should be the basis;
o Equidistance method should be used,
by reference to distances from their
respective coasts, regardless of the
physical characteristics

The delimitation is to be accomplished by using an


equitable solution, effected by use of equitable principles
and taking into account all relevant circumstances.
The Court applied the Article 83 UNCLOS, which was not
yet effective at the time but had been already been
adopted by an overwhelming majority of states (hence
taken as evidence of customary international law). It called
for an equitable solution in the delimitation of

52

PUBLIC INTERNATIONAL LAW

A2015

continental shelves. This provision sets the goal to be


achieved, but is silent as to the method to be used.

line from the low-water marks of the Libyan and Maltese


coasts which constitutes the provisional first step.

Libyas rift-zone argument was rejected. The court noted


that according to the UNCLOS, a state is entitled to claim a
continental shelf of up to 200 nautical miles, irrespective
of the outer limit of the continental margin. Geophysical
factors only come into play when the continental margins
exceed 200 nautical miles. In the instant case, the distance
from the Libyan to the Maltese coasts does not exceed
400 nautical miles; hence each states claim cannot exceed
200 nautical miles each. Thus, the situation where
geophysical factors (e.g. rift zones) can terminate the
extent of claims does not arise.

Next, the Court used the following relevant circumstances


for the purpose of adjusting the provisional line in order to
arrive at an equitable result:

Coastal lengths of parties; The relevant portion of


the coast of Libya 192 miles long, while Maltas is
only 24 miles. This difference is so great as to justify
the adjustment of the median line closer to Malta;

Distance between the coasts;

Placement of basepoints governing any equidistance


line;

General geographical context.

The principle of proportionality of coastlines as advanced


by Libya is not a general principle providing an
independent source of rights to areas of a continental
shelf. It is only one of several factors that could be used as
a means of correcting inequitable effects produced by
particular geographical features in a delimitation. It should
not be used on its own.

The court thus arrived at the following delimitation line, as


illustrated:

Neither is equidistance a method which MUST be used.


The court did not see any state practice that proves the
existence of a rule prescribing the use of equidistance. The
particular circumstances of the case may still require the
adoption of other methods and the application of
equitable principles.
Examples of equitable principles that may be applied are:

Principle that there is to be no refashioning of


geography or compensating of inequalities of
nature;

Non-encroachment of natural prolongations;

Equity does not imply equality;

That there is no question of distributive justice.


There is no legal limit as to the considerations which states
may take into account. However, only those pertinent to
the case will qualify for inclusion.

AEGEAN SEA CONTINENTAL SHELF CASE


ICJ Reports 1978, (1978)

The court refused to consider the following:


Landmass;
Economic positions of the parties;
Security and defense factors;
Equality of states
In arriving at an equitable solution to the delimitation, the
process should be done in stages:
1. First, draw a provisional line;
2. Second, examine the provisional line using
equitable principles;
3. Third, correct the initial result accordingly.
In the instant case, the Court found that the equidistance
method is an equitable method which can be used in cases
where the delimitation is to be effected between states
with opposite coasts. It is thus the drawing of a median

Turkey granted petroleum exploration permits in the


Aegean Sea over areas of seabed that Greece claimed
belonged to its islands. Greece took this as a unilateral
delimitation of the Aegean continental shelf, and thus
instituted this present action.

53

PUBLIC INTERNATIONAL LAW

Greece:
Turkey:

A2015

Greek islands in the Aegean are entitled to


their own continental shelves.
Greek islands close to the Turkish coasts do
not possess continental shelves of their
own;
The sea-bed of the Aegean geographically
forms
a
natural
prolongation of
the Turkish land mass; hence the Turkish
continental shelf should extend further into
the Aegean up to the median line.

The Court does not have jurisdiction over the case; hence.
it declined to rule on the continental shelf issue.
While the Court refused to rule on the substantive
issues of the case, the controversy nonetheless
presents an interesting case of continental shelf
delimitation. This issue remains unresolved to this
day.
Siding with Greece would significantly diminish
Turkeys rights to the Aegean given their geographical
proximity. Siding with Turkey would deprive Greek
islands of its waters.
Sirs proposed solution: Give Turkey its continental
shelf, but leave small pockets of water as Greek
territorial seas.
The Portico Doctrine in the Eritrea-Yemen Arbitration
Case (supra., p. 31) can find application here. (Karichi
Notes, citing Prof. Roque, 2010)
CLASS NOTES

ANGLO-FRENCH ARBITRATION CASE


ICJ Reports 1979, (1979)

The United Kingdom and France entered into negotiations


and s subsequent 1977 arbitration for the delimitation of
the continental shelf between them. This decision provided
for a:

primary boundary line between the French coast and


the UK mainland coast, drawn on the basis of the
equidistance principle; (Line A) and

12-mile UK exclave north of the Channel Islands (UK


territory), since said islands were located within the
French side of the primary boundary line. (Line B)

UK

B
A
UK:

France:

France

Technical issue: the chart provided for in


and the dispositif of the 1977 decision
ignored certain basepoints that should be
sued in drawing the median/equidistance
line; hence it did not reflect description in
the decision itself, which must be corrected.
The mistake is but a minor inconsistency
which can be ignored;
The dispositif must be followed;
modification is not allowed.

The changes may be effected; the boundary should be


rectified so as to take account of the base-points
previously not taken into account.
Parties agree that there is a discrepancy in the drawing of
the boundary. It was a material error which the court has
the power to rectify. The court left it to the parties to
effect a correction consistent with the decision.
Court proceeded to discuss the actual delimitation of the
continental shelf.
Equidistance-Special Circumstances Method
Article 6 of the Geneva Convention on the Continental
Shelf of 1958 provides that in the absence agreement
between the parties, the boundary between the
continental shelves of opposite states is the median line
whose every point is equidistant from the nearest points
of the baseline.
An exception to this rule is the presence of special
circumstances which would justify another boundary line.
This would call for the appreciation of special geographical
features in drawing a boundary line.
The combined equidistance-special circumstances rule, in
effect, gives particular expression to a general norm that,
failing agreement, the boundary between States abutting
on the same continental shelf is to be determined on
equitable principles. (verbatim)
Modified Equidistance Method
In a large proportion of delimitations, where a particular
geographical feature has influenced the course of a
continental shelf boundary, the method of delimitation

54

PUBLIC INTERNATIONAL LAW

A2015

adopted has been some modification or variant of the


equidistance principle rather than its total rejection. Here
the problem also arises precisely from the distorting effect
of a geographical feature in circumstances in which the
line equidistant from the coasts of the two States would
otherwise constitute the appropriate boundary. (Karichi
Notes, 2010) (e.g. in this case, British islands lying within
the French side of the equidistance line)
The appropriate method is to take account of unique
geographical features (e.g. Channel Islands, Sicily Isles) as
part of the coastline of the UK but to give them less than
their full effect (i.e. Half-effect method) in applying the
equidistance method. Just as it is not the function of
equity in the delimitation of the continental shelf
completely to refashion geography, so it is also not the
function of equity to create a situation of complete equity
where nature and geography have established an inequity.
(ibid.)
Half-effect. This method consists in delimiting the line
equidistant between the two coasts, first, without the use
of the offshore island as a base-point, and, secondly, with
its use as a base-point; a boundary giving half-effect to the
island is then the line drawn midway between those two
equidistance lines.
In order to effect these principles, the Court divided the
delimitation into two steps:
1. First, determine the median/equidistant line
between the opposing states reckoned from
their coasts, ignoring the special geographical
features (e.g. islands); then
2. Second, delimit a second boundary line, taking
into consideration the special geographical
features
It is the line drawn midway between those
boundary lines which would give half-effect.
Method of half-effect = proceed first as if the island
doesnt exist, then shift the lines. (ibid.)
This case was a delimitation in a delimitation.
CLASS NOTES

CASE CONCERNING MARITIME DELIMITATION


IN THE AREA BETWEEN GREENLAND AND JAN
MAYEN (DENMARK v. NORWAY)
ICJ Reports 1993, p. 38 (1993)

This case is a dispute regarding the extent of the


continental shelves of Denmark and Norway in the area
between Greenland (Danish) and the island of Jan Mayen
(Norwegian).
Denmark:

Denmark

is

entitled

to

Norway:

zone/continental shelf extending up to


200 nautical miles from the coast of
Greenland; a single delimitation line
should be drawn for the purpose.
A median line drawn from equidistant
points between Greenland and Jan Mayen
is the proper boundary.

Greenland

Jan
Mayen

The Court found that there was no agreement between


the parties to draw a single line for the delimitation of
their fisheries zone and continental shelf boundaries.
Hence, it proceeded to examine the boundaries separately.
For the continental shelf delimitation, the Court found the
1958 Geneva Convention to be the applicable law, while
the fishery zone shall be governed by the relevant
customary law. Also, the court said that special or relevant
circumstances, pursuant to the 1958 Geneva Convention
and to customary law shall be considered, to the effect
that the shifting of the provisionally drawn median line is
required.
In drawing the delimitation, the following circumstances
were taken into account:

the disparity of length of coasts;

the access to fishery resources.


The Court did not consider population, socio-economic
factors, and the conduct of the Parties.
The result thus reached by the Court was that the median
line between the coasts shifted in the direction of Jan
Mayen - but not as far as reaching the 200 nautical miles
line measured from the coast of Greenland - constituted
the line to be drawn in this case. Although Norway was of
the opinion that the actual line was to be drawn by the
Parties on the basis of the decision of the Court, the Court
considered its task only fulfilled after having drawn the
concrete line. Accordingly, the Court fixed the line in the
region situated between the median line and the 200
miles-line by dividing this region into three sectors and
taking into account the relevant circumstances, in
particular the access to the fishery resources.

fisheries

55

PUBLIC INTERNATIONAL LAW

A2015

CASE CONCERNING DELIMITATION OF


MARITIME AREAS BETWEEN CANADA &
FRANCE (ST. PIERRE AND MIQUELON)
31 ILM 1145 (1992)

In the case at bar, the delimitation stated with an


identification of the relevant area. The parties have agreed
on the area, but failed to settle the issue as regards the
relevant coast. In line with this disagreement (on relevant
coast), the parties took into consideration the relationship
of the coasts to each of the Parties. Canada, on the ground
of close contiguity, argues that the coasts are related to it
through the adjacency relationship. France, on the other
hand, claims on the ground of oppositeness relation. The
Court, with this issue, found that it is the adjacency
relationship which is to prevail based on two factors: the
geographical feature of the coast in dispute and historical
evidence. St. Pierre and Miquelon are laterally aligned
with the south coast of Newfoundland (in favour of
Canada). Also, historically, as proven by the 1713 Treaty of
Utrecht, St. Pierre and Miquelon are described as adjacent
islands of Newfoundland.
France was awarded with a zone which is divided in two
parts: the first sector has a boundary set by an equidistant
line between the French and Canadian islands, then an
additional 24 nautical mile drawn from the west of the
islands. The second sector is a long north-south 188nautical mile corridor south of the islands, which allows
France to access its EEZ from international waters without
passing through Canadian EEZ.

Saint Pierre & Miquelon are two French islands close to the
Canadian coast. The trigger of this case is the issuing by
the two parties of hydrocarbon exploration permits in the
area, with both contending that the other did not have the
right to do so.
Its territorial maritime boundary with Canada was first
delimited by virtue of a 1972 treaty signed by both Canada
and France. Towards the 20th century, each country began
to extend their claimed territorial limit, first to 12 nautical
miles, then to 200 nautical miles; to the end that the
parties claims began to overlap. Also, the maritime
boundaries beyond the territorial sea the extent of the
EEZ (which is determinative of the Parties exclusive right
to fish) remained in dispute.
France:
Canada:

Delimitation of the continental shelf shall


be based on the equidistance principle;
Special circumstances rule should be
applicable.

The question on which method of delimitation shall be


applied is determined primarily by the geographical
circumstances but rules on international law as well as
equitable principles must also be taken in consideration in
order to add relevance and weight to the geographical
circumstances.

In effect, the delimitation awards approximately 18% of


the territory that France had initially been claiming.

CASE CONCERNING PEDRA BRANCA/PULAU


BATU PUTEH, MIDDLE ROCKS AND SOUTH
LEDGE (MALAYSIA v. SINGAPORE)
(*Note: This may be the wrong case. The outline lists
Malaysia v. Singapore under the topic Continental Shelf
without any accompanying citation. Upon asking Prof.
Roque for a citation, he said Whatever you can find. And
this case was the only one we could find.)
This case relates to the dispute concerning territorial
sovereignty over three maritime features in the Straits of

56

PUBLIC INTERNATIONAL LAW

Singapore. At the eastern entrance of the Strait of


Singapore is a granite island called Pedra Branca.
In 1979, Malaysia published a map entitled Territorial
Waters and Continental Shelf Boundaries of Malaysia.
The map depicted the island of Pedra Branca as lying
within Malaysias territorial waters. This was rejected by
Singapore who requested Malaysia to correct the map. In
effect, the Court considered as the critical date the time of
Singapores protest in response to Malaysias publication
of the 1979 map.
Singapore argued that the legal status of Pedra Branca was
that of terra nullius, Malaysia maintained that it had an
original title to Pedra Branca of long standing. Thus, an
arising question was whether Malaysia has established its
claim over the island. In this respect, a principal issue
relates to the question whether the Sultanate of Johora
predecessor of Malaysiahad sovereignty over Pedra
Branca.
The Court, through the pieces of evidence considered,
held that from at least the 17th century until in the 19th
century it was acknowledged that the territorial and
maritime domain of the Kingdom of Johor comprised a
considerable portion of the Malaya Peninsula, straddled
the Straits of Singapore and included islands and islets in
the area of the Straits. Thus, such domain included the
area where Pedra Branca is located.
The Court also noted the fact that throughout the entire
history of the old Sultanate of Johor, there is no evidence
that any competing claim had ever been advanced over
the islands in the area of the Straits of Singapore. Hence,
the Court concluded that the Sultanate of Johor had
original title to Pedra Branca. In addition, the Court found
that the nature and degree of the Sultan of Johors
authority exercised over the Orang Lautthe people of
the sea who were engaged in various activities in the
waters in the Straits of Singaporeconfirms the ancient
original title of the Sultanate of Johor to islands in the
Straits of Singapore, including Pedra Branca.
The next issue is whether Malaysia has retained
sovereignty over Pedra Branca or whether the sovereignty
has since passed to Singapore. Singapore claims that it
acquired sovereignty over Pedra Branca in 1844 when it
constructed a lighthouse on the island as well as various
other activities. This contention then brought the Court to
examine the conduct of the Parties relating to Pedra
Branca.
In this context, an important element is the construction
and commissioning of Horsburgh lighthouse on Pedra
Branca by the United Kingdom between 1850-1851.
Malaysia argued that the conduct of the United Kingdom
and Singapore related only to the construction and
commissioning of the lighthouse and later operating it

A2015

with the consent conferred by the Sultan of Johor and the


Temenggong in November 1844; and that they were not
actions intended to acquire sovereignty over Pedra Branca.
By contrast, Singapore contended that the United
Kingdom acquired title to the island in the period of 18471851 by taking lawful possession of the island in
connection with building the lighthouse on it. Note that
the Court did not draw any conclusions about sovereignty
on the basis of the construction and commissioning of the
lighthouse. Thus, the central question is whether the
conduct of the Parties after the construction of the
lighthouse on Pedra Branca provides a basis for the
passing of sovereignty over the island from Johor to the
United Kingdom, Singapores predecessor.
The Court recalled the position of the Acting Secretary of
State of Johor in 1953 that Johor did not claim ownership
of Pedra Branca. According to the Court, *t+hat statement
has major significance. The Court also stressed that the
conduct of the United Kingdom and Singapore includes
acts titre de souverain; and that Malaysia and its
predecessors did not respond in any way to that conduct.
In addition to this, the Johor authorities and their
successors took no action at all in respect to the island
from June 1850 for the whole of the following century or
more. Overall, the Court considered that the relevant facts
reflect a convergent evolution of the positions of the
Parties concerning title to Pedra Branca. Hence, the Court
concluded, by twelve votes to four that by 1980
sovereignty over Pedra Branca had passed to Singapore.

ARIGO v. EXECUTIVE SECRETARY


(PETITIONERS PLEADING)
supra.

(For an exhaustive discussion, refer to p. 27)

EXCLUSIVE ECONOMIC ZONE


UNCLOS, Art. 55.
Specific legal regime of the exclusive economic
zone
The exclusive economic zone is an area beyond
and adjacent to the territorial sea, subject to the
specific legal regime established in this Part, under
which the rights and jurisdiction of the coastal
State and the rights and freedoms of other States
are governed by the relevant provisions of this
Convention.
UNCLOS, Art. 57
Breadth of the exclusive economic zone
The exclusive economic zone shall not extend

57

PUBLIC INTERNATIONAL LAW

beyond 200 nautical miles from the baselines from


which the breadth of the territorial sea is
measured.
Exclusive Economic Zone, Defined
It is an area beyond and adjacent to the territorial sea, not
extending beyond 200 nautical miles from the baselines.
Coastal State Has Sovereign Rights and Jurisdiction;
Not Sovereignty
The coastal state does not have full sovereignty over the
EEZ (c.f. internal waters, territorial sea), but instead
possesses limited sovereign rights and jurisdiction.
Sovereign rights. Its sovereign rights are limited to the
following purposes:

Exploring and exploiting, conserving and


managing the natural resources
o living or non-living;
o in the superadjacent waters of the
seabed, the seabed and its subsoil;
o excluding sedentary species (Art. 68)

Other activities for the economic exploitation


and exploration of the zone. (e.g. production of
energy from the water, currents and winds) (Art.
56 [1a])
Jurisdiction. It has jurisdiction with regard to:

The establishment and use of artificial islands,


installations and structures;

Marine scientific research; and

Protection and preservation of the marine


environment. (Art. 56 [1b])
Enforcement measures. It has the right to enforce all
laws and regulations enacted for the conservation and
management of living resources in the EEZ. It may:

Board and inspect a ship

Arrest a ship and its crew;* and

Institute judicial proceedings against them.* (Art.


73 [1])
*Flag state must be promptly notified of action taken and
penalties imposed.
Arrested vessels and their crews shall be promptly
released upon the posting of bond or security. (Art. 73 [2])
In the absence of agreement to the contrary by the states
concerned, coastal state penalties for violations of
fisheries laws in their EEZ may not include imprisonment
or any other form of corporal punishment. (Art. 73 [3])
Conservation, Utilization and Management of
Living Resources within the EEZ
The coastal state has the following primary responsibilities
with regard to the living resources within the EEZ;

Conservation. Duty to ensure through proper


conservation and management measures that

A2015

the living resources are not endangered by overexploitation; (Art. 61)


Optimum Utilization. Duty to promote the
objective of optimum utilization of the living
resources and, to this end, to determine the
allowable catch of such resources in relation to
its capacity to harvest the allowable catch. (Art.
62)

Conservation. The coastal states objectives with regard


to conservation are as follows:

Determination of the allowable catch of living


resources; (Art. 61 [1])
o Allowable catch: catch in any one year
which will best achieve the objectives
of the coastal states conservation
objectives
o No limit; except by the duty not to
overexploit.

Maintenance of the living resources in such a


way that they are not endangered by overexploitation; (Art. 61 [2])

Maintenance or restoration of population of


harvested species at levels which can produce
the maximum sustainable yield; and (Art. 61 [3])
Maximum sustainable yield: level of
harvesting a species of fish which can be
taken at a maximum from year to year
without depleting the stock.

Maintenance of associated or dependent species


above levels at which their reproduction may
become seriously threatened. (Art. 61 [4])
Utilization. The coastal state must determine its capacity
to harvest the living resources in the EEZ.
In the event that it does not have the capacity to harvest
the entire allowable catch, it shall give other states access
to the surplus of the allowable catch by means of UNCLOSconsistent agreements and arrangements. (Art. 62 [2]) In
doing so, the following factors shall be considered:

Its own economic and other national interests;

Requirements of developing states in the region;

The need to minimize economic dislocation in


States whose nationals have habitually fished in
the EEZ or which have made substantial efforts
in the research and identification of stocks in the
EEZ. (Art. 62 [3])
In allowing other states access to living resources, the
coastal state may regulate the following matters:
a) Licensing of fishermen, fishing vessels and
equipment, and the payment of fees;
b) Determination of species which may be caught,
and fixing quotas of catch;
c) Regulation of seasons and areas of fishing, the
types, sizes and amount of gear and fishing
vessels that may be used;

58

PUBLIC INTERNATIONAL LAW

d)
e)

f)

g)
h)
i)
j)

k)

Fixing the age and size of fish that may be caught;


Specifying of information required of fishing
vessels, including catch and effort statistics and
vessel position reports;
Requiring, under the authorization and control
of the coastal State, the conduct of specified
fisheries research programmes and regulating
the conduct of such research;
Placement of observers or trainees on board
such vessels by the coastal State;
Landing of all or any part of the catch by such
vessels in the ports of the coastal State;
Terms and conditions relating to joint ventures
or other cooperative arrangements;
Requirements for the training of personnel and
the transfer of fisheries technology, including
enhancement of the coastal State's capability of
undertaking fisheries research;
Enforcement procedures. (Art. 62 [4])

Rights of Land-Locked States and Geographically


Disadvantaged States to EEZ Resources
A land-locked state (LLS) is one which does not border the
sea and therefore do not have an EEZ.
A geographically disadvantaged state (GDS) is a coastal
state which can claim no EEZ of its own, or one whose
geographical situations make them dependent on the
exploitation of the living resources of the EEZ or other
coastal states. (Art. 70 [2])
Right of LLS/GDS to EEZ resources of coastal states.
General Rule: An LLS/GDS has the right to participate,
on equitable basis, in the exploitation of
the surplus of living resources in the EEZ
of coastal states of the same sub-region
or region. (Art. 69 [1], 70 [1])
Exception: Right does not apply in the case of a
coastal state whose economy is
overwhelmingly
dependent
on
exploitation of the resources in its EEZ.
(Art. 71)

A2015

Terms of LLS/GDS participation in the EEZ. These terms


shall be established by the states concerned through
bilateral, sub-regional or regional agreement/s, which shall
take into account the following:
a) The need to avoid effects detrimental to fishing
communities or fishing industries of the coastal
State;
b) The extent to which the LLS/GDS is participating
or is entitled to participate;
c) The consequent need to avoid a particular
burden for any single coastal State or a part of it;
d) The nutritional needs of the populations of the
states concerned. (Art. 69 [2], 70 [2])
Artificial Islands, Installations and Other Structures
General Rule: A coastal state has the exclusive right to
construct, authorize and regulate the
construction, operation and use of
artificial islands, installations and other
structures in the EEZ, pursuant to its
jurisdiction under Article 56 (supra). (Art.
60 [1])
Exception: They may not be established where they
may interfere with the use of recognized
sea lanes essential to international
navigation. (Art. 60 [7])
Jurisdiction. The coastal states jurisdiction over artificial
islands, installations and other structures is exclusive. It
may exercise the same with respect to laws and
regulations over the following matters:

Customs;

Fiscal;

Health;

Safety; and

Immigration (Art. 60 [2])

Q: Do artificial islands, installations and structures

constructed in the EEZ have the status of


islands in international law?

This right is non-transferrable to third states or their


nationals through, among others, lease, license, joint
venture, unless otherwise agreed upon by the states
concerned. (Art. 72.1)

No, they do not possess the status of islands. They


have no territorial sea of their own, and their
presence does not affect the delimitation of the
territorial sea, the EEZ or the continental shelf. (Art.
60 [8])

This right only pertains to the surplus of a coastal states


allowable catch. (Art. 69 [1], 70 [1]) If a coastal state
should thereafter approach a point when it can harvest up
to the allowable catch:

The right can no longer be exercised;

BUT, the coastal state shall be duty-bound to


cooperate
in
establishing
equitable
arrangements to allow the participation of a
DEVELOPING LLS/GDS in the exploitation of
resources. (Art. 69 [3], 70 [4])

Marine Scientific Research


While not mentioned in the UNCLOS section on the EEZ,
the following principles are applicable on the conduct of
marine scientific research in the EEZ:

The search shall be conducted with the consent


of the coastal state;

It shall be conducted exclusively for peaceful


purposes;

It shall not unjustifiably interfere with activities


of the coastal states in the exercise of their

59

PUBLIC INTERNATIONAL LAW

A2015

rights and jurisdiction under the UNCLOS; (Arts.


240, 246)
Rights of coastal states with respect to marine scientific
research. Coastal states may withhold their consent to
the conduct of a research project under the following
conditions:
1) If it is of direct significance to the exploration
and exploitation of natural resources;
2) If it involves drilling or use of explosives or other
harmful substances in the marine environment;
3) If it involves the construction, operation or use
of artificial islands, installations or structures;
4) If it contains inaccurate information regarding
the nature and objectives of the research project;
or
5) If the proponent state or organization has
outstanding obligation to the coastal state for a
prior research project (Art. 246 [5])
They also have the following rights:

Right to be provided with information about the


research project (Art. 248)

Right to participate or be represented therein


(Art. 249 [1a])

Right to be provided with preliminary reports


and final results, and access to all data and
samples derived therefrom. (Art. 249 [1b and c])

Right to suspend or stop research activities in


the EEZ.
Rights and Duties of Other States in the EEZ
In the EEZ of coastal states, all states enjoy the following
freedoms of the high seas: (Art. 87, infra, p.63)

Navigation and overflight;

Laying of submarine cables and pipelines.


Nonetheless, states shall have due regard to the rights and
duties of the coastal state and shall comply with the
latters laws and regulations. (Art. 58)

FISHERIES JURISDICTION (SPAIN v. CANADA)


ICJ Reports 1998, p. 432 (1998)

(*Note: With respect to the case, the outline contains a


notation, FACTS ONLY.)

The Spanish fishing vessel The Estai was boarded and its
master arrested around 245 miles from the Canadian coast
by Canadian Government vessels for violating Canadas
Coastal Fisheries Protection Act. This law prohibited fishing
by foreign vessels (e.g. Spanish vessels) within the North
Atlantic Fisheries Organization [NAFO] Regulatory Area
an area in the high seas defined by the Convention on
Future Multilateral Cooperation in the Northwest Atlantic
Fisheries, 1978.
Spain:

Canada:

Canada does not have jurisdiction over


foreign vessels in the high seas, outside its
EEZ. The flag state has exclusive
jurisdiction over vessels flying its flag in
the high seas.
Canadas boarding of Estai was a
violation of international law on
concerning freedom of navigation and
freedom of fishing on the high seas
Court has no jurisdiction over the case.

The Court decided in favor of Canada when it ruled that it


had no jurisdiction to hear the case as it fell under
Canadas reservation to ICJ jurisdiction under Article 36.
The doctrinal value of the case is its statement on what in
international law may be regarded as conservation and
management measures. Accordingly, only two types of
measures taken by a coastal State may be regarded as
such:
1. Those relating to the State's exclusive economic
zone; and
2. Those relating to areas outside that zone, in so far as
these came within the framework of an
international agreement or were directed at
stateless vessels.
Measures not satisfying these conditions were not
conservation and management measures but unlawful
acts pure and simple.

THE M/V SAIGA (NO. 2) CASE (ST. VINCENT


AND THE GRENADINES v. GUINEA)
ITLOS Judgment, July 1, 1999

60

PUBLIC INTERNATIONAL LAW

A2015

The Tribunal refuted public interest and necessity claim,


holding that such notion would curtail the rights of other
States in the exclusive economic zone. The Tribunal is
satisfied that this would be incompatible with the
provisions of articles 56 and 58 of the Convention
regarding the rights of the coastal State in the exclusive
economic zone.

M/V Saiga is an oil tanker provisionally registered in Saint


Vincent and the Grenadines (SVG). Saiga travels by sea to
sell gas oil as bunker and occasionally they also cater to or
sell oil to fishing and other vessels of the coast of West
Africa.

Accordingly, the arrest and detention of the Saiga, the


prosecution and conviction of its Master, the confiscation
of the cargo and the seizure of the ship were contrary to
the Convention.

THE CAMOUCO CASE (PANAMA v. FRANCE)


ITLOS Judgment, February 7, 2000

Saiga supplied gas oil to fishing vessels located in waters


near Guinea. Later, when the vessel was near the southern
limit of Guineas EEZ, Guinean authorities attacked and
arrested the Saiga and its Master and crew, on the ground
that it illegally imported oil within the Guinean customs
radius in violation of its laws.

French authorities in the EEZ of the Crozet Islands arrested


Camouco, a Panamian vessel for long-line bottom fishing
of Patagonian toothfish in South Atlantic international
waters. The Camoucos Master was charged unlawful
fishing in the Crozet islands EEZ and put under court
supervision at Saint-Denis (French territory).

Art. 56 of the Convention does not give


the right to Guinea to extend the
application of its customs laws and
regulations to its EEZ;
Guinea violated its rights to enjoy the
freedom of navigation or other
internationally lawful uses of the sea in
the EEZ, since the supply of gas oil by
the Saiga falls within the exercise of
those rights.
Expansion of jurisdiction in EEZ is
justified on the ground of public interest
and self-protection;
Customary international law principle of
public interest and necessity gives it
the power to impede economic
activities that are undertaken in its EEZ
under the guise of navigation.

A local French court confirmed the arrest of the Camouco


and its master. It also ordered a bond in the amount of
20,000,000 Francs to be paid for the release of the vessel.
The Camoucos owner subsequently appealed this decision.

St. Vincent
and the
Grenadines:

Guinea:

By applying its customs laws to a customs radius which


includes parts of the EEZ, Guinea acted in a manner
contrary to the Convention.
While a coastal state has the right to enforce customs laws
and regulations in the territorial sea and the contiguous
zone, such right is qualified with respect to its Exclusive
Economic Zone (EEZ). In its EEZ, the coastal state has
jurisdiction to apply customs laws and regulations only
with respect to artificial islands, installations and
structures (Art. 60, par. 2). The Convention does not
empower a coastal State to apply its customs laws in
respect of any other parts of the exclusive economic zone
not mentioned above.

This prompted Panama to bring an action before the


International tribunal for the Law of the Sea.
Panama:

France:

Camouco and its Master should be


promptly released upon payment of a
bond, pursuant to Art. 292 of the UNCLOS;
France failed to notify them of the arrest.
The bond price set by France was
unreasonable
Panama has not yet paid the bond; hence
it cannot invoke Art. 292 yet;
Panama should first exhaust its remedies
before French courts;
Bond amount was reasonable.

Posting of the bond not a precondition for Art. 292


invocation.
Posting of a bond or other security is not necessarily a
precondition for filing an application under Art. 292. There
may be violations of the Art. 292 even before the payment
of the bond. In this case, the unreasonable bond amount
imposed by French courts was a cause for which reason
Panama can invoke Art. 292.
No need to exhaust local remedies
Moreover, local remedies need not be exhausted in order
to file an application because Art. 292 is intended to
provide for an independent remedy within a short period.

61

PUBLIC INTERNATIONAL LAW

Art. 292 is designed to free a ship and its crew from


prolonged detention on account of the imposition of
unreasonable bonds in municipal jurisdictions, or the
failure of local law to provide for release on posting of a
reasonable bond, inflicting thereby avoidable loss on a
ship owner or other persons affected by such detention.
Furthermore, it safeguards the interests of a coastal State
by providing for release only upon the posting of a
reasonable bond or other financial security determined by
a court or tribunal referred to in Art. 292, without
prejudice to the merits of the case in the domestic forum
against the vessel, its owner or its crew.
Bond demanded by France was excessive; should only be 8
million Francs
The value of the vessel alone may not be a controlling
factor in the determination of the bond, the overall
circumstances of the case must be considered.

A2015

entitled to extend its territorial sea


beyond the median line, every point of
which is equidistant from the nearest
points on the baseline from which the
breadth of the territorial sea is
measured.
Exception:

Rules on Delimitation of EEZ and the Continental


Shelf between Adjacent or Opposite States
Rule:
By agreement among states on the basis
of international law in order to achieve
an equitable solution;

The 20 million-Franc demand was found unreasonable.


Instead, the tribunal set the bond in the amount of 8
million Francs.
Mustnt submit vessels guilty of illegal fishing to
incarceration, but must promptly release them upon
the posting of a cash bond. (Karichi Notes, citing
Prof. Roque, 2010)
Art. 292 is an independent remedy that requires no
exhaustion of local remedies.
CLASS NOTES

DELIMITATION OF MARITIME
BOUNDARIES
Delimitation, Defined
Delimitation is a process which involves establishing the
boundaries of an area already, in principle, appertaining to
the coastal state. It is not the determination de novo of
such an area (i.e. not created out of nothing); rather, it is a
process of drawing a boundary line between areas which
already appertain to one or other of the states affected.
(North Sea Continental Shelf Case, supra., p. 7)
It always has an international aspect; it cannot be
dependent merely upon the will of the coastal state as
expressed in its municipal law. Its validity is hinged on
international law. (Anglo-Norwegian Fisheries Case, supra.,
p. 8)
Rules on Delimitation of the Territorial Sea
between States with Opposite or Adjacent Coasts
General Rule: Left to the agreement between opposite
or adjacent coasts;
In the absence of agreement, the
equidistance rule applies: neither state is

Equidistance rule shall not apply and a


different delimitation is required in the
following cases:

Historic title;

Other special circumstances. (Art.


15)

In the absence of agreement, matter


shall be subject to UNCLOS dispute
settlement measures (infra.)(Arts. 74, 83)
Negotiations must be meaningful. Parties must enter
into negotiations with a view of arriving at an agreement.
They should not insist on their own positions, such that
the engagement amounts to mere compliance with a
formal requisite.
Duty to make provisional arrangements pending
agreement. Pending a final agreement, parties shall
make every effort to enter into provisional arrangements
which shall govern their conduct. They must refrain from
acts which jeopardize or hamper efforts toward a final
agreement. (Art. 74 [3]; 83 [3])
Dispute Settlement Procedures
When no agreement is reached by the parties with regard
to territorial sea, EEZ and continental shelf boundary
limitations, the following shall be done:

Reference to third-party settlement of disputes


under Part XV of UNCLOS;

If the state declares an exception to acceptance of


UNCLOS dispute settlement procedures under Article
298, and the dispute arises subsequent to the entry
of force of UNCLOS and there is no agreement
between parties dispute shall be submitted to a
conciliation commission, which shall come up with a
non-binding report on the basis of which the parties
shall negotiate an agreement;

If they still fail to reach an agreement, they are


required to submit the dispute to a third-party
compulsory procedure (e.g. ICJ, ITLOS, arbitral
tribunals)

HIGH SEAS

62

PUBLIC INTERNATIONAL LAW

UNCLOS, Art. 86.


Application of the provisions of this Part
The provisions of this Part apply to all parts of the
sea that are not included in the exclusive economic
zone, in the territorial sea or in the internal waters
of a State, or in the archipelagic waters of an
archipelagic State. This article does not entail any
abridgement of the freedoms enjoyed by all States
in the exclusive economic zone in accordance with
article 58.
High Seas, Defined
These refer to waters which do not constitute the internal
waters, archipelagic waters, territorial sea, and exclusive
economic zone of a state. (Implied from Art. 86)
They are beyond the jurisdiction & sovereign rights of the
states.
Fundamental Principles on its Legal Status

Freedom of the high seas. The high seas are open


to all states and no state can validly subject any part
of the high seas to its sovereignty; (Arts. 87, 89)

Peaceful purposes. They are reserved for peaceful


purposes; (Art. 88)

Freedom of navigation. It is the right of every


State to sail ships flying its flag on the high seas. No
state can prevent ships of other states from using
the high seas for lawful purposes; (Art. 90)

Flag state jurisdiction. The flag state has exclusive


jurisdiction over ships sailing under its flag in the
high seas; (Art. 92) (see exhaustive discussion in
Navigation; Flag State Jurisdiction, infra., p. 65)
Freedom of the High Seas
Both coastal and land-locked states are entitled to the
following rights in the high seas, subject to conditions laid
down by UNCLOS:
1. Freedom of navigation;
2. Freedom of overflight;
3. Freedom of fishing;
4. Freedom to lay submarine cables and pipelines;
5. Freedom to construct artificial islands and other
installations;
6. Freedom of scientific research;
These freedoms shall be exercised with due regard for the
interests of other states (Art. 87)
Freedoms 1, 2 and 4 are those accorded to all states with
respect to the EEZ of a coastal state. (Art. 58. supra., p. 63)
Freedom of Fishing in the High Seas
The right to fish on the high seas pertains to all states,
both coastal and land-locked. (Art. 116)

A2015

Conservation of the Living Resources of the High


Seas
Every state has the duty to take measures for the
conservation of living resources of the high seas. (Art. 117)
States shall cooperate with each other in the conservation
and management of such resources, including the
determination of the allowable catch. (Arts. 118, 119)

SOUTHERN BLUE FIN TUNA CASES (NEW


ZEALAND & AUSTRALIA v. JAPAN)
ITLOS Order, August 27, 1999

Australia and New Zealand initiated arbitration


proceedings against Japan alleging that Japan breached its
obligation under UNCLOS (Arts. 64, 116-119) in relation to
the conversation and management of southern bluefish
tuna by implementing a unilateral experimental fishing
program. As a result of said experimental program, Japan
managed to catch more southern bluefish tuna, to the
detriment of other coastal states such as New Zealand and
Australia. Furthermore, New Zealand and Australia argue
that Japan failed to adopt necessary conservation
measures so as to maintain and restore stocks to levels
which could produce a maximum sustainable yield.
Even though parties to the 1993 Convention on
Conservation of Bluefin Tuna, they are not prevented
invoke the UNCLOS provisions. According to UNCLOS, the
State Parties have to duty to cooperate directly or through
international organizations with a view of ensuring the
conservation and promoting the objective optimum
utilization of highly migratory species, like the SBT.
Notwithstanding the absence of urgency in the case, the
Tribunal may still prescribe provisional measures to
preserve the rights of the parties or to prevent serious
harm to the marine environment. Conservation of living
resources of the sea is an element of preservation of
marine environment. There is no disagreement that the
stock of SBT had been severely depleted, thus efforts to
conserve shall be intensified.

RIGHT OF ACCESS OF LAND-LOCKED


STATES TO AND FROM THE SEA AND
FREEDOM OF TRANSIT
UNCLOS, Art. 125.
Right of access to and from the sea and freedom of
transit
1. Land-locked States shall have the right of access
to and from the sea for the purpose of exercising
the rights provided for in this Convention including
those relating to the freedom of the high seas and
the common heritage of mankind. To this end,

63

PUBLIC INTERNATIONAL LAW

land-locked States shall enjoy freedom of transit


through the territory of transit States by all means
of transport
2. The terms and modalities for exercising freedom
of transit shall be agreed between the land-locked
States and transit States concerned through
bilateral, subregional or regional agreements.
3. Transit States, in the exercise of their full
sovereignty over their territory, shall have the
right to take all measures necessary to ensure that
the rights and facilities provided for in this Part for
land-locked States shall in no way infringe their
legitimate interests.
Right of Access
Land-locked states (i.e. a state which has no coast), given
their special geographical circumstance, are given a right
of access to and from the sea in order to enable it to
exercise its rights given by UNCLOS (e.g. rights under
freedom of the high seas, rights of landlocked states to the
EEZ, etc.).

A2015

Where there are no means of transport in transit States to


give effect to the freedom of transit or where the existing
means, including the port installations and equipment, are
inadequate in any respect, the transit States and landlocked States concerned may cooperate in constructing or
improving them. (Art. 129)
Measures to Avoid or Eliminate Delays or Other
Difficulties of a Technical Nature
Transit States shall take all appropriate measures to avoid
delays or other difficulties of a technical nature in traffic in
transit.
Should such delays or difficulties occur, the competent
authorities of the transit States and land-locked States
concerned shall cooperate towards their expeditious
elimination. (Art. 130)
Equal Treatment in Maritime Ports
Ships flying the flag of land-locked States shall enjoy
treatment equal to that accorded to other foreign ships in
maritime ports. (Art. 131)

THE AREA
The Area, Defined
It is the seabed and ocean floor and subsoil thereof
beyond the limits of national jurisdiction.
No State has Sovereignty
No state shall claim or exercise sovereignty or sovereign
rights over any part of the Area or its resources, nor shall
any state or juridical person appropriate any part thereof.
(Art. 137 [1])
Fig.. A map of landlocked states (in green).

In order to access the seas, they are given the right of


freedom of transit through the territory of a coastal state
by all means of transport. This shall be governed by
bilateral, subregional or regional agreements. (Art. 125)
These provisions apply in cases like the Case Concerning
Right of Passage over Indian Territory (Portugal v. India).
(supra., p. 13)
Customs Duties, Taxes and Other Charges
General Rule: Traffic in transit not subject to duties,
taxes or other charges
Exception: Charges for specific services rendered
and facilities provided for use of the
landlocked state by the transit state in
connection with such transit.
Such charges shall not be higher than
those levied for use in the transit state.
Cooperation in the Construction and Improvement
of Means of Transport

Common Heritage of Mankind


The Area and its resources are the common heritage of
mankind. All rights over its resources are vested in
mankind as a whole. (Art. 136)
Its exploration and exploitation is carried out for the
benefit of mankind by the International Seabed Authority,
acting in behalf of all mankind.
Resources in the Area
This refers to all solid, liquid or gaseous mineral
resources in situ in the Area at or beneath the seabed,
including polymetallic nodules. (Art. 133 [a])
General Rule:

Exception:

No state or natural or juridical person


shall claim, acquire or exercise rights
with respect to the minerals recovered
from the Area
In accordance with the UNCLOS (Art. 137
[3])

Use for Peaceful Purposes

64

PUBLIC INTERNATIONAL LAW

The Area shall be open to use exclusively for peaceful


purposes by all states. (Art. 141)
International Sea-Bed Authority
It is the organization established by UNCLOS which acts on
behalf of mankind in governing the regime of resources in
the Area. It organizes, carries out and controls the
activities of the Area on behalf of mankind as a whole.
It possesses international legal personality and such other
legal capacity as may be necessary for the exercise of its
functions. (Art. 176)
Organization. The following are the entities that form
part of the Authority:

The Assembly All state parties to the UNCLOS are


ipso facto members of the Authority and form the
membership of its Assembly.

The Council. It is the executive organ of the


authority whose 36 members are elected by the
Assembly on the basis of representation. It is
responsible for the implementation of the UNCLOS
and the Assemblys general policies, enter into
agreements, and approve plans of work of the
Enterprise.

The Enterprise. It is the organ of the Authority


directly engaged in the exploration and exploitation
of the resources of the Area, including the
transporting, processing and marketing of minerals.
Activities in the Area
The Enterprise carries out mining activities on behalf of
the Authority:

Directly; or

By joint ventures with:


o State parties;
o State enterprises; or
o Natural or juridical persons sponsored by state
parties.
Applicants for license in deep seabed mining are limited to
those controlled by states parties to the UNCLOS or by
their nationals. (Art. 153)

NAVIGATION
Right of Navigation
Every State, whether coastal or land-locked, has the right
to sail ships flying its flag on the high seas. (Art. 90)
Nationality of Ships is that of Flag State
Ships carry the nationality of the state whose flag they are
entitled to fly (i.e. flag state). (Art. 91 [1])
There must be a genuine link between the state and the
ship. (ibid.)

A2015

In the M/V Saiga (No. 2) Case (infra., p. 60), it was


explained that the purpose behind including this
concept is to secure more effective implementation
of the duties of the flag state. It is not a criterion by
reference to which the validity of the registration of
ships in a flag state may be challenged by other
states.

Such state shall have its own conditions for the grant of its
nationality to ships, their registration within its territory,
and for the right to fly its flag. (Art. 91 [1])
A ship shall sail under the flag of one State only. A ship
with two or more states has no nationality, and may not
claim any of the nationalities represented by these flags.
(Art. 92 [2])
A ship cannot change its flag during voyage or while in a
port of call, except in case of transfer of ownership or on
the basis of change of registry. (Art. 92 [1])
Flag of Convenience
The flag of a state which requires a nominal or no link at all
with a ship which is allowed to fly its flag. It is also called
open registry state
Duties of a Flag State with respect to Ships Flying
its Flag
1. Maintain a registry of ships authorized to fly its flag;
2. Take jurisdiction over the internal affairs of the ship;
3. Ensure safety at sea of the ship;
4. Ensure ship is surveyed by a qualified surveyor of
ships and is well-equipped;
5. Ensure ship is manned by qualified master, officers
and crew; and
6. Ensure the officers and crew are conversant with
and are required to observe international
regulations. (Art. 94)
Duty to Render Assistance in Distress
It is the duty of the flag state to require the master of the
ship, without serious danger to the ship, to:
a) To render assistance to any person found at sea in
danger of being lost;
b) To proceed with all possible speed to the rescue of
persons in distress, if informed of their need of
assistance, in so far as such action may reasonably
be expected of him; and
c) After a collision, to render assistance to the other
ship, its crew and its passengers. (Art. 98)
Duty with regard to Transport of Slaves
It is the duty of the flag state to take effective measures to
prevent and punish the transport of slaves in ships
authorized to fly its flag, as well as to prevent the unlawful
use of its flag for that purpose. (Art. 99)
Flag State Jurisdiction in the High Seas

65

PUBLIC INTERNATIONAL LAW

The flag state have exclusive jurisdiction over a ship which


flies its flag on the high seas. (relate to discussion on High
Seas, supra., p. 63)
General Rule:

Exclusive jurisdiction over all ships sailing


its flag in the high seas. It covers all
legislative and enforcement jurisdiction
over administrative, technical and social
matters concerning the ship, its master,
officers and crew.
In particular, its jurisdiction includes:
1. Penal or disciplinary proceedings
against the master or any other
person in the service of the ship
arising from collision or any other
incident of navigation concerning a
ship on the high seas; (Art. 97)
2. Prevention or punishment of
transport of slaves in ships
authorized to fly its flag. (Art. 99)

Exceptions:

1.

2.

3.

4.

5.

In penal or disciplinary proceedings


on the master or person in the
service as regards to incidents
arising from collision or any other
incident of navigation the state
of which that person is a national
has jurisdiction concurrent with
the flag state;
Piracy every state may seize a
pirate, ship taken by pirates, seize
the pirates and property on board;
On persons or ship engaged in
unauthorized broadcasting from
the high seas the following states
may arrest the person, seize the
broadcasting
apparatus,
and
prosecute the offender
a. state of registry of the
broadcasting installation;
b. state of which the
offender is a national;
c. state where the broadcast
transmission is received;
or
d. any
state
where
authorized
radio
communication
is
suffering
interference
(Art. 109, infra., p. 67)
Exercise of the right of hot pursuit
a warship or military aircraft of a
state may stop & arrest a foreign
ship on the high seas; (Art. 111,
infra., p. 67)
Pollution from a marine casualty
jurisdiction off the coastal state

A2015

whose coastline is threatened may


take and enforce measures
beyond the territorial sea,
including on the high seas. (Art.
221)
Penal jurisdiction in matters of collision or any other
incident of navigation. In the event of a collision or any
other incident of navigation concerning a ship on the high
seas, involving the penal or disciplinary responsibility of
the master or of any other person in the service of the ship,
the following have concurrent jurisdiction over the latters
person for the institution of penal/disciplinary proceedings:

Flag state; or

State of nationality of the person. (Art. 97 [1])


No arrest or detention of the ship, even as a measure of
investigation, shall be ordered by any authorities other
than those of the flag State. (Art. 97 [3])
This rule departs from the decision in the Case of SS
Lotus (supra., p. 29), which allowed Turkey (the state
with jurisdiction over the place of the incident) to
exercise jurisdiction over a French captain (i.e.
territorial jurisdiction.)
Hence, the rule applicable at present is that it is
either the flag state or the state of which such person
is a national which may exercise jurisdiction over the
person in question. (Art. 91 [1])
CLASS NOTES
Complete immunity of ships in the high seas. The
following ships enjoy complete immunity from the
jurisdiction of any other state other than the flag state:

Warships; (Art. 95)

Ships owned or operated by a State and used only


on government non-commercial service. (Art. 96)
Piracy
States have the duty to cooperate in the repression of
piracy in the high seas or in any other place outside the
jurisdiction of the state. (Art. 100)
UNCLOS, Art. 101.
Definition of Piracy
Piracy consists of any of the following acts:
a) Any illegal act of violence or detention, or
any act of depredation, committed for
private ends by the crew or the passengers
of a private ship or a private aircraft, and
directed:
i.
on the high seas, against another
ship or aircraft, or against persons
or property on board such ship or
aircraft;
ii.
against a ship, aircraft, persons or

66

PUBLIC INTERNATIONAL LAW

b)

c)

property in a place outside the


jurisdiction of any State;
Any act of voluntary participation in the
operation of a ship or of an aircraft with
knowledge of facts making it a pirate ship or
aircraft; or
Any act of inciting or of intentionally
facilitating
an
act
described
in
subparagraph (a) or (b).

This definition differs from that found in Art. 122 of


the Revised Penal Code.
The UNCLOS definition contemplates the presence of
two ships, one committing acts of piracy against
another.
The RPC definition, however, only requires that a
person who, on the high seas, shall attack or seize a
vessel or, not being a member of its complement nor
a passenger, shall seize the whole or part of the cargo
of said vessel, its equipment, or personal belongings
of its complement or passengers. A second ship is
not required.
CLASS NOTES
This may be committed by warships or a government ship,
if the crew has mutinied and taken control of the ship. (Art
102)
Pirate ship or aircraft. A ship or aircraft is considered a
pirate ship or aircraft if it is intended by the persons in
dominant control to be used for the purpose of
committing acts of piracy, or has been used to commit acts
of piracy and remains under the control of such persons
who committed such acts
In being classified as such, it may or may not lose its
nationality depending on the law of its flag state.
Seizure of pirate ship or aircraft. On the high seas or in
any other place outside the jurisdiction of any state, every
state may seize a pirate ship or aircraft, or a ship or aircraft
taken by piracy and under the control of pirates, and
arrest the persons and seize the property on board. (Art.
105)
Such seizure may only be effected by:

Warships or military aircraft; or

Other ships or aircraft clearly marked and


identifiable as being on government service and
authorized to that effect. (Art. 107)
If seizure effected without adequate grounds, the seizing
state shall be liable to the flag state of the seized ship for
any resulting loss or damage. (Art. 106)

A2015

All States shall cooperate in the suppression of


unauthorized broadcasting from the high seas.
Unauthorized broadcasting refers to the transmission of
sound radio or television broadcasts from a ship or
installation on the high seas intended for reception by the
general public, contrary to international regulations.
Criminal jurisdiction over unauthorized broadcasting.
Any person engaged in unauthorized broadcasting may be
prosecuted before the court of:
1. Flag state;
2. State of registry of the installation;
3. State of his nationality;
4. Any state where the transmission can be received;
or
5. Any state where authorized radio communication is
suffering interference
Right to Visit
A warship may board a foreign ship not protected by
immunity (i.e. warships, state-operated vessels, supra. p.
43) in the high seas if there is reasonable ground of
suspecting the foreign ship that it is:
1. Engaged in piracy
2. Engaged in slave trade
3. Engaged in unauthorized broadcasting
4. Without nationality; or
5. Of the same nationality as the warship but flying a
foreign flag or refusing to show its flag (Art. 110 [1])
Right of Hot Pursuit
It is the right of a coastal state to pursue a foreign ship
beyond its territorial sea and contiguous zone when it has
good reason to believe that a foreign ship has violated its
laws.
Requisites. A coastal state may pursue a foreign ship
beyond the maritime zones over which it has jurisdiction
(i.e. into the high seas), given the following:

Pursuing ship must have given a visual or


auditory signal to stop at a distance which
enables it to be seen or hears by the foreign ship;
Art. 111 [4])

Pursuit was commenced when the foreign ship is


still within the internal waters, archipelagic
waters and territorial sea or the contiguous zone
of the pursuing state (Art. 111 [1])
*If commenced in the contiguous zone, EEZ
or continental shelf, may be pursued only
for violations of rights in that zone. (Art.
111 [2])

Pursuit must not have been interrupted; (Art.


111 [1])

May be exercised only by warships or military


aircraft or other ships of government service and
with authority. (Art. 111 [5])

Unauthorized Broadcasting

67

PUBLIC INTERNATIONAL LAW

A2015

Cessation. Pursuit ceases as soon as the ship pursued


enters the territorial sea of its own state or of a third state.

Liability for stop and seizure without cause. If pursuit


without cause, the foreign ship shall be compensated for
the resulting loss or damage

Illicit Drug Traffic


States have the duty to cooperate for the suppression of
illicit traffic in narcotic drugs and psychotropic substances
engaged in by ships in the high seas. (Art. 108)

Note, however, that UNCLOS does not authorize the


boarding, searching or seizure of a foreign ship suspected
of engaging in illicit drug traffic. (Magallona, 2005) A state
which suspects that a foreign ship is engaged in drug
trafficking may only request the cooperation of the ships
flag state to suppress such traffic
This also applies to the boarding if such foreign ships by
military aircraft. (Art. 110 [4])

SETTLEMENT OF DISPUTES
Duty to Settle Disputes by Peaceful Means
It is the right of the parties to resort to peaceful means of
their own choice on which they can agree ay time
UNCLOS vs. Peaceful Settlement of Parties
UNCLOS will only be applicable when the agreement of the
parties prove unsuccessful and their agreement does not
exclude any further procedure
UNCLOS not applicable if party requests submission of
dispute to a procedure pursuant to any other general,
regional, bilateral agreement
Principle of Compulsory Settlement
This is applicable when no successful settlement can be
achieved or if the parties are unable to agree on the
means of settlement
Choices for the compulsory means of settlement of
disputes.
1. International Tribunal for the Law of the Sea
2. International court of Justice
3. Arbitral tribunal
4. Special arbitral tribunal
Jurisdiction of the court or tribunal.
1. Interpretation or application of UNCLOS
2. Interpretation or application of an international
agreement

Composed of 21 independent members, representing


the worlds principal legal systems and equitable
geographical distribution
May for chambers of three or more members
Must have a Seabed Disputes Chamber with 11
members; shall form an ad hoc chamber of 3
members
Jurisdiction on all disputes submitted in accordance
with UNCLOS

Seabed Disputes Chamber.

Jurisdiction over disputes and submissions concerning


activities in the Area

PEACEFUL USE OF THE OCEANS


UNCLOS, Art. 301.
Peaceful uses of the seas
In exercising their rights and performing their
duties under this Convention, States Parties shall
refrain from any threat or use of force against the
territorial integrity or political independence of
any State, or in any other manner inconsistent
with the principles of international law embodied
in the Charter of the United Nations.

ARCHAELOGICAL AND HISTORICAL


OBJECTS
UNCLOS, Art. 301.
Archaeological and historical objects found at sea
1. States have the duty to protect objects of an
archaeological and historical nature found at sea
and shall cooperate for this purpose.
2. In order to control traffic in such objects, the
coastal State may, in applying article 33, presume
that their removal from the seabed in the zone
referred to in that article without its approval
would result in an infringement within its territory
or territorial sea of the laws and regulations
referred to in that article.
3. Nothing in this article affects the rights of
identifiable owners, the law of salvage or other
rules of admiralty, or laws and practices with
respect to cultural exchanges.
4. This article is without prejudice to other
international
agreements
and
rules
of
international law regarding the protection of
objects of an archaeological and historical nature.

International Tribunal for the Law of the Sea.

68

PUBLIC INTERNATIONAL LAW

A2015

C. Jurisdiction and Immunities

Example: Art. 15, CC Philippine family and


personal laws are binding on citizens, even
though living abroad.

JURISDICTION
Jurisdiction, Defined
It is the competence of a State to prescribe rules of
conduct, to enforce its legal processes, and to adjudicate
controversies or claims.

3.

Aspects of jurisdiction.
1. Jurisdiction to prescribe norms of conduct
(legislative jurisdiction)
2. Jurisdiction to enforce the norms prescribed
(executive jurisdiction)
3. Jurisdiction to adjudicate (juridical jurisdiction)
This authority us exclusive over all persons, events and
transactions, except as may be limited by:

A states consent; and/or


Examples: surrender of jurisdiction pursuant
to military basing agreements; grant of
immunities through hosting agreements

Principles of international law.


Example: absence of jurisdiction over
soldiers of an occupying force.
5 Traditional Bases of Jurisdiction over
Extraterritorial Crimes under International Law
1. Territoriality Principle
Jurisdiction is based on whether jurisdiction is
based on the place where the offense is
committed. The fundamental source of
jurisdiction is sovereignty over territory. A state
has absolute, but not necessarily exclusive,
power to prescribe, adjudicate, and enforce
rules for conduct that occurs within its territory.
Example: Art. 14, CC Penal laws are
obligatory upon all who live and sojourn in
Philippine territory.
2.

Nationality Principle
Jurisdiction is based on the nationality of the
offender. Every state has jurisdiction over its
nationals even when those nationals are outside
the state. Each state has the right to decide who
are its nationals, using either jus sanguinis or jus
soli or naturalization laws. As to corporations, a
state has jurisdiction over corporations whose
principal place of business or registered office is
located in their territories.
Effective nationality link doctrine determines
which of two states of which a person is a
national will be recognized as having the right to
give diplomatic protection to holder of dual
nationality.

Protective Principle
Jurisdiction is based on whether the national
interest is injured. A state may exercise
jurisdiction over conduct outside its territory, if it
threatens its security, as long as that conduct is
generally recognized as criminal by states in the
international community.
Example: Art. 2, RPC laws on crimes
onboard Philippine vessels, forgery of
Philippine currency, offenses committed by
public officers, and crimes against national
security and the law of nations, may be
enforced outside of Philippine territorial
jurisdiction.

4.

Universality Principle
Jurisdiction is conferred in any forum that
obtains physical custody of the perpetuator of
certain offenses considered particularly heinous
and harmful to humanity. The principle
recognizes that 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.
Example: Crimes hostes humani generis (e.g.
piracy)

5.

Passive Personality Principle


Jurisdiction is based on the nationality of the
victim. State may apply law to an act committed
outside its territory, by a person not its national,
where the victim of the act is one of its nationals.

Q: How does jurisdiction differ from sovereignty?


Sovereignty is all the powers of the state. However in
the Las Palmas case, sovereignty was defined in
relation to independence, that sovereignty is
exercised to the exclusion of all other.
Jurisdiction, on the other hand, is a form of power
covered by sovereignty, but has narrower scope. It
means legal competence, and it may be exercised
within territory.

BROWNELL v. SUNLIFE ASSURANCE


G.R. No. L-5731 (1954)

Aihara, a Japanese national, and his wife were insured


jointly by Sun Life. Brownell, in his capacity as Attorney

69

PUBLIC INTERNATIONAL LAW

A2015

General of the United States, instituted a claim before the


CFI saying that he is entitled to the aforementioned
insurance proceeds upon its maturity by virtue of the
Trading with the Enemy Act of the US an act which,
among others, governed the assets of enemy citizens (i.e.
Japanese citizens during WW II)
Brownell:

Sunlife
Assurance:

The application of the Trading with the


Enemy Act in the Philippines is based on
the legislation of the Philippine Property
Act of 1946.
No law has been enacted to extend the
application of the Trading with the
Enemy Act in the Philippines especially
since
the
country
gained
its
independence.

The Philippines has consented to the application of the


Trading with the Enemy Act within its jurisdiction by
enacting the Philippine Property Act of 1946
Section 3 of the PPA of 1946 provides that "The Trading
with the Enemy Act of October 6, 1917 as amended shall
continue in force in the Philippines after July 4, 1946.
According to the court, a foreign law may have
extraterritorial effect in a country other than the country
of origin, provided the latter, in which it is sought to be
made operative gives its consent thereto. As a general
rule, the jurisdiction of the nation within its territory is
necessarily exclusive and absolute. It is susceptible of no
limitation not imposed by itself. Any restriction upon it,
deriving validity from an external source, would imply a
diminution of its sovereignty to the extent of the
restriction, and an investment of that sovereignty to the
same extent in that power in which would impose such
restriction. However, there are exceptions to the full and
complete power of a nation within its own territories,
which can traced up to the consent of the nation itself.
They can flow from no other legitimate source. This
consent may be either express or implied. The consent of a
Senate to the operation of a foreign law within its territory
does not need to be express; it is enough that said consent
can be implied from its conduct or from that of its
authorized officers. Ratification can be given tacitly as well
as expressly. Tacit ratification takes place when a State
begins the execution of a treaty without expressly ratifying
it.
In this case, the application of the Trading with the Enemy
Act in the Philippines is based on the enactment of the
Philippine Property Act of 1946 as well as the conduct of
the Philippine government (act of Pres. Roxas and Sec. of
Foreign Affairs).

PEOPLE v. LOL-LO and SARAW


G.R. No. 17958 (1922)

Two boats left the Matuta (a Dutch possession) for Peta


(another Dutch possession). In one of the boats was 1
Dutch subject and in the other boat 11 men, women, and
children, likewise subjects of Holland. When the one of the
boats arrived between the Islands of Buang and Bukid in
the Dutch East Indies, it was surrounded by six vintas
manned by twenty-four armed Moros. The Moros asked
for food, took the cargo, attacked some of the men, and
brutally raped two women. All of the persons on the Dutch
boat, with the exception of the two young women, were
again placed on it and holes were made in it, the idea that
it would submerge. Two of the Moro marauders were Lollo, who also raped one of the women, and Saraw. They
were arrested and charged with the crime of piracy before
the CFI when they returned home to Tawi-Tawi, Sulu.
Lol-lo and
Saraw:

The crime, having been committed


outside the Philippines, is not within the
jurisdiction of any court in the Philippine
Islands.

Piracy is within the jurisdiction of the CFI since


jurisdiction for crimes similar to piracy has no territorial
limits.
Piracy is robbery or forcible depredation on the high seas,
without lawful authority and done animo furandi, and in
the spirit and intention of universal hostility.
Pirates are in law hostes humani generis. Piracy is a crime
not against any particular state but against all mankind. It
may be punished in the competent tribunal of any country
where the offender may be found or into which he may be
carried. The jurisdiction of piracy unlike all other crimes
has no territorial limits. As it is against all so may it be
punished by all. Nor does it matter that the crime was
committed within the jurisdictional 3-mile limit of a
foreign state, "for those limits, though neutral to war, are
not neutral to crimes."
There is universal jurisdiction over crimes hostes
humani generis literally, enemy of mankind.
This categorization includes piracy, torture, genocide,
war crimes, and other crimes against humanity.
Existence of armed conflict is not required for its
invocation.
CLASS NOTES

TUBB v. GREISS
G.R. No. L-1325 (1947)

George L. Tubb and Wesley Tedrow (citizens of the United


States but residents of the Philippines) were under a
written contract of employment with the Army of the

70

PUBLIC INTERNATIONAL LAW

A2015

United States. They were serving as civilian employees in


the US Army Depot in Manila when were apprehended by
the authorities of the United States Army and had been
held in army custody. They were formally charged with
violations of Articles of War regarding misappropriation of
United States Government property destined for military
use, said acts having been committed within premises
occupied by the United States Army under lease contracts.

Taiwan Bank to cancel the mortgage but the latter refused.


Haw Pia filed a suit before the trial court against China
Banking and Taiwan Bank. He wanted the defendants to
execute a deed of cancellation of the mortgage. Trial court
held that the payments Haw Pia made to the Taiwan Bank
did not extinguish his obligation since there is no proof
under international law that the Japanese Military
Administration had authority to liquidate China Banking.

Thus they filed this petition for habeas corpus.

Japanese Military Administration had authority to


liquidate China Banking. The Liquidation of China
Banking is not a confiscation but a mere sequestration of
its assets which required the liquidation of the bank.

Tubb and
Tedrow:

Philippine courts have exclusive jurisdiction


over their arrest, confinement and
imprisonment because

They are civilians not subject to


military laws;

Martial law is no longer enforced.

Philippine Courts have no jurisdiction over the case. Not


only did they agree in their contracts that they submit
themselves to US military law, they are also likened to
military personnel who are exempt from the civil and
criminal jurisdiction of the foreign state they are assigned
to.
In their contract of employment, they voluntarily
submitted themselves to United States military law while
serving said contract, thereby submitting themselves to
the full extent of the authority of the United States Army
in this area. Petitioners are also American citizens, their
position during the subsistence of said contract are no
different from that of enlisted men, that in relation to the
United States Army in the Philippines and during the
subsistence of their employment contract, can be deemed
to possess the status of military personnel.
The principle of International Law is that a foreign army
allowed to march through a friendly country or to be
stationed in it, by permission of its government or
sovereign, is exempt from the civil and criminal jurisdiction
of the place. The agreement for the stationing of the US
Army or a part of its forces in the RP implies a waiver of all
jurisdiction over their troops during the time covered by
such agreement, and permits the allied general or
commander-in-chief to retain that exclusive control &
discipline which the government of his army may require.

HAW PIA V. CHINA BANKING CORPORATION


G.R. No. L-554 (1948)

Haw Pia obtained credit facilities from China Banking Corp.


During the Japanese occupation and under Administrative
Ordinance No. 11 dated July 31, 1942, issued by the
Japanese occupation authorities, the defendant bank was
placed under liquidation, with Taiwan Bank as liquidator.
Taiwan bank received partial payments from Haw Pia on
account of his outstanding overdraft. Haw Pia asked

The Japanese military authorities had power, under the


international law, to order the liquidation of the China
Banking Corporation and to appoint and authorize the
Bank of Taiwan as liquidator to accept the payment in
question, because such liquidation is not confiscation of
the properties of China bank, but a mere sequestration of
its assets which required the liquidation or winding up of
the business of said bank. Thus, there was valid tender of
payment to Bank of Taiwan which discharged Haw Pias
obligation.
Confiscation is not allowed under the Hague Regulations.
However, there was no confiscation here but a mere
sequestration. Under international law, the occupying
power can effect a liquidation that is in the form of a mere
sequestration. In the effort of occupying powers to control
enemy property within their jurisdiction in order to avoid
their use in aid of the enemy and to increase their own
resources, they had to resort to such measures of
prevention which do not amount to a straight confiscation,
as freezing, blocking, placing under custody, and
sequestrating the enemy private property.
Acts of a belligerent military occupant is valid if it is
not political. Confiscation is not allowed, only
sequestration which is a valid measure of prevention.
(Karichi Notes, citing Prof. Roque, 2010)
The receiver appointed by a belligerent occupying
state has the authority to receive payment by virtue
of the rights of such occupying state. Payment to him
extinguishes the obligation to the enemy obligor.
CLASS NOTES

SOVEREIGN IMMUNITIES
Immunity, Generally
The general rule is that jurisdiction of a state within its
territory is complete and absolute. However, there are two
categories of exceptions to this rule:
1. Sovereign immunity, which covers both head of
state and the state itself

71

PUBLIC INTERNATIONAL LAW

2.

Immunity of representative of states


diplomatic and consular immunities.

A2015

or

Sovereign Immunity
It is the principle by which a state, its agents and property
are immune from the judicial process of another state.
It is premised on the principle of equality of states,
according to which a state may not impose its authority or
extend its jurisdiction on another state without the
consent of the latter through a waiver of immunity.
(Magallona, 2005)
It consists of:
1. Immunity of head of state;
2. State immunity
The principle, found in the Constitution,
that the state may not be sued without its
consent, is both municipal and international
law.
Diplomatic and Consular Immunities
Much of the law governing diplomatic relations is
customary law. Official representatives of a state are given
immunities and privileges when they are within the
territory of another state. The immunities are personal, in
that they benefit the person. But the purpose is functional,
that is, to enable them to perform their functions properly.
On the part of the receiving state there lie certain
obligations to protect the representative and his property
and office.

HILAO v. ESTATE OF FERDINAND MARCOS


(*Note: There are several Hilao v Estate cases. This first
one has to do with RPs sovereign immunity.)
Ferdinand Marcos and his wife Imelda fled to Hawai'i. Five
suits filed in the Northern District of California and the
District of Hawai'i by individuals alleging that they or their
relatives had been arrested, tortured, or executed by
military intelligence personnel acting pursuant to martial
law declared by Marcos in 1971. The district courts
dismissed all five suits on the ground that the Act of State
doctrine precluded liability. In an appeal of those decisions
to this court, the Republic filed an amicus curiae brief
urging the U.S. courts to exercise jurisdiction over the
human rights claims. The human rights cases were
eventually consolidated in the Hawaii district court and the
consolidated case was certified as a class action suit
against the Estate. The Republic also sued the Estate.
However, they eventually reached a settlement that
included the transfer of some of the Estate assets to the
Republic. Meanwhile, Hilao was eventually awarded
punitive and compensatory damages against the Estate.
He also requested an injunction against the RP, as aiders

and abettors of the Estate to seize from disposing of the


latters assets. The District Court granted the injunction
which the Republic opposed.
Republic of
the
Philippines:
Hilao:

District court lacked authority to subject it


to the injunction because it enjoys
sovereign immunity under the Foreign
Sovereign Immunities Act (FSIA).
District court need not even assume
jurisdiction over the RP. In this case, the
FSIA does not govern because Rule 65(d) of
the Federal Rules of Civil Procedure makes
an injunction binding upon "those persons
in active concert or participation with" an
enjoined party to the action where those
persons have actual notice.

In order to enforce injunction on the Republic of the


Philippines, the District Court must have personal
jurisdiction over it. Also, none of the exceptions to
foreign sovereign immunity under the FSIA is available to
Hilao in this case to be able to successfully sue the RP in
the District Court of Hawaii.
An injunction against the Republic in the absence of
personal jurisdiction over it would be futile, as the court
would be powerless to enforce its injunction. A court
should not issue an unenforceable injunction: "The rule
that a court of equity will not issue an unenforceable
decree of injunction comprehends as a reason for denying
injunctive relief that the court... does not have the means
to punish disobedience once discovered.'"
Also, the Foreign Sovereign Immunities Act of the US is the
sole basis for jurisdiction over a foreign state which Hilao
also hinges his case on. Personal jurisdiction over a foreign
state depends on subject-matter jurisdiction over the
action against the foreign state under the FSIA. It states
that "Personal jurisdiction, like subject-matter jurisdiction,
exists only when one of the exceptions to foreign
sovereign immunity in [the FSIA] applies." However, the
court rejected Hilaos argument that the commercial
activity exception is applicable to the RP in this case
because accordingly, the State was merely acting pursuant
to its mandate to recover misappropriated public assets.
As a general rule, foreign states are immune from the
jurisdiction of courts in the United States unless a claim
against them falls within an exception to immunity under
the FSIA. Thus, the district court lacked jurisdiction over
the Republic absent the existence of an applicable
exception under the FSIA.
(*Note: This next Hilao case has to do with claims based
on the US Aliens Torts Claims Act [ATCA])
Hilao, representing victims of Martial Law sued the Estate
of Ferdinand Marcos under the US Alien Torts Claims Act
an act which gave universal jurisdiction to US courts for

72

PUBLIC INTERNATIONAL LAW

A2015

claims for civil damages, provided summons may be served


in the US.
There is no sovereign immunity against charges of torture.
US Alien Tort Statute provides a forum for claims by
aliens for torture that has occurred elsewhere. It requires
a claim by an alien, a tort and a violation of international
law. The prohibition against official torture carries with it
the force of jus cogens norm which enjoys the highest
status in international law. All states believe that torture is
wrong, all that engage in torture deny it, and no state
claims a sovereign right to torture its own citizens. Under
international law, any state that engages in official torture
violates jus cogens. Note that RP filed a brief stating that
its foreign relations with the US would not be adversely
affected if claims against Marcos were litigated in the US.
(Karichi Notes, 2010)

Immunity of State from suit is a universally recognized


principle. In international law, "immunity" is commonly
understood as an exemption of the state and its organs
from the judicial jurisdiction of another state. This is
anchored on the principle of the sovereign equality of
states under which one state cannot assert jurisdiction
over another in violation of the maxim par in parem non
habet imperium (an equal has no power over an equal).
The doctrine of Immunity is restricted to sovereign or
governmental activities (jure imperii) and cannot be
extended to commercial, private and proprietary acts (jure
gestionis) The contract was entered into in the discharge
of its governmental functions, the sovereign state cannot
be deemed to have waived its immunity from suit.
This case enunciated the purpose test immunity
can only be applied in cases involving sovereign
purposes.
CLASS NOTES

Claims under ATCA make it possible to subject


sovereign acts to claims. This thus makes it unwise
for states to commit violations. (ibid.)
CLASS NOTES

JUSMAG v. NLRC
G.R. No. 108813 (1994)

Sacramento was a security assistance support personnel


working at JUSMAG-Philippines. He was in service from
1969 to 1992. He was dismissed, allegedly because of the
abolition of his position. Before his terminated, he was
advised that he was under administrative leave until April
27, 1992, although the same was not charged against his
leave. During his employment, Sacramento was the
incumbent President of JUSMAG PHILIPPINES-FILIPINO
CIVILIAN EMPLOYEES ASSOCIATION (JPFCEA), a labor
organization duly registered with the DOLE. Because of his
termination, Sacramento filed a complaint before the DOLE
for illegal suspension and dismissal which eventually
reached the NLRC.

UNITED STATES OF AMERICA v. REYES


G.R. No. 108813 (1994)

After her duty as an ID checker at the US Navy Exchange


(JUSMAG HQ in QC), Montoya went shopping at NEX
JUSMAG. On her way to her car after shopping, she was
approached by another ID checker saying that the latter
needed to search her and her belongings following
instructions from Bradford (manager of NEX JUSMAG). The
search was conducted in front of many onlookers. Nothing
irregular was found in Montoya and her belongings. She
later found that she was the only one subjected to such
search, contrary to Bradfords statement that all
employees were required to be searched that day.
Montoya filed a complaint against Bradford for damages
due to the oppressive and discriminatory acts committed
by the latter in excess of her authority as store manager.

It had immunity from suit since it was a


US agency.
JUSMAG has waived its right to immunity
from suit when it hired the services of
Sacramento.

She had functional immunity for acts


done in the exercise of her official
functions as employee of a US agency.
The suit should also be considered as in
effect being against the US government
which did not waive its sovereign
immunity.

JUSMAG has immunity; it did not waive its immunity


when it hired Sacramento as its employee.

Bradford did not have immunity as she was sued in her


private or personal capacity.

A suit against such a US agency is a suit against the US


Government, albeit the latter was not impleaded in the
complaint. Considering that the US has not waived or
consented to the suit, the complaint against JUSMAG
cannot prosper.

Bradford was sued in her private or personal capacity for


acts allegedly done beyond the scope and even beyond
her place of official functions, the case falls within the
exception to the doctrine of state immunity.

JUSMAG:
NLRC:

Bradford:

Unauthorized acts of government officials or officers are


not acts of the State, and an action against the officials or

73

PUBLIC INTERNATIONAL LAW

A2015

officers by one whose rights have been invaded or violated


by such acts, for the protection of his rights, is not a suit
against the State within the rule of immunity of the State
from suit. A public official may be liable in his personal
private capacity for whatever damage he may have caused
by his act done with malice and in bad faith, or beyond the
scope of his authority or jurisdiction, for example, under
Art. 31 of the Vienna Convention on Diplomatic Relations
which admits of exceptions of the general rule of a
diplomatic agents immunity from criminal jurisdiction of
the receiving state: (c) an action relating to any
professional or commercial activity exercised by the
diplomatic agent in the receiving State outside his official
functions.
No functional immunity with respect to acts outside
official duties.
The purpose test was useless here given the facts
of the case because Bradfords actions were deemed
ultra vires (i.e. beyond her powers).
CLASS NOTES

WYLIE v. RARANG

against the state itself although it has not been formally


impleaded. Public officials can be held personally
accountable for acts claimed to have been performed in
connection with official duties where they have acted ultra
vires or where there is showing of bad faith. The doctrine
cannot institutionalize irresponsibility and nonaccountability nor grant a privileged status not claimed by
any other official of the Republic. An act or omission that is
ultra vires cannot be part of official duty, but is a tortuous
act.
In this case, there was a finding of negligence since the
Office of the Provost Marshal explicitly recommended the
deletion of the name Auring if the article was to be
published. However, despite such recommendation, Wylie
and Williams approved and published the same with the
name Auring. According to the court, such act or
omission cannot be part of their official duty.
The Court flip-flopped once again in this case.
According to Prof. Roque, it would seem that the
Court decides cases on the basis of how affected the
Filipino was.
CLASS NOTES

G.R. No. 74135 (1992)

Aurora Rarang was a merchandise control guard in the


Office of the Provost Marshal. Wylie, the assistant
administrative officer of the US Naval Base, supervised the
publication of the Plan of the Day, a newsletter featuring
important announcements and general matters of interest
to the personnel of the base. Captain Williams, on the
other hand, was the commanding officer of the base. One
feature of the Plan of the Day was the Action Line Inquiry.
Under the said feature, an article was published alleging
that a certain Auring appropriated confiscated items for
their own consumption or use. Rarang filed a suit for
damages (libel against Wylie and Williams for her
humiliation because of the article.
Wylie and
Williams:

They are entitled to functional immunity


because the publication was done in the
performance of their duties.

The defendants are not entitled to functional immunity


because such is not available with regard to tortious acts.
American naval officers who commit a crime or tortuous
act while discharging official functions are not covered by
state immunity from suit. While the doctrine is also
applicable to complaints filed against officials of the state
for acts allegedly performed by them in the discharge of
their duties. The rule is that if the judgment against such
officials will require the state itself to perform an
affirmative act to satisfy the same, such as the
appropriation of the amount needed to pay the damages
awarded against them, the suit must be regarded as

UNITED STATES OF AMERICA v. RUIZ


G.R. No. L-35645 (1985)

The US held a bidding for some naval repair projects. Eligio


de Guzman and Co., Inc submitted bids. Subsequently, the
company received from the US two telegrams requesting it
to confirm its price proposals and for the name of its
bonding company. The company then received a letter
which said that the company did not qualify to receive an
award for the projects, because of its previous
unsatisfactory performance rating on a repair contract
with the US. The letter further said that the projects had
been awarded to third parties. The company sued the US
to allow them to perform the work on the projects.
United
States:

Philippine courts do not have jurisdiction


over it since it is a foreign sovereign
which had not given its consent to the
suit.

US is entitled to immunity since sovereign immunity is


not lost when a state enters into contracts related to its
sovereign functions.
State immunity exempts a State from being sued in the
courts of another State without its consent or waiver. This
rule is a necessary consequence of the principles of
independence and equality of States. However, the court
said that the rules of international law are not petrified;
they are constantly developing and evolving. Thus, it has
been necessary to distinguish between sovereign and
governmental acts (jure imperii) and private, commercial

74

PUBLIC INTERNATIONAL LAW

A2015

and proprietary acts (jure gestionis). The result is that


State immunity now extends only to acts jure imperii.

can be implied that it has given its consent to be sued


under the contract.

However, the restrictive application of State immunity is


proper only when the proceedings arise out of commercial
transactions of the foreign sovereign, its commercial
activities or economic affairs. A State may be said to have
descended to the level of an individual and can thus 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. In this case the projects are an integral part of
the naval base which is devoted to the defense of both the
US and the RP, indisputably a function of the government
of the highest order; they are not utilized for nor
dedicated to commercial or business purposes. The correct
test for the application of state immunity is not the
conclusion of a contract by a state but the legal nature of
the act.

This case is an earlier instance of the application of


the purpose test. Since the contract entered into was
for a stevedoring service which the deemed to be a
proprietary function it did not uphold the US claim
for immunity.

Makasiar, J., dissenting:


When the U.S. Government, through its agency at Subic
Bay, confirmed the acceptance of a bid of a private
company for the repair of wharves or shoreline in the
Subic Bay area, it is deemed to have entered into a
contract and thus waived the mantle of sovereign
immunity from suit and descended to the level of the
ordinary citizen. Its consent to be sued, therefore, is
implied from its act of entering into a contract.

Compare this with the USA v. Ruiz (supra.), which


concerned a case for the repair of wharves a
function which is obviously non-proprietary and can
only be exercised by the state.
CLASS NOTES

LIANG v. PEOPLE
G.R. No. 125865 (2001)

Informations for grave oral defamation were filed against


Liang, a Chinese national was employed as an Economist
by the Asian Development Bank. On separate occasions,
Liang accordingly uttered defamatory words (bitch!) to
Joyce V. Cabal, an ADB clerical staff. The MeTC judge
received an office of protocol from the DFA stating that
Liang is covered by immunity from legal processes under
Sec. 45 of the Agreement between ADB and the Philippines.
Judge dismissed the cases without notice to the
prosecution.
Liang was not entitled to immunity.

HARRY LYONS, INC. v. UNITED STATES OF


AMERICA
G.R. No. L-11786 (1958)

Harry Lyons, Inc. and the USA entered into a contract for
stevedoring service at the US Naval Base in Subic Bay. The
said contract is valid until June 30, 1956, and was entered
into pursuant to the provisions of Sec. 2 (c) (1) of the
Armed Services Procurement Act of 1947 of the USA. Harry
Lyons Inc. brought an action to collect several sums of
money arising from the contract.
United
States:

CFI has no jurisdiction over it and over the


subject matter of the action since the USA
is a sovereign state which cannot be sued
without its consent.

(Merits) Court dismissed the case due to Harry Lyons,


Inc.s failure to exhaust administrative remedies.
(Obiter) USA is not entitled to immunity. State immunity
is lost when a state enters into a proprietary contract.
When a sovereign state enters into a contract with a
private person, the state can be sued upon the theory that
it has descended to the level of an individual from which it

The statements allegedly made by petitioner Liang were


not uttered in the performance of his official functions. SC
disregarded the office of protocol from the DFA stating
that Liang is covered by immunity from legal process
under Section 45 of the Agreement between the ADB and
the RP regarding the Headquarters of the ADB in the RP.
The subsequent (2001) MR focused on the diplomatic
immunity of officials and staff of ADB from legal and
juridical processes in the Philippines and the constitutional
and political basis of that immunity. It should be made
clear that nowhere in the assailed Decision is diplomatic
immunity denied, even remotely.
Accordingly, courts cannot blindly adhere and take on its
face the communication from the DFA that Liang is
covered by any immunity. In receiving ex-parte the DFAs
advice and in motu proprio dismissing the criminal cases
without notice to the prosecution, the latters right to due
process was violated. It has been ruled that the mere
invocation of immunity clause does not ipso facto result in
the dropping of the charges.
The immunity mentioned under Sec. 45 of the Agreement
is not absolute, but subject to the exception that the act
was done in an official capacity.

75

PUBLIC INTERNATIONAL LAW

A2015

Slandering a person could not possibly be covered by the


immunity agreement because our laws do not allow the
commission of a crime, such as defamation, in the name of
official duty. It is a well-settled principle of law that a
public official may be liable in his personal capacity for
whatever damage he may have caused by his act done
with malice or in bad faith or beyond the scope of his
authority or jurisdiction.
Under the Vienna Convention on Diplomatic Relations, a
diplomatic agent, assuming Liang is such, enjoys immunity
from criminal jurisdiction of the receiving state except in
case of an action relating to any professional or
commercial activity exercised by the diplomatic agent in
the receiving state outside his official functions. As
already mentioned above, the commission of a crime is
not part of official duties.
Calling someone a bitch is obviously a sovereign
function.
This case shows that the certification made by the
DFA that an individual is entitled to immunity is NOT
conclusive. Determinations made by the executive as
to the grant of immunity are thus subject to judicial
review.
This is a departure from the rule in WHO v. Aquino
(infra.) that Courts are bound to respect executive
determination through the DFA of eligibility to
immunity.
CLASS NOTES

ruled that as a DEA agent allowed by the Philippine


government to conduct activities in the country, he is
entitled to state immunity from suit.
The diplomatic immunity of Scalzo under the Vienna
Convention on Diplomatic Relations was not sufficiently
established. Only "diplomatic agents," under the terms of
the Vienna Convention, are vested with blanket diplomatic
immunity from civil and criminal suits. Diplomatic agents
are the heads of missions or members of the diplomatic
staff, thus impliedly withholding the same privileges from
all others. The test is whether or not he performs duties of
diplomatic nature.
However, it was sufficiently established that, indeed, he
worked for the United States Drug Enforcement Agency
and was tasked to conduct surveillance of suspected drug
activities within the country on the dates pertinent to this
case. If it should be ascertained that Arthur Scalzo was
acting well within his assigned functions when he
committed the acts alleged in the complaint, the present
controversy could then be resolved under the related
doctrine of State Immunity from Suit. A foreign agent,
operating within a territory, can be cloaked with immunity
from suit but only as long as it can be established that he is
acting within the directives of the sending state. The
consent of the host state is an indispensable requirement
of basic courtesy between the two sovereigns.
The grant of immunity in this case was inconsistent
with the Vienna Convention. Scalzo was not a
diplomatic agent entitled to such immunity.
CLASS NOTES

MINUCHER v. COURT of APPEALS


G.R. No. 142396 (2003)

THE HOLY SEE V. ROSARIO


Minucher, an Iranian Labor Attach, filed a case for
damages on account of what he claimed to have been
trumped-up charges of drug trafficking made by Arthur
Scalzo (a US Drug Enforcement Agency agent). Trial court
ruled for the Minucher. While the trial court gave credence
to the claim of Scalzo and the evidence presented by him
that he was a diplomatic agent entitled to immunity as
such, it ruled that he, nevertheless, should be held
accountable for the acts complained of committed outside
his official duties. The CA dismissed the charges against
Scalzo upon presentation, among other things, of
Diplomatic Note no. 414 which was authenticated by the
DFA confirming Scalzos diplomatic agent status.
Scalzo:

He is entitled to immunity as an agent of


the US DEA and the acts complained of by
Minucher were performed within his
official functions.

Scalzo was not able to sufficiently establish that he has


entitled to diplomatic immunity. However, the court

G.R. No. 101949 (1994)

Holy See exercises sovereignty over the Vatican City. A lot


in Paranaque was offered to Ramon Licup by sellers Holy
See and Philippine Realty Corporation. The agreement to
sell provided that in consideration of payment of an
earnest money, and the sellers will clear the said lots of
informal settlers. Upon payment, Licup assigned his rights
to Starbright Enterprises. Msgr. Crilos informed Starbright
of the refusal of the informal settlers to vacate the lands,
proposing that Starbright undertake the eviction or that
the earnest money be returned to it. Starbright returned
the earnest money, but discovered that the lot was sold to
Tropicana Properties and Development Corporation.
Starbright filed an action for reconveyance & damages
against the Holy See as represented by the Papal Nuncio.
Holy See:

It is entitled to immunity as a foreign


sovereign.

Holy See enjoys sovereign immunity.

76

PUBLIC INTERNATIONAL LAW

The Vatican City represents an entity organized not for


political but for ecclesiastical purposes and international
objects. Despite its size and object, it has an independent
government of its own, with the Pope, who is also head of
the Roman Catholic Church, as the Holy See or Head of
State, in conformity with its traditions, and the demands
of its mission in the world. Inasmuch as the Pope prefers
to conduct foreign relations and enter into transactions as
the Holy See and not in the name of the Vatican City, one
can conclude that in the Pope's own view, it is the Holy
See that is the international person. The Philippines has
accorded the Holy See the status of a foreign sovereign.
While real estate transactions done in the ordinary course
of business are acts of jure gestations, such is not the case
here.

A2015

customarily extended to each other by its individual


member States. (International Catholic Migration
Commission v. Calleja, infra.)
The theory behind all three propositions is said to be
essentially institutional in character. "It is not concerned
with the status, dignity or privileges of individuals, but
with the elements of functional independence necessary
to free international institutions from national control and
to enable them to discharge their responsibilities
impartially on behalf of all their members. (ibid.)
The raison d'etre for these immunities is the assurance of
unimpeded performance of their functions by the agencies
concerned. (ibid.)

WORLD HEALTH ORGANIZATION v. AQUINO


The property in question was initially acquired by the Holy
See for use as a site of the Apostolic Palace for the Papal
Nuncio, and was subsequently sold the same because it
could not be used for the purpose intended. These are
undoubtedly acts jure imperii, pursuant to a states right to
create and maintain a diplomatic mission under the Vienna
Convention.
This case demonstrates the sovereign immunity of
states, which arises as a consequence of the doctrine
of sovereign equality.
The remedy of a person who feels aggrieved by the
acts of a foreign sovereign is to can ask his own
government to espouse his cause through diplomatic
channels.
CLASS NOTES
International Organizations
While there is no customary norm granting immunity to
international organizations, such may be extended to
them through a grant in Hosting Agreements (i.e.
agreement allowing the international organization to set
up an office or headquarters in the territory of a host
country.)
There are three propositions underlying the grant of
international immunities to organizations:
1) international institutions should have a status which
protects them against control or interference by any
one government in the performance of functions for
the effective discharge of which they are responsible
to democratically constituted international bodies in
which all the nations concerned are represented;
2) no country should derive any national financial
advantage by levying fiscal charges on common
international funds; and
3) the international organization should, as a
collectivity of States members, be accorded the
facilities for the conduct of its official business

G.R. No. L-35131 (1972)

Dr. Verstuyft was assigned by the WHO to the Regional


Office in Manila as Acting Assistant Director of Health
Services. When petitioner Verstuyft's personal effects
contained in twelve crates entered the Philippines, they
were directly stored at the Eternit Corporation's warehouse
in Rizal, pending his relocation into permanent quarters.
Upon application of respondents Constabulary Offshore
Action Center (COSAC) officers, respondent judge issued a
search warrant pursuant Republic Act 4712 amending
section 3601 of the Tariff and Customs Code, directing the
search and seizure of the dutiable items in said crates.
According to said law, bringing into the Philippines of large
quantities of dutiable goods beyond his official needs is
equivalent to unlawful importation.
The trial court judge upheld the search order
notwithstanding the protest of Dr. Francisco Dy (WHO
Regional Director for the Western Pacific stationed in
Manila) and the statement (via letter) of Secretary of
Foreign Affairs Carlos P. Romulo to said judge advising that
"Dr. Verstuyft is entitled to immunity from search in
respect of his personal baggage as accorded to members
of diplomatic missions" pursuant to the Host Agreement
and requesting suspension of the search warrant order.
WHO joined Verstuyft in opposing the search order.
WHO:

He is entitled to all privileges and


immunities, exemptions and facilities
accorded to diplomatic envoys in
accordance with international law" under
section 24 of the Host Agreement.

Verstuyft is entitled to diplomatic immunity.


He is entitled to diplomatic immunity, pursuant to the
Host Agreement executed on July 22, 1951 between the
Philippine Government and the World Health Organization.
Such diplomatic immunity includes personal inviolability,

77

PUBLIC INTERNATIONAL LAW

A2015

inviolability of the official's properties, exemption from


local jurisdiction, and exemption from taxation and
customs duties.

would impair the capacity of such body to discharge its


responsibilities impartially on behalf of its member-states.

When the executive branch affirmed Verstuyfts


diplomatic immunity, it was the duty of the court to accept
such claim to avoid embarrassing the executive branch in
conducting foreign relations. Diplomatic immunity is
essentially a political question and courts should refuse to
look beyond a determination of the executive branch.

INTERNATIONAL CATHOLIC MIGARATION


COMMISSION v. CALLEJA

This case shows the process by which immunity


should be invoked.

First, request from the DFA a certification of


your official/diplomatic status and entitlement
to immunity;
o Determination of immunity is an executive
function;
o To this, the courts should defer.

Second, present the certification to the Court.


Note, however, that the DFA certification is not
conclusive as to immunity. Such executive
determination is subject to judicial review. (see Liang
v. USA, supra.)

SOUTHEAST ASIAN FISHERIES DEVELOPMENT


CENTER v. ACOSTA
G.R. No. 97468-70 (1993)

Two labor cases were filed against Asian Fisheries


Development Center-Aquaculture Department (SEAFDECAQD) before the NLRC. The private respondents claim that
they have been wrongfully terminated from their
employment by SEAFDEC. SEAFDEC filed a Motion to
Dismiss, alleging that it is an international intergovernment organization composed of various Southeast
Asian countries, and that therefore, the NLRC does not
have jurisdiction over it.
SEAFDEC is an international agency entitled to functional
immunity.
SEAFDEC is an international agency enjoying diplomatic
immunity, enjoying functional independence and freedom
from control of the state in whose territory its office is
located. One of the basic immunities of an international
organization is immunity from local jurisdiction, i.e., that it
is immune from the legal writs & processes issued by the
tribunals of the country where it is found. The obvious
reason for this is that the subjection of such an
organization to the authority of the local courts would
afford a convenient medium thru which the host
government may interfere in their operations or even
influence or control its policies and decisions of the
organization; besides, such objection to local jurisdiction

G.R. No. 97468-70 (1993)

Private respondent labor unions operating in the


International Catholic Migration Commission a Vietnam
War refugee processing center, non- profit & UN registered
and of the International Rice Research Institute filed
petitions for Certification Election for the determination of
the sole and exclusive bargaining agents of rank and file
employees therein.
ICMC and
IRRI:

They were international organizations


registered with the UN and hence enjoy
diplomatic immunity.
They were also subsequently granted
the status of a specialized agency by the
Philippine government with also the
corresponding
immunities
and
privileges.
As such, they could not be subject to
certification elections.

ICMC and IRRI have diplomatic immunity.


Specialized agencies are international organizations having
functions in particular fields. The grant of immunity from
local jurisdiction is necessitated by their international
character and respective purposes. The objective is to
avoid the danger of partiality and interference by the host
country in their internal workings.
Conduct of certification elections is violative of
diplomatic immunity.
This immunity grants international organizations immunity
from any form of legal process. While certification
elections are not suits against these organizations per se,
they cannot be viewed as isolated processes; they could
trigger off a series of events in the collective bargaining
process which can lead to the eventuality of court
litigation.
Functional immunity is available to international
organizations.
CLASS NOTES

REGINA v. BARTLE AND THE COMMISSIONER


OF POLICE FOR THE METROPOLIS AND
OTHERS, EX PARTE PINOCHET
[1999] UKHL 17 (24th March, 1999); 38 ILM 581

78

PUBLIC INTERNATIONAL LAW

(*Trivia: The petitioner in this case is named Regina


because the action was brought in the name of the Queen
of the United Kingdom Ed.)
Pinochet [Pee-no-chet; not -shey] became the head of state
of Chile, after a successful coup. During the period of the
Pinochet regime, appalling acts of barbarism were
committed in Chile and elsewhere in the world: torture,
murder, unexplained disappearance of individuals, all on a
large scale. After stepping down as President, he assumed
a lifetime seat in the Chilean Senate. Sen. Pinochet denied
the allegations against him. In 1998, Pinochet came to the
UK for medical treatment. The judicial authorities in Spain
sought to extradite him in order to stand trial in Spain on a
large number of charges.
Pinochet:

He was a head of state during the time


the alleged acts were committed and
therefore subject to sovereign immunity
(subject matter jurisdiction/rationae
materiae)
UK and Spain had no jurisdiction
because the acts were committed in
Chile (jurisdiction over his person/
rationae personae)

Although Pinochet is entitled to immunity as a former


head of state, acts of torture or international crimes are
not considered as OFFICIAL ACTS and are therefore not
covered by his immunity.
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 the state himself but for the state, and
any international law obligations are owed to that state
and not 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, not the individual,
though in the case of a current head of state, he will have
a concurrent immunity rationae personae. It is the state
alone that can waive immunity, which Chile did not do in
this case.
As to the double criminality doctrine, not all the crimes as
charged are extradition crimes, so, Pinochet can be
extradited with regard to charges after Sept. 29, 1988
(date when Torture became a crime in the UK). The
Principle of Double Criminality requires that the conduct
complained of must constitute a crime under the law of
both Spain and of the UK. The relevant date is the conduct
date - meaning, that the conduct should be a crime in the

A2015

UK at the time it was committed, and not at the time the


extradition was sought (request date). Pinochet as a
former head of state enjoys immunity, but torture as
defined under the Torture convention cannot be a public
function, so he does not enjoy immunity with regard to
these acts committed after Sept. 29, 1988.
Torture is now an international crime on its own.
International Law prohibiting torture has the character of
jus cogens or a peremptory norm, i.e. one of those rules
which have a particular status. Universal Jurisdiction over
torture is justified by its jus cogens nature. Important
points from the torture convention:

Torture under the Convention can only be


committed by "a public official or other person
acting in an official capacity", but these words
include a head of state. A single act of official torture
is "torture";

Superior orders provide no defense;

If the states with the most obvious jurisdiction (the


Art. 5(1) states) do not seek to extradite, the state
where the alleged torturer is found must prosecute
or, apparently, extradite to another country
(universal jurisdiction).

There is no express provision dealing with state


immunity of heads of state, ambassadors or other
officials.

Since Chile, Spain and the UK are all parties to the


Convention, they are bound under treaty by its
provisions WON such provisions would apply in the
absence of treaty obligation. Chile ratified the
Convention with effect from Oct. 30, 1988 and the
UK with effect from Dec. 8, 1988.

ATTORNEY GENERAL OF ISRAEL v. EICHMANN


36 ILR 277 (Israel Sup. Ct. 1962)

Eichmann was an important Nazi bureaucrat who oversaw


the Final Solution. He 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 before and during World War II.
At the end of the war he escaped capture as a war criminal.
He fled to Argentina where he lived and worked under an
alias. Eichmann was eventually tracked down by Israeli
intelligence agents. Israel doubted that Argentina would
cooperate in the extradition of Eichmann, so in 1960
Eichmann was kidnapped (he was drugged) and taken
secretly to Israel for prosecution. The Eichmann trial heard
scores of witnesses about the Nazi atrocities. Eichmann
was later convicted, executed, cremated and his ashes
scattered on the Mediterranean so as not to create a
shrine for his perverse admirers upon orders of the Israeli
Supreme Court.
Eichmann:

Israel exceeded its jurisdiction when he


was abducted and brought before

79

PUBLIC INTERNATIONAL LAW

Israelis courts;
He is immune from suit since he acted in
behalf of his state;
He cannot be punished under a
retroactive
criminal
law
(Nazi
Collaborators Act) since Israel was not
yet a state when the alleged offences
were committed.

Israel had jurisdiction as crimes against humanity are


subject to universal jurisdiction.
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 the appellant. Israel also acquired the
right to try Eichmann upon being a member of the United
Nations so that it is immaterial that the State of Israel did
not exist at the time the offenses were committed. It was
also held that Eichmanns abduction did not have any
bearing on the jurisdiction of the Israeli Court to hear the
case. Ultimately, there is an absence of immunity for
crimes against humanity.
On jurisdiction: The principle of territorial sovereignty
merely requires that the State exercise its power to punish
within its own borders, not outside them; that subject to
this restriction every State may exercise a wide discretion
as to the application of its laws and the jurisdiction of its
courts in respect of acts committed outside the State; and
that only in so far as it is possible to point to a specific rule
prohibiting the exercise of this discretion . . . is a State
prevented from exercising it. That view was based on the
following two grounds: (1) It is precisely the conception of
State sovereignty which demands the preclusion of any
presumption that there is a restriction on its
independence; & (2) Even if it is true that the principle of
the territorial character of criminal law is firmly
established in various States, it is no less true that in
almost all of such States criminal jurisdiction has been
extended . . . so as to embrace offences committed
outside its territory. . .
However, it is the universal character of the crimes in
question which vests in every State the power to try those
who participated in the preparation of such crimes, and to
punish them therefor. It follows that the State which
prosecutes and punishes a person for that offence 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.
On manner of arrest (kidnapping from Argentina):
(a) In the absence of an extradition agreement between
the State to which a "fugitive offender" has been brought
for trial and the country of "asylum" . . . and even if there
existed such an agreement . . . but the offender was not

A2015

extradited . . . in accordance therewith, the Court will not


investigate the circumstances in which he was detained
and brought to the area of jurisdiction (Sir: the Ma-andPa doctrine, originally from Ker v. Illinois).
(b) This also applies if the offender's contention be that
the abduction was carried out by the agents of the State
prosecuting him, since in such a case the right violated is
not that of the offender, but the sovereign right of the
State aggrieved.
(c) the aggrieved State may condone the violation of its
sovereignty and waive its claims, including the claim for
the return of the offender to its territory, and such waiver
may be explicit or by acquiescence.
Appellant is a "fugitive from justice" from the point of
view of the law of nations, since the crimes that were
attributed to him are of an international character and
have been condemned publicly by the civilized world;
therefore, by virtue of the principle of universal
jurisdiction, every country has the right to try him. This
jurisdiction was automatically vested in the State of Israel
on its establishment in 1948 as a sovereign State.
Therefore, in bringing the appellant to trial, it functioned
as an organ of international law and acted to enforce the
provisions thereof through its own law. Consequently, it is
immaterial that the crimes in question were committed
when the State of Israel did not exist, and outside its
territory The moment it is admitted that the State of Israel
possesses criminal jurisdiction both according to local law
and according to the law of nations, it must also be
conceded that the Court is not bound to investigate the
manner and legality of the [arrest and]...detention.
(Karichi Notes, 2010)

KER v. ILLINOIS
119 U.S. 436 (1886)

Ker was charged to have committed Larceny in Illinois.


After the commission of the alleged offense, he went to
Peru. The Governor of Illinois, made his requisition to the
Secretary of State of the US for a warrant requesting the
extradition of the defendant to Cook County by the
Republic of Peru. The President of the US issued his
warrant directed to a messenger (Julian), to receive Ker
from the authorities of Peru, in compliance with the treaty
between the US and Peru. The messenger, having the
necessary papers, arrived in Lima, but, without presenting
them to any officer of the Peruvian government or making
any demand on that government for the surrender of Ker,
forcibly and with violence arrested him, placed him on
board the US vessel Essex in which he was carried a
prisoner to San Francisco, California. The process of the
criminal court was served upon him, and he was held to
answer the indictment already mentioned. Ker alleged that
he was in fact kidnapped from Peru and brought to the
country against his will. According to him, he was also

80

PUBLIC INTERNATIONAL LAW

A2015

refused any opportunity for communication with any


person or seeking advice for legal assistance.
Ker:

He was denied due process of law and that


the abduction violated the US-Peru
Extradition Treaty.

Camarenas life so that others could further torture and


interrogate him. The US sought his extradition but the
Mexican government did not cooperate. Machain was
then forcibly kidnapped by Mexican nationals hired by the
DEA from his office in Guadalajara, Mexico, flown by
private plane to El Paso, Texas, where he was arrested by
DEA officials.

Ker was not denied due process.


Due process of law is complied with when the party is
regularly indicted by the proper grand jury in the state
court, has a trial according to the forms and modes
prescribed for such trials, and when in that trial and
proceedings he isnt deprived of rights to which he is
lawfully entitled. For mere irregularities in manner in
which he was brought into the custody of the law, he isnt
entitled to say that he shouldnt be tried for the crime with
which he is charged in a regular indictment.
This treaty of extradition doesnt provide that a party
fleeing from the US to escape punishment for crime
becomes thereby entitled to an asylum in the country to
which he has fled. It isnt contended that Peru couldnt
have ordered Ker out of the country on his arrival, or at
any period of his residence there. Nor can it be doubted
that Peru could, of its own accord, without any demand
from the US, have surrendered Ker to an agent of Illinois,
and this surrender wouldve been valid within the
dominions of Peru. The right of the Peruvian government
to voluntarily give a party, in Kers condition, an asylum in
that country is quite a different thing from his right to
demand and insist upon security in such an asylum. The
treaty, so far as it regulates the right of asylum, is intended
to limit this right in the case of one who is proved to be a
criminal fleeing from justice; so that, on proper demand
and proceedings had therein, the government of the
country of the asylum shall deliver him up to the country
where the crime was committed. And to this extent, the
treaty does regulate or impose a restriction upon the right
of the government of the country of the asylum to protect
the criminal from removal. In this case, the treaty wasnt
called into operation or relied upon.
The Court pronounced a veritable Ma- and PaDoctrine the manner of arrest is no longer
relevant, granted the accused is subjected to a fair
and impartial trial.
CLASS NOTES

UNITED STATES v. ALVAREZ-MACHAIN


504 US 655 (1991)

Humberto Alvarez-Machain is a medical doctor, indicted


for participating in the kidnap and murder of US-DEA
special agent Enrique Camarena Salazar and a Mexican
pilot working with Camarena, Alfredo Zavala-Avelar. It was
alleged that Machain participated by prolonging the

AlvarezMachain:

US courts do not have jurisdiction over


the case because the abduction violated
the US-Mexico Extradition Treaty.

US courts have jurisdiction over the case notwithstanding


the abduction of Machain.
The court in interpreting the treaty ruled that there is
nothing about the obligation of the US and Mexico to
refrain from forcible abductions of people from the
territory of the other nation, or the consequences under
the Treaty if such an abduction happens. It also found that
finds that in the history of negotiation and practice under
the treaty, there is no showing that abduction outside of
the Treaty constitutes a violation. , Since his abduction
was not in violation of the Extradition Treaty, therefore
the Ker doctrine is applicable to this case. The fact that
Machain was forcibly abducted does not therefore
prohibit his trial in a court in the United States for violation
of criminal laws of the United States. However, in the end
Machain was acquitted for insufficiency of evidence
against him.

SOSA v. ALVAREZ
542 US 692 (2004)

Upon his acquittal from the charges lodged by the DEA,


Alvarez-Machain sued Sosa and a DEA operative, claiming
damages from the US under the Federal Torts Claim Act for
his false arrest. FTCA authorizes suits for personal injury
caused by a negligent and wrongful act or omission of an
employee of the government while acting within the scope
of his office (like the DEA operative). He was also seeking
damages from Sosa under the Alien Torts Statute for a
violation of the law of nations. ATS provides that district
courts shall have original jurisdiction of any civil action by
an alien for a tort only, committed in violation of the law of
nations or a treaty of the US.
Alvarez-Machains claims based on the ATS and FTCA
were rejected by the US SC.
According to the court, it cannot exercise jurisdiction over
the claim of Alvarez-Machain. Accordingly, the FTCA is
provided an insufficient basis for the suit, even if
abducting the doctor from Mexico violated customary
norms of international law. Accordingly, while the FCTA
does provides a waiver of immunity of the US government
in personal injury caused by its employee, this is subject to

81

PUBLIC INTERNATIONAL LAW

A2015

the exception that it is not to be made applicable to


injuries suffered in a foreign country. In this case, the
abduction of Alvarez-Machain occurred in Mexico so the
exception clearly applies, hence, the US government
cannot be held liable.
As for the ATS, the court said that it is a jurisdictional
statute creating no new causes of action. The reasonable
inference from history and practice is that the ATS was
intended to have practical effect the moment it became
law, on the understanding that the common law would
provide a cause of action for the modest number of
international law violations thought to carry personal
liability at the time: offenses against ambassadors,
violation of safe conducts, & piracy. In deriving a standard
for assessing Alvarez's claim, the Court said that history
shows that federal courts should not recognize claims
under federal common law for violations of any
international norm with less definite content and
acceptance among civilized nations than the 18th-century
paradigms familiar when the ATS was enacted. Accordingly,
actionable violations of international must be of a norm
that is specific, universal, and obligatory. A single illegal
detention of less than a day, followed by the transfer of
custody to lawful authorities and a prompt arraignment,
violates no norm of customary international so well
defined as to support the creation of a federal remedy for
Alvarez-Machain.

STATE v. EBRAHIM
1991 (2) SALR 553

The South African common law is Roman-Dutch law. The


unlawful removal of a person from one jurisdiction to
another is regarded as abduction and as a serious breach
of the law in Roman-Dutch law. The individual must be
protected against illegal detention and abduction, the
bounds of jurisdiction must not be exceeded, sovereignty
must be respected, the legal process must be fair to those
affected and abuse of law must be avoided in order to
protect and promote the integrity of the administration of
justice. This applies equally to the state. When the state is
a party to a dispute, as for example in criminal cases, it
must come to court with "clean hands". When the state
itself is involved in abduction across international borders,
as in the present case, its hands are not clean.

JOHN DOE I, et.al. v. UNOCAL


963 F. Supp. 880 (1997)

Plaintiffs are farmers from Burma. They brought a class


action against Unocal, Total, the Myanmar Oil and Gas
Enterprise (MOGE), the State Law and Order Restoration
Council (SLORC), and individual officers of Unocal. They
allege that SLORC is a military junta that seized control in
Burma in 1988, and MOGE is a state-owned company
controlled by SLORC that produces and sells energy
products. Plaintiffs seek injunctive, declaratory and
compensatory relief for alleged international human rights
violations perpetrated by defendants in furtherance of
defendants Unocal, Total and MOGE's joint venture, the
Yadana gas pipeline project.
UNOCAL:

Ismail Ebrahim is a South African citizen who was a


member of the military wing of the African National
Congress (ANC). In 1964, he was convicted of several acts
of sabotage and sentenced to 15 years imprisonment and
released in 1979. Thereafter, he was restricted by
executive order to the district of Pinetown in Natal. He fled
to Swaziland while the restriction order was still in force.
He was forcibly abducted from his house in Swaziland by
two men who informed him that they were members of the
South African Police. He was bound, blindfolded and
gagged and taken across the border into South Africa to a
group of armed white men. They questioned him about the
activities of the ANC. He inferred they were members of
the security police because they were permitted to pass
through an army road blockade without search or
questioning. In South Africa, he was formally arrested, and
was charged with treason.
Ebrahim:

The court did not have jurisdiction over


his case because he was abducted by
agents of the South African government

The court does not have jurisdiction. Thus, Ebrahims


conviction and sentence cannot stand.

Moved to dismiss plaintiffs' complaint


for lack of subject-matter jurisdiction
pursuant to Federal Rule of Civil
Procedure 12(b)(1)

MTD was GRANTED as to SLORC and MOGE because they


are entitled to sovereign immunity pursuant to the
Foreign Sovereign Immunities Act (FSIA).
Under the FSIA, a foreign state is immune from suit, and
federal courts lack subject matter jurisdiction over claims
against the foreign state, unless one of the enumerated
exceptions applies. The FSIA provides a general exception
to jurisdictional immunity where: [1] the action is based
upon a commercial activity carried on in the United States
by the foreign state; or [2] upon an act performed in the
United States in connection with a commercial activity of
the foreign state elsewhere; or [3] upon an act outside the
territory of the United States in connection with a
commercial activity of the foreign state elsewhere and
that act causes a direct effect in the United States. In this
case, plaintiffs contended that SLORC and MOGE are not
entitled to immunity because this case falls within clauses
2and 3 of the commercial activity exception. However, the
court found that plaintiffs allegations were not enough to
sustain a finding that the two exceptions applied in this

82

PUBLIC INTERNATIONAL LAW

case. Hence, the case was dismissed as to SLORC and


MOGE because of their sovereign immunity.
District Court has subject-matter jurisdiction over
UNOCAL under the Alien Tort Claims Act (ATCA).
As for the plaintiffs ACTA claim, said law provides that the
district courts shall have original jurisdiction of any civil
action by an alien for a tort only, committed in violation of
the law of nations or a treaty of the United States. The
ATCA requires:
1) a claim by an alien;
2) alleging a tort; and
3) a violation of international law.
In this case, the first two requirements were established
however, there was a dispute whether plaintiffs may
assert claims based on violations of international law
against the private defendants.
Under the ATCA,
jurisdiction may be based on a violation of a jus cogens
norm which enjoys the highest status within international
law. The prohibition against official torture (as plaintiffs
allege, have been committed by defendants in concert
with SLORC) rises to the level of a jus cogens norm, and
jurisdiction against UNOCAL may be premised on a
violation of that norm.

CASE CONCERNING THE ARREST WARRANT


OF 11 APRIL 2000 (DEMOCRATIC REPUBLIC OF
CONGO v. BELGIUM)
ICJ Reports 2002, p. 3 (2002)

Belgium's Parliament voted a "law of universal jurisdiction",


allowing it to judge people accused of war crimes, crimes
against humanity or genocide. An investigating judge
issued "an international arrest warrant in absentia"
against Mr. Abdulaye Yerodia Ndombasi, the then Minister
of Foreign Affairs of the Democratic Republic of the Congo,
charging him, as perpetrator or co-perpetrator, with
offences constituting grave breaches of the Geneva
Conventions of 1949 and of the Additional Protocols
thereto, and with crimes against humanity. Congo, in
response, instituted proceedings against Belgium for
issuing said warrant.
Congo:

The international warrant issued by


Belgium constituted a violation of the
principle that a State may not exercise
its authority on the territory of another
State;
Diplomatic immunity of the Minister of
Foreign Affairs of a sovereign state.

Belgium violated exceeded its authority when it issued


the international warrant of arrest against the former
Minister of Foreign Affairs of Congo. The latter is also
entitled to diplomatic immunity.

A2015

The Court found that the issue of the arrest warrant


against Mr. Abdulaye Yerodia Ndombasi, and its
international circulation, constituted violations of a legal
obligation of the Kingdom of Belgium towards the
Democratic Republic of the Congo. They failed to respect
the immunity from criminal jurisdiction and the
inviolability which the incumbent Minister for Foreign
Affairs of the Democratic Republic of the Congo enjoyed
under international law. The functions of a Minister of
Foreign Affairs are such that throughout the duration of
his or her office, he or she, when abroad enjoys full
immunity from criminal jurisdiction. That immunity and
inviolability protects the individual against any act of
authority of another state which would hinder him or her
in the performance of duties. No distinction can be drawn
between acts performed in an official capacity and those
claimed to have been performed in a private capacity or
for that matter, between acts performed before the
person concerned assumed office and acts committed
during that period.
However, the immunity from jurisdiction enjoyed by
incumbent Ministers for Foreign Affairs does not mean
that they enjoy impunity in respect of any crimes they
might have committed, irrespective of their gravity.
Immunity from criminal jurisdiction and individual criminal
responsibility are quite separate concepts. While
jurisdictional immunity is procedural in nature, criminal
responsibility is a question of substantive law.
Jurisdictional immunity may well bar prosecution for a
certain period or for certain offences; it cannot exonerate
the person to whom it applies from all criminal
responsibility. The immunities enjoyed under International
law by an incumbent or former Minister for Foreign Affairs
do not represent a bar to criminal prosecution in certain
circumstances:

Such persons enjoy no criminal immunity under


international law in their own countries, and may
thus be tried by those countries' courts in
accordance with the relevant rules of domestic law.

They will cease to enjoy immunity from foreign


jurisdiction if the State which they represent or
have represented decides to waive that immunity.

After a person ceases to hold the office of Minister


for Foreign Affairs, he or she will no
longer enjoy al1 of the immunities accorded by
international law in other States.

An incumbent or former Minister for Foreign Affairs


may be subject to criminal proceedings before
certain international criminal courts, where they
have jurisdiction

UNITED STATES v. PURGANAN


G.R. No. 148571 (2002)

83

PUBLIC INTERNATIONAL LAW

A2015

The DOJ received from the DFA NOTE VERBALE NO. 0522
containing a request for the extradition of Mark Jimenez to
the US. Attached to the note were the warrant of arrest
issued by the US district court and other supporting
documents. Secretary of Justice Drilon issued DO 249
designating and authorizing a panel of attorneys to handle
the case. Pending evaluation, Jimenez requested copies of
the official extradition request form the US Government, as
well as the documents attached thereto. Drilon denied the
requests saying that it is premature to furnish Jimenez with
a copies pending he evaluation, that the evaluation is not a
preliminary investigation since it is merely a procedure to
determine the requirements under the relevant law and
treaty have been complied with by the requesting
government (US); thus, the constitutionally guaranteed
rights of the accused in all criminal prosecutions are not
available to Jimenez.

available. It is more akin, if at all, to a courts request to


police authorities for the arrest of the accused who is at
large or has escaped detention or jumped bail. Having
once escaped the jurisdiction of the requesting state, the
reasonable prima facie presumption is that the person
would escape again if given the opportunity. Potential
extraditees do not have the right to a hearing for the
issuance of a warrant of arrest nor the right to bail granted
by the RTC.

Jimenez filed a case against Drilon claiming that his due


process rights were violated. He won in the first case but
lost in the second one (Secretary of Justice v. Hon. Lantion)

The Extradition Procedure is as follows:


1. The Extradition Request The request is made by
the Foreign Diplomat of the Requesting State
addressed to the Sec of Foreign Affairs (Philippines)
which contains the copy of the criminal charge,
recital of the acts for which extradition is requested,
the text of the applicable law, and such other
supporting documents. It t is the task of the
executive authority to evaluate the sufficiency of the
request pursuant to Sec 5 of PD 1069 and the
corresponding provision in the extradition treaty
(Article 7 RP-US Treaty).
2. The Extradition Petition upon the finding made by
the SFA that he extradition request is sufficient and
complete in form and substance, he shall deliver the
same to the SOJ (Drilon) who shall immediately
designate and authorize the attorney to handle the
case. The lawyer so designated shall file a written
petition with the RTC for the court to take
consideration of the extradition request. The judge
shall summon the extraditee and he may issue a
warrant of arrest if it appears that the arrest will
best serve the ends of justice.
3. The Extradition Hearing The treaty does not
specify the procedure but merely state that the
proceeding shall in so far as practicable be not
inconsistent with summary proceedings. The trial
court determines WoN the offense mentioned is (1)
extraditable based on the application of dual
criminality rule and (2) if the offense for which
extradition is requested is a political one.

The US government then filed this third case for a petition


for the extradition of Jimenez. A warrant of arrest was
subsequently issued.
Jimenez:

He was entitled to basic due process


rights of notice and hearing during the
evaluation stage of the extradition
proceedings (subject of first two cases)
and before a warrant of arrest can be
issued against him.

Jimenez was not entitled to the basic due process rights


of notice and hearing during the evaluation stage of the
extradition proceedings and before warrant of arrest
could be issued against him.
The ultimate purpose of extradition proceedings is to
determine whether the request expressed in the petition,
supported by its annexes & the evidence that may be
adduced during the hearing of the petition, complies with
the Extradition Treaty and Law; and whether the person
sought is extraditable. The proceedings are intended
merely to assist the requesting state in bringing the
accused - or the fugitive who has illegally escaped - back to
its territory, so that the criminal process may proceed
therein. By entering into an extradition treaty, RP is
deemed to have reposed its trust in the reliability or
soundness of the legal and judicial system of its treaty
partner, as well as in the ability and the willingness of the
latter to grant basic rights to the accused in the pending
criminal case therein.
Extradition proceedings are not equivalent to a criminal
case in which guilt or innocence is determined.
Consequently, an extradition case is not one in which the
constitutional rights of the accused are necessarily

Accordingly, extradition is the removal of an accused from


the Philippines with the object of placing him at the
disposal of foreign authorities, to enable to requesting
state to hold him in connection with any criminal
investigation directed against him, or the execution of a
penalty imposed on him under the penal or criminal law of
the requesting state or govt.

The court also laid down five postulates of extradition in


this case:
1. Extradition is a major instrument for the suppression
of crime. With the advent of easier and faster means
of international travel, the flight of affluent criminals
from one country to another for the purpose of
committing crime and evading prosecution has
become more frequent. Accordingly, governments

84

PUBLIC INTERNATIONAL LAW

2.

3.

4.

5.

A2015

are adjusting their methods of dealing with criminals


and crimes that transcend international boundaries.
The Requesting State Will Accord Due Process to
the Accused. A duly authorized representatives
signature on an extradition treaty signifies our
confidence in the capacity and the willingness of the
other state to protect the basic rights of the person
sought to be extradited. That signature signifies our
full faith that the accused will be given, upon
extradition to the requesting state, all relevant and
basic rights in the criminal proceedings that will take
place therein; otherwise, the treaty would not have
been signed, or would have been directly attacked
for its unconstitutionality.
The proceedings are Sui Generis. As pointed out
in Secretary of Justice v. Lantion extradition
proceedings are not criminal in nature.
Compliance shall be in GF. Fulfilling our obligations
under the Extradition Treaty promotes comity with
the requesting state. Failure to fulfill our obligations
thereunder paints a bad image of our country before
the world community. Such failure would discourage
other states from entering into treaties with us,
particularly an extradition treaty that hinges on
reciprocity. We are bound by pacta sunt servanda to
comply in good faith with our obligations under the
Treaty.
There is an underlying risk of flight. Persons to be
extradited are presumed to be flight risks. This
prima facie presumption finds reinforcement in the
experience of the executive branch: nothing short of
confinement can ensure that the accused will not
flee the jurisdiction of the requested state in order
to thwart their extradition to the requesting state.

CLINTON v. JONES
520 U.S. 681 (1997)

Clinton was the Governor of the Arkansas before he


became the President of the US. Jones worked as an
employee of the Arkansas Industrial Development
Commission. According to Jones, when that she was
working as a state employee staff at the registration desk
in an official conference, Ferguson, a former State Police
officer, persuaded her to leave her desk and to visit the
Governor in a business suite at the hotel, where he made
"abhorrent" sexual advances that she vehemently rejected.
She filed a complaint against Clinton.
Clinton:

He filed a motion to dismiss claiming


presidential immunity (as he was
already the US President at that time)

Clinton is not immune from the suit filed by Jones.


The president has immunity from damages claims arising
out of official acts extending to the outer perimeter of his

authority. The immunity serves the public interest in


enabling such officials to perform their designated
functions effectively without fear that a particular decision
may give rise to personal liability. The sphere of protected
action must be related closely to the immunity's justifying
purposes. However, presidential immunity does not
extend to unofficial conduct, which is what is involved in
this case. The court also said that with respect to acts
taken in his public character (official acts), the President
may be disciplined principally by impeachment, not by
private lawsuits for damages. Other than that, he is
otherwise subject to the laws for his purely private acts.

FORBES v. CHUOCO TIACO


G.R. No. L-6157 (1910)

Forbes (then Governor- General of the Philippines) at the


request of the Imperial Government of China ordered the
deportation of Chuoco, a Chinese National, along with 11
others. Chuoco Tiaco returned to the Philippines and filed a
complaint against Forbes and the officials he instructed to
carry out the deportation (Harding and Trowbridge) for
damages.
Forbes:

The CFI lacked jurisdiction over him and


his officials pursuant to immunity.

The action was brought against Forbes and the others in


their official capacities. Consequently, the CFI lacked
jurisdiction over them.
The Governor General, in his official capacity, being one of
the coordinate branches of the Government, is entitled to
the same protection against personal actions for damages
by those who feel themselves aggrieved by acts which he
performs in carrying out what he honestly deems to be the
duties of his office as are the other coordinate branches of
the Government. The court also explained that the
executive department has the power to expel undesirable
aliens from the country.
Moreland, J., concurring:
In explaining the Principle of Non-liability, he said that it is
undoubted that neither the Legislature, nor a member
thereof is liable in damages for any act which it performs,
believing that it had the power so to act, even though it
ultimately appears that such act is entirely outside of its
powers and jurisdiction and is wholly and utterly void. It is
equally undoubted that neither the courts, constituting
another coordinate branch of the Government, nor
members thereof, are, under similar circumstances, liable
in damages. He believed that what the Governor-General
exercised were functions essentially judicial overlapping
with executive functions. Thus, if a judge acted in place of
the GG, he would not be civilly liable. Therefore, so must
the Governor-General. The subject matter is the same, the

85

PUBLIC INTERNATIONAL LAW

A2015

mental process involved is the same and the discretion


used is the same. Whenever, therefore, the State confers
judicial powers upon an individual, it confers them with
full immunity from private suits. This is also rooted in the
separation of powers in our government. According to the
court, the civil responsibility of the chief executive would
produce in him an inevitable tendency, insidious in
character, constant in pressure, certain in results, to
protect himself by following lines of least resistance and to
temper the force of his executive arm in places and upon
occasions where there was strong opposition, either by
powerful and influential persons or by great federated
interests, and where public prejudice was intense, active,
and threatening.

DAVID v. MACAPAGAL-ARROYO
G.R. No. 171396 (2004)

Arroyo issued PP 1017 declaring a state of


national emergency, considering the acts and activities of
the extreme Left and the extreme Right to be a clear and
present danger to the safety and the integrity of the
Philippine State and of the Filipino people. On the same
day, she issued G. O. No. 5 implementing PP 1017 "to
immediately carry out the necessary and appropriate
actions and measures to suppress and prevent acts of
terrorism and lawless violence." One week after the
declaration of a state of national emergency, she lifted PP
1017. She issued Proclamation No. 1021, declaring that the
state of national emergency has ceased to exist.
Petitioners assailed the constitutionality of Arroyos acts
before the SC. Incidental to the determination of WON the
petitioners had locus standi to file the case, the SC also
occasioned to rule on the propriety of impleading
President Macapagal-Arroyo in the suit.
It was improper to implead President Macapagal-Arroyo
in the suit as she is entitled to Presidential Immunity.
According to the SC, settled is the doctrine that the
President, during his tenure of office or actual incumbency,
may not be sued in any civil or criminal case, and there is
no need to provide for it in the Constitution or law. It will
degrade the dignity of the high office of the President, the
Head of State, if he can be dragged into court litigations
while serving as such. Furthermore, it is important that he
be freed from any form of harassment, hindrance or
distraction to enable him to fully attend to the
performance of his official duties and functions. Unlike the
legislative and judicial branch, only one constitutes the
executive branch and anything which impairs his
usefulness in the discharge of the many great and
important duties imposed upon him by the Constitution
necessarily impairs the operation of the Government.
However, this does not mean that the President is not
accountable to anyone. Like any other official, he remains

accountable to the people but he may be removed from


office only in the mode provided by law and that is by
impeachment.

JURISDICTIONAL IMMUNITIES OF THE STATE


(GERMANY v. ITALY: GREECE INTERVENING)
ICJ Judgment of 3 February 2012

Italy allowed civil claims to be brought against Germany in


the Italian courts, seeking reparation for injuries caused by
violations of international humanitarian law committed by
the German Reich during the Second World War. According
to Germany, Furthermore, Italy has breached Germanys
jurisdictional immunity.
Germany filed an Application instituting proceedings
against Italy before the ICJ, in respect of a dispute
originating in violations of obligations under international
law allegedly committed by Italy through its judicial
practice in that it has failed to respect the jurisdictional
immunity (or state immunity) which Germany enjoys under
international law.
Germany:

Italy:

Italy violated its immunity through the


following:
By instituting the proceedings;
By taking measures of constraint against
Villa Vigoni, a German State property
situated in Italian territory;
By declaring enforceable in Italy decisions
of Greek civil courts rendered against
Germany on the basis of acts similar to
those which gave rise to the claims
brought before Italian courts
Territorial tort principle should be
applied in this case;
Serious violations of the principles of
international law applicable to armed
conflict;
Violation of jus cogens norms, which
have greater value than rules of
international law; and
As a measure of last resort, since the
claimants in the cases filed before the
Italian courts had no other means of
redress, they had to entertain them

Italy violated Germanys jurisdictional immunity.


Although there has been much debate regarding the
origins of State immunity and the identification of the
principles underlying that immunity in the past, the ILC
concluded in 1980 that the rule of State immunity had
been adopted as a general rule of customary
international law solidly rooted in the current practice of
States. That conclusion was based upon an extensive
survey of State practice and is confirmed by the record of

86

PUBLIC INTERNATIONAL LAW

A2015

national legislation, judicial decisions and the comments of


States on what became the United Nations Convention on
the Jurisdictional Immunities of States and their Property.
It believes that practice to show that, whether in claiming
immunity for themselves or according it to others, States
generally proceed on the basis that there is a right to
immunity under international law, together with a
corresponding obligation on the part of other States to
respect and give effect to that immunity.

state immunity. Furthermore, jus cogens norms prevail


over state immunity. State immunity being procedural in
character, does not involve determining the lawfulness of
the actions brought before a states courts. Lastly, nothing
in international law shows that the entitlement of a State
to immunity depends on the existence of effective
alternatives to securing redress.

The customary international law in force when the claims


were filed before Italian courts should apply because of
Article 13 of the International Law Commission Articles on
Responsibility of States for Internationally Wrongful Acts.
The article states that the compatibility of an act with
international law can be determined only by reference to
the law in force at the time when the act occurred.
Regarding the matter of Villa Vigoni, the ICJ held that
based on Article 19 of the UN Convention, measures of
constraint may only be taken against property belonging
to another state if the property is being used for nongovernment commercial purposes. As a center for cultural
exchange, Villa Vigoni is clearly being used for
governmental non-commercial purposes. Thus, Italy
violated Germanys immunity. Regarding the matter of
allowing Greek decisions to be enforced in Italy, the ICJ
held that such an act also amounts to exercising
jurisdictional power. Since Italy exercised jurisdictional
power in granting exequatur, it violated Germanys
immunity.

According to him, jus cogens cannot be deconstructed into


substantial and procedural. In order to avoid denial of
justice and impunity, jus cogens must stand above the
prerogative or privilege of state immunity. The tension
between State immunity and the right of access to justice
should be resolved in favor of the latter, particularly in
cases of international crimes. The threshold of gravity of
the breaches of human rights and of international
humanitarian law removes any bar to jurisdiction, in the
quest for reparation to victimized individuals. In relation
to this, he said that all mass atrocities should be
considered in light of the threshold of gravity.
Furthermore, states cannot waive rights which are
inherent to human beings. In reality, what jeopardizes
international legal order are international crimes, not
individuals quest for reparation. Grave breaches of
human rights and international humanitarian law are antijuridical acts amounting to breaches of jus cogens. Since
they are breaches of jus cogens, they cannot simply be
disregarded by relying on State immunity.

As for the territorial tort principle, it cannot apply because


customary international law shows that a state should be
accorded immunity for torts committed by its armed
forces on the territory of another state. The territorial tort
principle is based on Article 11 of the European
Convention, which provides that State A cannot claim
immunity from State B in proceedings which relate to
redress for injury, if such injury occurred in State A while
State B was present in the formers territory. Article 11
must be read in conjunction with Article 31, which
precludes the actions of armed forces from affecting the
immunities or privileges enjoyed by a state. Article 12 of
the United Nations Convention provides that a state
cannot invoke immunity if it caused injury within another
state. This article does not make any express mention of
the acts of armed forces, but the International Law
Commissions commentary says that it does not apply to
situations involving armed conflicts. It cannot be held that
the acts of the German military affected Germanys state
immunity.

Moreover, international crimes perpetrated by states


(such as the German Third Reich in this case) are neither
acts jure gestionis (commercial acts) nor acts jure imperii
(governmental acts). They are delicta imperii (crimes of the
government), which cannot be given immunity. What
cannot be waived in delicta imperii is the individuals right
of access to justice. This includes the right to reparation
for the grave violations of the rights inherent to him as a
human. The term immunity was never meant to be a
principle or a norm of general application. It was never
intended to except jurisdiction on and cover up
international crimes. A finding of particularly grave
violations of human rights and of international
humanitarian law is a valuable test for the removal of any
bar to jurisdiction. He emphasized that it is absurd to
remove State immunity in trade relations or local personal
tort (e.g. traffic accidents) but not in international crimes.
State immunity is not supposed to stand in the way of the
realization of justice. Securing justice to victims includes
enabling them to seek and obtain redress for the crimes
they suffered.

As for Italys remaining defenses, they are not applicable


because the acts were committed in the course of an
armed conflict, and the current status of customary
international law has not developed to the point where
actions of armed forces which amount to serious
violations of international human rights are excluded from

Judge Trinidade, dissenting:

One cannot embark on a wrongfully assumed and


formalist lack of conflict between procedural and
substantive rules, in effect unduly depriving jus cogens of
its legal consequences. Contrary to legal positivism, law

87

PUBLIC INTERNATIONAL LAW

and ethics go together and this must be kept in mind to


realize justice at both the national and international levels.
Court: covered by immunity
Sir:
Could not file under domestic laws, because
forced labor is not absolutely prohibited.
The case is controversial because we don't
know if the court was correct.
Italy and dissenting
Jus cogens prohibition should not be precluded
by procedural law. Substantive shall prevail over
procedural.
Duty to provide redress for violation:
Reparation - not limited to compensation
Restoration of status quo ante
Satisfaction - formal apology
Duty to prosecute and punish
CLASS NOTES

QUESTIONS RELATING TO THE OBLIGATION


TO PROSECUTE OR EXTRADITE (BELGIUM v.
SENEGAL)
ICJ Judgment of 20 July 2012

Mr. Habr was President of Chad for 8 years, during which


large-scale violations of human rights were allegedly
committed, including arrests of actual or presumed
political opponents, detentions without trial or under
inhumane conditions, mistreatment, torture, extrajudicial
executions and enforced disappearances. After being
overthrown, he was granted political asylum by the
Senegalese government and he subsequently settled in
Dakar.
Complaints were filed against Mr. Habr with a Belgian
investigating judge, for serious violations of international
humanitarian law, crimes of torture and the crime of
genocide. The complaints were based on crimes covered by
the Belgian Law of 1993 concerning the punishment of
serious violations of international humanitarian law, as
amended by the Law 1999, and by the Convention against
Torture. The Minister of Justice of Chad stated that the
Sovereign National Conference had officially lifted from the
former President all immunity from legal process. However,
when Belgium sought to extradite Mr. Habr, the Dakar
Court of Appeals held that, as it could not extend its
jurisdiction to matters relating to the investigation or
prosecution of a Head of State for acts allegedly
committed in the exercise of his functions; that Mr. Habr
should be given jurisdictional immunity, which is
intended to survive the cessation of his duties as President
of the Republic; and that it could not therefore
adjudicate the lawfulness of *the+ proceedings and the
validity of the arrest warrant against a Head of State.

A2015

Senegal:

Belgium:

Charges concerned crimes committed


outside the territory of Senegal by a
foreign national against foreign nationals
and that they would involve the exercise
of universal jurisdiction, while the
Senegalese Code of Criminal Procedure
then in force did not provide for such
jurisdiction
The complaints filed before the Belgian
courts were based on crimes covered by
the Belgian Law of 1993 concerning the
punishment of serious violations of
international humanitarian law, as
amended by the Law 1999 and by the
Convention against Torture (CAT). The
Convention was ratified by Senegal on 21
August 1986, without reservation, and
became binding on it on 26 June 1987,
the date of its entry into force. Belgium
ratified the Convention on 25 June 1999,
without reservation, and became bound
by it on 25 July 1999.

Senegal is bound to extend its jurisdiction relating to the


prosecution of a Head of State of a foreign country under
the Convention against Torture.
Senegals failure to enact implementing legislation for the
CAT delayed the submission of this case to Senegalese
authorities, thus causing Senegal to breach its obligation
under Article 6 of the CAT to immediately make a
preliminary inquiry into the facts as soon as a suspect is
identified in the territory of the state party. The first
complaint against Habr was filed in Dakar, Senegal. It
became imperative for Senegal to conduct the
preliminary inquiry. Senegal failed to include any materials
demonstrating that it had carried out such an inquiry with
respect to Habrs involvement. Senegal breached CAT
Article 7, which requires the state party having jurisdiction
over the territory where a person accused of offenses
under the CAT is found, to submit the case to its
competent authorities for prosecution or to extradite him.
The prohibition on torture is part of customary
international law and has become a peremptory norm (jus
cogens). However, the obligation to prosecute alleged
perpetrators of torture only arises after the Convention
has entered into force for that state party. Senegals
obligations under the Convention date back to June 1987
when Senegal joined the CAT. There were a number of
complaints regarding serious offenses committed by Habr
after that date for which Senegal is obligated to prosecute.
Belgium is entitled to invoke Senegals compliance with
the Convention beginning in 1999 and has, in fact,
requested Senegals compliance since 2000 when the first
complaint against Habr was filed in Senegal.

88

PUBLIC INTERNATIONAL LAW

CASE CONCERNING ARMED ACTIVITIES ON


THE TERRITORY OF THE CONGO
(DEMOCRATIC REPUBLIC OF THE CONGO v.
UGANDA)
ICJ Reports 2005, p. 168 (2005)

Congo filed an Application instituting proceedings against


Uganda in respect of a dispute concerning acts of armed
aggression perpetrated by Uganda on the territory of the
Democratic Republic of the Congo, in flagrant violation of
the United Nations Charter and of the Charter of the
Organization of African Unity. Uganda allegedly violated
principles of conventional and customary law by engaging
in military and paramilitary activities against Congo, by
occupying its territory and by actively extending military,
logistic, economic and financial support to irregular forces
having operated there, by committing acts of violence
against nationals of the Congo, and by engaging in the
illegal exploitation of Congolese natural resources.
Uganda filed a counter-claim alleging involvement by
Congo in armed attacks against Uganda and in an attack
on the Ugandan Embassy and on Ugandan nationals in
Kinshasa. Accordingly, this was a violation of the immunity
accorded to diplomats pursuant to the Vienna Convention
on Diplomatic Relations.

A2015

It is the necessary corollary of a right, such that rights of an


international character involve international responsibility.
Thus, if a state violates an international obligation, it bears
responsibility for that violation. (Higgins, Chapter 9)
The basis of the rules on state responsibility, at present, is
the Draft Articles on Responsibility of States for
Internationally Wrongful Acts, prepared by the
International Law Commission.
Elements of Internationally Wrongful Acts
ILCDA, Art. 2.
Elements of an internationally
wrongful act of a State
There is an internationally wrongful act of a State
when conduct consisting of an action or omission:
a) is attributable to the State under
international law; and
b) constitutes a breach of an international
obligation of the State.
1.

Congo violated its obligations under the Vienna


Convention on Diplomatic Relations by launching attacks
on the Ugandan Embassy.
Through the attacks by members of the Congolese armed
forces on the premises of the Ugandan Embassy in
Kinshasa, and their maltreatment of persons who found
themselves at the Embassy at the time of the attacks, the
Congo breached its obligations under Article 22 of the
Vienna Convention on Diplomatic Relations. Furthermore,
by the maltreatment by members of the Congolese armed
forces of Ugandan diplomats on Embassy premises and at
Ndjili International Airport, Congo also breached its
obligations under Article 29 of the Vienna Convention.

D. International Responsibility
ILC Draft Articles on Responsibility of States for
Internationally Wrongful Acts (ILCDA), Art. 1.
Responsibility of a State for its
internationally wrongful acts
Every internationally wrongful act of a State entails
the international responsibility of that State.
International Responsibility, Generally
International responsibility arises as a consequence of
illegal acts or for failure of a state to observe obligations
under international law. (Magallona, 2005)

Attribution to state.
Owing to a states lack of physical being, it can
only act by and through its agents and
representatives. (Higgins, Chapter 9) As such, a
state can be subject to international
responsibility by attribution, that is, by
considering the acts or omissions committed by
a person or state organ which can be attributed
to the state.
The rules on attribution to a state are discussed,
infra.

2.

Breach.
There is a breach when a State violates a rule
contained in any source of international law. This
includes treaty provisions, customary norms as
well as general principles of international law.
The breach may relate to an obligation under a
customary norm or a conventional rule.
(Magallona, 2005)

Eight (8) Instances of State Attribution


Acts and omissions of certain persons or individuals are
attributed to the state as its own act in determining its
responsibility for an internationally wrong act. (Magallona,
2005)
The ILC provides for rules governing such attribution. They
may be categorized as follows:
1. Those pertaining to state organs or officials

State organs; (ILCDA, Art. 4)

State organ placed at the disposal of


another state (ILCDA, Art. 6)

89

PUBLIC INTERNATIONAL LAW

A2015

2.

State organ acting in excess of


authority (Art. 7)
Those pertaining to other individuals or groups

Non-state organ or person empowered


by states domestic law; (ILCDA, Art. 5)

Person or group under direction or


control of a state; (ILCDA, Art. 8)

Person or group acting under color of


authority; (ILCDA, Art. 9)

Insurrectional movement eventually


becoming the new government; (ILCDA,
Art. 10)

State ratification. (ILCDA, Art. 11)

State organ.
ILCDA, Art. 4.
Conduct of organs of a State

This deals with the limited situation in which an organ of


one state (A) is effectively put at the disposal of another
state (B) so that the organ may temporarily act for Bs
benefit and under its authority.
In this case, the organ acts exclusively for the purposes of
and on behalf of B and its conduct is attributed to B State
alone.
State organ acting in excess of authority.
ILCDA, Art.7.
Excess of authority or contravention
of instructions
The conduct of an organ of a State or of a person
or entity empowered to exercise elements of the
governmental authority shall be considered an act
of the State under international law if the organ,
person or entity acts in that capacity, even if it
exceeds its authority or contravenes instructions.

1. The conduct of any State organ shall be


considered an act of that State under
international law, whether the organ exercises
legislative, executive, judicial or any other
functions, whatever position it holds in the
organization of the State, and whatever its
character as an organ of the central
Government or of a territorial unit of the State.
2. An organ includes any person or entity which
has that status in accordance with the internal
law of the State.

Even if a state organ, acting in its official capacity,


committed an act or omission ultra vires or contrary to the
instructions of the state, such state will still incur
responsibility.

The state organ contemplated is not limited to organs of


the central government. It extends to organs of whatever
classification, function or rank in the hierarchy. This
includes the armed forces, police, local government units
and administrative divisions. (Brownlie, Chapter 21)

Non-state organ or person empowered by states


domestic law.

Acts of the legislature are likewise covered. Responsibility


may arise when a legislature fails to incorporate certain
rules in domestic law per a treaty obligation. Acts of the
judiciary may also give rise to state responsibility, such as
when it declines to give effect to a treaty. (ibid.)
Acts of officials or state agents are also covered, whatever
may be their particular status or rank under domestic law
State organ placed at the disposal of another state.
ILCDA, Art.6.
Conduct of organs placed at the disposal of a State
by another State
The conduct of an organ placed at the disposal of a
State by another State shall be considered an act
of the former State under international law if the
organ is acting in the exercise of elements of the
governmental authority of the State at whose
disposal it is placed.

Thus, a state, in attempting to evade responsibility, cannot


invoke the defense that the organ went beyond its lawful
orders in committing the act or omission constituting the
breach.

ILCDA, Art. 5.
Conduct of persons or entities exercising elements
of governmental authority
The conduct of a person or entity which is not an
organ of the State under article 4 but which is
empowered by the law of that State to
exercise elements of the governmental authority
shall be considered an act of the State under
international law, provided the person or entity is
acting in that capacity in the particular instance.
This is intended to take account of the increasingly
common phenomenon of parastatal entities, which
exercise elements of governmental authority in place of
state organs, as well as situations where former State
corporations have been privatized but retain certain public
or regulatory functions.
Example: private security firms contracted to act as
prison guards.

90

PUBLIC INTERNATIONAL LAW

Some writers (e.g. Crawford) are of the position that


a law which clothes entities with such powers is not
required. What is essential is the existence of state
authorization.
CLASS NOTES

Person or group under direction or control of a state.


ILCDA, Art. 8.
Conduct directed or controlled by a State
The conduct of a person or group of persons shall
be considered an act of a State under international
law if the person or group of persons is in fact
acting on the instructions of, or under the
direction or control of that state in carrying out the
conduct.
This contemplates cases where state organs supplement
their own action by recruiting or instigating private
persons or groups who act as auxiliaries while remaining
outside the official state structure.
Control. In order to determine whether there is a real
link between the private persons or groups and the state,
it becomes necessary to consider the degree of control
exercised by the latter over the former.
There are two tests for this purpose:
1. Effective Control Test
Control must have been exercised in respect to
each individual act or omission which constitutes
the breach. The private persons or groups must
have been mere agents of the state who were
told what had to be done at all stages.
This presents a higher threshold for attribution.
A general situation of dependence and support
would thus be insufficient to justify attribution.
This test was enunciated in the Case Concerning
Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. USA), supra.
2.

Overall Control Test


Control must have gone beyond the mere
financing and equipping of such forces and
must have involved participation in the
planning and supervision of military operations.
This presents a lower threshold for attribution.
There need be no showing of actual or direct
control.
This test was enunciated in the case of
Prosecutor v. Tadid, supra, and was applied in
the Case Concerning Application of the

A2015

Convention on the Prevention and Punishment of


the Crime of Genocide (Bosnia and Herzegovina v.
Serbia and Montenegro), infra.
These apparently conflicting tests may be reconciled:

When dealing with the matter of individual


criminal responsibility and the application of
the rules of international humanitarian law (e.g.
in the case of Tadid), use the Overall Control
Test;

When dealing with the matter of state


responsibility, use the Effective Control Test.
CLASS NOTES
Person or group acting under color of authority.
ILCDA, Art. 9.
Conduct carried out in the absence or default of
the official authorities
The conduct of a person or group of persons shall
be considered an act of a State under international
law if the person or group of persons is in fact
exercising elements of the governmental authority
in the absence or default of the official authorities
and in circumstances such as to call for the
exercise of those elements of authority.
This deals with the exceptional case of conduct in the
exercise of elements of the governmental authority by a
person or group of persons acting in the absence of the
official authorities and without any actual authority to do
so. The exceptional nature of the circumstances envisaged
in the article is indicated by the phrase in circumstances
such as to call for. Such cases occur only rarely, such as
during revolution, armed conflict or foreign occupation,
where the regular authorities dissolve, are disintegrating,
have been suppressed or are for the time being
inoperative. They may also cover cases where lawful
authority is being gradually restored, e.g. after foreign
occupation. (ILC, Comments on the Draft Articles, 2001)
Insurrectional movement eventually becoming the new
government.
ILCDA, Art. 10.
Conduct of an insurrectional or other movement
1.

2.

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.
The conduct of a movement, insurrectional
or other, which succeeds in establishing a
new State in part of the territory of a preexisting State or in a territory under its
administration shall be considered an act of
the new State under international law.

91

PUBLIC INTERNATIONAL LAW

3.

This article is without prejudice to the


attribution to a State of any conduct, however
related to that of the movement concerned,
which is to be considered an act of that State
by virtue of articles 4 to 9.

No government can be held responsible for the conduct of


rebellious groups committed in violation of its authority.
Hence, if an insurrection is successfully abated, the state
cannot be held liable for any culpable violation of
international law committed by the insurrectionists
(granted the State was itself not guilty of bad faith or
negligence).
This article applies in cases where the insurrection is
successful and the original government is overthrown.
Such movement which had installed itself as the new
government or establishes a new state will be liable for
the acts it committed during the insurrection which would
constitute breaches of international law.
State ratification.
ILCDA, Art. 11.
Conduct acknowledged and adopted by a State as
its own
Conduct which is not attributable to a State under
the preceding articles shall nevertheless be
considered an act of that State under international
law if and to the extent that the State
acknowledges and adopts the conduct in question
as its own.
While purely private conduct cannot generally be
attributed to a state, this article covers situations where
such attribution can be made to the extent that the state
acknowledges and adopts the conduct in question as its
own.
Note that this does not cover mere support or
endorsement. It must consist in acknowledgement or
adoption of the acts as the states own by way of official
act.
In the Case Concerning United States Diplomatic and
Consular Staff in Tehran (United States Of America v.
Iran), supra, the ratification was done by a decree
issued by Ayatollah Khomeini, in which he announced
that no release of the US hostages were to be made
unless the US turned over the Shah of Iran to them.
By that decree, the Court ruled that the act of
occupation of the US Embassy in Tehran by militants
was effectively transformed into an act of the Iranian
State itself.
CLASS NOTES

A2015

Rules on Breach
There is a breach of an international obligation when an
act or omission of a state is not in conformity with what is
required of it by that obligation, regardless of its origin or
character. (ILCDA, Art. 12) It can arise from breaches of
bilateral obligations, obligations owed to some states or to
the international community as a whole. (ILC, Comments
on the Draft Articles, 2001)
In the context of state responsibility, there is no distinction
between contractual and tortious responsibility. (Rainbow
Warrior Arbitration, infra.)
In considering the breach, the following rules must be
considered:

The state must be bound by the obligation in


question at the time the act occurs. (ILCDA, Art.
13)

The breach occurs at the moment the act is


performed, even if its effects continue. (ILCDA,
Art. 14 [1])

A breach of a continuing character extends over


the entire period during which the act continues
and remains not inconformity with the
international obligation. (ILCDA, Art. 14 [2])

A breach committed through a series of actions


or omissions defined in aggregate as wrongful
occurs when the aggregate of acts or omissions
is already sufficient to constitute the wrongful
act prohibited by the obligation. (ILCDA, Art. 15)
o The fact of breach continues for as
long as the actions or omissions are
repeated and remain not in conformity
with the international obligation. (ibid.)
Principle of Objective Responsibility. This principle
provides that, provided agency and causal connection are
established, there is a breach of duty by result alone.
Responsibility arises for acts committed by a state despite
the absence of fault or culpa. (Brownlie, Chapter 21)
This in effect gives rise to strict liability. All a
claimant needs to show is the fact of breach, fault or
negligence on the part of the state notwithstanding.
This is not to say, of course, that fault or negligence is
immaterial. They may be considered in determining
the extent of reparation that must be made.
CLASS NOTES
Responsibility in connection with the act of another state.
A state may also be held responsible in relation to
internationally wrongful acts of other states in the
following instances:

When a state aids or assists another state in the


commission of an internationally wrongful act by
the latter, if:

92

PUBLIC INTERNATIONAL LAW

A2015

That state does so with knowledge of


the
circumstances
of
the
internationally wrongful act; and
The act would be internationally
wrongful if committed by that State.
(ILCDA, Art. 16)

When a state directs and controls another state


in the commission of an internationally wrongful
act, if:
o That state does so with knowledge of
the
circumstances
of
the
internationally wrongful act; and
o The act would be internationally
wrongful if committed by that S\state.
(ILCDA, Art. 17)
When a state coerces another state to commit
an act, if:
o The act would, but for the coercion, be
an internationally wrongful act of the
coerced state; and
o The coercing state does so with
knowledge of the circumstances of the
act. (ILCDA, Art. 18)

Defenses; Circumstances Precluding Wrongfulness


A state may invoke the following circumstances in order to
preclude the wrongfulness of the act or omission imputed
against him:

Party alleging the breach had actually consented


to the commission of a given act; (ILCDA. Art. 20)

The act was taken as a lawful measure of selfdefense in conformity with the UN Charter;
(ILCDA, Art. 21)

The act was taken as a countermeasure; (ILCDA,


Art. 22)

It was impossible for the state to comply with


the obligation due to force majeure; (ILCDA, Art.
23)

The author of the act was in a situation of


distress, and had no other reasonable way to
save his life and those of others entrusted to his
care apart from the allegedly wrongful act;
(ILCDA, Art. 24)

Necessity
o The act was the only means of the
State to safeguard an essential interest
against a grave and imminent peril;
and
o The act does not seriously impair an
essential interest of the State/s
towards which the obligation exists, or
of the international community as a
whole; (ILCDA, Art. 25)
Legal Consequences of an Internationally Wrongful
Act
The state responsible for the internationally wrongful act
is under an obligation:

a)
b)
c)

d)

To observe its continued duty to perform the


obligation breached; (ILCDA, Art. 29)
To cease the act, if it is continuing; and (ILCDA,
Art. 30)
To offer appropriate assurances and guarantees
of non-repetition, if circumstances so require.
(ibid.)
To make full reparation for the injury caused by
the act. (ILCDA, Art. 31)

Reparation. The responsible state is under an obligation


to make full reparation for the injury caused by the
internationally wrongful act. (ILCDA, Art. 31)
The payment of reparation is the corollary of the violation
of the obligations resulting from an engagement between
states. (Factory at Chorzow, supra.)
Essential principle of reparation. The Court in the Factory
at Chorzow case (supra.) laid down the essential principle
in reparations.
Reparation must, so 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 the act had not been
committed. (ibid.)
Forms of reparation. Full reparation for the injury caused
by the internationally wrongful act shall take the form of
the following, singly or in combination:
1. Restitution
This is the responsibility of the responsible state
to re-establish the situation which existed before
the wrongful act was committed, provided and
to the extent that restitution:

Is not materially impossible; and

Does not involve a burden out of


proportion to the benefit deriving from
restitution instead of compensation.
(ILCDA, Art. 35)
It is the restoration to status quo ante. It may
take the form of material restoration, or the
reversal of some juridical act.
2.

Compensation
Insofar as the damage is not made good by
restitution, the responsible state is under an
obligation to compensate for any financially
assessable damage, including loss of profits
insofar as it is established. (ILCDA, Art. 36)
It is the payment of a sum corresponding to
the value which restitution in kind would bear.
(Factory at Chorzow, supra.)

93

PUBLIC INTERNATIONAL LAW

It excludes moral damage to a state, i.e. the


affront or injury caused by a violation of rights
not associated with actual damage to property
or persons (which is the subject matter of
Satisfaction, infra.).
3.

Satisfaction
The responsible state is under a duty to give
satisfaction for the injury caused insofar as it
cannot be made good by restitution or
compensation. (ILCDA, Art. 37 [1])
It consists in the following:

an acknowledgement of the breach;

an expression of regret;

a formal apology; or

another appropriate modality.


It should not be out of proportion to the injury
and may not take a form humiliating to the
responsible state. (ILCDA, Art. 37 [2])
This is a remedy for those injuries which are not
financially assessable (hence not covered by
restitution or compensation). This includes
moral damage to a state, i.e. the affront or
injury caused by a violation of rights not
associated with actual damage to property or
persons. (ILCDA, Art. 37 [3])

Countermeasures
Countermeasures are those self-help remedies undertaken
by states affected by internationally wrongful acts. These
are not associated with armed conflict, and are not
inconsistent with other international obligations. They are
temporary measures justified as necessary and
proportionate responses to an internationally wrongful act
which terminated once the end is achieved.
Example: suspension of flights to and from the
responsible state, tightening of trade, etc.

A2015

Article 49 of the ILC Draft Articles lays down the following


guidelines with regard to the use of countermeasures. To
wit:
1. The taking of countermeasures must only be
used to induce the responsible state to comply
with its obligations to cease the act, to offer
assurances of non-repetition, and to provide
reparation.
2. It must be limited to the non-performance for
the time being of the affected states
international obligations to the responsible state.
3. It must, as far as possible, be taken in such a way
as to permit the resumption of performance of
the obligations in question.
Use of countermeasures should not affect the following:
a) The obligation to refrain from the threat or use
of force as embodied in the Charter of the
United Nations;
b) Obligations for the protection of fundamental
human rights;
c) Obligations of a humanitarian character
prohibiting reprisals;
d) Other obligations under peremptory norms of
general international law. (ILCDA, Art. 50 [1])
A state taking countermeasures is not relieved from
fulfilling its obligations:
a) Under any dispute settlement procedure
applicable between it and the responsible State;
b) To respect the inviolability of diplomatic or
consular agents, premises, archives and
documents. (ILCDA, Art. 50 [2])
Termination. Countermeasures shall be terminated as
soon as the responsible state has complied with its
obligations (i.e. cessation, reparation) in relation to the
internationally wrongful act. (ILCDA, Art. 53)

CORFU CHANNEL CASE


ICJ Reports 1949, p. 4 (1949), supra.

Not a form of punishment. They are not intended to be


a form of punishment for wrongful conduct; it is an
instrument for achieving with the obligations of the
responsible state under these draft articles.
Use with risk. A state which resorts to countermeasures
based on its unilateral assessment of the situation does so
at its own risk and may incur responsibility for its own
wrongful conduct in the event of an incorrect assessment.
Must be commensurate to the injury. Countermeasures
must be commensurate with the injury suffered, taking
into account the gravity of the internationally wrongful act
and the rights in question.

(supra. Refer to p. 15)

RAINBOW WARRIOR ARBITRATION


(Lifted from Karichi Notes, 2010)
French agents destroyed a Greenpeace, Intl vessel, the
Rainbow Warrior, while in harbour in New Zealand. New
Zealand prosecuted 2 captured French agents of the
Directorate General of External Security.
Acts of organs of state. A communiqu from the Prime
Minister of France confirmed that agents acted under its
instructions, & promised reparation. Dispute over Frances

94

PUBLIC INTERNATIONAL LAW

demand for release & New Zealands claim for


compensation. The UN Secretary General's ruling required
France to pay US $7 million to New Zealand and to
undertake not to take certain defined measures injurious
to New Zealand trade with the European Communities.
The ruling also provided that Major Mafart and Captain
Prieur were to be released into French custody but were
to spend the next 3 years on an isolated French military
base in the Pacific.

CASE CONCERNING UNITED STATES


DIPLOMATIC AND CONSULAR STAFF IN
TEHRAN (UNITED STATES OF AMERICA v. IRAN)
ICJ Reports 1980, p. 3 (1980), infra

(infra. Refer to discussion in p. 116)

THE FACTORY AT CHORZOW (GERMANY v.


POLAND)
1928 PCIJ (ser. A) No. 17 (1928), supra.

(supra. Refer to p. 15)


How much is the damage: To wipe out all the
consequences of the illegal act
The court made a distinction between legal and
illegal taking
The problem in IL is that the only way that a taking
can be illegal is if there is no just, adequate and
prompt compensation. (Cielo Notes, 2013)
CLASS NOTES

LEGAL CONSEQUENCES OF THE


CONSTRUCTION OF A WALL IN THE
OCCUPIED PALESTINIAN TERRITORY
(ADVISORY OPINION)
ICJ Reports 2004, p. 176 (2004)

A2015

Israel constructed a wall Occupied Palestinian Territory


Israel wanted to make it as a defense buffer against
Muslims in order to prevent rocket attacks into Israeli
territory. It was built in such a way that OPT will be
annexed.
Thus, the UN Secretary-General communicated to the
Court the GA decision to submit a question for an advisory
opinion. The question was:
What are the legal consequences arising from
the construction of the wall being built by Israel,
the occupying Power, in the Occupied Palestinian
Territory, including in and around East Jerusalem,
as described in the report of the SecretaryGeneral, considering the rules and principles of
international law, including the Fourth Geneva
Convention of 1949, and relevant Security
Council and General Assembly resolutions?
The building of the wall is illegal and must be removed.
The building of wall is illegal for being a violation of
humanitarian law. Humanitarian Law is a law for the
protection of the civilian in times of armed conflict. The
wall limited the liberty of movement. Civilians during
armed conflict must never be displaced.
Basic human rights were also violated.
Work, housing, children, health
Liberty of movement is affected; they cannot
access their workplace, schools, hospitals
Legal Consequences
Third party states must not recognize the
building of the wall;
Israel must make reparation for damages, and
remove the wall, pursuant to the doctrines of
international responsibility.

CASE CONCERNING APPLICATION OF THE


CONVENTION ON THE PREVENTION AND
PUNISHMENT OF THE CRIME OF GENOCIDE
(BOSNIA AND HERZEGOVINA v. SERBIA AND
MONTENEGRO)
ICJ Reports 2007, p. 43 (2007)

Bosnia and Herzegovina accused Yugoslavia of


responsibility for the commission of genocide in Bosnia. In
its application, Bosnia asked the Court to grant, as
provisional measures, that Yugoslavia cease all acts of
genocide and cease providing support for any group
engaging in military or paramilitary activities against
Bosnia, and requested that the Court indicate that Bosnia
had the right to seek and receive assistance in defending
itself.

95

PUBLIC INTERNATIONAL LAW

The acts of genocide committed in Srebrenica were not


perpetrated by persons or entities having the status of
organs of the Federal Republic of Yugoslavia (as Serbia
was known at that time) under its internal law, as then in
force.
There is no showing that the Federal Republic of
Yugoslavia (FRY) army took part in the massacres, nor that
the political leaders of the FRY had a hand in preparing,
planning or in any way carrying out the massacres.
While it is true that there is much evidence of direct or
indirect participation by the official army of FRY, along
with the Bosnian Serb armed forces, in military operations
in Bosnia and Herzegovina in the years prior to the events
in Srebrenica, it was not shown that there was such any
participation in relation to the massacres committed at
Srebrenica. Furthermore, neither the Republika Srpska
nor the VRS were de jure organs of the FRY, since none of
them had the status of organ of that State under its
internal law.
The acts were not committed by persons who, while not
organs of Serbia, did nevertheless act on the instructions
of, or under the direction or control of Serbia.
The Court, citing Nicaragua v. US, held that the applicable
rule is that the conduct of a person or group of persons
shall be considered an act of a State under international
law if the person or group of persons is in fact acting on
the instructions of, or under the direction or control of,
that State carrying out the conduct. Under this test, it
must be shown that this effective control was exercised,
or that the States instructions were given, in respect of
each operation in which the alleged violations occurred,
not generally in respect of the overall actions taken by the
persons or groups of persons having committed the
violations.
Bosnia has not proved that the instructions were issued by
the federal authorities in Belgrade, or by any other organ
of the FRY, to commit the massacres. Although the
decision to kill the adult male population of the Muslim
community in Srebrenica was taken by some members of
the VRS Main Staff, it is without instructions from or
effective control by the FRY.
The Court therefore held that the acts of those who
committed genocide at Srebrenica cannot be attributed to
Serbia under the rules of international law of State
responsibility. Thus, the international responsibility of
Serbia is not engaged on this basis.

TRAIL SMELTER CASE


In 1896, a smelter was started under American auspices
near the locality known as Trail, B.C. In 1906, the

A2015

Consolidated Mining and Smelting Company of Canada,


Limited, acquired the smelter plant at Trail. This facility
resulted in sulphur dioxide fumes and higher
concentrations being emitted into the air. About 300-350
tons of sulphur were being emitted daily in 1930. From
1925, at least, to 1937, damage occurred in the State of
Washington, resulting from the sulphur dioxide emitted
from the Trail Smelter.
The Court held Canada responsible for the conduct of the
Trail Smelter and enjoined it to pay compensation to
United States. The court also provided for future
monitoring of the effects of the factory's activities on the
environment, to prevent possible future damages to the
United States environment.
Under the principles of international law, as well as of the
law of the United States, no State has the right to use or
permit the use of its territory in such a manner as to cause
injury by fumes in or to the territory of another or the
proper- ties or persons therein, when the case is of serious
consequence and the injury is established by clear and
convincing evidence.
Considering the circumstances of the case, the Tribunal
holds that Canada is responsible in international law for
the conduct of the Trail Smelter. Apart from the
undertakings in the Convention, 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 the
Dominion under international law as herein determined.
This is unique because the effect of pollution
transcends other states.
The case did not use any treaty or convention.

The principle used is not environmental BUT not


to allow its territory to be used in such a manner
as to cause injury by fumes in or to the territory
of another

This is a precedent for TRANSBOUNDARY


ENVIRONMENTAL HARM

States must ensure that corporations existing in


their territory must comply with these laws
CLASS NOTES

UNION BRIDGE COMPANY CLAIM (UNITED


STATES v. GREAT BRITAIN)
(1924)

Union Bridge claims damages arising out of the removal of


the material from Port Elizabeth to the Imperial Military
Railways, Bloemfontein, by Harrison, the storekeeper of
the Cape Govt Railways at Port Elizabeth, an agent of the
British govt, without Union Bridges consent, and its
subsequent sale.

96

PUBLIC INTERNATIONAL LAW

A2015

Act of state organ. Harrison purported to act upon


instructions given to him, and in doing so, he committed 2
mistakes in as much as it 1) was neutral property; and 2)
was intended for a road, an not a railway bridge. The
consignment of the material to Blomfontein was a
wrongful interference with neutral property, and it was
within Harrisons duty, as railway storekeeper, to forward
material by rail, and he did so under instructions which fix
liability on the British govt. This liability is not affected by
the fact that this was done under a mistake, or that the
British had no intention to appropriate the material.

YOUMANS CLAIM (US v. MEXICO)


(1926)

(Lifted from Karichi Notes, 2010)

A mob killed 3 US nationals & Mexican polices attempt to


quell the mob, under the Mayors instructions, led to the
open firing upon the house & more killings.
Act of state organ; failure to protect aliens in territory.
Mexico is liable for the acts of the soldiers whether 1)
outside the scope of their authority; or 2) done in a private
capacity. Clearly, it is not intended by the rule to say that
no wrongful act of an official acting in the discharge of
duties entrusted to him can impose responsibility on a
govt under IL because such wrongful act must be
considered to be outside the scope of his competency. If
this were the meaning intended by the rule, then no
wrongful act committed by an official could ever be
considered as acts for which the govt could be held liable.
The soldiers participation in the murder cannot be
considered as acts in their private capacity when it is clear
that at the time of the commission of these acts, the neb
were on duty under the immediate supervision and in the
presence of a commanding officer. Duty: to exercise due
diligence to protect the person and property of aliens.

crew at the time when the real damage took place. The
nature of the crew, the absence of civil or military control
ashore, and the situation of the neutral property, were
circumstances calling for diligence on the part of those in
charge of the Chinese crew to see to it that they were
under control when they went ashore in a body.

BOLIVAR RAILWAY COMPANY CLAIM (GREAT


BRITAIN v. VENEZUELA)
(1903)

(Lifted from Karichi Notes, 2010)


Claims were brought by Bolivar arising out of the
revolution in Venezuela that brought Castro to power &
against Castro himself, after his assumption to power.
Successful insurrectionists. Claims in respect of contractual
obligations incurred by both the old and new governments
were allowed, but claims incurred by an unsuccessful
revolution against Castro were not allowed. If the personal
responsibility of Castro were the question for decision, it
might be possible to hold him responsible for the claims
incurred by the 2nd revolution as growing out of the
revolution he had led. However, such is not the ground on
which successful revolutions are charged, through the
govt, with responsibility. Responsibility comes because it
is the same nation. Nations do not die when there is a
change of government. These are but expressions of a
change of national will. The nation is responsible for the
debts contracted by its titular government until the
obligation is discharged. The nation is responsible for the
obligations of a successful revolution from its beginning,
because, it represented ab initio a changing national will,
crystallizing in the finally successful result success
demonstrated that from the beginning it was registering
the national

NEER CLAIM (US v. MEXICO)


(1926)

ZAFIRO CLAIM (GREAT BRITAIN v. US)


(1925)

(Lifted from Karichi Notes, 2010)


Claim WRT acts of a Chinese crew of the Zafiro, a private
ship commissioned by the US military, in looting houses in
Cavite during the Spanish-US War of 1898; defense:
soldiers on shore leave.
Act of state organ. US is liable for the whole damage as the
Chinese crew of Zafiro are shown to have participated to a
substantial extent, and the part chargeable to unknown
wrongdoers cannot be identified. But interest is not
allowed because a considerable, though unascertainable
part of the damage is not chargeable to the Chinese crew
of the Zafiro. There was no effective control of the Chinese

(Lifted from Karichi Notes, 2010)


US claims damages for Mexicos failure to exercise due
diligence in prosecuting the murderer of an American.
Standard of treatment of aliens in territory. The
proprietary of governmental acts should be put to the test
of international standards, and that the treatment of an
alien, in order to constitute an international delinquency,
should amount to an outrage, to bad faith, to wilful
neglect of duty, or to an insufficiency of governmental
action so far short of international standards that every
reasonable and impartial man would readily recognize its
insufficiency. Whether the insufficiency proceeds from
deficient execution of an intelligent law or from the fact
that the laws of the country do not empower the

97

PUBLIC INTERNATIONAL LAW

authorities to measure up to international standards is


immaterial.

A2015

whether embodied in a single instrument or in two or


more related instruments and whatever its particular
designation. (Vienna Convention on the Law of Treaties
[TC], Art. 2 [1a])

STARETT HOUSING CORPORATION v. IRAN


4 Iran-US Claims Report (1983)

(Lifted from Karichi Notes, 2010, and subsequently edited)


Starett Housing Corporation was contracted by the Iranian
Government for the construction of a 6000-unit apartment
complex. It contends that their property interests in the
housing Project have been unlawfully taken by the postrevolution Government of Iran through the appointment of
a temporary manager which has deprived them of the
effective use, control and benefits of their property by
means of various actions authorizing, approving and
ratifying acts and conditions that prevented Starrett from
completing the Project.
Expropriation Even Without Nationalization Law. The
Court noted that the Government of Iran did not issue any
law or decree according to which the Zomorod Project or
Shah Goli expressly was nationalized or expropriated.
However, it is recognized in international law that
measures taken by a State can interfere with property
rights to such an extent that these rights are rendered so
useless that they must be deemed to have been
expropriated, even though the State does not purport to
have expropriated them and the legal title to the property
formally remains with the original owner.
Assumption of control over property by a government
does not automatically and immediately justify a
conclusion that the property has been taken by the
government, thus requiring compensation under
international law. In this case it cannot be disregarded that
Starett has been requested to resume the Project. It has
been proved that at least by the end of January 1980 the
Government of Iran had interfered with the Claimants'
property rights in the Project to an extent that rendered
these rights so useless that they must be deemed to have
been taken.

While the definition excludes unwritten agreements, such


exclusion does not mean that those have no legal force
and effect.

Covered
Agreements between
states

Those in writing

Those governed by
international law

No Substantive Requirements of Form and Name


The definition also covers simplified agreements which are
not in the form of formal treaties but have become of
common use, such as: exchange of notes, agreed minutes,
memoranda of understanding, among others. Its form will
vary according to usage.
Nomenclature is likewise insignificant. It can be called:
treaty, covenant, pact, etc.
Conclusion and Entry into Force of Treaties
Representatives of a state. A person may be said to be
representing a state for purposes of adopting or
authenticating the text of a treaty, or for expressing the
consent of the state to be bound by a treaty, given the
following:

He produces a full powers instrument; or


Full powers. A document from a state
designating a person/s to represent it for:
o negotiating, adopting or authenticating
the text of a treaty;
o Expressing a states consent to be
bound by a treaty; or
o For accomplishing any other act with
respect to a treaty. (TC, Art. 2 [1c])

There is no actual taking; instead, there was


CREEPING taking. It does not have to be a complete
taking as long as there is serious interference with
the property.
CLASS NOTES

E. Vienna Convention on the Law


of Treaties
Treaty, Defined
It is an international agreement concluded between states
in written form and governed by international law,

Not Covered
Agreements between
states and other
actors
of
international law
Those not in written
form
Those governed by
the national law of
one of the parties or
any other national
law system

If it appears from the intention of states


considered to consider him so and to dispense
with the production of full powers. (TC, Art. 7 [1])

However, there are three (3) categories of representatives


who are considered in international law as representatives
of the state without having to produce full powers. To
wit:

98

PUBLIC INTERNATIONAL LAW

a)

b)

c)

A2015

Heads of State, Heads of Government and


Ministers for Foreign Affairs, for the purpose of
performing all acts relating to the conclusion of a
treaty;
Heads of diplomatic missions, for the purpose of
adopting the text of a treaty between the
accrediting State and the State to which they are
accredited;
Representatives accredited by States to an
international conference or to an international
organization or one of its organs, for the purpose
of adopting the text of a treaty in that
conference, organization or organ. (TC, Art. 7 [2])

Acts relating to treaties performed a person who fails to


satisfy the full powers requirement or does not fall
under any of its exceptions are void and without legal
effect. (TC, Art. 8)
Adoption. Adoption of the text of a treaty takes place
after the form and content of a treaty has been settled by
the negotiating states. This is preparatory to the
authentication of the text of a treaty and to its signature.
This is not an expression of an agreement to be bound.
Authentication. This is the step wherein the definitive
text of a treaty is established as the correct and authentic
one. It enables states to know finally and definitively what
is the content of the treaty to which they might subscribe
to. After this step, the treaty is no longer susceptible to
alteration.
Expression of consent to be bound. The means by which
a state should express its consent to be bound by a treaty
depends on the treaty itself or on the agreement of the
parties thereto. The TC provides for the following means
through which this is accomplished: (TC, Art. 11)
1. Signature
A signature can ordinarily express such consent
to be bound. However, if the treaty contains a
stipulation requiring other means (e.g.
ratification) in order for states to be bound
thereto, such signatures will not have a binding
effect.
2.

Exchange of instruments constituting a treaty

3.

Ratification
Ratification shall be used by a state to express its
consent to be bound in the following instances:
a) the treaty provides for such consent to be
expressed by means of ratification;
b) it is otherwise established that the
negotiating States were agreed that
ratification should be required;

c)
d)

the representative of the State has signed


the treaty subject to ratification; or
the intention of the State to sign the treaty
subject to ratification appears from the full
powers of its representative or was
expressed during the negotiation. (TC, Art.
14)

The consent to be bound by a state is


established upon:
a) exchanges of the instrument of ratification
between the parties; or
b) deposit of the instrument of ratification
with the depositary agreed upon. (TC, Art.
16)
4.

Acceptance, Approval, Accession


This occurs when a state which did not sign a
treaty, already signed by other states, formally
accepts its provisions. (Brownlie, Chapter 26) It
gives flexibility to the process of becoming
bound to a treaty. (Magallona, 2005)
The consent to be bound by a state is
established upon:
c) exchanges of the instrument of acceptance,
approval or accession between the parties;
or
d) deposit of the instrument of acceptance,
approval or accession with the depositary
agreed upon. (TC, Art. 16)

Deposit with a depositary. the parties to a treaty may


agree to appoint a depositary who shall be charged with,
among others, keeping custody of the original text,
preparing certified copies of the instrument, receiving
signatures, and informing the parties of acts, notifications
and communications relating to the treaty. (TC, Art. 77)
The depositary may be any of the following:
1. One or more states;
2. An international organization; or
3. The Chief Administrative Officer of such
organization.
In the case of expression of consent through ratification,
acceptance, approval or accession, the consent to be
bound is only established upon the deposit of the
instrument of ratification, acceptance, approval or
accession with the depositary so designated by the parties.
(TC, Art. 16)
In most cases, it is the Secretary-General of the
United Nations who is designated as depositary.
CLASS NOTES

99

PUBLIC INTERNATIONAL LAW

Entry into force. It is the fixed date or periods reckoned


from certain events as agreed upon by the parties which
mark the beginning of the binding force of a treaty as law.
Example: TC, Art. 84 (1) The present
Convention shall enter into force on the thirtieth
day following the date of deposit of the thirtyfifth instrument of ratification or accession.
Provisional application. A treaty or an agreement among
the parties may provide for the application of certain
provisions before a treatys entry into force. (TC, Art. 25
[1])
Reservation
It is a unilateral statement, however phrased or named,
made by a State, when signing, ratifying, accepting,
approving or acceding to a treaty, whereby it purports to
exclude or to modify the legal effect of certain provisions
of the treaty in their application to that State. (TC, Art. 2
[1d])
Right to formulate reservations; Exceptions. A State
may, when signing, ratifying, accepting, approving or
acceding to a treaty, formulate a reservation. (TC, Art. 19)
It is a right that pertains to the sovereignty and
independence of a state in regulating its foreign relations.
It aids the development of international relations by
enabling states to ratify treaties which they would not
have otherwise ratified had they not been able to make
reservations thereto. (Magallona, 2005)
There are three (3) exceptions to this grant:
a) the reservation is prohibited by the treaty;
b) the treaty provides that only specified
reservations, which do not include the
reservation in question, may be made; or
c) in cases not failing under subparagraphs (a) and
(b), the reservation is incompatible with the
object and purpose of the treaty. (TC, Art. 19)
Consent/acceptance by other state parties.
General Rule: Acceptance by other parties not required
for reservations expressly allowed by the
treaty. (TC, Art. 20)
Exception: Acceptance will be required in the
following cases:
1. When it appears from the limited
number of the negotiating States
and the object and purpose of a
treaty that the application of the
treaty in its entirety between all
the parties is an essential condition
of the consent of each one to be
bound by the treaty; (TC, Art. 20
[2])
2. When a treaty is a constituent
instrument of an international

A2015

organization. (TC, Art. 20 [3])


(For the effect of reservations to multilateral treaties, see
Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide, infra.)
No reservation of peremptory norms. Reservations that
offend jus cogens norms would not be compatible with the
object and purpose of the covenant. Accordingly,
provisions
therein
which
represent
customary
international law may not be the subject of reservations.
(Brownlie, Chapter 26)
Observance of Treaties
Pacta Sunt Servanda. Literally, pacts must be
respected, it is the fundamental principle of the law of
treaties. Every treaty in force is binding upon the parties to
it and must be performed by them in good faith. (TC, Art.
26)
Cannot invoke internal law to evade treaty obligations.
General Rule: A party may not invoke the provisions of
its internal law as justification for its
failure to perform a treaty. (TC, Art. 27)
Exceptions: The violation concerns the states
competence to conclude treaties; or
The violation concerned a rule of
internal
law
of
fundamental
importance. (TC, Art. 46, infra.)
Retroactivity.
General Rule: No retroactive application. It cannot bind
a party in relation to any act or fact
which took place or ceased to exist
before the fate of the entry into force.
(TC, Art. 28)
Exception: Unless a different intention appears from
the treaty. (ibid.)
Treaties and Third States
General Rule: Pacta tertiis nec nocent nec prosunt A
treaty does not create either obligations
or rights for a third State without its
consent. (TC, Art. 34)
Exceptions: Express acceptance. Parties to the
treaty establish an obligation therein,
and the third state expressly accepts
the obligation in writing; (TC, Art. 35)
Stipulations pour autrui. Treaty gives
third states rights, and a third state
gives his assent thereto. (TC. Art. 35)
Treaty as customary international law.
A treaty may become binding on
non-parties if it becomes a part of
international
custom.
(Brownlie,
Chapter 26) (TC, Art. 38)
Interpretation of Treaties

100

PUBLIC INTERNATIONAL LAW

TC, Art. 31.


General Rule of Interpretation
1. A treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be
given to the terms of the treaty in their context
and in the light of its object and purpose.
2. The context for the purpose of the
interpretation of a treaty shall comprise, in
addition to the text, including its preamble and
annexes:
a. any agreement relating to the treaty
which was made between all the parties
in connection with the conclusion of the
treaty;
b. any instrument which was made by
one or more parties in connection
with the conclusion of the treaty
and accepted by the other parties as
an instrument related to the treaty.
3. There shall be taken into account, together with
the context:
a. any subsequent agreement between the
parties regarding the interpretation of
the treaty or the application of its
provisions;
b. any subsequent practice in the
application of the treaty which
establishes the agreement of the parties
regarding its interpretation;
c. any relevant rules of international law
applicable in the relations between the
parties.
4. A special meaning shall be given to a term if it is
established that the parties so intended.
TC, Art. 32.
Supplementary Means of Interpretation
Recourse may be had to supplementary means of
interpretation, including the preparatory work of
the treaty and the circumstances of its conclusion,
in order to confirm the meaning resulting from the
application of article 31, or to determine the
meaning when the interpretation according to
article 31:
a) leaves the meaning ambiguous or
obscure; or
b) leads to a result which is manifestly
absurd or unreasonable.
Invalidity, Termination and Suspension of Treaties
The validity and continuance in force of a treaty and of
consent to be bound is presumed. (TC, Art. 42) However, a
state may invoke certain grounds in for the invalidity,
termination and suspension of treaties.

A2015

Grounds for invalidity.


1. Violation of provisions of internal law regarding
competence to conclude treaties; (TC, Art. 46)
This ground concerns constitutional limitations
which may affect the validity of a states consent
to a treaty under international law
2. Representatives lack of authority (TC, Art. 47)
A state representative acting under specific
restrictions, such restrictions being known to the
other state parties, who acts beyond them in
giving his consent to a treaty, renders the states
consent defective. Such an incident can be used
as a ground for the invalidation of that states
consent.
3. Error (TC, Art. 48)
This error must relate to a fact or situation which
was assumed by that State to exist at the time
when the treaty was concluded and formed an
essential basis of its consent to be bound by the
treaty. However, this ground cannot be invoked
if circumstances existed that should have put
such state on notice of a possible error.
4. Fraud (TC, Art. 49)
If a state has been induced to conclude a treaty
by the fraudulent conduct of another negotiating
state, the former may invoke the fraud as
invalidating its consent to be bound by the treaty.
5. Corruption of a state representative (TC, Art. 50)
If the expression of a States consent to be
bound by a treaty has been procured through
the corruption of its representative directly or
indirectly by another negotiating State, the State
may invoke such corruption as invalidating its
consent to be bound by the treaty.
6. Coercion of state representatives (TC, Art. 51)
The expression of a States consent to be bound
by a treaty which has been procured by the
coercion of its representative through acts or
threats directed against him shall be without any
legal effect.
7. Coercion of a state by threat or use of force (TC, Art.
52)
The expression of a States consent to be bound
by a treaty which has been procured by the
coercion of its representative through acts or
threats directed against him shall be without any
legal effect.
8. Conflict with jus cogens (TC, Art. 53)
A treaty is void if, at the time of its conclusion, it
conflicts with a peremptory norm of general
international law.
Grounds for termination.
1. State succession
Treaties may be affected when one state
succeeds whole or partly to the legal personality
and territory of another. This would be

101

PUBLIC INTERNATIONAL LAW

2.

3.

4.

5.

dependent on the form of succession and the


type of treaty concerned.
War and armed conflict
While hostile relations do not automatically
suspend or terminate treaties, it is possible for
war conditions to lead to termination of treaties
on grounds of impossibility or fundamental
change of circumstances.
Operation of treaty provisions (TC, Art. 54 [a])
The treaty may be terminated pursuant to
conductions for such specified therein.
Termination by agreement (TC, Art. 54 [b])
Termination of or withdrawal from a treaty may
take place at any time by consent of all parties.
Material breach (TC, Art. 60)
A material breach consists in:

Repudiation of the treaty not sanction


by the present Convention;

Violation of a provision essential to the


accomplishment of the object or
purpose of the treaty.
In bilateral agreements, a breach by one entitles
the other to invoke such breach as a ground for
termination.

6.

7.

In multilateral agreements, a breach by one may


lead to:

Removal of the state in breach from


the treaty relation;

Termination of the treaty;

Suspension of the treaty only between


a specially affected state and the one
in breach;
Supervening impossibility of performance (TC, Art.
61)
A party may invoke the impossibility of
performing a treaty as a ground for terminating
or withdrawing from it if the impossibility results
from the permanent disappearance or
destruction of an object indispensable for the
execution of the treaty.
Example: submergence of an island, drying of a
river
Fundamental change of circumstances (TC, Art. 62)
Principle of clausula rebus sic stantibus A
fundamental change of circumstances which has
occurred with regard to those existing at the
time of the conclusion of a treaty, and which was
not foreseen by the parties, may not be invoked
as a ground for terminating or withdrawing from
the treaty unless:
a) the existence of those circumstances
constituted an essential basis of the
consent of the parties to be bound by
the treaty; and

A2015

b)

8.

the effect of the change is radically to


transform the extent of obligations still
to be performed under the treaty.
Emergence of a conflicting jus cogens norm (TC, Art.
64)
If a new peremptory norm of general
international law emerges, any existing treaty
which is in conflict with that norm becomes void
and terminates.

Voidable treaties. Certain grounds of both invalidity and


termination must be invoked by a party and so such
treaties concerned are simply voidable. These are:

Invalidity:
o Violation of provisions of internal law
regarding competence to conclude
treaties;
o Representatives lack of authority;
o Error;
o Fraud;
o Corruption of Representative.

Termination:
o Material breach;
o Impossibility;
o Fundamental
change
in
circumstances.(Brownlie, Chapter 26)
Void treaties. The following grounds render a treaty void:

Coercion of a state

Conflict with jus cogens (ibid.)


In the case of the Philippines, the treaty-making
process consists of the following steps:
1. Negotiation
2. Signature
3. Ratification
Note that affixation of the Philippine representatives
signature does not constitute consent to be bound.
This is due to the requirement in Art. VII, Sec. 21 for
the 2/3 concurrence of the Senate for a treaty to be
valid and effective.
Ratification in the Philippines comprises of the
following steps:
1. A treaty is signed by the Executive;
2. The treaty is concurred with by the Senate via a
2/3 vote;
3. The treaty is then deposited with the authority
designated by the treaty itself.
CLASS NOTES

DEFINITION OF TREATY
ABAYA v. EBDANE, JR.
G.R. No. 167919 (2007)

102

PUBLIC INTERNATIONAL LAW

DPWH awarded a contract for a road rehabilitation


package to China Road and Bridge Corporation (CRBC).
The road project is funded under a Loan Agreement which
was provided by an Exchange of Notes between Japan and
the Philippines.
Abaya:

DPWH:

The contract with CRBC is void ab initio.


Award of the project to CRBC violates the
Government Procurement Reform Act (RA
9184) which provides that the Approved
Budget Contract shall be the upper limit or
ceiling for the bid prices.
Under the law, all bids or awards should
not exceed the ceilings or upper limits,
otherwise the contract is void.
DPWH recommended the award to the
Chinese corporation whose bid was more
than 200M overpriced based on the ABC.
RA 9184 is inapplicable.
Executive Order No. 40 exempts from the
scope and application of RA 9184
government commitments with respect to
bidding and award of contracts financed
partly or wholly with funds from
international financing institutions as well
as from bilateral and other similar foreign
sources.

A2015

Section 4. Scope and Application.- x x x Any


treaty or international or executive agreement
affecting the subject matter of this Act to which
the Philippine government is signatory shall be
observed.
The Loan Agreement being in the nature of an executive
agreement falling under the purview of Section 4, it is
exempt from the application of RA 9184 bid-ceiling
requirements.
That an exchange of notes is in the nature of an
executive agreement is a mere obiter dictum.
CLASS NOTES

DEPARTMENT OF BUDGET AND MANAGEMENT


PROCUREMENT SERVICE v. KOLONWEL
TRADING
G.R. No. 175608 (2007)

DepEd requested the services of the DBM-PS to undertake


a procurement project which is to be jointly funded by the
World Bank and the Asian Development Bank through an
International Bank Reconstruction and Development (IBRD)
Loan Agreement. The award of the World Bank-ADB book
project for the Department of Education to Vibal, et. al is
now being contested despite earlier finding of conflict of
interest.

The contract is valid.


The Loan Agreement is in the nature of an executive
agreement because it is an integral part in the Exchange of
Notes between Japan and the Philippines. Under the UN
Treaty Collection, an exchange of notes is a record of a
routine agreement that has many similarities with the
private law contract. The agreement consists of the
exchange of two documents, each of the parties being in
the possession of the one signed by the representative of
the other. Under the usual procedure, the accepting State
repeats the text of the offering State to record its assent.
The signatories of the letters may be government
Ministers, diplomats or departmental heads. The
technique of exchange of notes is frequently resorted to,
either because of its speedy procedure, or, sometimes, to
avoid the process of legislative approval.
Treaties, agreements, conventions, charters, protocols,
declarations, memoranda of understanding, modus
vivendi and exchange of notes all refer to "international
instruments binding at international law. Both the 1969
Vienna Convention and the 1986 Vienna Convention do
not distinguish between the different designations of
these instruments. Instead, their rules apply as long as
they meet the common requirements.
Section 4 of RA 9184 states that:

The trial court held that it lacked jurisdiction to try the case
because there was a failure to comply with the protest
mechanism under RA 9184, namely that the protest must
be: 1) in writing, in the form of a verified position paper 2)
submitted to the head of the procuring entity; and 3)
payment of a non-refundable protest fee. The trial court
also held that the World Bank Guidelines on Procurement
under IBRD Loans are not in any way superior over the
local laws.
Foreign loan agreements with international financial
institutions such as the IBRD Loan Agreement partake of
an executive or international agreement within the
purview of Section 4, RA 9184 as held in the Abaya case.
All interested bidders were notified by DepEd that the
procurement of the project was to be funded from the
proceeds of the RP-IBRD Loan Agreement which stipulates
that the goods shall be procured in accordance with the
World Bank guidelines.
Doctrine: Even if there is a conflict between the
World Bank procurement guidelines and municipal
procurement law (RA 9184), the WB guideline
prevails.
Prof. Roque commented that the ruling was stupid
for the following reasons:

103

PUBLIC INTERNATIONAL LAW

A2015

This contravenes the sovereignty of the state;


The World Bank is not a state that could be a
party to a treaty; its guidelines were not even in
the form of a treaty;
There is no conflict between PH and WB rules
regarding conflict of interest; In fact, the WB
guidelines are the basis of the procurement law
in the Philippines but there is a penal clause in
our law (that is the only difference)

executive agreements must comply with the laws they


implement. Only a treaty, upon ratification of the Senate,
acquires the status of municipal law.

In ruling that this is an executive agreement, Abaya


was used but the court cited a portion of Abaya
which does not exist.

Also, an executive agreement is generally governed by


international law. However the ZTE Contract itself provides
that it shall be governed by Philippine law. Thus, the ZTE
contract is not an executive agreements but simply a
commercial contract, which must comply with the public
bidding mandated by the governing Philippine law.

Note that in Abaya, what was deemed an executive


agreement was the Exchange of Notes, not the loan
agreement itself.
CLASS NOTES

That the Chinese government handpicked ZTE Corporation


to supply the goods and services does not make the ZTE
Supply Contract an executive agreement. ZTE Corporation
is not even a government agency but a business enterprise
performing purely commercial functions.

CNMEG v. HONORABLE SANTA MARIA


G.R. No. 185572 (2012)

SUPLICO V. NATIONAL ECONOMIC AND


DEVELOPMENT AUTHORITY
G.R. No. 178830 (2008)

The Philippine government through the DOTC entered into


a project with the Chinese government known as the ZTE
National Broadband Network Project or the ZTE-DOTC NBN
deal. Suplico sought to enjoin NEDA from pursuing,
entering into indebtedness, disbursing funds and
implementing the ZTE-DOTC Broadband Deal
Suplicos petition was dismissed because the issue was
already moot. Prior to Suplicos action, it was shown that
in the Notes of Meeting between Philippines and China,
the Philippine government conveyed its decision not to
continue with the project due to several constraints. The
same Notes also contained President Hu Jintaos
expression of understanding of the Philippine Government
decision.
Carpio, J., dissenting:
The NBN Project should be declared null and void for its
failure to comply with requirements set by law:
1. an appropriation law funding the contract;
2. certification of appropriation and fund availability

CNMEG and North Luzon Railways Corporation entered


into an agreement that the latter will conduct a feasibility
study and construct the Northrail Project. A complaint was
filed for the annulment of the contract and loan agreement
on the ground that it is unconstitutional and it also
violated RA 9184. It is alleged that the contract and the
loan agreement is an executive agreement and therefore
its validity cannot be questioned before the local courts.
The Vienna Convention on the Law of Treaties defines a
treaty as an international agreement concluded between
States in written form and governed by international law,
whether embodied in a single instrument or in two or
more related instruments and whatever its particular
designation.
To be considered an executive agreement, the following
three requisites provided under the Vienna Convention
must concur:
a) the agreement must be between states;
b) it must be written; and
c) it must governed by international law.
This case lacks the first and third requisites.

Also the Government Procurement Reform Act states that


all procurement of infrastructure, goods and services shall
be done through Competitive Bidding. ZTEs argument
that there is no provision in the executive agreement
between China and the Philippines for the conduct of
public bidding will only be tenable if executive agreements
can amend or repeal a prior law. However, executive
agreements cannot amend or repeal a prior law.

The agreement is not between states. The Contract


Agreement was not concluded between the Philippines
and China, but between Northrail and CNMEG. CNMEG is
neither a government nor a government agency. Northrail
and CNMEG entered into the Contract Agreement as
entities with personalities distinct and separate from the
Philippine and Chinese governments, respectively. Neither
can it be said that CNMEG acted as agent of the Chinese
government.

An executive agreement has the force and effect of law.


But like implementing rules of executive agencies,

It is not governed by international law. Since the Contract


Agreement explicitly provides that Philippine law shall be

104

PUBLIC INTERNATIONAL LAW

A2015

applicable, the parties have effectively conceded that their


rights and obligations thereunder are not governed by
international law. It is merely an ordinary commercial
contract that can be questioned before the local courts.
Therefore it is not an executive agreement and the case
can be tried by Philippine (local courts).

To settle the ambiguity, the Court made reference to the


Draft Terms of Reference (TOR) relating to the exercises,
which expressly prohibit US involvement in combat
operations without prejudice to self-defense. Hence, the
Balikatan cannot be said to have authorized US
involvement in combat operations.

The Court in effect introduced a fourth test to


consider an agreement an executive agreement the
purpose of the contract. The contract must have been
undertaken for a purpose consistent with jus imperii
(i.e. that it must be for a sovereign purpose)

The ambiguity of the meaning of the word activities was


deliberately made that way to give both parties a certain
leeway in negotiation. Thus, visiting US forces may sojourn
in Philippine territory for purposes other than military. As
conceived, the joint exercises may include training on new
techniques of patrol and surveillance to protect the
nations marine resources, sea search-and-rescue
operations to assist vessels in distress, disaster relief
operations, civic action projects such as the building of
school houses, medical and humanitarian missions, and
the like.

In the instant case, it was a mere supply agreement.


Hence, it must be governed by Philippine law.
CLASS NOTES

DEFINITION OF RATIFICATION
LIM v. EXECUTIVE SECRETARY
G.R. No. 151445 (2002)

As part of the Global War on Terror, US Armed Forces, in


conjunction with the Philippine military, held the Balikatan
exercises a simulation of joint military maneuvers
pursuant to the Mutual Defense Treaty (MDT) and the
Visiting Forces Agreement (VFA).
Petitioners argue that the VFA does not authorize US
forces to engage in combat operations in Philippine
territory. However, through the Balikatan exercises, US
forces were engaged in combat operations against the Abu
Sayaff. As such, they charged that the exercises were
unconstitutional.
The Balikatan Exercises fall under the umbrella of
sanctioned or allowable activities in the context of the
VFA.
The holding of the Balikatan Exercises must be viewed in
line with the Mutual Defense Treaty and the Visiting
Forces Agreement. The VFA permits United States
personnel to engage, on an impermanent basis, in
activities, the exact meaning of which was left undefined.
Since the terminology used in the VFA is ambiguous, the
Court referred to the Vienna Convention on the Law of
Treaties which contains provisos governing interpretations
of international agreements. It clearly provides that the
cardinal rule of interpretation must involve an
examination of the text, which is presumed to verbalize
the parties intentions. The Convention also dictates what
may be used as aids to deduce the meaning of terms,
which it refers to as the context of the treaty, as well as
other elements may be taken into account alongside the
aforesaid context.

On the question of whether American troops are actively


engaged in combat alongside PH troops under the guise of
an alleged training, the Court said that it cannot rule on
this as it involves a question of fact which is not a fit topic
for certiorari.
Balikatan exercises were entered into in relation to
the kidnapping of Burnham spouses in Dos Palmas.
The Balikatan, if found to be a rescue mission, is
unconstitutional. But this is a question of fact which
the Court refused to rule on.
CLASS NOTES

BAYAN v. ZAMORA
G.R. No. 138570 (2000)

BAYAN challenges the constitutionality of the Visiting


Forces Agreement (VFA).
The VFA is constitutional.
The constitutional provision which governs the VFA is
Section 25, Article XVIII of the 1987 Constitution:
After the expiration in 1991 of the Agreement
between the Republic of the Philippines and the
United States concerning Military Bases, foreign
military bases, troops, or facilities shall not be
allowed in the Philippines except 1) under a
treaty 2) duly concurred in by the Senate and,
when the Congress so requires, ratified by a
majority of the votes cast by the people in a
national referendum held for that purpose, and
3) recognized as a treaty by the other
Contracting State.
The VFA is constitutional because it has met all the
requisites laid down by Section 25, Article XVIII.

105

PUBLIC INTERNATIONAL LAW

A2015

Whether US recognizes the VFA as a treaty is


inconsequential. Even if the US merely treats the VFA as an
executive agreement it is still binding because under
international law, an executive agreement is as binding as
a treaty. In international law, there is no difference
between treaties and executive agreements in their
binding effect upon states so long as negotiating
functionaries have remained within their powers.
Also, the US government, through Ambassador Hubbard,
stated that the US has fully committed to living up to the
terms of the VFA. As long as the US acknowledges the VFA
as a treaty and binds itself to further comply with its
obligations, there is compliance with the mandate of the
Constitution.
rd

The Court in effect said that the 3 requisite in


Section 25 is satisfied so long as the US says the VFA
is binding on them, and that it is no longer our
business to look into US ratification practices.
Prof. Roque pointed out pertinent points raised by
Justice Puno in his dissent:

The US Senate did not ratify the agreement.


Hence, in light of sovereign equality, why
should the Philippine Senate ratify it?

Treaties enjoy the force of domestic law.


Because the US treated is an executive
agreement, we have a situation where the VFA
is binding as domestic law in the Philippines,
while in the US it is not;

The VFA may involve bases because it is for an


indefinite period.
CLASS NOTES

BAYAN MUNA v. EXECUTIVE SECRETARY


G.R. No. 159618 (2011)

The Philippines signed the Rome Statute, a treaty which


establishes the International Criminal Court (ICC) with the
power to exercise its jurisdiction over persons for the most
serious crimes of international concern (considered grave
under international law, such as genocide, crimes against
humanity, war crimes, and crimes of aggression) and shall
be complementary to the national criminal jurisdictions.
However, no ratification was made.
Consequently, a non-surrender bilateral agreement was
executed between the RP and the US, which aims to
protect what it refers to and defines as persons of the
RP and US from frivolous and harassment suits that might
be brought against them in international tribunals. The
Agreement prevents the State-parties from surrendering a
national of the other to a third party or to the international
tribunal without the consent of the said other State.

The Non-Surrender Agreement is sought to be nullified


because it contravenes the Rome Statute.
The Non-Surrender Agreement does not contravene the
Rome Statute because the Philippines is only a signatory
State and not yet a State-Party because it had not ratified
yet. Under the Vienna Convention on the Law of Treaties,
a signatory state is only obliged to refrain from acts which
would defeat the object and purpose of a treaty; whereas
a State-Party, on the other hand, is legally obliged to
follow all the provisions of a treaty in good faith. The
Philippines is only a signatory to the Rome Statute and not
a State-Party for lack of ratification by the Senate. Thus, it
is only obliged to refrain from acts which would defeat the
object and purpose of the Rome Statute, and it is not
obliged to follow any provision therein.
Regarding the non-surrender agreement between the
US and the Philippines:

The bilateral agreement between US and PHL


defeats the purpose of the ICC or Rome Statute
which is to put an end to impunity
o SC: we are not a state party here

In violation of jus cogens norm: that all who


commits international crimes should be
punished
o SC: It is an executive agreement so still
binding to us (even if not treaty)

We are violating our obligation under Rome


statute
o SC: it is complementary to Rome Statute
because as a signatory our role is only to
refrain from acts which would defeat
the object and purpose of a treaty
o Why are we not violating impunity
which is customary norm:
(a) Complementary because the
state can still prosecute

Sir: It seems that the Supreme Court is saying


that signing a treaty without ratification has no
effect (?) The Philippines is not bound by the
command of the International Criminal Court to
surrender to its jurisdiction

Because what is involved here is an impunity


agreement so even if states had not ratified it,
because it is a customary norm.
CLASS NOTES

PIMENTEL v. EXECUTIVE SECRETARY


G.R. No. 158088 (2005)

Senator Pimentel et. al filed a mandamus to compel the


Executive Secretary and the DFA to transmit the signed
copy of the Rome Statute to the Senate for its concurrence
in accordance with Section 21, Article VII of the 1987
Constitution, which provides that no treaty or
international agreement shall be valid and effective

106

PUBLIC INTERNATIONAL LAW

A2015

unless concurred in by at least two-thirds of all the


Members of the Senate.

agents and brought to the US Embassy. The VFA is being


assailed for being void and unconstitutional.

The Executive Secretary and the DFA do not have the


ministerial duty to transmit to the Senate the signed copy
of the Rome Statute even without the signature of the
President.

The VFA is constitutional.

Pimentel et al erroneously interpreted Section 21 to mean


that the power to ratify treaties belongs to the Senate and
that the signing of the treaty at the United Nations
headquarters meant that it was already ratified. The
power to ratify belongs to the President, but this power is
limited by the Senate. Signing a treaty is merely a mark of
authentication and a symbol of good faith. It is a different
step from ratification. The Philippines is not bound by
treaty law or international law to ratify the treaty it has
signed. The signature on the Rome Statute does not signify
final consent. Ratification is what will bind the Philippines
to the Statutes provisions. The Statute itself requires that
the signature of the representatives of the states be
subject to ratification, acceptance or approval of the
signatory states. There is no legal obligation to ratify a
treaty, but a refusal to ratify must be based on substantial
grounds.
The treaty-making process involves the following
steps

Negotiation: submissions of proposals and


counter-proposals

Signature: authenticates the draft instrument


and symbolizes the good faith of the parties.
However, this does not indicate final consent of
the state

Ratification: the formal act by which a state


confirms and accepts the provisions of a treaty
concluded by its representatives.
Exchange of the instruments of ratification:
signifies the effectivity of the treaty.
CLASS NOTES

In Bayan vs. Zamora, the SC upheld the constitutionality of


the VFA stating that the VFA was duly concurred in by the
Philippine senate and has been recognized as a treaty by
the US. Though the VFA was not submitted for advice and
consent of the US Senate, it is still a binding international
agreement or treaty recognized by the US because:

Only policymaking agreements are submitted to the


US Senate;

Those that carry out or further implement


policymaking agreements are submitted to Congress
under the provisions of Case-Zablocki Act.
Submission of this kind of agreement to the US
Senate is not necessary;

The RP-US Military Defense Treaty is the


policymaking agreement, while the VFA is its
implementing agreement. The RP-US Military
Defense Treaty has been ratified & concurred by
both Philippine & US senates.
The VFA is different from Medellin vs. Texas because in
that case, the US Supreme Court held that treaties entered
into by the US are not automatically part of their domestic
law unless these treaties are self-executing or there is an
implementing legislation to make them enforceable.
Comparing the VFA with the Vienna Convention on
Consular Relations & the Avena decision of the
International Court of Justice (which is subject matter of
the Medellin decision), the VFA is a (1) self- executing
agreement because the parties intend its provisions to be
enforceable and (2) it is covered by implementing
legislation which is the Case-Zablocki Act. These two
characteristics are absent in the subject matter of the
Medellin decision.

SALONGA et. al v. SMITH et. al


G.R. No. 176051 (2009)

Daniel Smith was a member of the US Armed Forces who


was charged for the rape of Suzette Nicolas. Pursuant to
the Visiting Forces Agreement, US was granted custody of
Smith pending the proceedings. RTC found Smith guilty.
Pursuant to the VFA, he shall serve his sentence in a
facility that shall be agreed upon by the Philippines and US
authorities. The Romulo-Kenney agreement was entered
into which provided that Smith will be detained at the 1st
floor, Rowe (JUSMAG) Building, US Embassy.
The
Philippine police & jail authorities shall have access to the
place of detention in order to ensure the compliance of
the US with the terms of the VFA. Therefore, Smith was
taken out of the Makati jail by Philippine law enforcement

Bayan Muna may be overturned due to change


of circumstances in Salonga, this is an actual
case or controversy unlike in Zamora which
involves a declaratory relief
Salonga: Mutual Defense Treaty is no longer in
effect because of the UN Charter (against the
use of force)
SC:

the first ruling is that there is a treaty:


MDT is a treaty to which VFA depends
(even if VFA is not treaty)

even if there is no treaty, it is still binding


because of an implementing legislation
(Case-Zablocki act) but it applies only to
executive agreements

There is no distinction between treaties


and executive agreements

107

PUBLIC INTERNATIONAL LAW

Dissent: Medellin v. Texas discussed that a


treaty does not automatically bind the US

The treaty must be self-executory;

There must be a domestic enabling


legislation.
CLASS NOTES

RESERVATIONS TO THE CONVENTION ON THE


PREVENTION AND PUNISHMENT OF THE
CRIME OF GENOCIDE
ICJ Reports1951, p 15 (1951)

The General Assembly of the United Nations requested the


International Court of Justice for an Advisory Opinion on
the following questions:
I.
Can the reserving State be regarded as being a
party to the Convention while still maintaining its
reservation if the reservation is objected to by
one or more of the parties to the Convention but
not by others?
II.
If the answer to Question I is in the affirmative,
what is the effect of the reservation as between
the reserving State and:
(a) The parties which object to the
reservation?
(b) Those which accept it?
III.
What would be the legal effect as regards the
answer to Question I if an objection to a
reservation is made:
(a) By a signatory which has not yet ratified?
(b) By a State entitled to sign or accede but
which has not yet done so?
I. YES. A State which has made and maintained a
reservation which has been objected to by one or more
of the parties to the Convention but not by others, can
be regarded as being a party to the Convention if the
reservation is compatible with the object and purpose
of the Convention; otherwise, that State cannot be
regarded as being a party to the Convention.
II. (a) if a party to the Convention objects to a reservation
which it considers to be incompatible with the object
and purpose of the Convention, it can in fact consider
that the reserving State is not a party to the Convention;
(b) if, on the other hand, a party accepts the
reservation as being compatible with the object and
purpose of the Convention, it can in fact consider that
the reserving State is a party to the Convention
No State can be bound by a reservation to which it has
not consented, therefore, it necessarily follows that
each State objecting to it will or will not, on the basis of
its individual appraisal within the limits of the criterion
of the object and purpose stated above, consider the
reserving State to be a party to the Convention. Such a

A2015

decision will only affect the relationship between the


State making the reservation and the objecting State.
III. (a) an objection to a reservation made by a signatory
State which has not yet ratified the Convention can have
legal effect only upon ratification. Until that moment it
merely serves as a notice to the other State of the
eventual attitude of the signatory State
(b) an objection to a reservation made by a State which
is entitled to sign or accede but which has not yet done
so, is without legal effect.
1.

2.
3.

4.

5.
6.
7.

In relation to WWII genocide; scenarios:

If the reservation is allowed and ALL


accept it will be binding

If the object of the treaty is subject of the


convention not allowed

In case of reservation, the other states can


object OPPOSABILITY
A jus cogens norm is a peremptory norm
A country is bound even without ratification:

If it codifies CIL

If the agreement is entered a third state


without that a third state gave its consent
to be bound thereto (not pour autrui
where benefits are involved and that the
third state accepts)
It is the same with contract law:

Mutuality (only the parties are bound)

Autonomy (like pacta sunt servanda)


A party cannot automatically opt out of the
effect of treaty as in Nicaragua
In traveaux preparatoires aid to
interpretation
When it can be declared void:

Void due to jus cogens

Fraud and inducement

No full powers

Error in fact and situation

Coercion

Corruption

Rebus sic stantibus a legal doctrine allowing for a


treaty to become inapplicable and not binding on a
party because of fundamental changes in the
circumstances
CLASS NOTES

CASE CONCERNING MILITARY AND


PARAMILITARY ACTIVITIES IN AND AGAINST
NICARAGUA
(NICARAGUA v. USA)
ICJ Reports 1986, p.14 (1986), supra.

The United States questions the jurisdiction of the ICJ since


Nicaragua had not yet ratified the instruments relating to

108

PUBLIC INTERNATIONAL LAW

A2015

the compulsory jurisdiction of the PCIJ (predecessor of the


ICJ).
There was a valid declaration on the part of Nicaragua of
its intent to ratify. The declaration had a certain potential
effect which could be maintained for many years. Having
been made unconditionally and being valid for an
unlimited period, it had retained its potential effect at the
moment when Nicaragua became a party to the Statute of
the new Court. The constant acquiescence of Nicaragua
constitutes a valid mode of manifestation of its intent to
recognize the compulsory jurisdiction of the Court.

women for compensation had already been fully satisfied


by Japans compliance with the Peace Treaty between the
Philippines and Japan.
The Supreme Court held in this case that the Executive
Department has the exclusive prerogative whether or not
it is going to espouse the claims of the Malaya Lolas. Since
the Executive Department has determined that taking up
comfort womens cause would be inimical to our countrys
foreign policy interests, to overturn the Executive
Departments determination would mean an assessment
of the foreign policy judgments by a coordinate political
branch to which authority to make that judgment has
been constitutionally committed.

AKBAYAN v. AQUINO
G.R. No. 170516 (2008)

AKBAYAN et. al requested for the full text of the JapanPhilippines Economic Partnership Agreement (JPEPA)
including the offers made by both parties during the
negotiation process and all pertinent attachments and
annexes. Undersecretary Aquino did not grant this request.
Aquino said that they shall be provided with a copy once
the negotiations are completed and as soon as thorough
legal review of the proposed agreement has been
conducted. AKBAYAN et. al argues that the President
cannot exclude the Congress since whatever power and the
authority the President has now pertaining to negotiations
is only delegated by the Congress through the Constitution.
The treaty making power of is exclusive to the President,
subject only to the concurrence of at least 2/3 of all
Members of the Senate for the validity of the treaty. As
head of the State it is constitutionally vested in the office
as well as inherent that the President is the sole organ and
authority in the external affairs of the country.

VINUYA v. EXECUTIVE SECRETARY


G.R. No. 162230 (2010)

The Malaya Lolas is a group whose members were


victims of mass rape and sexual slavery in the Philippines
during World War II. The women sued in Japan for
compensation as a consequence of Japans internationally
wrongful act of sanctioning rapes during the war. The
Japanese courts dismissed their complaint on the ground
that the women had no personality to sue because only
states could sue for compensation on behalf of victims of
war crimes.
They have approached the Executive Department through
the DOJ, DFA, and OSG, requesting assistance in filing a
claim against the Japanese officials and military officers
who ordered the establishment of the "comfort women"
stations in the Philippines. Officials of the Executive
Department declined to assist the Malaya Lolas, and
maintained that the individual claims of the comfort

The conduct of the foreign relations of our government is


committed by the Constitution to the executive and
legislative the political departments of the government
and the propriety of what may be done in the exercise of
this political power is not subject to judicial inquiry or
decision.
Also, when negotiating peace accords and settling
international claims, governments have dealt with private
claims as their own, treating them as national assets, and
as counters, chips, in international bargaining. Settlement
agreements have lumped, or linked, claims deriving from
private debts with others that were intergovernmental in
origin, and concessions in regard to one category of claims
might be set off against concessions in the other, or
against larger political considerations unrelated to debts.
Except as an agreement might otherwise provide,
international settlements generally wipe out the
underlying private claims, thereby terminating any
recourse under domestic law.

F. Vienna
Conventions
Diplomatic
Relations
Consular
Relations,
Optional Protocols
VIENNA
CONVENTION
DIPLOMATIC RELATIONS

on
and
and

ON

Diplomatic Mission
Establishment. Diplomatic missions are established by
mutual consent. (Vienna Convention on Diplomatic
Relations [DC], Art. 2)
Not same as establishing diplomatic relations. A state
may establish diplomatic relations with another without
agreeing to establish a diplomatic mission therein. It may

109

PUBLIC INTERNATIONAL LAW

likewise withdraw a diplomatic mission


necessarily severing diplomatic relations.

A2015

without

Head of mission; and


Members of the diplomatic staff.

Functions. The functions of a diplomatic mission are:


a) Representing the sending State in the receiving State;
b) Protecting in the receiving State the interests of the
sending State and of its nationals, within the limits
permitted by international law;
c) Negotiating with the Government of the receiving
State;
d) Ascertaining by all lawful means conditions and
developments in the receiving State, and reporting
thereon to the Government of the sending State;
e) Promoting friendly relations between the sending
State and the receiving State, and developing their
economic, cultural and scientific relations. (DC, Art.
3 [1])

The distinction is essential because they are the only ones


covered by diplomatic immunities and privileges.

Diplomatic missions may also perform consular functions,


(DC, Art. 3 [2]) which are regulated by the Vienna
Convention on Consular Relations. (infra.) Consent of a
receiving state to the establishment of diplomatic relations
also implies the establishment of consular relations. (CC,
Art. 2 [2])

The receiving state may refuse agrment, and is


not obliged to give a reason therefor.

The primary function of the mission is basically


legitimate espionage that is, to collect
information on the receiving state.
CLASS NOTES
Duties of the diplomatic mission to the receiving state.
These include:
1. Duty to respect the laws and regulations of the
receiving state;
2. Duty not to interfere in the internal affairs of
that state.
Members of the Mission
The following are the members of a diplomatic mission:
1. Head of mission
a. That of ambassadors or nuncios accredited
to Heads of State, and other heads of
mission of equivalent rank;
b. That of envoys, ministers and internuncios
accredited to Heads of State;
c. That of chargs daffaires accredited to
Ministers for Foreign Affairs.
2. Staff of the mission
a. Diplomatic staff staff having diplomatic
rank.
b. Administrative and technical staff
employed in the administrative and
technical staff of the mission. (e.g.
secretaries, receptionists)
c. Service staff employed in the domestic
service of the mission. (e.g. driver, maid,
security guards)

Commencement of diplomatic functions. The process


with regard to heads of mission is as follows:
1. Initiation of agration [ah-gre-ya-shawn]
sending state inquires with receiving state
regarding the acceptability of the head of
mission proposed to be accredited.
2. Issuance of the agrment [ah-gre-mahnt] if the
receiving state finds the proposed head
acceptable, the receiving state issues an
agrment (i.e. approval given by the receiving
state to the proposed head.)

3.

Agrment may be withdrawn by the receiving


state only when the head of mission is not yet
present in its territory. Once that threshold is
crossed, it may:

Ask the receiving state of his


withdrawal; or

Declare him persona non grata.


Formal nomination and public announcement
the head of state presents his diplomatic
credentials (i.e. authorization from the sending
state) to the head of state of the sending state in
a ceremony.

As to members of the staff of the mission, the sending


State may freely appoint them. (DC, Art. 7)
Cessation of diplomatic functions. Functions of a
diplomatic agent come to end:
1. On notification by the sending state to the
receiving state that his function has ended. (DC,
Art. 43)
2. On notification by the receiving state to the
sending state that the agent has been declared
persona non grata and the receiving state
refuses to recognize him as a member of the
mission. (ibid.)
Persona non grata Literally, an unwelcome
person; a receiving state may declare a
diplomatic agent or other staff member as such
at any time, without any obligation to explain its
decision. (DC, Art. 9)

The sending state has the duty to


either (1) recall the person concerned
or (2) terminate his services in the
mission.

Diplomatic agents. This term refers to the:

110

PUBLIC INTERNATIONAL LAW

3.
4.

Failing at this, the receiving state may


refuse to recognize the person as a
member of the mission.

Death of the diplomatic agent; and


Severance of diplomatic relations, resulting in
permanent or temporary recall of the mission.

No practice of professional/commercial activity. A


diplomatic agent shall not practice for personal profit any
professional or commercial activity in the receiving state.
(DC, Art. 42)
Members of the family not agents. - Members of the
family of a diplomatic agent forming part of his household
are not diplomatic agents themselves. However, they are
nonetheless entitled to the same personal rights of
diplomatic agents. (DC, Art. 36 [1])
Diplomatic Immunities and Privileges
Basis. There are three theories that form the basis of the
grant of diplomatic immunities and privileges:
1. Extraterritoriality theory premises of the
diplomatic mission represent an extension of the
territory of the sending state;
2. Representational theory the mission
personifies the sending state; and
3. Functional necessity theory it ensures the
efficient performance of its functions.
Inviolability of the diplomatic premises. The diplomatic
premises consist of:

Buildings or parts of buildings and the land ancillary


thereto, irrespective of ownership, used for the
purposes of the mission; and

The residence of the head of the mission; (DC, Art. 1


[i])
The premises of the mission shall be inviolable. It consists
of three elements:
1. The agents of the receiving state may not enter
them, except with the consent of the head of the
mission. (DC, Art. 22 [1])

No legal writ may be served inside


without consent.
2. Special duty of the receiving state to take all
appropriate steps 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. (DC, Art. 22
[2])
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. (DC,
Art. 22 [3])

A2015

Continues even if diplomatic ties are


severed, and even in times of armed
conflict (DC, Art. 45 [a])
Extends to archives and documents of
the mission, wherever they may be (DC,
Art. 24)
Extends to all official correspondence
relating to the diplomatic mission (DC,
Art. 27 [2])
Extends to the private residences of
diplomatic agents (DC, Art. 30 [1])

It was this duty to protect the premises of the


diplomatic mission that the Government of Iran failed
to discharge in the Case Concerning United States
Diplomatic and Consular Staff in Tehran (United
States Of America v. Iran), (infra.)
CLASS NOTES
Personal privileges, at a glance. Diplomatic agents and
family members forming part of their household enjoy the
following rights:

Personal inviolability; (Art. 29)

Immunity from jurisdiction; (Art. 31)

Exemption from social security provisions; (Art.


33)

Exemption from dues and taxes; (Art. 34)

Exemption from personal services; (Art. 35)

Exemption from customs duties and related


charges; (Art. 36)
Classes of immunities. The application of the succeeding
immunities is qualified by the designation of the person
concerned. To wit:
Diplomatic
Staff and their
Families

Administrative
and Technical
Staff:

Personal inviolability; (Art. 29)


Immunity from jurisdiction; (Art.
31)
Criminal: FULL IMMUNITY
Civil: FULL IMMUNITY, with
exceptions (1-3)
Exemption from social security
provisions; (Art. 33)
Exemption from dues and taxes;
(Art. 34)
Exemption from personal services;
(Art. 35)
Exemption from customs duties
and related charges; (Art. 36)
Personal inviolability; (Art. 29)
Immunity from jurisdiction; (Art.
31)
Criminal: FULL IMMUNITY
Civil: FUNCTIONAL IMMUNITY
Exemption from social security
provisions; (Art. 33)

111

PUBLIC INTERNATIONAL LAW

Service Staff:

A2015

Exemption from dues and taxes;


(Art. 34)
Exemption from personal services;
(Art. 35)
Immunity in respect of acts
performed in the course of their
duties (FUNCTIONAL) (Art. 37 [3])
Exemption from dues and taxes on
the emoluments they receive by
reason of their employment
Exemption from social security
provisions; (Art. 33)

Personal inviolability 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 all appropriate steps to prevent any attack on his
person, freedom or dignity. (DC, Art. 29)

discharge of his duties, he may be held liable for the


same.

Q: If a diplomatic mission rents a lot for its

embassy, but the lot is subject to a deed of


restriction which was breached by the former,
can the restriction be enforced against the
mission?
Theoretically, you can sue the lessor (i.e. owner of the
lot) and receive judgment. However, it would not be
possible to enforce the judgment against the mission
since the premises of the embassy, leased or
otherwise, is inviolable and no legal writ may be
served therein.

This immunity from jurisdiction may be waived by the


sending state, by way of express waiver. But, this does
amount to waiver of immunity with respect to execution
of judgment, for which a separate waiver shall be
necessary. (DC, Art. 32)

This covers:
1. His private residence
2. Papers and correspondence;
3. Property, except for measures of execution due
to cases not covered by the agents immunity
from criminal and civil jurisdiction of the
receiving state. (infra.) (DC, Art. 30)

A diplomatic agent cannot be obliged to give evidence as a


witness. (DC, Art. 31 [2])

Immunity from jurisdiction. A diplomatic agent enjoys


immunity from the following:
1. Criminal jurisdiction;
2. Civil and administrative jurisdiction;

Exceptions:
i. A real action 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;
ii. An action relating to succession in which
the diplomatic agent is involved as
executor, administrator, heir or legatee
as a private person and not on behalf of
the sending State;
iii. An action relating to any professional or
commercial activity exercised by the
diplomatic agent in the receiving State
outside his official functions. (DC, Art.
31 [1])

Exemption from all dues and taxes. A diplomatic agent


shall be exempt from all dues and taxes, personal or real,
national, regional or municipal, except:
a) Indirect taxes of a kind which are normally
incorporated in the price of goods or services;
b) Dues and taxes on private immovable property
situated in the territory of the receiving State,
unless he holds it on behalf of the sending State
for the purposes of the mission;
c) Estate, succession or inheritance duties levied by
the receiving State;
d) Dues and taxes on private income having its
source in the receiving State and capital taxes on
investments made in commercial undertakings in
the receiving State;
e) Charges levied for specific services rendered;
f) Registration, court or record fees, mortgage
dues and stamp duty, with respect to immovable
property; (DC, Art. 34)

Q: If the secretary of the Ambassador were to be


charged
administratively
with
harassment, would he be immune?

sexual

No. The secretary falls under administrative and


technical staff, and thus only has FUNCTIONAL civil
and administrative immunity.
Since the sexual harassment was not part of the

Exemption from social security provisions. - Diplomatic


agent shall with respect to services rendered for the
sending State be exempt from social security provisions
which may be in force in the receiving State. (DC, Art. 33)

Exemption from personal services. The receiving State


shall exempt diplomatic agents from all personal services,
from all public service of any kind whatsoever, and from
military obligations such as those connected with
requisitioning, military contributions and billeting. (DC, Art.
35)
Exemption from customs duties and related charges. The receiving State shall, in accordance with such laws and

112

PUBLIC INTERNATIONAL LAW

A2015

regulations as it may adopt, permit entry of and grant


exemption from all customs duties, taxes, and related
charges other than charges for storage, cartage and similar
services, on:
a) Articles for the 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. (DC, Art. 36 [1])

Consular Relations
Establishment. Consular relations are established by
mutual consent. (Vienna Convention on Consular Relations
[CC], Art. 2 [1])

Some diplomatic officers abuse this privilege by


importing local goods duty-free, then selling them in
their areas. Maliit sweldo nila e. Pero at least may
natitirhan ako for free when Im abroad. (Roque,
2013)
CLASS NOTES

This makes the following possible:


Establishment of diplomatic relations without
consular relations, by express declaration; and
Establishment of consular relations initially, ahead or
as a preliminary step to diplomatic relations.

Period of enjoyment. The privileges and immunities shall


be enjoyed:

FROM the moment he enters the territory of the


receiving State on proceeding to take up his post
or, if already in its territory, from the moment
when his appointment is notified to the Ministry
for Foreign Affairs;

TO when he leaves the country after the basis


for his immunity ends.
o It subsists for a reasonable time even
after his functions end, up the time he
leaves the receiving state.
o But, with respect to acts performed by
such a person in the exercise of his
functions as a member of the mission,
immunity shall continue to subsist.
Immunity while in transit. - If a diplomatic agent passes
through or is in the territory of a third State in the process
of:

proceeding to take up or to return to his post; or

when returning to his own country,


Such third State shall accord him inviolability and such
other immunities as may be required to ensure his transit
or return.
This does not include vacations to third states.
CLASS NOTES
This right also applies with regard to:

Any members of his family enjoying privileges or


immunities who are accompanying the
diplomatic agent, or travelling separately to join
him or to return to their country;

Official correspondence and communications;

VIENNA CONVENTION ON CONSULAR


RELATIONS

Arises with diplomatic relations. - Consent given to the


establishment of diplomatic relations between two States
implies, unless otherwise stated, consent to the
establishment of consular relations. (CC, Art. 2 [2])

Functions. Consular functions consist in:


a) Protecting in the receiving State the interests of the
sending State and of its nationals;
b) Furthering the development of commercial, economic,
cultural and scientific relations between the sending
State and the receiving State and otherwise
promoting friendly relations between them;
c) Ascertaining by all lawful means conditions and
developments in the commercial, economic, cultural
and scientific life of the receiving State, reporting
thereon to the Government of the sending State;
d) Issuing passports and travel documents to nationals
of the sending State, and visas or appropriate
documents to persons wishing to travel to the
sending State;
e) Helping and assisting nationals, both individuals and
bodies corporate, of the sending State;
f) Acting as notary and civil registrar, and performing
certain functions of an administrative nature;
g) Safeguarding, within the limits imposed by the laws
and regulations of the receiving State, the interests of
minors and other persons lacking full capacity who
are nationals of the sending State;
h) Representing or arranging appropriate representation
for nationals of the sending State before the tribunals
and other authorities of the receiving State;
i) Transmitting judicial and extrajudicial documents or
executing letters rogatory or commissions to take
evidence for the courts of the sending State;
j) Exercising rights of supervision and inspection in
respect of vessels having the nationality of the
sending State, and of aircraft registered in that State,
and in respect of their crews, and extending them
assistance;
k) Performing any other functions entrusted to a
consular post. (CC, Art. 5, paraphrased)
Consular officers may also perform diplomatic functions or
acts granted these conditions:
The sending state has no diplomatic mission in the
receiving state;
The sending state is not represented by a diplomatic
mission of a third state therein;

113

PUBLIC INTERNATIONAL LAW

A2015

The receiving state consents to the arrangement. (CC,


Art. 17 [1])

2.

Note, however, that the performance of diplomatic acts


does not alter the legal status of the consular officer and
does not confer upon him diplomatic privileges and
immunities. (ibid.)

3.

Consular Post.
It is a consulate-general, consulate, vice-consulate, or
consular agency which exercises consular functions over a
particular consular district. (CC, Art. 3)

Transmission of consular commission The


consular commission is transmitted to the
receiving state for consideration. (CC, Art. 11 [2])
Issuance of exequatur If the receiving state is in
agreement, it shall issue an exequatur an
authorization from the receiving state by which
the head of a consular post is admitted to the
exercise of consular functions. (CC, Art. 12 [1])
A receiving state may refuse to issue an
exequatur, and is under no obligation to explain
itself. (CC, Art. 12 [2])

Consular district. It is a geographic area assigned or


defined by the sending state for the exercise of consular
functions. (CC, 1 [1b])

The exequatur covers the members of the


consular staff working under the heads orders
and responsibility. But the receiving state may
nonetheless require an exequatur for consular
staff if it wishes. (CC, Art. 19 [1])

Establishment. They may be established in the territory


of the receiving State only with that States consent. In
particular, the following are subject to the approval of the
sending state:
Seat of the consular post, and subsequent changes
thereto;
Opening of a vice-consulate or consular agency in
different consular seat;
Opening of an office forming part of an existing
consular post elsewhere than at the seat thereof. (CC,
Art. 4)

A head is not allowed to exercise consular


functions without an exequatur. There are,
however two exceptions to this rule:
Admission on a provisional basis, pending
delivery of the exequatur; (CC, Art. 13)
Appointment of an acting head of the
consular post, in the event that the head
can no longer discharge his functions or in
case of vacancy. (CC, Art. 15)

Consular functions may also be undertaken by a


diplomatic mission. (CC, Art. 3)

Appointment of the consular staff. The sending state


may freely appoint the members of the consular staff.

Members of the Post


The following are the members of a consular post:
1. Heads of the post
a. Consuls=General
b. Consuls
c. Vice-Consuls
d. Consular agents (CC, Art. 9)
2. Staff of the post
a. Consular employees any person employed
in the administrative or technical service of
a consular post;
b. Members of the service staff means any
person employed in the domestic service of
a consular post.

Cessation of consular functions. Functions of a consular


agent come to end:
1. On notification by the sending state to the
receiving state that his function has ended. (CC,
Art. 25)
2. On notification by the receiving state to the
sending state that the officer or staff member
has been declared persona non grata and the
receiving state refuses to recognize him as a
member of the mission. (CC, Art. 23)
The sending state has the duty to either (1) recall
the person concerned or (2) terminate his
services in the post. (ibid.)

Failing at this, the receiving state may


(1) withdraw the exequatur or (2)
cease to consider the person as a
member of the consular staff. (CC, Art.
23 [2])

Consular officers are of two categories,


Career consular officers; and
Honorary consular officers.
Appointment of heads of consular posts.
1. Issuance of a consular commission He is
appointed by the sending state via the issuance
of a consular commission a document which
certifies to his official capacity and indicates his
full name, category or class, consular district,
and the seat of his consular post. (CC, Art. 11 [1])

3.
4.

5.

On withdrawal of the exequatur; (CC, Art. 25 [b])


On notification by the receiving State to the
sending State that the receiving State has ceased
to consider him as a member of the consular
staff; (CC, Art. 25 [c])
Closure of the consulate;

114

PUBLIC INTERNATIONAL LAW

6.
7.

A2015

Death of the consular staff member; and


Severance of consular relations, resulting in
permanent or temporary recall of the post.

any national of the sending State who is in prison, custody


or detention in their district in pursuance of a judgment.
(CC, Art. 36)

Members of the family enjoy privileges. - Members of the


family of a member of a consular post forming part of his
household shall enjoy the same privileges and immunities
accorded to him. (CC, Art. 53 [2])

It was this duty to inform the consular agents of


Mexico that the United States failed to discharge in
the Case Concerning Avena and other Mexican
Nationals (Mexico v. United States Of America), infra.
CLASS NOTES

Duties of the Receiving State


Freedom of movement. - The receiving State shall ensure
freedom of movement and travel in its territory to all
members of the consular post. (CC, Art. 34)
Freedom of information. The receiving state shall permit
and protect freedom of information on the part of the
consular post for all official purposes. (CC, Art. 35 [1])
In communicating with the Government, the diplomatic
missions and other consular posts, wherever situated, of
the sending State, the consular post may employ all
appropriate means, including diplomatic or consular
couriers, diplomatic or consular bags and messages in
code or cipher. (ibid.)
The official correspondence of the consular post shall be
inviolable. (CC, Art. 35 [2])
Give information on death, guardianship, shipwrecks and
air crashes. - If the relevant information is available to the
receiving State, such authorities shall have the duty to
inform the post without delay of the following:
a) Death of a national of the sending State, to the
consular post in whose district the death
occurred;
b) Any case where the appointment of a guardian
or trustee appears to be in the interests of a
minor or other person lacking full capacity who is
a national of the sending State;
c) if a vessel, having the nationality of the sending
State, is wrecked or runs aground in the
territorial sea or internal waters of the receiving
State, or if an aircraft registered in the sending
State suffers an accident on the territory of the
receiving State, to the consular post nearest to
the scene of the occurrence. (CC, Art. 37)
Duties and rights with regard to nationals of the sending
state in the custody of the receiving state. - If the national
so requests, the competent authorities of the receiving
State shall, without delay, inform the consular post of the
sending State if, within its consular district, a national of
that State is arrested or committed to prison or to custody
pending trial or is detained in any other manner.
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

Consular Immunities and Privileges


Inviolability of the consular premises. The consular
premises are the buildings or parts of buildings and the
land ancillary thereto, irrespective of ownership, used
exclusively for the purposes of the consular post. (CC, Art.
1 [1j])
Consular premises are inviolable to the extent of the
following: (CC, Art. 33 [1])
1. The authorities of the receiving State shall not
enter that part of the consular premises which is
used exclusively for the purpose of the work of
the consular post
Except with the consent of the head of
the consular post or of his designee or
of the head of the diplomatic mission
of the sending State.
Such consent may be assumed in case
of fire or other disaster requiring
prompt protective action. (CC, Art. 33
[2])
2. The receiving State is under a special duty to
take all appropriate steps to protect the consular
premises against any intrusion or damage and to
prevent any disturbance of the peace of the
consular post or impairment of its dignity; (CC,
Art. 33 [3])
This extends to the consular archives
and documents, wherever they may be.
(CC, Art. 33)
3. The consular premises, their furnishings, the
property of the consular post and its means of
transport shall be immune from any form of
requisition for purposes of national defense or
public utility.
If expropriation is necessary for such
purposes, all possible steps shall be
taken to avoid impeding the
performance of consular functions,
and prompt, adequate and effective
compensation shall be paid to the
sending State. (CC, Art. 33[4])
Exemption from taxation of consular premises. - Consular
premises and the residence of the career head of consular
post of which the sending State or any person acting on its
behalf is the owner or lessee shall be exempt from all
national, regional or municipal dues and taxes whatsoever,

115

PUBLIC INTERNATIONAL LAW

A2015

other than such as represent payment for specific services


rendered. (CC, Art. 32)
Personal inviolability of consular officers. Consular
officers enjoy the following rights as to their personal
inviolability:
1. They are not liable to arrest or detention
pending trial;
Except in case of grave crime and
pursuant to a decision of a competent
judicial authority; (CC, Art. 41 [1])
2. They shall not be committed to prison not be
subject to any other form of restriction to
personal freedom;
Except in case of grave crime and
pursuant to a decision of a competent
judicial authority, or in the execution
of a final judicial decision. (CC, Art. 41
[2])
Immunity from jurisdiction; Functional immunity.
Consular officers and employees are immune from the
jurisdiction of administrative and judicial authorities with
respect to acts performed in the exercise of consular
functions. (CC, Art. 43)
This exemption, however, does not apply in the following
civil cases:
Arising out of a contract concluded by a consular
officer or a consular employee in which he did not
contract expressly or impliedly as an agent of the
sending State; or
By a third party for damage arising from an accident
in the receiving State caused by a vehicle, vessel or
aircraft. (CC, Art.43)
This immunity from jurisdiction may be waived by the
sending state, by way of express waiver. (CC, Art. 45 [1])
Exemption from certain requirements of the receiving
state. Members of the consular post are entitled to the
following exemptions:
Registration of aliens and residence permits; (CC, Art.
46 [1])
Work permits for employment of foreign labor, with
respect to services rendered by them for the sending
state (CC, Art. 47 [1])
Social security provisions, with respect to services
rendered by them for the sending state (CC, Art. 48
[1])
All dues and taxes, personal or real, national, regional
or municipal, except: (CC, Art. 49 [1])
o Indirect taxes normally incorporated in the price;
o Taxes or dues on private immovable property in
the territory of the receiving state;
o Estate succession or inheritance taxes and duties
on transfers;

Taxes on private income, including capital gains,


and investment income, and sourced from the
receiving state;
o Charges on specific services rendered; and
o Registration, court or record fees, mortgage
dues, and stamp duties in private transactions.
Customs duties and inspection;
All personal services, public services of any kind, and
military obligations. (CC, Art. 52)

The above exemptions do not apply to the following:


Consular employees and members of the service staff
who carry on private gainful occupation in the
receiving state; (CC, Art. 57 [2a])
Members of the family of said employees and staff
members; (CC, Art.57 [2b])
Members of the family of consular post members
who themselves carry on private gainful occupation in
the receiving state; (CC, Art. 57 [2c])
Members of the family of honorary consular officers;
(CC, Art. 58 [3])
Members of the family of consular employees in the
consular posts headed by honorary consular officers
(CC,Art. 58 [3] )

CASE CONCERNING UNITED STATES


DIPLOMATIC AND CONSULAR STAFF IN
TEHRAN (UNITED STATES OF AMERICA v. IRAN)
ICJ Reports 1980, p. 3 (1980)

The US instituted proceedings against Iran arising out of an


armed attack at its Embassy and Consulates in Iran and the
seizure and detention as hostages of its diplomatic and
consular staff and two more US citizens.
Iran breached its obligations under the Vienna
Conventions on Diplomatic Relations and Consular
Relations.
Under the Vienna Convention on Diplomatic Relations and
Consular Relations, Iran was obligated to take appropriate
steps to protect the US Embassy and Consulates. However,
it 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. This inaction
is a clear and serious violation of Irans obligations under
the said Conventions.
The obligations laid on States by the two Vienna
Conventions are of cardinal importance for the
maintenance of good relations between States in the
interdependent world of today. There is no more
fundamental prerequisite for the conduct of relations
between States than the inviolability of diplomatic envoys
and embassies, so that throughout history nations of all
creeds and cultures have observed reciprocal obligations
for that purpose. The institution of diplomacy has proved
to be an instrument essential for effective Cooperation in

116

PUBLIC INTERNATIONAL LAW

the international community, and for enabling States,


irrespective of their differing constitutional and social
systems, to achieve mutual understanding and to resolve
their differences by peaceful means.

CASE CONCERNING AVENA AND OTHER


MEXICAN NATIONALS (MEXICO v. UNITED
STATES OF AMERICA)
ICJ Reports 2004, p. 12 (2004)

52 individuals were convicted and sentenced to death in


the United States. Mexico alleged that all 52 were Mexican
nationals at the time of arrest and that these individuals
were not informed of their rights under Art 36 of the
Vienna Convention on Consular Relations.
Mexico
instituted proceedings against the United States for
violations of the Vienna Convention on Consular Relations.
Mexico asks the Court to declare that the United States, in
arresting, detaining, trying, convicting and sentencing the
54 Mexican nationals on death row, violated its
international legal obligations to Mexico, in its own right
and in the exercise of its right of consular protection of its
nationals, as provided by Articles 5 and 36 of the Vienna
Convention.
The United States violated its obligation under Art 36 of
the Vienna Convention.
The Court noted that the Vienna Convention did not
provide a definition of the phrase without delay. By
looking at the object and purpose of the Convention, the
phrase without delay means there is a duty upon the
arresting authorities to give to an arrested person
information of the rights under Article 36 as soon as it is
realized that the person is a foreign national, or once there
are grounds to think that the person is probably a foreign
national.
The three elements under Art 36, paragraph 1(b) are:
a) right of individual concerned to be informed without
delay of his rights;
b) right of the consular post to be notified without
delay of the individuals detention, if he so requests;
c) obligation of the receiving State to forward without
delay any communication addressed to the consular
post by the detained person.
Mexican nationals have never been informed of their
rights under Art 36, par 1(b). Thus, in each of these 47
cases, the duty to inform without delay has been
violated. Thus, the United States violated its obligation
under Art 36 par 1(b). In view of these violations, the US is
under an obligation to permit review and reconsideration
of the conviction and sentence of these nationals cases by
the US courts ascertaining whether in each case the
violation of Art 36 committed by the competent

A2015

authorities caused actual prejudice to the defendant in the


process of administration of criminal justice.

International Organizations
A. The UN Charter and the Use
of Force
UN Charter, Art. 2
The Organization and its Members, in pursuit of
the Purposes stated in Article 1, shall act in
accordance with the following Principles.
xxx
(3) All
Members
shall
settle their
international disputes by peaceful means
in such a manner that international peace
and security, and justice, are not
endangered.
(4) 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 other manner
inconsistent with the Purposes of the
United Nations.
Membership
UN Charter, Art. 4
1. Membership in the United Nations is open to
all other peace-loving states which accept the
obligations contained in the present Charter
and, in the judgment of the Organization, are
able and willing to carry out these obligations.
2. The admission of any such state to
membership in the United Nations will be
effected by a decision of the General Assembly
upon the recommendation of the Security
Council.
Requisites for Admission as UN Member:
1) a State;
2) peace-loving;
3) must accept the obligations of the Charter;
4) must be able to carry out these obligations;
5) must be willing to do so.
This list is exclusive. No additional requirements may be
required by any state. (Competence of the General

117

PUBLIC INTERNATIONAL LAW

Assembly for the Admission of a State to the United


Nations [Advisory Opinion], infra.)
The Security Council
UN Charter, Art. 24
Chapter V: The Security Council
Functions and Powers
1. In order to ensure prompt and effective action
by the United Nations, its Members confer on the
Security Council primary responsibility for the
maintenance of international peace and security,
and agree that in carrying out its duties under this
responsibility the Security Council acts on their
behalf.
xxxx
UN Charter, Art. 25
The Members of the United Nations agree to
accept and carry out the decisions of the Security
Council in accordance with the present Charter.
UN Charter, Art. 23
Composition
1. The Security Council shall consist of fifteen
Members of the United Nations. The Republic of
China, France, the Union of Soviet Socialist
Republics, the United Kingdom of Great Britain
and Northern Ireland, and the United States of
America shall be permanent members of the
Security Council. The General Assembly shall
elect ten other Members of the United Nations
to be non-permanent members of the Security
Council, due regard being specially paid, in the
first instance to the contribution of Members of
the United Nations to the maintenance of
international peace and security and to the
other purposes of the Organization, and also to
equitable geographical distribution.
UN Charter, Art. 27 (3)
Voting
xxx
3. Decisions of the Security Council on all other
matters shall be made by an affirmative vote of
nine members including the concurring votes
of the permanent members; provided that, in
decisions under Chapter VI, and under
paragraph 3 of Article 52, a party to a dispute
shall abstain from voting

HIGGINS, CHAPTER 10:


THE UNITED NATIONS

A2015

Article 1, UN Charter
States the purposes of the United Nations
Purposes:
o Maintenance of peace
o Settlement of disputes
o Promotion
of
social,
economic,
and
humanitarian welfare
Full recognition that if disputes are not settled, the
peace may not be maintained
Injustice and economic and social deprivation provide
the ground for instability and international terrorism
UN as the key institution to avoid, contain, and
resolve disputes
UN shall act on the basis of certain prescriptions in
the Charter:
1. Promotion
and
development
of
international law
2. Role in the settlement of disputes
3. Intended to play a certain role in the
provision of collective security
The Formal Consideration of International Law
within the United Nations
The study of legal issues within the UN: Different
from the immediate disputes before the General
assembly or Security Council
Legal issues being considered by the Sixth committee
of the General Assembly
1. Strengthening the role of the organization
2. Status of national liberation movements
3. Status of the Protocols and the Geneva
Conventions relating to the protection of
victims of armed conflict
4. Consideration of how the security of
diplomatic and consular missions and
representatives could be better protected
5. General problem if peaceful settlement of
disputes
6. Question of an additional Protocol to the
Vienna Convention on Consular Relations
Tasks of the Sixth Committee
1. Make a report on all the above mentioned
topics
2. Examine reports on legal matters that other
bodies present to the UN (ex: when
International Law Commission reports on its
work to the General Assembly)
Article 13, UN Charter
The ILC was set up in fulfillment of the task of the
General Assembly to initiate studies and make
recommendations
Subject matter of the studies and recommendations:
promoting international co-operation in the political
field and encouraging the progressive development of
international law and its codification
For a long time already, ILC focused on the
codification of state responsibility. Related to this

118

PUBLIC INTERNATIONAL LAW

topic is the ILC's significant progress when it comes to


state immunity and the law of non-navigational uses
of international watercourses.
o ILC was also able to pass a first draft of a
code of crimes against the peace and
security of mankind
Topics for codification, with a necessary element of
development, must also be selected with care. For
example, after starting with the topic on Relations
between States and International Organization, the
ILC eventually decided not to pursue it.
However, there is the recent tendency to go for
topics of manageable dimensions in order to
conclude them within a reasonable time-scale. Now
that the Commission has been enlarged, it is expected
to be able to cover more topics and be more
productive.

Peaceful Settlement of Disputes


Chapter VI: contains provisions on the Pacific
Settlement of Disputes
Who may bring disputes before the Security Council
and General Assembly
o Secretary-General (art. 99) - on any matter
which in his opinion may threaten the
maintenance of international peace and security
o Members of the UN - whether they are parties to
the dispute or not (art. 35)
o States which are not members of the UN, but is a
party to the dispute - art. 35 (2)
Non-members of the Security Council shall be allowed,
under various conditions, to participate in the
debates of the Security Council (arts. 31 & 32)
On the Fact-Finding Mission of the Security Council
The Security Council can investigate any dispute and
enter into fact-finding missions
The neutral verification of the facts has been proven
to be successful and is used as a means of containing
and defusing a situation
There seems to be a resolution that the SecretaryGeneral may himself establish a fact-finding mission,
without the need for an authorization by the Security
Council
Dispute settlement possibilities (art. 33)
1. Negotiation
2. Mediation
3. Conciliation
4. Arbitration
5. Judicial settlement
6. Resort to regional agencies
7. Sometimes, the Secretary-General himself
will put proposed solutions to the Security
Council
8. Usually, the Security Council devises the
proposals
The Security Council sometimes suggests assistance in
the pursuit of the measures enumerated above

A2015

On Third-Party Methods
The Security Council may ask the Security-General to
provide conciliators and mediators
Art. 33 does not insist that only the UN provides the
personnel who will participate in third-party methods
Art. 33 focuses on pacific settlement
o Emphasizes the important role of regional
organizations
in
the
maintenance
of
international peace and security
o some are of the opinion that the creation of
dispute-settlement mechanisms by regional
organizations are expression of a regional desire
for local resolution of the dispute, to the
exclusion of any interference by the Security
Council
o Sometimes it is also the UN that wishes to avoid
dealing with an issue. The Western Sahara and
the Chad vs. Libya case may be used as examples
to prove the point.
On the relationship of regional agencies to the UN in
matters of peaceful settlement.
o No indicia to serve as guide when it is more
appropriate to go for regional, rather than the
global
Disadvantage of regional bodies: the desire for
regional stability will often cause regional bodies to
seek to accommodate the more powerful of the two
protagonists, at the expense of the other
Peace and Collective Security: Intention and
Innovation
The UN, by virtue of Chapter VII, has an important
role in the containment of disputes
The provision of collective security by the Big Powers
o The keystone of international peace
o Big Powers: the Soviet Union, US, China, France,
and the UK
o Through the collective security, it would be
unnecessary for states to act in self-help and
their unilateral use of force would be restricted
to self-defense and such would be monitored by
the Security Council
o However, when the Cold War happened, the
intentions of the collective security came into
nothing
o Until now, no real machinery for collective
security through enforcement measures is in
place
Veto power of the Big Powers
o The power to defeat a decision of the Security
Council by a single negative vote
o Mirrors the intention that the collective military
action cannot be used against the Big Powers
o Intention during the drafting of the Charter: veto
power to be used only if the passage of a
resolution could otherwise culminate in military
action against one of the Big Powers
o The practice in using the veto power: to stop the
possibility of any sanction directed against an

119

PUBLIC INTERNATIONAL LAW

ally and to stop a mere critical resolution


directed against an ally
It was from these circumstances when the Security
Council became increasingly impotent to act, either
militarily and politically
View of the US and the West on the UN's role in
peace keeping
o Because of the failure of the Security Council to
agree on the establishment of the UN Force,
peace cannot be enforced nor could the UN
members be compelled to offer troops
o As an alternative, they are of the view that if
peace could not be kept by enforcing it, it may
be done by policing a territory at the request of
a State and if the UN members volunteered for
such force
View of the Soviet Union and its allies
o The provisions for the use of force by the UN are
very specific and if those procedures could not
be acted upon, alternatives not provided for in
the Charter were necessarily unlawful
o Since the Charter contemplates on the control
given to the intended Military Staff Committee
(by virtue of the veto power), a police force
acting outside the Charter would consequently
then be beyond the control by veto. In effect,
the Secretary-General would then be forced to
control in a day-to-day basis something which
is contrary to the intentions of the founding
instrument
There is also an idea that a UN police force could be
ordered not only by the Security Council, but even by
the General Assembly in cases where the veto power
make it impossible for the Security Council to act
o This view is acceptable to the West but not to
the Soviet Union
o It was against this background that the first UN
peace-keeping force, the UN Emergency Force
(UNEF) was established in 1956 to oversee the
cease-fire and to monitor the withdrawal of the
British, French, and Israeli forces from Egyptian
territory. The Soviet Union & its allies, as well as
France, refused to pay contributions for the
costs of the UNEF. From then on, the Soviet
Union has always refused to pay its share. The
other States took advantage of this situation and
refused to pay as well. From the outset, the
financing of UN peace-keeping was insecure and
problematic. Despite of these circumstances, the
UN forces were successfully established.
Even if, because of the veto, the UN could not control
the use of force by the Big Powers, it seemed that it
had a constructive role to play in controlling force by
smaller states
It was only in the 1980s when the Soviet Union
started to see the advantages of the UN. Its payment
of its past and present dues is a clear indication that
there was a legal obligation to pay. On the other hand,

A2015

the US became relatively unsupportive and made


reservations about withholding funds for the UN.
Reforms in the UN
o Weighted voting system

The weighted voting in the General


Assembly would represent an affront to an
underlying principle on which the UN is
based - the sovereign equality of all its
member States

The European Community was of the


opinion that the weighted voting system is
selective adherence to the principle 'pacta
sunt servanda' and such erodes the very
foundation of the international order

Gives the states that contribute a greater


share to the UN coffers greater influence in
the determination of the budget
o New agenda of achieving greater efficiency in
the use of resources
o A paralyzing contradiction in the UN affairs
o States proclaim their desire for expansion in the
role of the UN in areas such as the maintenance
of international peace and UN peace-keeping,
and on the other hand, the lack of provision of
finances to achieve the greater possibilities that
now exist is accepted as a reality of international
politics.

Political Bodies and Quasi-Judicial Activities


All the routine political activities of the UN must comply
not only with the specific requirements of the Charter, but
with general international law decisions of the political
organs of the UN, in the context of dispute resolution,
often make determinations of international law
Example: the Security Council has passed resolutions
claiming some independent government as having no
validity or as illegal regimes
It is desirable that the Security Council upholds and
invokes international law. However, some considerations
shall be made:
1. When determinations that purport to pronounce
authoritatively on international law are made

Must be made with an understanding of the


issues

Higgins is of the opinion that there is little


evidence in the debates that the Security
Council reached its determinations by
careful legal analysis
2. The extent to which quasi-judicial determination
by the Security Council is in fact appropriate

Quasi-judicial determination occurs when


the Security Council does not merely point
the parties towards the various options
open to them for the political settlement of
disputes, but makes its own proposals for
the substance of the solution. Hence, some
claims on which is right or wrong are

120

PUBLIC INTERNATIONAL LAW

implicitly passed on in the context of


decisions and are subsequently deemed as
international law
Conclusion
The UN Charter is an extraordinary instrument
Peace-keeping is not fully envisaged by the
Charter but is now an important reality
There are various indications that the Security
Council is setting out on other new paths,
however, such paths significantly risk legal
incoherence
Peace-keeping will not go away, together with
more orthodox international cooperation even
further variations of the intentions of Chapter VII
o the responsibilities of the UN will only be
realized if the states want to do so

HIGGINS, CHAPTER 14:


THE INDIVIDUAL USE OF FORCE IN
INTERNATIONAL LAW

History
o Grotius insisted that the law of nations limited
the use of force to three justifiable causes:
defense, recovery of property, and punishment
o Covenant of the League of Nations sought
further to control and contain the use of force,
without prohibiting it
o After World War II, the UN Charter limited
permitted uses of force to self-defense or the
collective enforcement action
The UN was given powers which were intended to
allow states to avoid unilateral reliance on the
military instrument to guarantee their own security
Problem: the Charter was formulated to address the
problem of military hostilities between states and
before the development of the atomic bomb. Its
provisions were not only predicated upon a
collective security system that was never a reality,
they did not envisage the new types of violence, and
the social conditions that were their origin and their
consequence.

The Relationship between Article 2(4) and Article


51

Article 2(4): 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 other manner
inconsistent with the purposes of the UN

Article 51: indicates that there are certain uses of


force that will not contravene the prohibitions in
Article 2(4)
o On one hand, a state may act in self-defense
without first securing the permission of the
Security Council, while on the other hand, the

A2015

Security Council retains its responsibility to take


such action as it deems fit
Article 2(4) explains what is prohibited, Article 51
what is permitted
Issue: Can there be a use of force that is not against
the territorial integrity or political independence of a
state (not violative of Art 2) but is also not individual
or collective self-defense (permitted under Article
51)
o It is unlikely because most uses of force violate a
states territorial integrity
o Applicable case: Corfu Channel Case

Self-help use of force to obtain legal


rights improperly denied. It is unlawful
under the Charter.
Reprisals
o Reprisals consist of action in response to a prior
unlawful military attack, aimed not at defending
oneself against an attack as it happens, but
rather at delivering a message of deterrence
against the initial attack being repeated.
o Under customary international law, reprisals
were lawful if certain criteria were met
o Reprisals would necessarily involve a violation of
Article 2(4), however, and, not being selfdefense, are not brought within the permissive
use of force in Article 51.
o The texts of articles 2(4) and 51 clearly do not
allow reprisals; and the study of other
instruments and practices and judicial decisions
does not allow one to conclude that there has
been any de facto amendment of the Charter on
this point- notwithstanding the fact that, in the
absence of effective means of self-protection,
reprisals may be expected to continue.

Anticipatory Self-Defense

Article 51 allows self-defense only when an armed


attack has occurred

Under customary international law, self-defense


must be tested in the criteria laid down in the
Caroline Case of 1842
o Caroline Case doctrine: that anticipatory selfdefense must be restricted to those cases where
the necessity is instant, overwhelming, and
leaving no choice of means, and no moment for
deliberation
o While the UN Charter have its own procedure for
dealing with international threats to peace, one
that may be contained or turned aside through
calling an emergency meeting of the Security
Council consequently does not pass the Caroline
Case doctrine
o The Caroline Case doctrine, according to Higgins,
provides the required balance between allowing
a state to be obliterated and encouraging
abusive claims of self-defense; also, it has a great
operational relevance

121

PUBLIC INTERNATIONAL LAW

A2015

The nuclear age made it impossible that an


ambiguous provision be interpreted in a way that
requires a state passively to accept its fate before it
can defend itself
Because of the decentralized legal order, abusive
claims may always be made by states claiming to act
in anticipatory self-defense

What Constitutes the State for Purposes of SelfDetermination

By virtue of Article 2(4), the use of force is


prohibited against a states dependent territories
overseas, as much as against the metropolitan state
itself

On use of force against ones nationals abroad


o It may only be justified as self-defense if there
has been an attack upon the state
o Professor Bowett, invoking the General
Assemblys 1970 Declaration of Principle on
Friendly Relations, suggested that use of force
against ones nationals abroad may be justified
on the ground that population is an essential
ingredient of the state
o Justification in customary international law: the
right to humanitarian intervention on behalf of
threatened citizens abroad
Humanitarian Intervention

Customary international law tolerates a state


militarys intervention in another territory to rescue
citizens under threat. However, when it come to the
question whether the same is allowed by the
Charter, an examination on the legal and policy
issues shall be made.

Note that Article 2(4) declares as unlawful any use of


force, even minor military incursions. However, the
following must be taken into consideration:
o What Article 2(4) prohibits is the use of force
against the territorial integrity or political
independence of a state, or in any other manner
inconsistent with the purposes of the UN

It is only upon proof that humanitarian


intervention does not violate the
prohibition against the use of force
against a states territorial integrity,
then one can declare that no other
prohibition in Article 2(4) is being
violated

If, on the other hand, the question is


viewed in the light of Article 52, the
issue translates into something simpler:
WON a state can claim that military
action to rescue ones citizens is an
exercise of self-defense

Judge Waldock says that a state


could use force to rescue
nationals as an aspect of selfdefense if the threat of injury was

imminent, if there was a failure or


inability on the part of the
territorial sovereignty to protect
them, and if the measures of
protection were strictly confined
to the object of protecting them
against injury

A
claim
on
humanitarian
intervention based on selfdefense could only be advanced
in respect of nationals, because it
is predicated on the argument
that the state is being harmed
through injury to its nationals,
and can therefore respond in selfdefense
Given our decentralized legal order, claims may
either be made in good faith or abusively. Norms will
never be able to remove the possibility of abusive
claims; they (norms) are only for the achievement of
values for the common good.
To determine the validity of claims, contextual
analysis by appropriate decision makers is always
required. Claims determined to be valid should not a
priori be allowed or disallowed because they may be
unjustly invoked.

What Constitutes an Armed Attack?

Article 51 does not provide for any self-defense


against a threat of force, although the threat is a
violation of Article 2(4)

Self-defense is not permitted for other prohibited


acts; it is only permitted in an armed attack. This
leads to a couple of questions:
o Whether any non-military coercion can be
deemed to trigger the right to self-defense

Answer: Nothing in Article 2(4) deals with


economic or diplomatic duress. The Charter
implicitly accepts that it cannot regulate
political influence and economic pressure,
however, it also gives no suggestion on
whether or not such economic pressure
may give rise to any right of military
response
o Whether all uses of force are in fact armed
attacks

Applicable case: Nicaragua vs. US

Law-making resolutions of the UN have consistently


opposed indirect military hostile uses of force
o Examples: General Assembly Declaration of 1965
on the Inadmissibility of Intervention; Friendly
Relations Declaration
o Internal
self-determination
became
the
continuum of wars of national liberation, in the
sense that each strongly depended on outside
training, finance, and arming.
o Different countries engaged in various indirect
military activities, regardless of the general

122

PUBLIC INTERNATIONAL LAW

prohibitions, and while also denouncing the


legality of the action of the other in lending such
assistance
An armed attack could take place directly, through
the use of ones own forces, or indirectly, through
armed bands or irregulars
o Key: scale of the activity

If it is not very substantial, it may still be an


unlawful use of force, but it will not be an
armed attack- and hence no self-defense
may be used against it
o Higgins observes two points:

The Court was purporting to deal with


customary international law rather than the
Charter

The Court in terms avoided pronouncing


upon the implications of all this for the
question of whether there exists a right of
anticipatory self-defense

The Doctrinal Debates

Issue: whether the failure of the international


system, coupled with fundamentally changed
circumstances since the time when the relevant
texts were agreed, makes preferable unilateral
action for the common good even if it is at variance
with the norms articulated in the Charter and
elsewhere
o Answered in the affirmative by Professor
Reisman
o Professor Reisman: norms are instruments
devised by human beings to precipitate desired
social consequences. One should not seek a
point-for-point conformity to a rule without
constant regard for the policy for principle that
animated its prescription, with appropriate
regard for the factual constellation in the minds
of the drafters
o Higgins: there is a distinction between noncompliance and interpretation infra legem to
achieve certain outcomes

For Higgins, the application of Article 2(4) and Article


51 has been very unsatisfactory. However, he is not
convinced that they have no useful purpose to
perform or that unilateral outcome-directed action
without reference to common norms is not
dangerous.
o The use of indirect force is prohibited by the
relevant legal instruments, and that the common
good is best served by terming the indirect use
of force unlawful, regardless of the objectives in
a particular case

HIGGINS, CHAPTER 15:


THE USE OF FORCE BY THE UNITED NATIONS

A2015

UN Action for, or Authorization of, enforcement


Measures for Humanitarian Purposes

Article 2(7) provides that the UN may not intervene


in matters which are essentially within the domestic
jurisdiction of any state. Also, Article 2(7) itself says
that its provisions do not prejudice the application
of enforcement measures under Chapter VII

Articles 41 and 42 are for the maintenance or


restoring of international peace and security. It is
clear that measures under these Articles depend
upon there having been a finding under Article 29 of
the existence of any threat to the peace, breach of
the peace, or act of aggression. The only way in
which economic or military sanctions for humanrights purposes could lawfully be mounted under
the Charter is by the legal fiction that human-rights
violations are causing a threat to international peace.

Higgins is of the opinion that we may say that there


may be an increasing tendency for the Security
Council to characterize humanitarian concerns as
threats to international peace- and thus bring them
within the potential reach of Chapter VII of the
Charter. However, it is too early to say that a norm
about it has clearly emerged.

It is clear that opening the door to military


intervention for humanitarian purposes around the
world will place an unbearable burden on the UN
enforcement mechanisms, whether through direct
UN action or through UN-authorized action.
The Use of Force to Support UN Resolutions

Issue: whether the Security Council can call for the


use of force to compel compliance with its own
resolutions

Applicable provision: Article 41

Implication: force could be authorized to implement


economic sanctions without that use of force being
viewed as military sanctions under Article 42
o Just as a minimal use of force by UN peacekeeping operations may be authorized by
reference to article 41 of the Charter, so limited
force may apparently be authorized by reference
to Article 41 even though neither article
envisages that possibility

There is no entitlement in the hands of individual


members of the UN to enforce prior Security Council
resolutions by the use of force
The Relationship of Military Sanctions under
Article 42 of the Charter to Self-Defense under
Article 51

2 circumstances in which the use of force is


envisaged in Chapter VII
o Use of force through the Security Council under
Article 42
o Use of force not by the Security Council, but by
individual members or members acting
collectively

123

PUBLIC INTERNATIONAL LAW

Action under Article 42 will only take place when


measures provided in article 41 are proven to be
inadequate. Article 42 actions would require a
further resolution of the Security Council, and, as
such, would be subject to the veto of any Permanent
Member
As regards Article 51, action in self-defense could be
taken without prior authorization of the Security
Council, thus avoiding a possible veto.
Action under Article 41 would bind the UN
membership as a whole but it would be subject to
the veto
Action 51 provides that self-defense may be relied
on until the Security Council has taken measures
necessary to maintain international peace and
security.
We could say that Article 51 does not speak of
measures effective to restore international peace,
but of measures necessary to do so. In this light,
economic sanctions may find justification as they are
clearly necessary.
o However, the intention was that, members
should be free to act in collective self-defense
until the Security Council was in a position to
take over the task and secure the common
objective. Nonetheless, such idea is faced with
difficulties:

It may be argued that if economic sanctions


have been ordered, but not yet military
sanctions, and an armed attack has not yet
been repelled, that not all action necessary
has yet been taken and Article 51 remains
available.

States may act both as Security Council


members and as members who respond to
a request for collective self-defense.

The Relationship between Military Sanctions under


Article 42 and the Means Envisaged for Providing
them under Article 43

Under Chapter VII, the Security Council, once it has


determined the existence of a threat to the peace,
breach of the peace, or act of aggression, will
recommend or decide upon enforcement measures
to maintain or restore international peace and
security.

Article 42 allows for military action by air, sea, or


land forces

Article 43 then provides that all UN members


undertake to make available to the Security Council,
on its call and in accordance with a special
agreement or agreements, armed forces, assistance,
and facilities.

Issue: the authority of the Security Council to act


under Article 42 given the failure of the Security
Council to be able to proceed as envisaged under
the said Article

A2015

Left open: whether enforcement action under


Article 42 could, as a matter of Charter law, occur in
the absence of agreements under Article 43
o Applicable case: ICJ advisory opinion in 1962 to
address certain legal problems concerning the
financing of UN peace-keeping
o On the question on whether peace-keeping
action was permissible in the absence of Article
43 agreements, the Court answered in the
affirmative. It cannot be said that the Charter
has left the Security Council impotent in the face
of an emergency situation when agreements
under Article 43 have not been concluded. It
must lie within the power of the Security Council
to police a situation even though it does not
resort to enforcement action against a State.
Higgins is of the opinion that it would remain a
matter of political judgment for the Security Council
to decide if it was preferable to provide for peacekeeping or for military enforcement under Article 42.
In the absence of Article 42 agreements, no UN
member can be compelled to provide military forces
or assistance; but action under Article 42, by those
who are willing to participate, can properly be
authorized by the UN and carried out under UN
command. It is also possible for such action to be
authorized by the Security Council as an
enforcement action under Article 42, even if it was
to be carried out by UN members not under a
unified UN command.

THE SECURITY COUNCIL UNDER CHAPTER VII


OF THE UN CHARTER: PROBLEMS UNDER THE
RULE OF LAW
by H. Harry Roque

Legal Framework

On the establishment of the existence of threat or


any act of aggression, the Security Council may act as
follows:
o The Council may call upon the parties to comply
with provisional measures or remedies, as it
deems necessary or desirable (Article 40)
o The Council may decide which measures, not
involving the use of armed forces, are to be
employed. Economic sanctions, including nonmilitary sanctions, may be called upon the
members of the UN (Article 41)
o In the event that the provisions in Article 41
prove to be inadequate, the Council may take
the military action necessary to maintain or
restore international peace. The air, sea or land
forces of the members of the UN shall conduct
such military action (Article 42)
o To implement Article 42, Article 43 provides that
all members of the UN shall make available to
the Security Council, in accordance with a special

124

PUBLIC INTERNATIONAL LAW

agreement/s, armed forces, assistance and


facilities necessary for the purpose of
maintaining international peace and security.
Article 47
o the maintenance of international peace shall be
under the command of the Military Staff
Committee consisting of the Chief of Staff of the
permanent members of the Security Council or
their representatives
o the Committee will be responsible for the
strategic direction of any armed forces placed at
the disposal of the Security Council
Article 27 (3)
o Provides for the veto power of the permanent
member states of the Council
o The exercise of collective security is made
subject to the condition that such measure must
bear the unanimous vote of all the permanent
members of the Council

Implementation

Chapter VII was implemented only once when the


Security Council authorized the deployment of a UN
military force in Korea

Higgins: international law is not just a body of rules


that governs relations between states, but a dynamic
process of identifying normative conduct by
competent authorities when power and authority
coincide

Formation by the UN General Assembly of peacekeeping forces, while analogous to the provisions of
Chapter 7, were in fact different and distinct from it

The United Nations Emergency Force (UNEF)


o Example of peacekeeping forces that were
created in lieu of Chapter 7
o Its presence was expressly requested by both
the governments of Egypt and United Arab
Republic. If there was not such request, the
presence of the UNEF would constitute a breach
of the territorial sovereignty of at least two
member nations
o Had the same purpose as the collective security
measures provided for under Chapter VII
o Difference from Chapter VII

It was not authorized by the Security


Council but by the General Assembly

It was not participated in by the forces or


members of the UN whose composition
needed to be provided for by a special
agreement

It was not under the Council or the Military


Staff Committee. Instead, it was composed
of volunteers from the member nations of
the UN

Advisory Opinion regarding the expenses incurred as


a result of the UN involvement in Congo and the
UNEF in the Suez Canal

A2015

The ICJ upheld the assessments on the ground


that the Security Council had only primary and
not exclusive responsibility for the maintenance
of international peace and security
o Did not give actual ruling that the volunteer
forces were constitutional under the UN Charter
o Emphasized that since the General Assembly is
authorized under Article 14 to recommend
measures for the peaceful adjustment of any
situation that it deems likely to impair the
general welfare, it is also authorized to organize
peacekeeping operations at the request and
consent of the States concerned. Article 35 may
be the applicable provision in such cases.
o The only form of action within the jurisdiction of
the Security Council were those which were
indicated in the title of Chapter 7 itself actions
with respect to threats to peace, breaches of
peace and acts of aggression
Peacekeeping forces is also distinct from Chapter 7 in
terms of who shall comprise the peace-keeping force
and of whose command the force shall be under
The creation of peacekeeping forces is justified on the
ground that it was directed towards a charterobjective which is the attainment of peace

Sanctions

Issue: some Resolutions passed by the Security


Council seem to violate the municipal law concept of
undue delegation of power

Nicaragua vs. US case


o Qualified that collective self-defense may not be
invoked except if:

There exists a valid exercise of the right to


self-defense; and

If there is request from the alleged victim


state
o In addition to the requirement that there by a
request made by the alleged victim state, the
pre-requisites for an act of self-defense must
first be shown to exist

Conventional public international law requires an


actual armed attack as a pre-requisite for self-defense
Humanitarian Intervention

Issue: how does one determine if a prevailing


situation warrants intervention on grounds of
humanitarian reasons

The Security Council justified the use of enforcement


measures under Chapter 7 as valid exercises of
humanitarian intervention
o Example: in the recent cases of Rhodesia,
Somalia and Iraq
o The use of gross human misery, be it man-made
or otherwise, are threats to international peace
o Legal basis: interventions of these nature so
authorized by the Security Council, does not
violate the UN Charters domestic jurisdiction

125

PUBLIC INTERNATIONAL LAW

clause because human rights, of which the right


to life is paramount, is an issue not confined to
the domestic jurisdiction of any state
o Applicable provision: Article 2 (7)
Issue: in cases where the unilateral use of force
without the authority of the Security Council
o Applicable case: the NATO bombing of Kosovo
which were justified on the basis that NATO
countries could not stand idly as thousands of
human beings were being killed
o Brownlie & Henkin argue against the lawfulness
of humanitarian intervention because the past
has widely abused this right
o Those who argue in favor of humanitarian
intervention do so on the basis that norms are
instruments devised by human beings to
precipitate desired social consequences

Reisman: One should not seek a point for


point conformity to a rule without constant
regard for the policy or principle that
animated its presumption
o Higgins

in a decentralized legal order, facts must be


looked at legal views applied in context

Each claim of a valid exercise of


humanitarian intervention, be it made in
good faith, or otherwise, should require
individual and contextual analysis

International law is capable of deciding on


the facts at disposal, which interventions
were bona fide, and which, were not for
reasons of humanitarian necessity
o Murase

There are circumstances where the


unilateral use of force is not only permitted
but also perhaps required in order to
prevent the worse conceivable situation
from taking place

We should try to make every effort for


accommodating the ethical consideration
for necessity and legitimacy, as well as the
normative elements reflecting the actual
power relations, into the practice of
international law
Despite the prohibition on the use of force in the
conduct of international relations under Article 2(4),
countries continue to unilaterally use force either for
alleged humanitarian purposes, or in order to protect
their nationals
o Relation to current events: 2 Americans
kidnapped by the Abu Sayaff
o Effect: RP government allowed US forces in the
territory

Two theoretical violations of such presence

Of territorial sovereignty

Of the proscription against the use of


force under Article 2(4)

A2015

But, one cannot expect US to do nothing


while its citizens are being held captive for
ransom and possibly raped by bandits

Prospects

The end of Cold War has ushered the beginnings of


increased cooperation at least among the permanent
members of the Security Council
o Effect

The enforcement measures against Iraq

The peacekeeping forces in East Timor

Creation of War Crimes tribunals in


Yugoslavia and Rwanda

The Security Council has committed its


involvement on issues such as women and
AIDS
Conclusion

Challenges on the enforcement of the measures


provided under Chapter 7
o Conflict between international practice and the
literal provision of the Charter
o The effectiveness of non-military sanctions given
its history of being failures
o The validity of measures provided under Chapter
7 for humanitarian purposes
o Question of the unilateral use of force on the
ground of humanitarian purposes
o Unless this dynamic process of International Law
is translated in terms of amendments in written
obligations, the definition of what the law is
would be obscured in a cobweb of uncertainty
and ambiguity

CASE CONERNING MILITARY AND


PARAMILITARY ACTIVITIES IN AND AGAINST
NICARAGUA (NICARAGUA v. UNITED STATES)
ICJ Reports 1986, p.14 (1986), supra.

(This discussion deals with the aspect of self-defense as a


justification of US use of force in Nicaragua)
United
States:

US argues that its use of force is justified


as it was a collective self-defense in
behalf of El Salvador.

The US is in breach of, among others, its obligations


under customary international law not to use force
against another State.
General rule: use of force is prohibited

Requirements to be exempted from the general


rule (requirements for a valid use of force):
o Armed attack
o Necessity
o Proportionality

126

PUBLIC INTERNATIONAL LAW

A2015

In cases of an armed attack, States have the inherent right


to both collective and individual self defense

In both cases, the right to self-defense is subject


to the State who is a victim of the armed attack

Note that request for the exercise of collective


self-defense is needed. Such requirement is due
to the fact that there is no rule in customary
international law that permits the exercise of
collective self-defense in the absence of a
request by the State which regards itself as the
victim of an armed attack.

Requisites for the exercise of collective selfdefense:


o State should have declared itself to
have been attacked
o Request by such State for the exercise
of collective self-defense
The Principle of non-intervention & the principle of non-use
of force

Principle of non-intervention the right of every


sovereign State to conduct its affairs without
outside interference

There is only intervention as regards the matters


in which each State is permitted, by the principle
of its sovereignty, to decide freely. In this light,
intervention may be deemed as coercion.

Acts which are in violation of both the principle


of non-intervention & the non-use of force
o Direct form of military action
o Indirect form of support to subversive
or terrorist armed activities within
another State

Whereas an armed attack would make collective selfdefense valid, such validity cannot arise in cases of use of
force of a lesser degree of gravity. In said cases (use of
force of lesser degree), the determining factor for the
validity of counter-measures is proportionality.

LEGALITY OF THE THREAT OR USE OF


NUCLEAR WEAPONS (ADVISORY OPINION)
ICJ Reports 1996, p. 226 (1996), supra.

This request for an advisory opinion was made by the UN


General Assembly. It principally asked: Is the threat or use
of nuclear weapons in any circumstance permitted under
International Law? The main substantive issues regarded
sources of international legal obligation and the
interaction of various branches of international law,
particularly the norms of international humanitarian
law (jus in bello) and the rules governing the use of force
(jus ad bellum).

The Court considered the existence of a States


mere threat to use nuclear weapons under
certain circumstances on a potential enemy or
an enemy. As regards this matter, the Court held
that such threat will only be legal if it is
consistent with military necessity and
proportionality.

On the possession of nuclear weapons

The Court emphasized that there is a difference


between the mere possession of nuclear
weapons and its actual use. While the UN
Charter and some other treaties prohibit the
actual use of weapons as it amounts to the use
of force, there are however no specific
prohibition on the possession of nuclear
weapons.

Bases for the conclusion that there is insufficient


evidence that the possession of nuclear weapons
had come to be universally regarded as illegal
o Hague Conventions - the Court does
not find any specific prohibition of
recourse to nuclear weapons in
treaties expressly prohibiting the use
of certain weapons of mass
destruction, such as the use of
bacteriological or chemical weapons as
prohibited by the Hague Conventions
o International Customary Law - the
court was unable to find an opinio
juris that nuclear weapons are illegal to
possess
Applicable provisions: Art. 2, par. 4, UN Charter & Art. 51

General rule : A threat or use of force by means


of nuclear weapons that is contrary to Article 2,
paragraph 4, of the United Nations Charter and
that fails to meet all the requirements of Article
51, is unlawful

Exception: In view of the current state of


international law, and of the elements of fact at
its disposal, the Court cannot conclude
definitively whether the threat or use of nuclear
weapons would be lawful or unlawful in an
extreme circumstance of self-defense, in which
the very survival of a State would be at stake.
Doctrine: the elements of necessity & proportionality
should always be taken into consideration

CASE CONCERNING THE LEGALITY OF THE


USE OF FORCE (YUGOSLAVIA v. UNITED
STATES OF AMERICA), REQUEST FOR
PROVISIONAL MEASURES
ICJ Reports 1996, p. 226 (1996)

On deterrence and threat

127

PUBLIC INTERNATIONAL LAW

A2015

Yugoslavia applied for provisional measures to stop the US


from using force against it. The US, along with other
NATO-member countries bombed various targets in
Yugoslavia affecting both the military and the civilians.
Furthermore, there were destructions in properties,
including oil refineries and chemical plants resulting in
serious environmental issues. Also, the use of weapons
containing depleted uranium is having far-reaching
consequences for human life.
Yugoslavia:

United
States:

The acts of US are deliberately creating


conditions calculated at the physical
destruction of an ethnic group, in whole
or in part. And that the US is taking part
in the training, arming, etc. of the Kosovo
Liberation Army, in violation of its
obligation on non-intervention in the
internal affairs of another State.
Yugoslavia asks the court to grant them
provisional measures, particularly the
cessation of US use of force. It made use
of Art. IX of the Genocide Convention and
Art. 38 as the bases for the ICJ
Jurisdiction in the case at bar
1. The ICJ has no jurisdiction pursuant to
the reservation made by the US to Art. IX
2. Yugoslavia failed to provide sufficient
proof required by the Genocide
Convention that the US has the intent to
destroy the ethnic group. US claimed that
such intent cannot be inferred from the
conduct of conventional military
operations against another State.

The Court did not grant provisional measures for


Yugoslavia because it does not have jurisdiction over the
case
The reservation to the Genocide Convention made by the
US is valid reservations are not prohibited, and
Yugoslavia did not object when US made the reservation
The US also did not consent to Art. 38
In the event that the dispute amounts to threat to the
peace, breach of the peace or act of aggression, the
Security Council has special responsibilities under Chapter
VII of the UN Charter

THE RELATIONSHIP BETWEEN THE UN


CHARTER AND GENERAL INTERNATIONAL
LAW REGARDING NON-USE OF FORCE: THE
CASE OF NATOS AIR CAMPAIGN IN THE
KOSOVO CRISIS OF 1999
by Shinya Murase

Context

Milosevic engineers changes in the Serbian constitution


that vastly reduce the provincial autonomy of Kosovo.
Other measures put tens of thousands of Kosovar
Albanians out of work and restrict the activities of their
cultural organizations. As Western alarm over treatment of
the Albanians in Kosovo grew, the US envoy was sent to
try to negotiate peace. President Clinton ordered him to
leave, after President Milosevic refused to accept an
autonomy plan for Kosovo's Albanians secured by NATO
troops. NATO Secretary-General Javier Solana ordered air
strikes after the failure of the diplomatic efforts.
Lecture
Murase believes there are circumstances where the
unilateral use of force is not only permitted but also
perhaps required in order to prevent the worst
conceivable situations from taking place. Under such
circumstances, international lawyers, cannot and should
not merely say that the actions were illegal but were
necessary and legitimate. Murase believes that we should
try to make every effort for accommodating the ethical
considerations for necessity and legitimacy, as well as the
normative elements reflecting the actual power relations,
into the province of international law
Important points
The elements of opposability
1. Effectiveness
Factor of power needed to guarantee realization
of a measure in question. If a measure is not
implemented effectively, it is simply nonopposable.
2.

Legitimacy
The measure must conform to the general
interest of the international community in a
manner that outweighs the special interest or
interests of a particular State or a group of
States.

3.

Good faith
The principle of good faith is very important as
the subjective standard in evaluating whether
the measures in question can be considered
opposable under an imminent situation in which
there are no available alternatives.

Murase is of the opinion that the actions by NATO shall be


seen as unilateral measure taken by a group of States, and
as such, must be regarded as having opposability vis--vis
the Federal Republic of Yugoslavia. NATOs actions, being
opposable ones, may be considered as measures
undertaken to prevent further deterioration of the
situation as there are no effective measures forthcoming
from the Security Council. In light of this, the NATO
bombings can be considered as an opposable use of
force taken as an unavoidable measure for the purpose of
preventing the worsening of conditions in an emergency

128

PUBLIC INTERNATIONAL LAW

A2015

situation where large-scale human rights violations were


being committed, and the UN Security Council measures
had no effect.

THE CAROLINE CASE


(Note: There is no actual case entitled Caroline Case. The
following discussion dissects the events in the 19th century
regarding a ship called The Caroline)
In 1837, settlers in Upper Canada rebelled against the
British colonial government. The United States remained
officially neutral about the rebellion, but American
sympathizers assisted the rebels with men and supplies,
transported by a steamboat named the Caroline. In
response, a British force from Canada entered United
States territory at night, seized the Caroline, set the ship
on fire, and sent it over Niagara Falls. At least one
American was killed.
Great
Britain:
United
States:

The attack was an act of self-defense;


A self-defense claimant would have to
show that the necessity of self-defense
was instant, overwhelming, leaving no
choice of means, and no moment of
deliberation
3. All the acts of the US are reasonable and
not excessive, since their acts are
justified by the necessity of self-defense,
must be limited by that necessity, and
kept clearly within it

Principle of Self-Defense
The terms "anticipatory self-defense", "preemptive selfdefense" and "preemption" traditionally refers to a state's
right to strike first in self-defense when faced with
imminent attack.
The Caroline Test
necessity
of
self-defense,
instant,
overwhelming, leaving no choice of means, and
no moment for deliberation. It will be for it to
show, also, that the local authorities of
Canada,- even supposing the necessity of the
moment authorized them to enter the
territories of the United States at all,- did nothing
unreasonable or excessive; since the act justified
by the necessity of self-defense, must be
limited by that necessity, and kept clearly
within it.
1.

Necessity
Instant, overwhelming, leaving no choice of
means, and no moment for deliberation.

The use of force must be necessary because the


threat is imminent and thus pursuing peaceful
alternatives is not an option
2.

Proportionality
The response must be proportionate to the
threat
Until now, the Caroline Test is the one being used to
determine the legality of acts of self-defense.
CLASS NOTES

ASSESSING CLAIMS TO REVISE THE LOSS OF


WAR
by M.W. Reisman

The development of weapons resulted in the creation of


laws about national defense. However, the effectivity of
such laws became doubtful as the development on
weapons became more progressive. Hence, Reisman
tackles the possibility of a regime change, questioning the
settled doctrine in armed conflict, to align international
law to the modern times.
First is the enumeration and discussion of the armed
conflict or self-defense regimes
Proactive military force lawful before the UN
Charter
Reactive military force consistent with the Caroline
test (necessary & proportional)
Anticipatory self-defense do unto others before
they do unto you
Test before the attack: when the state believes that it is
about to become a target; such must be palpable,
imminent and prospectively destructive to require defense
as prevention
As Reisman observed, the rules of the game/war has
always been a regime of mutually assured destruction and
system of minimum world order. However, such regime
creates a context of intense suspicion and distrust.
As a challenge to the prevailing rule is the Antiballistic
missile (ABM) weapon. Reisman claimed that a
comprehensive and effective ABM system in one
superpower would have defeated the deterrence
mechanism by tempting that state to strike first and then
hunker down behind its shield, which would cause the
second strikers nuclear missiles to bounce off harmlessly.
Consequently, ABM enhances the ability of the major
nuclear and other potentially targeted states to protect
themselves from limited nuclear attack by other states.
On the other hand, there is also the preemptive selfdefense as brought about by the proliferation of atomic,

129

PUBLIC INTERNATIONAL LAW

biological, and chemical weapons (ABC weapons) and by


the diffusion of non-state actors (not superpowers).
Preemptive self-defense a claim to use
unilaterally, and without prior international
authorization, high levels of violence to arrest an
incipient development that is not yet operational
and not yet directly threatening.
Reisman favors the ABM system as it is an entirely passive
self-defense to combat states likely to be targets of
surprise ABC missile attacks.
On Regime Change
Reisman says that because the context has changed
wherein necessity, proportionality, and discrimination are
no longer the sole factors to be considered the legal
arrangements to implement policies of international law
must change as well.

CASE CONCERNING OIL PLATFORMS (ISLAMIC


REPUBLIC OF IRAN v. UNITED STATES OF
AMERICA)
ICJ Reports 1996, p. 803 (1996)

Great
Britain:

United
States:

By destroying Iranian oil platforms, the US


breached its obligations under the Treaty of
Amity, Economic Relations and Consular
Rights regarding freedom of commerce
between the territories of the two States
Iranian attacks on naval and commercial
vessels in the Persian Gulf constituted a
breach of the Treatys provisions on
freedom of commerce and freedom of
navigation. All the acts of the US are
reasonable and not excessive, since their
acts are justified by the necessity of selfdefense, must be limited by that necessity,
and kept clearly within it

The US did not violate the Treaty.


Although the US attacks were not justified under a
separate provision of the Treaty as measures necessary to
protect the essential security interests, they did not
violate the Treaty.
The US did not claim to have been exercising collective
self-defense on behalf of the neutral States. As regards its
individual self-defense, the US must show that attacks
were actually made upon it for which Iran was responsible.
Furthermore, US must also show that its actions were
necessary and proportional to the armed attack. However,
no evidence was submitted to support the contentions of
the US.

A2015

CLASS NOTES

B. International Court of Justice


UN Charter, Art. 92
The International Court of Justice shall be the
principal judicial organ of the United Nations. It
shall function in accordance with the annexed
Statute, which is based upon the Statute of the
Permanent Court of International Justice and
forms an integral part of the present Charter.

UN Charter, Art. 93
All Members of the United Nations are ipso
facto parties to the Statute of the International
Court of Justice.
A state which is not a Member of the United
Nations may become a party to the Statute of the
International Court of Justice on conditions to be
determined in each case by the General Assembly
upon the recommendation of the Security Council.
UN Charter, Art. 94
Each Member of the United Nations undertakes to
comply with the decision of the International Court
of Justice in any case to which it is a party.
If any party to a case fails to perform the
obligations incumbent upon it under a judgment
rendered by the Court, the other party may have
recourse to the Security Council, which may, if it
deems necessary, make recommendations or
decide upon measures to be taken to give effect to
the judgment.
UN Charter, Art. 96
1. The General Assembly or the Security Council
may request the International Court of Justice to
give an advisory opinion on any legal question.
2. Other organs of the United Nations and
specialized agencies, which may at any time be
so authorized by the General Assembly, may
also request advisory opinions of the Court on
legal questions arising within the scope of their
activities.

ICJ Statute, Art. 1


The Court used a technicality in the Treaty in order to
allow the US to escape liability.

The International Court of Justice established by

130

PUBLIC INTERNATIONAL LAW

the Charter of the United Nations as the principal


judicial organ of the United Nations shall be
constituted and shall function in accordance with
the provisions of the present Statute.
ICJ Statute, Art. 34
1. Only states may be parties in cases before the
Court.
xxxx
ICJ Statute, Art. 35
1. The Court shall be open to the states parties to
the present Statute.
xxxx

APPLICABLE LAW
ICJ Statute, Art. 38, supra.
1. The Court, whose function is to decide in
accordance with international law such
disputes as are submitted to it, shall apply:
a. International conventions, whether
general or particular, establishing rules
expressly recognized by the contesting
states;
b. International custom, as evidence of a
general practice accepted as law;
c. The general principles of law
recognized by civilized nations;
d. Subject to the provisions of Article 59,
judicial decisions and the teachings of
the most highly qualified publicists of
the various nations, as subsidiary
means for the determination of rules
of law.
2. This provision shall not prejudice the power of
the Court to decide a case ex aequo et bono, if
the parties agree thereto.
ICJ Statute, Art. 59
The decision of the Court has no binding force
except between the parties and in respect of that
particular case.

JURISDICTION
ICJ Statute, Art. 36
1. The jurisdiction of the Court comprises all cases

A2015

which the parties refer to it and all matters


specially provided for in the Charter of the
United Nations or in treaties and conventions in
force.
2. The states parties to the present Statute may at
any time declare that they recognize as
compulsory ipso facto and without special
agreement, in relation to any other state
accepting the same obligation, the jurisdiction
of the Court in all legal disputes concerning:
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.

ADVISORY OPINIONS
HIGGINS, CHAPTER 11:
DISPUTE SETTLEMENT AND THE
INTERNATIONAL COURT OF JUSTICE
When the parties to a legal controversy believe that the
preferred solution is to have the issue resolved
authoritatively by a third party, there arises the possibility
for an international tribunal to act. Three kinds of data
that are worth looking at are: (1) the potential for the
International Court of Justice taking jurisdiction over
various states, (2) the actual use of the Court by various
states, and (3) the subject-matter upon which cases have
been brought before the Court.
The Potential for Jurisdiction
The competence of international tribunals is founded on
consent. Consent of principle rather than a consent in
relation to a particular dispute with a particular opponent
is increasingly being tolerated. Standing international
courts such as the International Court of Justice are
established by international treaty. It is the founding
treaty itself (e.g. UN Charter) which elaborates how it is
that a court may have jurisdiction in a particular dispute.
The Inter-American and European Courts on Human Rights,
and the Court of the European Community, are construed
and their restricted by their founding treaties as to
subject-matter and states who may bring claims. But the
ICJ is viewed as the senior of all the International Courts
because any state that is a party to the Statute (including
any other state that has made special application to be a
party to the Statute) can potentially come before it. And

131

PUBLIC INTERNATIONAL LAW

the Court can deal with any question of international law.


Article 38 of the ICJ Statute stipulates its function (to
decide in accordance with international law such disputes
as are submitted to it) and what it will apply to fulfil it
(sources of international law). There is thus an enormous
potential for the use of the Court as to parties and subjectmatter.
Actual Use of the Court
Article 36 (1) provides that the jurisdiction of the ICJ
comprises cases which the parties refer to it and all
matters specially provided for in the UN Charter or in
treaties or conventions in force. Parties can bring before
the Court a case ad hoc and on the basis of agreement (e.g.
ELSI Case). Since 1983 it has been increasingly used in
several cases (Gulf of Maine, Libya vs. Malta, Denmark v.
Norway, etc.).
Article 36 (1) also provides treaties as basis of jurisdiction.
Any treaty, bilateral or multilateral, can include a clause
which stipulates that disputes that arise about the
interpretation and application of the treaty are to be
referred for judicial resolution. One example is the Vienna
Convention on Diplomatic Relations. The tendency to
include jurisdiction clauses in either multilateral or
bilateral treaties is markedly declining. This may partly
reflect a growing variety of alternative dispute-settlement
procedures.
Article 36 (2) provides for the 'Optional Clause' jurisdiction,
stipulating that a state party to the Statute may at any
time declare that it recognizes as compulsory ipso facto
and without special agreement, in relation to any other
state accepting the same obligation, the jurisdiction of the
Court in legal dispute. This is like signing a blank cheque.
The acceptance may be indefinite, or upon notification of
termination, or for a fixed period of years. Although there
is a declining emphasis on the Optional Clause, the
participation of third-world countries is increasing.
The Subject-Matter of Litigation before the Court
The Court can deal with any legal dispute, but there is
nothing in the Statute that requires the Court not to
accept jurisdiction if the parties agreed to use alternative
dispute-resolution procedures. Although several countries,
by their statements, have welcomed the jurisdiction of the
ICJ on various legal issues, including those involving human
rights, a problem arises because these countries are
parties to the International Covenant of Human Rights,
which treaty has its own quasi-judicial procedures for the
settlement of legal disputes concerning human rights.
There is also a suggestion that only a range of preidentified/defined categories of dispute should be issued
by the Court. But these issues are at a standstill.
The Question of Reservations
Article 36 (3) states that declarations of acceptance under
the Optional Clause may be made unconditionally or on
condition of reciprocity, on the part of several or certain

A2015

states (e.g. I accept, on condition States A and B accept


also to settle disputes with me), or for a certain time (e.g. I
accept, for the next five years). The Optional Clause has
also been treated as a treaty engagement, which led to the
possibility of reservations as a matter of general treaty law.
In Nicaragua vs. US the Court said that if it were
acceptance under the Optional Clause were considered
treaties, a declaration of acceptance could not be
withdrawn without reasonable notice of termination.
Reservations are permitted. In the Rights of Passage Case,
the Portuguese reserved the possibility of terminating
acceptance immediately on notification. Normally, a
reservation to a treaty can only be made upon ratification
of or accession to a treaty. But some states, such as Malta,
have made a reservation which purports to allow them to
make further reservations. The legality of this has yet to be
tested.
Three types of reservations are usually acceptable:
1. relating to other parties / ratione personae (e.g.
I accept the Court's jurisdiction, but I will not
agree to litigation of disputes with States Y and Z)
2. relating to time / ratione temporis; (e.g. I accept
in 1990 the jurisdiction of the Court except those
concerning 1985 events) and
3. As to subject-matter / ratione materiae (e.g. I
accept the Court's jurisdiction, but not for the
settlement of aviation disputes) > of doubtful
legal status, because the Court must determine
its own jurisdiction.
The jurisdiction of the Court exists only in respect of what
is common between the two states, taking into account
each state's reservations and conditions. Thus, the Court
spends a lot of time in determining its jurisdiction, as
controversies about it often arise in litigation. The
increased tendency to ad hoc reference to the Court will
hopefully reduce the time spent by the Court on its own
jurisdiction.
Legal Disputes
Article 36 (2) provides that the matter brought before it is
a 'legal dispute'. The Court has said that the only
requirement is that there are issues that involve any of the
matters listed in Article 36 (2). It also said that it is
irrelevant if the matters arose in a politically charged
context. The South West Africa cases, where the Court said
that the issues brought were 'really' political and better
determined by the Security Council, is out of line with this
consistent attitude of the Court.
The issue often arises as to whether or not there is a
'dispute' between them (i.e. one exists starts litigation
under the Optional Clause, and the other insists there is no
'dispute'), The ICJ has adhered to the definition first held in
the Mavrommatis Case that 'A dispute is a disagreement
on a point of law or fact, a conflict of legal view or
interests between two persons'. The differing views of the

132

PUBLIC INTERNATIONAL LAW

parties regarding the existence of a dispute between them


are not determinative, and it is for the Court to decide
based on the facts of the case. In advisory jurisdiction, a
state may claim that the advice should not be given
because there actually exists a 'dispute', and that it is not
appropriate to give advice to a UN body that would entail
the determination of a dispute between states. In the UN
Headquarters Case, the Court held that neither the fact
that different views existed within the US administration,
nor the fact that the PLO office, which was subject for
closing based on a US law that was passed, had not
actually been closed down, meant that a dispute did not
exist between the UN and the US.
Some Issues Relating to Advisory Opinions
Article 65 of the Statute provides that the Court may give
an advisory opinion on any legal question at the request of
whatever body may be authorized by or in accordance
with the UN Charter to make such a request. There are no
adversarial proceedings and there will be no judgment
binding on the parties, but only advice as to the state of
the law. But Article 68 of the Statute provides that the
Court shall apply the same procedures as in contentious
cases 'to the extent to which it recognises them to be
applicable'. State parties to the Statute get notified under
Article 66 of the request and can present their views even
though they are not parties to the case.
The principle of audiatur et altera pars, which states that
the Court will not determine in their absence the rights of
third parties, applies to advisory opinions, and it underlies
consent as basis for the Court's jurisdiction. This has been
applied to contentious jurisdiction in the Monetary Gold
Case and also applied in the Phosphates Case. The test
used by the Court in that case is whether the legal
interests of the third party that was not before the Court
was 'the very subject matter of the decision'.
In the Eastern Carelia Case, the Permanent Court declined
to give an advisory opinion because the issue is related the
main point of a pending dispute between the two states,
such that answering the question means deciding the
dispute. As far as contentious litigation is concerned,
Article 62 of the Statute allows a state not party to a
litigation in the Court to intervene should it consider that
'it has an interest of a legal nature which may be affected
by the decision in the case'. In cases under Article 63
which entails the construction of a Convention to which
other states are parties, these states are to be notified,
and have the right to intervene. However, the Court often
points to Article 59 whereby a judgment only binds the
parties to a case to deny the applicant's legal interest
which could be affected by the case. Intervention under
Articles 62 to 63 presents new problems such as new
elements to the case, the issue about the right to
intervene when the state has no jurisdictional connection
to the subject-matter or the other states, whether the
proper stage to intervene is at the jurisdictional stage or at

A2015

the stage of the merits. As to the last issue, the Court has
found an application at the jurisdictional stage 'premature'.
In several cases such as Certain Expenses of the UN and
the Western Sahara Case, the Court, despite the claims of
a State-party that giving an advisory opinion would be
equivalent to settling a dispute, gave an opinion
nonetheless. In the Western Sahara Case, the Court agreed
that there was a legal dispute between Morocco and Spain
at the time of the request for advisory opinion, but it still
proceeded with the opinion but allowed Morocco an ad
hoc judge on the Bench, as there was already a Spanish
judge. The Court also distinguished the Eastern Carelia
Case, noting that in that case one of the key states was
neither a party to the Statute, nor a member of the League,
while in the case of Spain and Morocco they were both
members of the UN.
The issue of third-party rights has arisen not bilaterally but
in the context of the work of the requesting organ. The ICJ
has shown that it will rather robustly preserve its right to
provide advice to authorized requesting organs.
Dispute Settlement and Law Development
The determination of specific disputes and the provision of
specific advice by the ICJ develop international law. It is
hard to point to a case where the Court has just applied
rules to facts. Although decisions of the Court are said to
be a subsidiary source of international law (Article 38 (1) (c)
of the Statute) and any judicial determination is only
binding upon the parties before it (Article 59), in reality,
the judgments and opinions of the Court are treaty as
authoritative pronouncements upon the current state of
international law.
Even advisory opinions have a role of great importance.
Very often, the organ requesting an advisory opinion will
then pass a resolution 'appreciating' or 'accepting' that
opinion. This was done in the Reservations Case an in Legal
Expenses of the United Nations. It does not give rise to a
legal obligation, but it is a public affirmation of the advice's
authoritative quality. Many resolutions of disputes have
been assisted by advisory opinions (e.g. Admissions Cases).
Higgins opines that the Court, even though it is necessarily
choosing, explaining, and refining rules, should still do so
in respect of the particular issue it is required to decide or
upon which it is asked to advise.

CASES ON JURISDICTION
CASE CONERNING MILITARY AND
PARAMILITARY ACTIVITIES IN AND AGAINST
NICARAGUA (NICARAGUA v. UNITED STATES)
ICJ Reports 1986, p.14 (1986), supra.

133

PUBLIC INTERNATIONAL LAW

(This discussion deals with the jurisdictional aspect of the


case.)
Nicaragua:

United
States:

The Court had jurisdiction over its


application because both Nicaragua and the
US had accepted the compulsory
jurisdiction of the Court under the Optional
Clause.
Nicaragua's
acceptance
of
the
compulsory jurisdiction of the PCIJ was
not in force in 1945, because it failed to
ratify the Statute of the PCIJ, such that
Art. 36 (5) of the ICJ Statute did not apply
to it;
Three days before the application had
been filed, the US filed a notification, to
take effect immediately, stating that the
compulsory jurisdiction shall not apply to
disputes with any Central American
State; and
US made a reservation in its Optional
Clause whereby disputes arising under a
multilateral treaty, which could affect
third states which are parties to the
treaty but are not participating in the
proceedings before the Court, were
excluded from the jurisdiction of the
Court.

The ICJ held that it had jurisdiction.


Nicaragua's ratification of the ICJ Statute gave its previous
declaration under the PCIJ Statute the binding force which
it previously lacked.
The US declaration could only be terminated upon
reasonable notice. Although a declaration under the
Optional Clause was a unilateral and voluntary act, once
made, it creates a legal obligation binding upon the State
which made it. It would be impossible for a ruling not to
affect third parties such as El Salvador. Therefore, the
reservation of the US prevented the Court from
entertaining the claims based on violations of multilateral
treaties such as the UN Charter and the OAS Charter.
However, the effect of the reservation did not exclude the
application of principles of international customary law
enshrined in treaty law provisions.

CASE CONCERNING QUESTIONS OF


INTERPRETATION AND APPLICATION OF THE
1971 MONTREAL CONVENTION ARISING
FROM THE AERIAL INCIDENT AT LOCKERBIE
(LIBYA v. UNITED STATES)

A2015

the airplane. The US Grand Jury brought murder charges


for murder against two Libyan nationals suspected of
having caused the bomb to be placed aboard the aircraft.
US requested the extradition of the two alleged offender.
Libya:

United
States:

The ICJ held that it had jurisdiction.


A dispute is defined as 'a disagreement on a point of law
or fact, a conflict of legal views or of interest between two
persons'. The parties in this case differed on the question
of whether the destruction of the aircraft was governed by
the Montreal Convention. The UN SC Resolutions were
adopted after Libya filed its application. In accordance to
jurisprudence, if the Court had jurisdiction on that date, it
continues to do so; the subsequent coming into existence
of the above-mentioned resolutions cannot affect its
jurisdiction once established.

CASE CONCERNING ELETTRONICA SICULA


S.P.A. (ELSI) (UNITED STATES OF AMERICA v.
ITALY)
ICJ Reports 1989, p. 15 (1989)

The US claimed in its diplomatic claim against Italy that the


latter violated the provisions of the Friendship, Commerce
and Navigation (FCN) Treaty between the two when Italian
authorities seized and requisitioned the assets of ELSI, an
American-owned corporation stationed in Palermo Italy,
which was under liquidation.
Italy:

ICJ Reports 1998, p. 115 (1998)

Pan Am flight 103, while flying over Lockerbie, Scotland,


was destroyed by an explosion due to a bomb placed inside

The Montreal Convention (on Hijacking),


under which Libya has the right to
investigate the alleged offense and exercise
domestic jurisdiction, is applicable to this
dispute.
the Court lacks jurisdiction because:
o Libya failed to show that

there exists a legal dispute


between the Parties; and
that

Such
dispute, if
any,
concerns the interpretation
or application of the
Montreal Convention.
Even if a dispute existed, the UN Security
Council (UN SC) Resolutions which
required Libya to surrender the two
accused prevailed over the provisions of
the Montreal Convention.

United
States:

The ICJ has no jurisdiction because of the


failure of the US to exhaust local remedies.
The claims should have been brought
before Italian municipal courts.
The FCN Treaty did not categorically refer
to the local remedies rule in cases of
diplomatic protection.

134

PUBLIC INTERNATIONAL LAW

A2015

ICJ Reports 1992, p. 240 (1992)

The ICJ held that it had jurisdiction.


The Court's jurisdiction is based on the Statute of the
Court and the FCN Treaty. The doctrine of exhaustion of
local remedies was a fundamental rule of customary
international law and was not rendered inapplicable
simply because of the absence of words making it
specifically applicable to a certain type of action.
But the claim was still deemed admissible since Italy failed
to establish that a remedy existed under municipal law
which was available to the US corporations.

Nauru was placed under UN Trusteeship, with the Joint


Administering Authority being Australia, New Zealand and
the UK. Australia was given full powers of legislation,
administration and jurisdiction over Nauru on behalf of the
Administering Authority.
Nauru instituted proceedings against Australia, alleging
the breach of its trusteeship obligations by failing to
rehabilitate parts of Nauru from which phosphates had
been extracted.
Australia:

SOUTH WEST AFRICA CASES (ETHIOPIA v.


SOUTH AFRICA; LIBERIA v. SOUTH AFRICA),
SECOND PHASE
ICJ Reports 1966, p.6 (1966), supra.

(For a more exhaustive discussion, refer to p. 8)


Ethiopia's and Liberia's applications alleged the
contravention of duties by South Africa as Mandatory
under the League of Nations Mandate for South West
Africa. The mandates contained a jurisdictional clause
providing for a reference of disputes to the PCIJ (now ICJ)
by virtue of Article 37 of the ICJ Statute.
South
Africa:

Since the League of Nations and PCIJ were


dissolved, the rights and obligations under
the Mandate relating to the administrative
supervision by the League and submission
to the PCIJ had become extinct.

The ICJ held that it had jurisdiction.


The obligation of South Africa to submit to compulsory
jurisdiction was effectively transferred to the ICJ. Although
the League was dissolved in 1946, the UN Charter entered
into force in 1945, and all three parties became UN
members by ratifying the Charter. By the effect of Art. 92
and 93 of the UN Charter and Art. 37 of the ICJ Statute,
South Africa had bound itself to accept the compulsory
jurisdiction of the ICJ in lieu of the PCIJ.
The individual member States of the League such as
Ethiopia and Liberia had no right of direct intervention
relative to the mandatories, since this was the prerogative
of the League organs. Though States retained the rights
which they possessed as members of the League despite
its dissolution it did not mean that by and upon such
dissolution they acquired rights which they never did
individually possess.

CASE CONCERNING CERTAIN PHOSPHATE


LANDS IN NAURU (NAURU v. AUSTRALIA)

The Court lacks jurisdiction because:


The case involved the responsibility of
third States which had not consented to
the Courts jurisdiction; and
It made a reservation in its declaration
that jurisdiction does not apply to any
dispute where the parties have agreed
or shall agree to have recourse to some
other method of peaceful settlement.

The ICJ held that it had jurisdiction.


The fact that New Zealand and the UK were not parties to
the proceedings did not render the application
inadmissible. The present case differed from the Monetary
Gold case since the interests of New Zealand and the UK
did not constitute the very subject matter of the decision
which the Court would give.
A finding by the Court regarding the responsibility
attributed to Australia by Nauru might have implications
for the legal situation of the two other States concerned,
but no finding in respect of that legal situation would be
needed as a basis for the Courts decision in this case. The
interests of New Zealand and the UK are protected by
Article 59 of the ICJ Statute, which provides that "The
decision of the Court has no binding force except between
the parties and in respect of that particular case."

CASE CONCERNING EAST TIMOR (PORTUGAL


v. AUSTRALIA)
ICJ Reports 1995, p. 90 (1995)

Portugal commenced proceedings against Australia,


claiming that Australia infringed the rights of the people of
East Timor to self-determination and permanent
sovereignty over their natural resources and the rights of
Portugal as administering power by entering into an
agreement with Indonesia over the delimitation of the
continental shelf between Australia and East Timor, which
eventually evolved into an treaty creating a Zone of
Cooperation between Australian and Indonesia in the
exploitation of natural resources in the said continental
shelf.

135

PUBLIC INTERNATIONAL LAW

Australia:

The Court could not rule upon the


application without ruling on the rights and
obligations of Indonesia, which had not
consented to the jurisdiction of the Court.

The ICJ held that it had no jurisdiction.


The Court agreed with Portugal that the right of selfdetermination is an erga omnes right and that states had a
duty to respect this right is an erga omnes obligation.
However, the Court could not rule upon the dispute
between Australia and Portugal without having to rule
upon whether Indonesias entry into East Timor was lawful.
The very subject matter of the decision would necessarily
be a determination of whether Indonesia acquired power
to conclude treaties on behalf of East Timor, which
determination could not be made without the consent of
Indonesia.
This case is an authority on the erga omnes obligation
of states to respect the right to self-determination.
The doctrine applies to both contentious cases and
advisory opinions.
CLASS NOTES

CASES ON PROVISIONAL MEASURES

A2015

only indicate provisional measures to be taken by the


parties but not by third States who would not be bound by
the eventual judgment.

CASE CONCERNING QUESTIONS OF


INTERPRETATION AND APPLICATION OF THE
1971 MONTREAL CONVENTION ARISING
FROM THE AERIAL INCIDENT AT LOCKERBIE
(LIBYA v. UNITED STATES)
ICJ Reports 1998, p. 115 (1998), supra.

Libya requested the Court for provisional measures to


enjoin the US from the use of any force against Libya.
There was a previous resolution by the Security Council
(Resolution 748) determining the failure of Libya to
surrender the two accused as a threat to international
peace and security.
The Court denied the request for provisional measures.
Since Libya and the US are UN members, they are obliged
to accept and carry out the decisions of the Security
Council. Such obligation prevails over the duty of the
parties under the Montreal Convention. An indication of
the measures requested by Libya would be likely to impair
the rights, which appear prima facie to be enjoyed by the
United States by virtue of the Security Council Resolution.

CASES ON DISPUTE
CASE CONCERNING APPLICATION OF THE
CONVENTION ON THE PREVENTION AND
PUNISHMENT OF THE CRIME OF GENOCIDE
(BOSNIA AND HERZEGOVINA v. SERBIA AND
MONTENEGRO)
ICJ Reports 2007, p. 43 (2007), supra.

Bosnia and Herzegovina accused Yugoslavia of


responsibility for the commission of genocide in Bosnia. In
its application, Bosnia asked the Court to grant, as
provisional measures, that Yugoslavia cease all acts of
genocide and cease providing support for any group
engaging in military or paramilitary activities against
Bosnia, and requested that the Court indicate that Bosnia
had the right to seek and receive assistance in defending
itself.
The Court granted the request for provisional measures.
The Court should not indicate such measures unless the
provisions invoked by the applicant or found in the ICJ
Statute appeared, prima facie, to afford a basis on which
the jurisdiction of the Court might be established. The
object of the power to indicate provisional measures of
protection was to ensure that irreparable prejudice should
not be caused to rights which might subsequently be
adjudged to belong to one of the parties. The Court could

COMPETENCE OF THE GENERAL ASSEMBLY


FOR THE ADMISSION OF A STATE TO THE
UNITED NATIONS (ADVISORY OPINION)
ICJ Reports 1950, p. 4 (1950)

The UN GA asked the Court to give an advisory opinion


regarding the conditions of admission of a State to
membership in the UN found in Article 4 of the Charter,
particularly with regard to the following issues:
1. Whether or not a UN Member is juridically entitled
to make its consent on the admission of a State
dependent on conditions not expressly provided by
Art. 4, Par. 1
2. Whether or not a UN Member, which recognizes the
conditions in Art. 4 to be fulfilled by the State
seeking admission, can subject its affirmative vote to
the additional condition that other States be
admitted together with the concerned State
A Member is not legally entitled to make admission
dependent on conditions not expressly provided by the
Article. Art. 4, par. 1 is exclusive.
Art. 4, Par. 1 enumerates five conditions: a candidate must
be:

136

PUBLIC INTERNATIONAL LAW

6)
7)
8)
9)
10)

a State;
peace-loving;
must accept the obligations of the Charter;
must be able to carry out these obligations;
must be willing to do so.

All these are subject to the judgment of the Organization.


The Court held that these conditions were exhaustive as
the provision would lose significance if other conditions
could be demanded. The term Membership in the United
Nations is open to all other peace-loving States indicates
that States which fulfill the conditions stated have the
qualifications requisite for admission . . . They are not
merely the necessary conditions, but also the conditions
which suffice. However, the Court added that the
exhaustive nature of Art. 4 does not prohibit the taking
into account of any factor reasonably, and in good faith,
connected with the conditions laid down. The taking into
account of such factors is implied in the very wide and
elastic nature of the conditions. No relevant political factor,
that is to say, none connected with the conditions of
admission, is excluded.
The Court held that any additional condition would be
contrary to the letter and spirit of the Charter as it would
prevent each application for admission to be examined
and voted on separately on its own merits. The Court said
that it constitutes a new condition because it is entirely
unconnected with those prescribed in Art. 4. Finally, it
makes admission dependent not on the conditions
required, but on extraneous ones concerning other States.

THE MAVROMMATIS PALESTINE CONCESSIONS


PCIJ, Ser. A, No. 2, (1924), supra.

(For an exhaustive discussion on the merits, refer to p. 22)


Whether or not the Court has jurisdiction to entertain the
case in accordance with Art. 26 of the Mandate
YES TO THE JERUSALEM CONCESSIONS; NO TO THE JAFFA
CONCESSIONS
The Court first looked at the conditions laid down by Art.
26 to determine whether it had jurisdiction or not. It found
that: 1) there was a dispute between the Mandatory
(Britain) and another Member of the League of Nations
(Greece); 2) the dispute cannot be settled by negotiation;
and 3) the dispute related to the interpretation or the
application of the provisions of the Mandate.

A2015

entered into a new phase it entered into the domain of


international law, and became dispute between two states.
Once a State has taken up a case on behalf of one of its
subjects, which it is entitled to protect under international
law, before an international tribunal, in the eyes of the
latter, the State is the sole claimant. The fact that Britain
and Greece are the opposing parties to the dispute arising
out of the Mavrommatis Concessions is sufficient to make
it a dispute between two States within the meaning of
Article 26.
As regards the second condition, the Court found that the
correspondence between the two countries proved that
they could not settle the matter through negotiation.
To determine if the third condition was fulfilled, the Court
relied on Art. 2, Par. 1 of the Mandate( which provides
that the Administration of Palestine shall have full power
to provide for public ownership or control of any of the
natural resources of the country or of the public works,
services and utilities established or to be established
therein, subject to international obligations accepted by
the Mandatory). Using the Rutenberg Concessions (which
partially overlaps with the Mavrommatis Concessions), the
Court found that they constitute an application by the
Administration of Palestine of the system of public
control with the object of developing the natural
resources of the country and of operating public works,
services and utilities. Thus, these concessions fall within
the scope of Art. 2 of the Mandate and, consequently, Art.
26. But since the two concessions only partially overlap,
the Court had to determine which of the Mavrommatis
Concessions fall under the provisions of the Mandate.
The Court held that the phrase the international
obligations accepted by the Mandatory includes the
obligations arising out of Protocol XII of the Lausanne
Treaty. This Protocol concerns concessionary contracts
duly entered into before Oct 29, 1914. Since the Jerusalem
Concessions were dated from before the Protocol, they fall
under Art. 2 of the Mandate. However, the Jaffa
Concessions, although dated January 17 and March 6,
1914, were not confirmed by the Imperial Firman.
Therefore, they do not fall under the Protocol. In sum, the
Court held that it had jurisdiction to entertain the claim
relating to Jerusalem only.

APPLICABILITY OF THE OBLIGATION TO


ARBITRATE UNDER SECTION 21 OF THE
UNITED NATIONS HEADQUARTERS
AGREEMENT OF 26 JUNE 1947
PCIJ, Ser. A, No. 2, (1924), supra.

The Court found that there was a dispute or a


disagreement on a point of law or fact, a conflict of legal
views or of interests between two persons. The dispute in
this case was first between a private person and a State.
When the Greek government took up the case, the dispute

The UN GA adopted a resolution on 2 March 1988 to


request the Court for an advisory opinion. The question
was: In the light of facts reflected in the reports of the
Secretary-General, is the United States of America, as a

137

PUBLIC INTERNATIONAL LAW

party to the Agreement between the United Nations and


the United States of America regarding the Headquarters
of the United Nations, under an obligation to enter into
arbitration in accordance with section 21 of the
Agreement?
In order to answer the question put to it, the Court first
considered whether there existed between the United
Nations and the United States a dispute as contemplated
by section 21 of the Headquarters Agreement, which
provided: (a) Any dispute between the United Nations
and the United States concerning the interpretation or
application of this agreement or of any supplemental
agreement, which is not settled by negotiation or other
agreed mode of settlement, shall be referred for final
decision to a tribunal of three arbitrators, one to be
named by the Secretary-General, one to be named by the
Secretary of State of the United States, and the third to be
chosen by the two, or, if they should fail to agree upon a
third, then by the President of the International Court of
Justice. If there was a dispute, the Court had to
determine whether that dispute concerned the
interpretation or application of the Headquarters
Agreement and had not been settled by negotiation or
other agreed mode of settlement.
A dispute is disagreement on a point of law or a conflict of
legal views or interests is a matter for objective
determination and cannot depend upon the mere
assertions or denials of parties. The Court found the
opposing attitudes of the UN and the USA showed the
existence of a dispute.
The Court then considered whether the dispute was one
"not settled by negotiation or other agreed mode of
settlement", in the terms of section 21 (a). The Court
found that, taking into account the United States' attitude,
the Secretary-General had in the circumstances exhausted
such possibilities of negotiation as were open to him, nor
had any "other agreed mode of settlement" been
contemplated by the United Nations and the United States.
In particular, the current proceedings before the United
States courts could not constitute and "agreed method of
settlement" within the meaning of section 21, considering
that their purpose was the enforcement of the AntiTerrorism Act and not the Agreement. Furthermore, the
United Nations had never agreed to a settlement in the
domestic courts.
The Court held that the United States was bound to
respect the obligation to enter into arbitration. That
conclusion would remain intact even if it were necessary
to interpret the settlement that the measures against the
Mission were taken "irrespective of any obligations" of the
United States under the Headquarters Agreement as
intended to refer not only to any substantive obligations
under sections 11-13 but also to the obligation to arbitrate
provided for in section 21. It was sufficient to recall the

A2015

fundamental principle of international law that


international law prevailed over domestic law, a principle
long endorsed by judicial decisions.

CASES ON ADVISORY OPINIONS


LEGALITY OF THE THREAT OR USE OF
NUCLEAR WEAPONS (ADVISORY OPINION)
ICJ Reports 1996, p. 226 (1996), supra.

(This section deals with the jurisdictional aspect of the case.


For a discussion on the merits of the case, refer to p. 12)
Jurisdictional issue: Whether or not the Court had
jurisdiction to entertain this request for an advisory opinion
submitted by the WHO, a specialized agency.
The WHO failed to satisfy the requisites for asking an
advisory opinion.
There are three conditions that must be satisfied for the
Court to acquire jurisdiction to entertain a request for an
advisory opinion submitted by a specialized agency.
1. First, the agency requesting the opinion must be
duly authorized under the UN Charter to request
opinions from the Court.
2. Second, the opinion requested must be on a
legal question.
3. Third, the question must be one arising within
the scope of the activities of the requesting
agency.
The first two conditions were met; however, the Court
found that although according to its Constitution the
World Health Organization (WHO) is authorized to deal
with the effects on health of the use of nuclear weapons,
or of any other hazardous activity, and to take preventive
measures aimed at protecting the health of populations in
the event of such weapons being used or such activities
engaged in, the question put to the Court in the present
case relates not to the effects of the use of nuclear
weapons on health, but to the legality of the use of' such
weapons in view of their health and environmental effects.
The Court pointed out that whatever these effects may be,
the competence of WHO to deal with them is not
dependent on the legality of the acts that caused them.
The Court also held that the responsibilities of WHO are
necessarily restricted to the sphere of public health and
cannot encroach on the responsibilities of other parts of
the UN system, and that there is no doubt that questions
concerning the use of force, the regulation of armaments
and disarmament are within the competence of the UN
and lie outside that of the specialize agencies like the WHO.

138

PUBLIC INTERNATIONAL LAW

Therefore, the request for an advisory opinion submitted


by WHO thus does not relate to a question which arises
"within the scope of [the] activities" of that Organization.

A2015

entitled to the gold in accordance with the Washington


Statement.
Court has no jurisdiction to adjudicate the issue based on
Italys application.

CASE OF THE MONETARY GOLD REMOVED


FROM ROME IN 1943 (ITALY v. FRANCE, UNITED
KINGDOM OF GREAT BRITAIN AND
NORTHERN IRELAND AND UNITED STATES OF
AMERICA)
ICJ Reports 1954, p. 19 (1954)

France, UK, USA, Albania and other states signed the


Agreement on Reparation from Germany (14 January
1946), on the Establishment of an Inter-Allied Reparation
Agency and on the Restitution of Monetary Gold in Paris in
1946. Italy adhered to its provisions by a Protocol in 1947.
The Agreement provided that the monetary gold found in
Germany should-be pooled for distribution among the
countries which can establish that a definite amount of
monetary gold belonging to them was looted by Germany
or, at any time after 12th March, 1938, was wrongfully
removed into German territory. The implementation of
the Agreement was entrusted to France, UK, and the USA,
which formed a Tripartite Commission.
Albania and Italy claimed that the gold belonged to them
thus the Tripartite Commission, by signing the Washington
Statement in 1951, decided to submit to an arbitrator the
issue of whether the gold belonged to Albania or to Italy or
to neither. The Arbitrator opined that the gold in question
belonged to Albania and the opinion was communicated to
the Commission and to Italy and Albania. However,
Albania made no application. Therefore, Italy, within the
ninety-day period, made an Application to the ICJ
instituting proceedings against France, UK and USA,
submitting that: 1) the Governments of France, UK and
USA should deliver to Italy any share of monetary Gold
that may be due to Albania in partial satisfaction for the
damage caused to Italy by the Albanian Law of 1945; and 2)
its right to receive the gold must have priority over the
claim of UK.
Five months after, Italy filed a document entitled
Preliminary Question drawing the attention of the Court
to the fact that its first Submission invited the Court to pass
upon the international responsibility of Albania to Italy
hence the jurisdiction of the Court to adjudicate such
question without Albanias consent is doubtful. It
submitted that the Court had no jurisdiction. On the other
hand, UK submitted that: 1) in view of Italys Objection the
Italian Application does not conform or no longer conforms
with the Washington Statement and is accordingly invalid
and void hence there is no longer before the Court any
Application; and in the alternative; 2) the Italian Objection
amounts to a withdrawal or cancellation of its Application
and disqualifies Italy from proceeding any further under
the Tripartite Washington Statement; and 3) therefore, it is

The Court held that Italys first submission (that the gold
must be delivered to her) required the determination of
whether Albania has committed any international wrong
against Italy and whether Albania is under an obligation to
pay compensation. Going into the merits of the case
without Albanias consent would violate the wellestablished principle of international law that the Court
could not exercise its jurisdiction over a State without the
latters consent. In the present case, Albanias legal
interests would not merely be affected but would form the
very subject matter of the decision. Hence, any decision of
the Court would not be binding upon any party (even upon
States which submitted to its jurisdiction i.e., France, UK,
USA, Italy). Likewise, Italys second submission (that
priority should be given to her over the UK) cannot be
resolved by the Court as it is predicated on the
determination that as between Albania and Italy, the gold
should go to Italy.

CERTAIN EXPENSES OF THE UNITED NATIONS


(ARTICLE 17, PARAGRAPH 2, OF THE CHARTER)
(ADVISORY OPINION)
ICJ Reports 1962, p. 151 (1962), supra.

(This section deals with the jurisdictional aspect of the case.


For a discussion on the merits of the case, refer to p. 22)
Jurisdictional issue: Whether or not the Court had
jurisdiction to entertain this request for an advisory opinion.
The Court agreed to give an advisory opinion. It held that
its power to give advisory opinions is derived from Art. 65
of the Statute. It is of a discretionary character. However,
the Court can only give an advisory opinion on a legal
question.

WESTERN SAHARA (ADVISORY OPINION)


ICJ Reports 1975, p. 12 (1975), supra.

(This section deals with the jurisdictional aspect of the case.


For a discussion on the merits of the case, refer to p. 34)
Jurisdictional issue: Whether or not the Court had
jurisdiction to entertain this request for an advisory opinion.
The Court has the competence to render an advisory
opinion in this case.
Under Art. 65, Par. 1, of the Statute, it is stated that:

139

PUBLIC INTERNATIONAL LAW

A2015

The Court may give an advisory opinion on any


legal question at the request of whatever body
may be authorized by or in accordance with the
Charter of the United Nations to make such a
request.

authorized to do so by Article 96, paragraph 1, of the


Charter, which provides:
The General Assembly or the Security Council
may request the International Court of Justice to
give an advisory opinion on any legal question.

The Court noted that the UN GA is suitably authorized by


Art. 96, Par. 1 of the Charter. The Court also found that the
two questions submitted are framed in terms of law and
raise problems of international law. They are in principle
questions of a legal character, even if they also embody
questions of fact, and even if they do not call upon the
Court to pronounce on existing rights and obligations. The
Court is accordingly competent to entertain the request.

It observed that Article 10 of the Charter has conferred


upon the General Assembly a competence relating to any
questions or any matters within the scope of the Charter,
and that Article 11, paragraph 2, has specifically provided
it with competence on questions relating to the
maintenance of international peace and security brought
before it by any Member of the United Nations . . . and to
make recommendations under certain conditions fixed by
those Articles.

On the objection of Spain that the question involved a


historical question, the Court found that there was nothing
in the UN Charter or the Statute to limit either the
competence of the GA to request an advisory opinion, or
the competence of the Court to give one, to legal
questions relating to existing rights or obligations.
As to the objection of Spain that it had not given its
consent to the submission of the case, the Court said that
Spain is a Member of the UN and has accepted the
provisions of the Charter and the Statute by virtue of
which it has, in general, given its consent to the exercise
by the Court of its advisory jurisdiction. The Court also
deemed it fit to construe the principle of consent as
permissive rather than directive in that the Court still
recognized that the lack of consent might constitute a
ground for declining to give the opinion requested if, in
the circumstances of a given case, considerations of
judicial propriety should oblige the Court to refuse an
opinion. In short, the consent of the State continues to be
relevant, not for the Courts competence, but for the
appreciation of the propriety of giving an opinion.

LEGAL CONSEQUENCES OF THE


CONSTRUCTION OF A WALL IN THE
OCCUPIED PALESTINIAN TERRITORY
(ADVISORY OPINION)
ICJ Reports 2004, p. 176 (2004), supra

(This section deals with the jurisdictional aspect of the case.


For a discussion on the merits of the case, refer to p. 95)
The Court has the competence to render an advisory
opinion in this case.
The Court noted first that its competence in this regard is
based on Article 65, paragraph 1, of its Statute, according
to which the Court may give an advisory opinion on any
legal question at the request of whatever body may be
authorized by or in accordance with the Charter of the
United Nations to make such a request, and secondly that
the General Assembly, which seeks the advisory opinion, is

Israel contended that the GA acted ultra vires under the


Charter because its request was not in accordance with
Article 12, Paragraph 1. The Court first observed that a
request for an advisory opinion is not a recommendation
by the General Assembly with regard to *a+ dispute or
situation, within the meaning of Article 12, but considers
it appropriate to examine the significance of that Article,
having regard to the practice of the United Nations. It
notes that, under Article 24 of the Charter, the Security
Council has primary responsibility for the maintenance of
international peace and security and that both the
Security Council and the General Assembly initially
interpreted and applied Article 12 to the effect that the
Assembly could not make a recommendation on a
question concerning the maintenance of international
peace and security while the matter remained on the
Councils agenda, but that this interpretation of Article 12
has evolved subsequently. The Court held that the GA did
not exceed its competence by submitting the request.
The Court also emphasized that, in the course of the
Emergency Special Session in which the resolution to make
the request was made, the General Assembly could adopt
any resolution falling within the subject-matter for which
the Session had been convened, and otherwise within its
powers, including a resolution seeking the Courts opinion.
It was contended that the request for advisory opinion did
not raise a legal question within the meaning of Article 96,
Paragraph 1 of the Charter and Article 65, Paragraph 1 of
the Statute. The Court observed that this question is
directed to the legal consequences arising from a given
factual situation considering the rules and principles of
international law, including the Geneva Convention
relative to the Protection of Civilian Persons in Time of
War of 12 August 1949 (hereinafter the Fourth Geneva
Convention) and relevant Security Council and General
Assembly resolutions. The Court further pointed out that
lack of clarity in the drafting of a question does not
deprive the Court of jurisdiction. Rather, such uncertainty
will require clarification in interpretation, and such
necessary clarifications of interpretation have frequently
been given by the Court. Therefore, the Court would, as it

140

PUBLIC INTERNATIONAL LAW

has done often in the past, identify the existing principles


and rules, interpret them and apply them . . ., thus offering
a reply to the question posed based on law (Legality of
the Threat or Use of Nuclear Weapons, supra).
It was also contended that the abstract nature of the
question raised an issue of jurisdiction. The Court held that
to contend that it should not deal with a question
couched in abstract terms is a mere affirmation devoid of
any justification and that the Court may give an advisory
opinion on any legal question, abstract or otherwise
(Legality of the Threat or Use of Nuclear Weapons).
The Court also rejected the argument that it had no
jurisdiction due to the political character of the question
involved. As is clear from its long-standing jurisprudence
on this point, the Court considered that the fact that a
legal question also has political aspects, does not suffice
to deprive it of its character as a legal question and to
deprive the Court of a competence expressly conferred on
it by its Statute, and the Court cannot refuse to admit the
legal character of a question which invites it to discharge
an essentially judicial task (Legality of the Threat or Use
of Nuclear Weapons).

The Individual
International Law is a system that provides normative
indications for states in their relations with each other.
Although there is no reason to exclude individuals from its
reach, the main participants are sovereign states. However,
how can it be guaranteed that the needs of individuals
who comprise the states are not ignored? The classical
international law has relatively little to offer in this regard.
The individual is left with no direct access to a forum, no
legal right that he can call his own, no redress against his
own state. (Higgins, Chapter 6)

A. Human Rights
HIGGINS, CHAPTER 6:
RESPONDING TO INDIVIDUAL NEEDS: HUMAN
RIGHTS
Human Rights Law stipulates that obligations are owed
directly to individuals, and not to the national government
of an individual. It provides for individuals to have access
to tribunals and for the effective guarantee of those
obligations. Once it is recognized that obligations are owed
to individuals, there is no reason why the obligation should
be owed only to foreign individuals and not to nationals. It
is unsustainable to regard the treatment of nationals as

A2015

matters falling essentially within domestic jurisdiction, and


unreviewable by the international community.
Obligations are owed directly to individuals, because they
have human rights. Human Rights are rights held simply by
virtue of being a human person. They are part of the
integrity and dignity of the human being. They cannot be
given or withdrawn at will by any domestic legal system.
Although they may most effectively be implemented by
the domestic legal system, that system is not the source of
the right. International human rights law is the source of
the obligation, albeit reflected in the content of the
domestic law. It follows that the right will be the same in
all jurisdictions.
Argument: There can be no fully universal concept of
human rights, taking into account the diverse cultures
and political systems of the world.
This is a point advanced by states and liberal scholars.
This is rarely advanced by the oppressed. The nonuniversal, relativist view of human rights is in fact a
very state-centered view and loses sight of the
human aspect of human rights, which is not
dependent on how states may behave differently
from each other in politics, economic policy, and
culture. The universality of human spirit dictates that
individuals everywhere want the same essential
things. There is nothing in these that is dependent
upon culture, religion, or stage of development. This
has been a debate over the political and cultural
relativism in human rights. The International
Covenant on Civil and Political Rights has now
provided for an international monitoring mechanism,
through the Committee on Human Rights.
Argument: It is to be expected that the manner of
implementation would vary according to the particular
political system.
While states may indeed implement rights in different
ways, the content of what is to be implemented
depends on the international standard and will not
vary.
Cultural and Religious Diversity
The standards were adopted in principle of universal
application. The texts were adopted with general approval,
and states of varying political and religious systems have
had a free choice as to whether to become a party to the
Covenants. If particular elements were regarded as
incompatible with a religious or political point, the correct
course of action was to enter a reservation as to those
elements, but this had not been done.
What are the Human Rights?
The answer depends on the approach on the nature and
sources of international law. If the source rights and
obligations are the various international instruments,

141

PUBLIC INTERNATIONAL LAW

A2015

whatever rights they contain and designate as human


rights are thereby human rights, at least for the ratifying
parties. They may in time be reflected in customary
international law, and thus become human rights more
generally. Others say that human rights are vehicle for
expressing the obligation and providing the detail about
the way in which the human right is to be guaranteed. It is
an interaction of demands by various actors, and the state
practice in relation thereto, which leads to the generation
of norms and the expectation of compliance in relation to
them.

Rights, has stated that these are present rights, not longterm aspirations. States are under immediate obligation to
do what they can to provide these rights.

Civil and Political Rights


Human Rights was traditionally viewed as limited to the
field of civil and political rights. This view is supported by
the principle that rights suppose a correlative obligation
on the part of the state. All states are in a position to
comply with civil and political rights - ex. abstention from
torture, toleration of free speech, liberty of religion.

Sources of Rights
Existence of treaties may not be the only test as to
whether a right exists. Rights may exist in customary
international law. The claim that a right exists in
customary law will need to be established by reference to
the normal criteria of that source, including state practice,
which may be expected to be evidenced in resolutions and
declarations of international bodies.

Economic, Social, and Cultural Rights


Claims to education, paid holidays, food and housing are
often not within the ability of the state to provide. This is
particularly true of poorer states. However, to say that
such inability would negate the view that such are human
rights, would be to define a right by reference to the
ability of the party upon whom the obligation lies to
provide it immediately. This echoes the aphorism that
without a remedy, there is no right. This approach looks at
things from the perspective of the state, rather than of the
individual.
It is also claimed that such cannot be rights because
rights implies something in respect of which, legal claims
can be brought and economic and social rights are not
justiciable. However, the absence of a possibility of
recourse to third-party judicial procedures is certainly not
the test of whether the right exists or note. The existence
of the right is tested by reference to the sources of
international law.
It is further suggested that these are not real rights for
they are imprecise as to content, and they are mostly
incapable of immediate delivery, and they must be
recognized as mere aspirations. The real difference is that
the states duties in respect of civil and political rights are
covered in terms of abstention from prohibited acts,
whereas the economic and social rights usually require
specific action by the state.
In order to effectively guarantee rights, it is frequently
necessary for states to take positive measures. Problems
remain as to economic and social rights. There remains the
underlying problem that, even if known what has to be
provided, many states are not in a position to deliver the
right at the present.
The Committee on Human Rights, acting under the
International Covenant on Economic, Social, and Cultural

Collective Rights
There is no reason why an entitlement held by a group
cannot be termed a human right. However, not all
collective or third-generation rights are in fact rights. The
right of peoples to peace seems indeterminate. The
holders of the rights are identifiable, but it is not clear
upon whom the obligation lies and what duties are owed.

Human Rights
The line between what human rights are and what are not
is more than academic. However the answer depends
upon ones perception of what constitutes a human right.
For some it is all civil and political rights. For others, the
economic and social rights could be included on a basic
needs basis.
Identification and Articulation of the Right
Customary international law has had a role to play in this.
There is an interplay between the standard-setting UN
Declaration on HR and its acceptance in many national
constitutions and before may courts. The greatest push in
the formulation of human rights has been through the
treaty process. The international covenants on Civil and
Political Rights and on Economic, Social, and Cultural
Rights provide instruments that deal with comprehensive
range of rights on a universal basis. The idea is that rights
may be formulated on a basis that will allow command
confidence in the region, and that in turn will allow
effective enforcement measures. The universal and
regional instruments have been supplemented by
universal instruments directed towards the elaboration of
single rights.
UN Commission on Human Rights
The Commission is a body specifically mandated to deal
with human rights questions. It is political, in that those
who serve on it are representatives of states, but together
with the Subcommittee on Non-Discrimination and
Minorities, it has laid down some important methods and
procedures. It has also made significant contributions to
fact finding through the establishment of special
rapporteurs.
Human Rights Committee
The HRC has considerable experience of state reporting
and of hearing cases. States are required to submit reports.

142

PUBLIC INTERNATIONAL LAW

The Committee has the right to call for further reports.


State parties attend an examination of their reports. The
examination proves to be a useful means of monitoring
compliance and encouraging progress. Committee
members will prove as to what is said in the reports, what
is missing, and what is known from other sources. At the
end of the examination, Committee members will offer
comments on how they find the state of human rights in
the country concerned.
The Committee has also considerable jurisprudence under
its case law. It has also recently introduced certain
procedures in order to better follow-up on compliance
with its case law.

A2015

The establishment of the International Tribunal falls


squarely within the powers of the Security Council under
Chapter VII, Article 41 of the UN Charter. The International
Tribunal has been established in accordance with the rule
of law. The fair trial guarantees in Article 14 of the
International Covenant on Civil and Political Rights have
been adopted almost verbatim in Article 21 of the Statute.
Other fair trial guarantees appear in the Statute and the
Rules of Procedure and Evidence. The International
Tribunal has primacy over national courts. The
International Tribunal has subject-matter jurisdiction over
the current case.

DIZON v. COMMANDING GENERAL

B. International Criminal Law


LEGALITY OF THE THREAT OR USE OF
NUCLEAR WEAPONS (ADVISORY OPINION)
ICJ Reports 1996, p.226 (1996), supra.

(For an exhaustive discussion, refer to p. 12)

PROSECUTOR v. TADI (IN THE APPEALS


CHAMBER)
ICTY Judgment of 15 July 1999

(*Note: this judgment was rendered four years after the


from the 1995 Prosecutor v. Tadid decision *supra., p. 17].)
Tadid was the first to be tried by the International Criminal
Tribunal for the Former Yugoslavia (ICTY). He was tried for
war crimes and was accused of committing atrocities at
the Serb-run Omarska concentration camp in BosniaHerzegovina in 1992. Trial Chamber II of the ICTY denied
Appellant's motion challenging its jurisdiction. Appellant
had launched a three-pronged attack: (a) illegal
foundation of the International Tribunal; (b) wrongful
primacy of the International Tribunal over national courts;
and (c) lack of jurisdiction ratione materiae.
The ICTY was duly constituted under Chapter VII of the
UN Charter.
The important consideration in determining whether a
tribunal has been established by law is not whether it
was pre-established or established for a specific purpose
or situation. What is important is that it be set up by a
competent organ in keeping with the relevant legal
procedures, and should that it observes the requirements
of procedural fairness. The International Tribunal is
empowered to pronounce upon the plea challenging the
legality of the establishment of the International Tribunal.

81 Phil. 286 (1948)

An Agreement was concluded between the Philippines and


the US whereby the US was authorized to occupy and use
certain Philippine territory as military bases and to exercise
jurisdiction over certain offenses committed within and
outside the bases. Dizon allegedly committed an offense at
the main storage area at one of the bases. He was
prosecuted in and convicted by a General Court Martial
appointed by the Commanding General of the Philippine
Ryukus Command of the U.S. Army, and accordingly
sentenced to confinement and hard labor for five years.
Dizon filed a petition for habeas corpus, contending that
the General Court Martial had no jurisdiction over the
alleged offense, as it was committed not in a U.S. base, as
defined by the Agreement. Alternatively, even if the
offense was committed in a base, the Agreement is
unconstitutional because it deprives the Philippine courts
of jurisdiction over all offenses exclusively vested in them
by the Constitution.
Art. XIII of the Agreement stipulates that the Philippines
consents that the United States shall have the right to
exercise jurisdiction over any offense committed by any
person within any base except where the offender and
offended parties are both Philippine citizens (not members
of the armed forces of the United States on active duty) or
the offense is against the security of the Philippines." The
case not falling under any of the two exceptions, the
offense falls under the jurisdiction of the U.S.
Generally accepted principles of international law are
adopted as part of Philippine law. A foreign army allowed
to march through a friendly country or to be stationed in it,
by permission of its government or sovereign, is exempt
from the civil and criminal jurisdiction of the place.
Likewise, if bases may be validly granted to the U.S. under
the Constitution, there is no plausible reason while the
lesser attribute of the jurisdiction cannot be waived.

GUANTANAMO DETAINEES CASES

143

PUBLIC INTERNATIONAL LAW

A2015

Following the September 11 attacks, the assumption of


the Bush Administration was that international terrorism
presented a legal tabula rasa. IHL could not have been
applicable given that the opposite belligerent was not a
state, nor an armed group brandishing their weapons
publicly.
Its armed campaign against terrorism led to the arrest and
subsequent detention of hundreds of suspected Taliban
and al Qaeda elements. Their detention has been
characterized as violative of IHL, such that they have been
subjected to criminal treatment, and deprived of rights
that should be accorded to prisoners of war.
The following cases revolve around the question of the
eligibility of detainees to avail themselves of US habeas
corpus statutes in their attempt of seeking a review of
their status as detainees.
(These cases are chronologically arranged, and are meant
to be understood as a line of decisions following a singular
sequence of events. These represent a tit-for-tat
interaction between the US Government and the US
Supreme Court with respect to the rights of detainees.)

Base, and may continue to do so permanently if it chooses.


Considering that 2241 draws no distinction between
Americans and aliens held in federal custody, there is little
reason to think that Congress intended the statutes
geographical coverage to vary depending on the
detainees citizenship.
This ruling allowed lower courts to review the
designation of Guantanamo Bay prisoners as enemy
combatants and determine if they are entitled to
prisoner-of-war status.
Also, pending such review, they should be accorded
the rights of prisoners-of-war under the IHL.
The response of the Bush administration to this ruling
was to pass the Detainee Treatment Act of 2005 a
law divesting federal courts of jurisdiction to hear
challenges by Guantanamo detainees based on their
treatment or living conditions, and eliminated federal
courts jurisdiction to consider habeas corpus claims
by aliens challenging their detention at Guantanamo.
CLASS NOTES

HAMDI v. RUMSFELD
542 U.S. 507 (2004)

RASUL v. BUSH
542 U.S. 466 (2004)

Four individuals, British and Australian nationals, were


detained by the US military in Pakistan and Afghanistan as
a result of the War on Terror. The detainees were taken to
Guantanamo Bay military base in Cuba. Their families sued
the government in federal district court seeking a writ of
habeas corpus that would invalidate their detention. They
argued that the denial of the rights was tantamount to
violation of the Due Process Clause. The government
argued that the federal courts lacked jurisdiction to hear
the matter because the prisoners were not American
citizens, and they were not being held in the United States,
but in Cuba, where the U.S. did not maintain sovereignty.
The District Court has jurisdiction to hear petitioners
habeas challenges, which authorizes district courts, within
their respective jurisdictions, to entertain habeas
applications by persons claiming to be held in custody in
violation of the laws of the United States. Such jurisdiction
extends to aliens held in a territory over which the United
States exercises plenary and exclusive jurisdiction, but not
ultimate sovereignty.

Petitioner Hamdi, an American citizen whom the


Government has classified as an enemy combatant, for
allegedly taking up arms with the Taliban during the
conflict, was captured in Afghanistan and was detained.
Hamdi filed for a writ of habeas corpus. He asserted that
he went to Afghanistan to do relief work less than two
months before September 11 and could not have received
military training.
In an opinion backed by a four-justice plurality and partly
joined by two additional justices, Justice O'Connor wrote
that although Congress authorized Hamdi's detention
through its Authorization for use of Military Force (AUMF)
in response to the 9/11 attacks, Fifth Amendment due
process guarantees give a citizen held in the United States
as an enemy combatant the right to contest that detention
before a neutral decision-maker.
The plurality also rejected the government's argument
that the separation-of-powers prevents the judiciary from
hearing Hamdi's challenge.

HAMDAN v. RUMSFELD
The presumption, that legislation is presumed not to have
extraterritorial application, is not applicable to habeas
statute with respect to persons detained within the US
territorial jurisdiction. By the express terms of its
agreements with Cuba, the United States exercises
complete jurisdiction and control over the Guantanamo

548 U.S. 557 (2006)

In this ruling, the Court interpreted the provisions of


the Detainee Treatment Act of 2005 as being
inapplicable to habeas cases pending at the time the
DTA was enacted.

144

PUBLIC INTERNATIONAL LAW

A2015

Also, it ruled that military commissions set up by the


Bush administration to try detainees at Guantanamo
Bay lack "the power to proceed because its structures
and procedures violate both the Uniform Code of
Military Justice and the four Geneva Conventions
signed in 1949.
As a result, Congress passed the Military
Commissions Act of 2006, which amended the federal
habeas statute to expressly eliminate court
jurisdiction over all pending and future causes of
action, other than pursuant to the limited review
permitted under the DTA.
CLASS NOTES

BOUMEDIENE v. BUSH
553 U.S. 723 (2008)

This is a submission made in a civilian court of the United


States on behalf of Lakhdar Boumediene, a naturalized
citizen of Bosnia and Herzegovina, held in military
detention by the United States at the Guantanamo Bay
detention camps in Cuba.
Petitioners designated as enemy combatants are entitled
to seek the writ of habeas corpus.
Court held that the prisoners had a right to habeas corpus
under the United States Constitution, and that the Military
Commissions Act of 2006 was an unconstitutional
suspension of that right
While the Detainee Treatment Act of 2005 provides
procedures for review of the detainees status, these
procedures are not an adequate and effective substitute
for habeas corpus. Therefore Section 7 of the Military
Commissions Act of 2006, operates as an unconstitutional
suspension of the writ.
The immediate impact of the Boumediene decision is
that detainees at Guantanamo may petition a federal
district court for habeas review of the circumstances
of their detention.
CLASS NOTES

C. Foreign
Investments
Natural Resources

and

HIGGINS, CHAPTER 8:
NATURAL RESOURCES AND INTERNATIONAL
NORMS

The approach to studying the international law of natural


resources is not singular. It is most conveniently done
based on specific resources or categories of natural
resources being analyzed. This is because not only the
answers, but also the questions that is necessary to ask,
will depend upon the specific resource being studied. In
this chapter, three examples were taken to illustrate this
point: the mineral resources of the deep sea-bed; water,
including water as it is carried along by the great
international rivers; and petroleum found on the shore,
beneath a states territorial waters, or on its continental
shelf.
The Resources of the Deep Sea-Bed
From the earliest days of international law there was
developed the idea of the freedom of the high seas. This
was first codified in the UN Convention on the High Seas of
1958. Freedom of the high seas is firmly established in
customary international law and this also entailed a
freedom to remove the resources that were found in those
waters. Indeed, fishing on the high seas required no ones
permission because no one had title over the high seas
(treated as res nullius). However, the matter became
complicated upon the discovery of other resources
(mineral resources, manganese, cobalt, nickel, etc.)
beneath the waters. The question arose as to how these
newly discovered resources were to be exploited.
In response, the Government of Malta introduced to the
UN in 1967 the important concept of deep sea-bed
resources as being common heritage of mankind. This
was different from the res nullius treatment of fish in the
high seas in that a resource termed a common heritage in
principle could be exploited by anyone but only with the
permission of the world community an upon such
conditions as the institutions representing that community
would lay down. This difference in regime in treating
different resources is compelled by many economic and
political considerations.
While the 1982 UNCLOS was not yet in force at the time
this chapter was written, the author already noted that
the notion of common heritage of mankind was by that
time an emerging norm due to repeated invocations
before various organs, repetition in the texts of various
instruments, and analysis by scholarly writing. However,
while the UNCLOS remained unenforced, various
questions were still raised as to how deep sea-bed
resources were to be exploited. One such question is
WON it was really unlawful under general international
law for a state to unilaterally attempt to exploit deep seabed resources. If one applied the test offered by Professor
Dupuy in the BP-Texaco Case, where the UN resolutions
had to have the support of the major actors in the practice
in question (i.e. the capital-investing countries), the case
would not seem to be made for the common heritage of
mankind to be regarded as a compulsory norm. However,
according to the author, the BP-Texaco Case is not
squarely at point as the support for the common-heritage

145

PUBLIC INTERNATIONAL LAW

approach was evidenced by the text of a negotiated treaty


which was supported by a great majority of UN members
many of which are of industrialized governments. Still, the
issues revolving the common-heritage approach are still
far from being resolved. These key issues largely concern
questions of jurisdiction and law development.
Water as a Resource
International rivers carry water the most important of all
resources, providing the basis for life and sustenance, as
well as sources of energy through the territories of two
or more states. Essential as the aforementioned resource
is, it has also been the topic of many controversies
especially relating to who exercises control over rivers that
pass through several state jurisdictions.
While the issues surrounding control over international
rivers have remained complicated, certain key principles
have emerged:

A state does indeed have sovereignty over the


water resource in its own territory but within
the limits of what is permitted by international
law.

International law requires that, in the exercise of


sovereignty, regard must be had to legitimate
interests of other users of the water,

Legitimate interest is defined as an equitable


share in the beneficial use of the resource.

In identifying beneficial use reference may be


had on various international instruments which
will lead to the following questions that must be
answered:
o What is the purpose of the use? Is it to
provide drinking water; or irrigation; or
an energy source; or is it recreational?
o Is the particular use to be provided for
in a wasteful or conserving way? Has
there been past waste of this precious
resource?
o Are there alternative water resources
elsewhere in the country, or is said
country solely or primarily dependent
on the proposed use of the particular
stretch of the international river.
Accordingly, the answers to all the aforementioned
questions will have to be compared, in a given case, with
the same questions asked of a competing user of the
resource.
Petroleum Deposits
The context of international law in relation to petroleum is
also different. Although there may well be petroleum
deposits beneath the deep sea-bed, it has so far proved
neither necessary nor attractive to seek to recover these.
Virtually all known commercial petroleum deposits are
either on-shore or under territorial waters (and clearly
within state territory), or in the continental shelf (asserted
jurisdiction for the purpose of resources exploitation is

A2015

rapidly becoming a permissive rule under customary


international law and adopted in the 1958 Geneva
Convention on the Continental Shelf).
It is important to note that petroleum reserves beneath
the continental shelf are different from those beneath a
desert in the interior of a state. While there is clear
sovereignty over all of ones land mass, the coastal state
has sovereign jurisdiction over the continental shelf only
for purposes of the exploration and exploitation of
resources.
In short, it merely exercises functional
sovereignty as can be gleaned from the Continental Shelf
Conventions of 1958 and 1982. The legal implications of
this distinction are as follows:

States have had to take care that any legislation


they pass which purports to have an application
on the shelf (criminal legislation, civil legislation,
and tax legislation) is limited to matters relating
to the exploration and exploitation of shelf
resources.

While on-shore mineral resources have been


vested in the state (making it clear that it owns
them), there is no right of ownership in the
resources in situ in the continental shelf. The
state may grant licenses for the purpose of
exploring and exploiting resources in the
continental shelf, but it does not itself own the
petroleum. Since the government that grants
the licenses do not have title to the petroleum, it
follows that the license grantee also does not
have title. It gets, instead, an entitlement to
explore and exploit (which action would
otherwise be illegal) and to reduce into
possession.
It is the actual reduction to
possession that gives the licensee title.
There are also problems that have emerged in relation to
state intervention. From the perspective of the foreign
investor, it can be summarized as follows:

How can he be sure that, given the vast


investment he will be required to make, he will
be allowed to reap the benefits of his investment
and work effort, and that the rewards will not be
taken from his just as his fulfillment of the
contract terms begins to bear fruit?
From the perspective of the host government, the
problem can be summarized as follows:

How can any arrangement entered into with a


foreign oil company in respect of what is, all said
and done, ones own natural resource, remain
flexible enough so that one is not locked into
terms that over a long period turn out to bear
little relationship to changing market conditions?

How can one ensure that, notwithstanding


contractual arrangements with the foreign
investor, concerns for health, safety, regulatory
standards, etc. of the government are met?

146

PUBLIC INTERNATIONAL LAW

However, the author once again points out that there is no


easy way to resolve these questions. As a preliminary
matter, it is important first to determine WON
international law or national law will be applicable in
answering these questions. A survey of various arbitral
cases while varied in results, provide the following views:
whether there is only a domestic-law-proper law clause; or
whether there is a mixed international law and domestic
law clause, international arbitrators are very likely to find
international law relevant.
If international law will be applied, several considerations
should be emphasized: first, states have a very special
position in regard to their own resources; second,
nationalizations (of exploitation and exploration etc.) do
require compensation, and will only be lawful if they are
not discriminatory and serve a public purpose; and third,
the concept of permanent sovereignty over natural
resources does not leave a state free to ignore contracts it
has voluntarily entered into.

KARICHI REVIEWER (2010):


BASIC FOREIGN INVESTMENTS LAW
(Note: This section has been lifted in toto from the Karichi
Reviewer [2010] since the subject matter of this subsection
was no longer discussed in class. Ed.)
Expropriation Law
As one of the most dynamic fields of international
commercial law today, foreign investment law has
undergone a rapid evolution in state practice within the
recent past. There are many centers of controversy within
the larger field of foreign investment law, but arguably the
most contentious issue remains that of expropriation. The
context of international expropriation rules is: the home
state (where the investment is located) expropriates the
rights of ownership of the investor state (who introduced
the investment and to whom such investment belongs)
who, as an alien, may rely on international law for the
standard of treatment that should be accorded to it. We
must remember that expropriation, although recognized
as one of the inherent attributes of sovereignty, assumes
an international and therefore more complex dimension
when exercised against foreign property because (1) the
investor state, being a subject of a foreign state, cannot be
deemed to have been completely subsumed under the
authority and sovereignty of the home state by virtue
merely of their contractual relations (2) the relationship of
home and investor states are clearly defined under an
investment contract which, according to its verbiage, may
or may not make reference to international law in cases of
conflict, in the former case the ideally absolute exercise of
the home states sovereignty becomes limited to a certain
extent by the standards of international law. In navigating
through the turbulent waters of expropriation rules, one

A2015

may be guided by the following principles which, to date,


may be said to govern foreign investment law:
1. The norm remains to be the harmonization of all
sources of legal obligations. One party to an investment
contract cannot therefore renege on the duties it
voluntarily assumed on the pretext of complying with a
duty or exercising a right if the source of such duty or right
comes into conflict with the obligations laid down in the
investment contract and/ or customary law. The home
state is therefore not allowed to unilaterally revoke
investment agreements on the basis of its absolute
sovereignty over its natural resources, because such
exercise of sovereignty must as much as possible be
consonant with the duty to comply with obligations validly
entered into.
2. If harmonization is not possible, the norm remains to be
the expropriability of every property. Although investment
contracts must be complied with in good faith, all states
recognize the validity of the exercise of a home state of its
prerogative to expropriate. The home state can therefore
take foreign property, and there are no established
absolute exceptions to this rule (meaning there are no
cases wherein the home state can be said to be absolutely
barred or precluded from expropriating). The only
difference lies in the legal consequence of every act of
taking, which would depend on whether the taking was
lawful or not, or whether the parties expressly provided in
the investment contract for the processes to be complied
with during such expropriatory acts.
3. For every act of expropriation, the norm remains to be
the compensability of every act of taking. If the home state
takes, it is bound to pay. This is the prevailing rule in
current state practice and opinion juris. The home state
may exercise its prerogative to expropriate, but it cannot
do so without compensating the investor state or at least
reinstating the status quo ante (meaning the
considerations paid for and benefits received under the
contract would be restored to the respective parties). The
duty to pay compensation may take various forms. It may
be (1) a necessary legal consequence of the expropriatory
act, as provided expressly in the investment contract (2) a
necessary legal consequence of the expropriatory act, in
accordance with customary law (3) an alternative form of
extinguishment of a legal obligation (instead of performing
the obligations under the contract, the home state
chooses to reinstate the status quo ante by giving back, as
compensation, the consideration for the contract plus
other incidental adjustments), or (4) in the form of
punitive damages, where the taking was adjudged to be
unlawful, in which case the contract may be enforced or, if
performance is already impossible, the home state may be
required to pay compensation in an amount that would
approximate the value of the property taken and the
damage caused by the unlawful taking. The fact that
compensation must be paid is generally accepted as a

147

PUBLIC INTERNATIONAL LAW

norm; the only point of contention is the QUANTUM of


such compensation. How much should be paid is often a
subject of debate and there is as yet no fixed rule in
determining the value of compensation that must be paid.
In practice, however, what the home state pays the
investor would usually be a matter of negotiation and
conditioned upon the financial circumstances of the home
state. There are some cases where the norm of
compensability is believed to be inapplicable, although
such exemptions are found in the writings of publicists and
no authoritative decision has yet been rendered
recognizing these exemptions as such. The examples are
the taxing power of the state, regulatory takings, and
police powers.
4. In any case, the norm remains to be enforceability of
every international legal obligation, regardless of the
source. The investment contract may be primarily the law
between the parties. However, by virtue of the fact that
investment agreements are often concluded between
states or between private entities pursuant to a trade
agreement concluded by their respective states,
international legal obligations would inevitably come into
play. As such, from the time the investor state introduces
the foreign property into the home states territory, both
would have to be guided by the obligations which both are
bound to under international law. As a consequence, the
home state cannot be permitted to undertake an
expropriation in such manner as to be violative of other
international legal obligations like (1) the duty to observe
pacta sunt servanda under customary law (2) the duty to
accord foreign investors with the international minimum
standard of treatment under customary law(3) the duty to
expropriate for a public purpose, on a non-discriminatory
basis, and with4payment of just compensation under
customary law, or (4) the duty to observe elementary rules
of contractual relations as embodied in general principles
of law relating to contracts.
In dealing with the issue of expropriation, one must be
guided by basic UN texts touching on expropriation:
ARTICLE 4
Nationalization, expropriation or requisitioning shall
be based on grounds or reasons of public utility,
security or the national interest which are recognized
as overriding purely individual or private interests,
both domestic and foreign. In such cases the owner
shall be paid appropriate compensation, in
accordance with the rules in force in the State taking
such measures in the exercise of its sovereignty and
in accordance with international law.
ARTICLE 8
Foreign investment agreements freely entered into by
or between sovereign States shall be observed in
good faith; States and international organizations
shall strictly and conscientiously respect the

A2015

sovereignty of peoples and nations over their natural


wealth and resources in accordance with the Charter
and the principles set forth in the present resolution.

---United Nations Resolution on Permanent Sovereignty


over Natural Resources Adopted by the United Nations
General Assembly, 14 December 1962
ARTICLE 2, Par. 2, Subpar. C
To nationalize, expropriate or transfer ownership of
foreign property, in which case appropriate
compensation should be paid by the State adopting
such measures, taking into account its relevant laws
and regulations and all circumstances that the State
considers pertinent. In any case where the question
of compensation gives rise to a controversy, it shall
be settled under the domestic law of the nationalizing
State and by its tribunals, unless it is freely and
mutually agreed by all States concerned that other
peaceful means be sought on the basis of the
sovereign equality of States and in accordance with
the principle of free choice of means.
---Charter of Economic Rights and Duties of States GA Res.
3281(xxix), UN GAOR, 29th Sess., Supp. No. 31 (1974) 50
As Harris notes, the Charter has not attained the status of
custom because developed states have effectively
mounted a resistance to the clause which does not require
a public purpose precondition to expropriation. The same
is true with the Declaration on the Establishment of the
New International Economic Order, another UN GA
Resolution backed by developing countries, which was
overridden, according to Walde, by the historical
inclination towards market liberalism. The formula of
developing states, according to him, was simply
incompatible with the tendency towards promotion of
foreign investment, the latter requiring adequate and
stable protections as an inducement to risk-averse foreign
investors. The following survey of case law on
expropriation represents the views taken by international
tribunals in interpreting the different operative terms of
the aforequoted texts.
---

TEXACO v. LIBYA
53 ILR 389 (1978), supra.

In 1973 and 1974, the Libyan government pursuant to


several legislations decided to nationalize the properties of
two American companies which were granted concession
contracts to exploit and extract oil. As a result, the
properties, rights, and assets of the oil companies were
appropriated by the Libyan Government and were to be
transferred to the Libyan National Oil Company. The two
oil companies, Topco and Calasiatic, wanted to submit the

148

PUBLIC INTERNATIONAL LAW

matter to international arbitration which the Libyan


Government opposed. However, the ICJ, upon the request
of the oil companies, appointed a sole arbitrator to resolve
the matter. The contention centers on the following
clauses in the concession contracts:
(1) STABILIZATION CLAUSE provides that the
contractual rights expressly created by the concession
shall not be altered except by mutual consent of the
parties, and
(2 GOVERNING LAW CLAUSE - provides that the
concession shall be governed and interpreted in
accordance with the principles of the law of Libya
common to the principles of international law, and in
the absence of such common principles, then by and
in accordance with the general principles of law
including those which have been applied by
international tribunals.
In sum, the appointed sole arbitrator Dupuy had to
determine whether Libya failed to perform its obligations
under the concession contracts entered into with the oil
companies by pursuing its nationalization measures and
which law to apply in determining the various rights and
obligations of the parties.
Libya failed to perform its obligations under the Deeds of
Concession by adopting nationalization measures.
The arbitrator first determined that the standards of
international law applied in this case. He found that that
the very fact that there was to be international arbitration
internationalized the contract, making it inevitable that
international law would have a role to play. This also
meant that the case would be taken out of the ambit of
domestic law. Dupuy reasoned that this had to be the
case because a foreign investor would be nervous to put
himself solely at the mercy of a domestic law, which
definitionally a government would be able to change; and
that sole reliance on domestic law was avoided by
ensuring that the case went to international arbitration.
Internationalization of contracts therefore results in the
protection of investors against the risks of contractual
modification or abrogation resulting from changes in
municipal laws or governmental measures.
Dupuy then ruled that by unilaterally nationalizing the
assets of the oil companies, Libya has breached its
obligations under the concession contracts which logically
gave rise to a cause of action in favor of the oil companies.
According to him, although the right of the State to
nationalize is recognized as an expression of the States
sovereignty, the same is not an absolute recognition.
There are limits to such sovereignty, such as when a
contract is internationalized which meant that the
agreement will also carry international consequences. The
arbitrator found that there is no established state practice
of disregarding international commitments in favor of
nationalization. Thus, if a state bound itself to a contract

A2015

which is international in character and burdened with


stabilization clauses, such state is deemed to have waived
its prerogative to expropriate contrary to the terms of
such contract. In this case, since the expropriation was
deemed to have been contrary to the stabilization clause
of an internationalized contract, it was set aside and the
oil companies were awarded a remedy of restituto in
interregnum (restoration to the original state) which called
for a performance of the terms of the deeds of concession
(to allow the oil companies to extract oil, etc.).

BRITISH PETROLEUM v. LIBYA


53 ILR 297 (1978), supra.

British Petroleum Exploration had a contract with the


Libyan Government to extract, process and export oil in an
area called Concession 65 in the heart of the Sarir desert.
However, in 1971, Libya passed the BP Nationalization Law
which restored ownership of all properties, rights, assets
and shares to the state and transferred them to the
Arabian Gulf Exploration Company. Accordingly, the
nationalization was undertaken by Libya as a reaction to
the British Governments failure to react to Irans
occupation of three islands in the Gulf which were under
British protection. The Libyan government apparently
blamed Britain for the loss of the islands.
Under the nationalization law passed by Libya, the State
should pay compensation to BP Exploration which was to
be determined by a committee established by the Minister
of Petroleum. However, due to delays in the determination
of the matter of compensation, the nationalization law
already took effect without the issue being resolved. As a
result, BP Explorations were brought to a complete halt
and their staff were immediately excluded from the
premises as Arabian Gulf Exploration Company took over
Concession 65.
Similar to the Texaco case, the concession contract in this
case also contained a governing law clause which says that
Libyan law would be applicable only to the extent that it
coincides with international law.
The arbitrator in this case had to determine:
1. WON the injured party to a concession
agreement has the right to deem the contract as
valid and enforceable even after the alleged
wrongful exploration, and
2. WON the injured party may claim reparations in
the form of specific performance or restitutio in
interregnum.
Libya breached its obligation to BP Exploration by
expropriating the latters properties. However, BP
Exploration was entitled only to damages and to specific
performance and restitutio in interregnum.

149

PUBLIC INTERNATIONAL LAW

A2015

According to the arbitrator, as a general rule under


international law, the wrongful breach of contract would
entitle the injured party to terminate the contract at its
option. This means that until and unless such injured
party elects to do so, the contract should be deemed as
valid and binding and it can compel the other party to
continue performing its obligations under it. However,
this is not applicable, as in this case, where the other
(expropriating party) is a sovereign state. Thus, the right
to deem the contract as continuing to be binding and the
consequent right to demand restitutio in interegnum is not
available to BP exploration under international law. This
recognizes the almost plenary power of the home state to
expropriate and that the home state cannot be precluded
under international law to expropriate when it wishes to.
Thus, the home state may expropriate when it desires to,
and even if it does so in breach of contract, the home state
cannot be compelled to reinstate the operability of the
contract (restitutio in interegnum), at most, it can only be
compelled to pay damages. In the end, the arbitrator did
indeed order the Libyan government to pay damages.
Note: The circumstances under which the expropriation
took place in this case constitute one of the first instances
where an arbitral court classified state actions as (1) in
breach of obligations, (2) discriminatory, and (3)
confiscatory. This is because the expropriation was
apparently motivated by extraneous political reasons and
BP Explorations Concession 65 was singled out. The
wrongfulness of the expropriatory act is important to
establish because this would determine the quantum of
compensation that would be awarded to the injured party.

SAUDI ARABIA v. ARABIAN AMERICAN OIL


COMPANY (ARAMCO)
27 ILR 117, supra.

This case involved the arbitration relating to the


interpretation of a concession agreement made in 1933
between the Government of the State of Saudi Arabia and
the Arabian American Oil Company (ARAMCO). The
controversy arose when the Government of Saudi Arabia
concluded another concession agreement with Mr. Onassis
and his company Saudi Arabian Maritime Tankers Ltd. in
1954 wherein the aforementioned company was given a 30
year right of priority for the transport of Saudi oil. This
right came into conflict with the agreement with ARAMCO
wherein it was also given the exclusive right to transport
oil which it had extracted from its concession in Saudi
Arabia.
ARAMCO was justified in resisting any infringement of
the rights granted to it under the concession as the
agreement revealed its exclusive right to transport oil.
In interpreting the concession agreement, the arbitrator
did not rely on Saudi Arabian law alone. Accordingly, the

interpretation of juridical acts is not made according to the


same methods as the interpretation of statutes, for it does
not aim merely at specifying the meaning of general and
abstract principles laid down by the legislator, but
ascertaining what was the common intention of the
parties at the time the agreement was signed. The
tribunal rejected Saudi Arabias claim that ARAMCOs right
to transport only included that from the site of extraction
to the refinery. According to it, the parties cannot have
intended such a limited meaning of the word transport.
One of the modalities of oil development consists in
sending crude oil abroad, to consuming countries, where it
is refined outside of Saudi Arabia; in such a case, the term
transport necessarily implies sending oil abroad, wither
by land or by sea. The terms in the agreement must be
understood in their plain, ordinary, and usual sense, which
is the sense accepted by the oil industry. The tribunal
further explained that this right to transport extended to
maritime transportation.
The arbitral tribunal also rejected Saudi Arabias
contention that for the sole reason that a State is a party
to a contract with a private person, the rights of the latter
must be interpreted restrictively. The rights of the parties
must be evaluated in a spirit of complete equality. This is
because the rights of one party are increased as a result of
restrictive interpretation to the extent that the rights of
the other party are restricted. It is only when the exact
meaning of such a contract is impossible to determine that
the interpretation most favorable to the freedom of the
State may be adopted. Restrictive interpretation may only
be justified when the sovereign rights invoked by the State
concern interests of a general nature which cannot be
defended otherwise than by disregarding the doubtful
clauses of a contract. In relation to the conflict of rights
between ARAMCO and Mr. Onassis, the tribunal said that
the principle of respect for acquired rights is one of the
fundamental principles both of public international law
and of the municipal law of most civilized States. Valid
contracts bind both parties and must be performed, for
rights resulting from agreements concluded for due
consideration are absolutely secure; when one party has
granted certain rights to the other contracting party, it can
no longer dispose of the same rights, totally or partially, in
favor of another party.

THE FACTORY AT CHORZOW (GERMANY v.


POLAND)
1928 PCIJ (ser. A) No. 17 (1928)

This was a suit for reparation against Poland by Germany


instituted before the PCIJ for Polands taking possession of
a nitrate factory in Chorzow, Upper Silesia which resulted
in damage to two German-controlled companies. The
taking was done in violation of Article 6 of the Geneva
Convention which was a convention entered into by the
two states. Germany brought action in behalf of the

150

PUBLIC INTERNATIONAL LAW

companies against Poland for the taking of the companies


in violation of the Geneva Conventions.
Polands acts were made in violation of a treaty (Geneva
Convention between the parties) and were therefore
wrongful under international law entitling Germany to
compensation.
In this case, it was held that the reparation of a wrong may
consist in an indemnity corresponding to damages which
the nationals of the injured state have suffered as a result
of the act which is contrary to international law (Germany
in this case). Reparation is the indispensible complement
of a failure to apply a convention. Also, the taking of
property requires compensation. The ruling of the court in
this case also provided for the quantum of compensation
required to be paid in cases of wrongful takings by the
home state, also known as the CHORZOW STANDARD in
international law. The Chorzow Standard provides that
the essential principle contained in the actual notion of an
illegal act is that reparation must, as far as possible, wipeout 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.
The principles which should serve to determine the
amount of compensation due for an act contrary to
international law are as follows:
1. Restitution in kind, or if this is not possible,
payment of a sum corresponding to the value
which a restitution in kind would bear;
2. Award of damages for loss sustained which
would not be covered by restitution in kind or
payment in place of it.
General principle of law: reparation for the taking of
property requires compensation. Reparation is due
when there is a breach of obligation.

A2015

remedial award, as in the BP Exploration v. Libya


case. The continuing validity of this assertion is still a
matter of debate, and of course, although investor
states do settle in time to mere payment of
compensation, it never hurts to have the Chorzow
Standard as the starting point of every negotiation as
far as the investor state is concerned. (Karichi Notes,
2010)
CLASS NOTES

LIAMCO v. LIBYAN ARAB REPUBLIC


62 ILR 140

In 1973 and 1974, Libya nationalized both LIAMCOs rights


under their concession agreements and the latters oil
drilling equipment. Due to unsuccessful negotiations
regarding compensation, LIAMCO rejected the terms of the
nationalization and initiated proceedings under the
arbitration clause. The sole arbitrator Mahmassani was
appointed and he was tasked to determine whether Libya
was in breach of its obligation by pursuing its
nationalization program and consequently, damages etc.
were due to LIAMCO.
Libya acted lawfully acted when it nationalized LIAMCOs
concession rights before the expiration of the term.
However, compensation must be duly paid to LIAMCO.
The arbitrator made it clear that the concessions were
both contractual obligations and incorporeal property. On
the one hand, sanctity of contract is an integral part both
of international law and Islamic law. On the other hand,
the dominant trend of international opinion allowed states
substantial rights over their natural resources.

Where an expropriation is legal, the amount of the


reparation is the logistical value of the property taken
at the time of the expropriation. However, where
there is an unlawful taking, the amount of reparation
includes the intangible assets (loss of profits). (Karichi
Notes, citing Prof. Roque, 2010)

Unlike in the cases above (Texaco v. Libya, etc.),


Mahmassani took separately the remedies for premature
termination of contract and for the taking of property by
nationalization. In fully accepting that the nationalization
required compensation, he readily found that the damages
should include, as a minimum, the damnum emergens,
which he described as the value of the nationalized
corporeal property including all assets, installations, and
various expenses incurred.

The Chorzow Standard is often invoked by investor


states to justify their claims of compensation because
it is sufficiently vague as to evade exact quantification
but sufficiently liberal and inclined towards investors
interests as to be adequately justificatory of claims of
full compensation (full meaning nearly everything the value of the property, forgone profits, future
profits, incidental expenses, committed profits, and
damages). However, the Chorzow Standard does
contemplate restitutio in interegnum as a remedy for
unlawful expropriations, contrary to subsequent
arbitral decisions precluding the propriety of any such

As to the more controversial question of whether the


compensation due should also include lucrum cessans or
the loss of profits, he felt that the answer would depend
on whether the taking was lawful or not, and that lucrum
cessans might be payable if the nationalization was
unlawful. However, since the evolution of international
law meant that states had the sovereign right to
nationalize their natural resources, he concluded that it is
lawful for Libya to nationalize concession rights before the
expiry of the concession term, provided that the measure
be not discriminatory nor in breach of treaty, and provided
that compensation be duly paid.

151

PUBLIC INTERNATIONAL LAW

As to the question of lucrum cessans for a lawful


nationalization, Mahmassani found the primary applicable
law (international law or Libyan law) unclear on the point,
and resorted to the formula of equitable compensation
by reference to which claims of lucrum cessans were in
effect excluded.

STARETT HOUSING CORPORATION v. IRAN


4 Iran-US Claims Report (1983), supra.

In 1974, Starett, operating through its Iranian subsidiary


company Shah Goli, entered into an agreement with the
Bank of Omran (Iranian development bank) to buy land in
Tehran and build houses upon it. The project initially
proceeded on schedule, however, due to 1979 revolution in
the area, Shah Golis American and other foreign personnel
withdrew from the project. This event, coupled with
general revolutionary disruption and government
intervention (i.e. making Shah Goli forgo contractual
payments and freezing of its bank accounts), caused the
project to fall behind schedule and Shah Goli to be in
financial difficulties. In January 1980, Irans Ministry of
Housing placed Shah Goli under the control of a temporary
manager. Starett filed a suit for compensation, alleging
that the acts of the Iranian Government constitute an
expropriation of its property rights under the contract.
The acts of the Iranian government constituted
expropriation despite the fact that no law was passed to
that effect and that no physical taking of property took
place.
According to this landmark ruling in foreign investment
law, the concept of indirect expropriation should be
recognized.
This is synonymous with virtual
expropriation, effective expropriation, or act
tantamount or equivalent to expropriation. The tribunal
recognized in this case that while strictly speaking, no
expropriation took place because no law was passed by
Iran expropriating the assets of Starett (unlike in the cases
of Texaco, BP Exploration, and LIAMCO). However, it ruled
that it is recognized in international law that measures
taken by a State can interfere with property rights to such
an extent that these rights are rendered so useless that
they must be deemed to have been expropriated, even
though a the State does not purport to have expropriated
them and the legal title to the property formally remains
with the original owner.
In this case, the interference of the Iranian government led
to the bankruptcy and placement under receivership of
Shah Goli. By doing so, Iran has effectively taken the
property rights of Starett in the housing project and
deprived it of its reasonable expectations as an investor.
To reiterate, expropriation does not need a law to be
deemed as such. Any act that would result in the

A2015

deprivation of ownership rights and therefore effect an


indirect or virtual taking would be classified as
expropriation nonetheless.
The tribunal in this case also departed from the view
established in the LIAMCO case when it held that
contractual rights are deemed property for purposes of
expropriation law. According to the ruling in this case,
measures of expropriation or taking, primarily aimed at
physical property, have been deemed to comprise also
rights of a contractual nature closely related to the
physical property.
Such contractual rights include
intangible assets as management rights, legitimate
investment-backed expectations in the completion of the
venture, and right to proceeds. In sum, expropriation may
be direct or indirect, and that it may be undertaken
through the literal taking of a physical asset, or through a
deprivation of ownership rights closely related to a
physical property.

KUWAIT v. AMINOIL
66 ILR 518.

Aminoil is an American oil company which was granted a


concession by Kuwait. However, Kuwait passed a Decree
which terminated the agreement with Aminoil before its
expiry and transferred the concession to the government
itself.
AMINOIL:

Kuwait:

It questions the legality of the termination


relying on the stabilization clauses of the
contract which prohibit a nationalization of
the oil venture:

Article 17: no alternation shall be


made in terms of this Agreement
except in the event of the Sheikh and
the Company jointly agreeing that it is
desirable in the interest of both
parties to make certain alterations,
deletions or additions.

Article 11 (B): save as aforestated,


this Agreement shall not be
terminated before the expiration of
the period specifiedexcept by
surrender as provided in Article 12 or
if the Company shall be in default
under the arbitration provisions of
Article 18.
The State invoked the principle of
sovereignty over natural resources, which
according to it is an imperative rule of jus
cogens. This principle prohibits States
from giving guarantees against the
exercise of the public authority over
natural resources.

152

PUBLIC INTERNATIONAL LAW

A2015

Kuwaits expropriation was not unlawful.


Aminoil must be compensated by Kuwait.

However,

Unlike arbitrator Dupuys ruling in the Texaco v. Libya case,


the arbitral court here expressly reiterated that there is no
rule in international law that absolutely precludes a home
state from expropriating. The only limitations (and not
absolute exceptions) to this rule are three-fold:
a. It is for a serious undertaking;
b. It is expressly stipulated for;
c. It covers a limited period.
In short, a home state may validly waive its expropriatory
prerogative only for a limited period of time such that it
cannot be perpetual, only upon serious undertakings
(other investments of a smaller scale may be expropriated
more expeditiously), and in any case such limitations must
be embodied in a contract. The expropriatory power of
the state is the general rule, and therefore any limitations
to its exercise cannot be implied.
In considering legal consequences of an expropriatory act,
consideration must be given to whether the investor has
been adequately protected by express provisions of the
contract relating to compensation. The compensability of
an expropriatory act strongly militates against the
presumption that the home state can take property
without necessary legal consequences in the exercise of its
sovereignty. In interpreting Articles 17 and 11 (B) of the
contract, the tribunal said that these do not absolutely
forbid nationalization because it impliedly requires that
nationalization shall not have a confiscatory character.
The arbitral tribunal also credited the fact that the act of
Kuwait was in pursuance of a legitimate state policy. It
considered the undertaking (the extraction of oil) of
Kuwait directed to narrow patrimonial ends in the
beginning as it was a financial venture entered into by the
government for its purposes. However later, it became an
essential instrument in the economic and social progress
of the state as evidenced by the progressive development
of Kuwaiti law with a view of taking an active role in the
development of its own resources within its territory.
As such, the expropriation was deemed not unlawful and
the tribunal merely awarded Aminoil compensation.

SAPPHIRE INTERNATIONAL PETROLEUMS LTD.


v. NATIONAL IRANIAN OIL CO.
35 ILR 136 (1967).

The National Iranian Oil Company (NIOC) and Sapphire


Petroleums Ltd (Canadian Company), entered into a
contract to expand the production and exportation of
Iranian oil. The parties set up the Iranian Canada Oil
Company (IRCAN), a joint stock company and non-profit
corporation, to carry out the operations under the
contract on behalf of the two parties. Their contract

distinguished 2 periods: the PROSPECTING PERIOD


wherein Sapphire would act through IRCAN in which case
it would be reimbursed for its expenses and the WORKING,
EXTRACTION and SALE OF THE OIL period wherein IRCAN
would act for both parties.
After the first period, NIOC refused to reimburse Sapphire
and as a consequence, the latter refused to proceed to the
second period of the contract. Sapphire wrote the Shah of
Iran requesting for a refund of their losses however the
Prime Minister of Iran replied that the former had not
fulfilled its obligation under the contract and as a result,
NIOC was entitled to refuse the refund.
Sapphire initiated arbitration proceedings requesting the
following as damages:
1. Compensation for expenses incurred before the
contract plus interest;
2. Compensation for expenses incurred after the
contract plus interest;
3. Loss of profit;
4. Refund of the $350,000 indemnity.
Federal Judge Pierre Cavin of Lausanne was appointed as
sole arbitrator.
NIOC breached its obligations under its contract with
Sapphire entitling the latter to damages.
The arbitrator first determined that general principles of
law were applicable in this case. The choice of applicable
law was not explicit in the contract, but the characteristics
of the contract were such that they excluded the
application of the traditional rules of private international
law and reduced the likelihood that Iranian law would be
applied to the interpretation and performance of the
contract. Also, the contract contained an arbitral clause
which entrusted the task of arbitrating any possible
dispute to an arbitrator chosen by the President of the
Supreme Court of Switzerland, Denmark, Sweden or Brazil
from which it could be drawn specifically that the clause
rejected the exclusive application of Iranian law.
According to the arbitrator, it was NIOC and not Sapphire
who failed to fulfil its obligations when it refused to
reimburse the latter. The arbitrator also observed that
there was a general rule of private law that the failure of
one party to a synallagmatic contract to perform its
obligations releases the other party from its obligations
and gives rise to a right to pecuniary compensation in the
form of damages. This rule could not be set aside even in
the case where the contract contained elements which
had their origin in administrative law (public law).
Accordingly, the deliberate failure of NIOC to carry out its
obligations in breach of contract, and having particular
regard to the circumstances in which the refusal was made,
justified Sapphires non-performance of the contract.

153

PUBLIC INTERNATIONAL LAW

As to the award, the arbitrator used the principle of ex


aequo et bono or by considering all circumstances to
quantify the compensation for loss of profit. He applied
the general rule that the object of damages is to place the
party to whom they are awarded in the same pecuniary
position that they would have been in if the contract had
been performed in the manner provided for by the parties
at the time of its conclusion. He observed that the rule is
simply a direct deduction from the principle pacta sunt
servanda, since its only effect is to substitute a pecuniary
obligation for the obligation which was promised but not
performed. This compensation includes the loss suffered
(damnum emergens), for example the expenses incurred
in performing the contract, and the profit lost (lucrum
cessans), for example the net profit which the contract
would have produced.
On the issue of determining compensation for loss of
profits, arbitrator Cavin established 2 steps: determination
whether compensation for the loss of opportunity is
recognized in law; and if so recognized, determination of
the amount of compensation to be awarded. Exact
damage is not necessary to be proven in order to obtain
an award for damages. In fact, the behaviour of the
author of the damage is enough for the judge to be able to
admit with sufficient probability the existence and extent
of the damage. In this case, the arbitrator held that
Sapphire had satisfied the legal requirement of proof by
showing a sufficient probability of the success of the
prospecting undertaken if they had completed the process
as testified by Sapphires expert witness notwithstanding
NIOCs claims that they did not think that there were
serious chances of discovering oil.

A2015

Though the Court did not make an explicit pronouncement


as to whether or not the expropriation was unlawful, it
said that if the Court considered it necessary to consider
such issue, it would have ruled that the expropriation was
unlawful because Iran ignored its international legal
obligation under the Treaty of Amity, Economic Relations,
and Consular Rights between the U.S. and Iran (that they
should make adequate provision at or prior to the taking
of property for the determination and payment of just
compensation).

AMOCO INTERNATIONAL FINANCE v. IRAN


27 ILM 1314

Amoco is a Swiss company which is also a wholly owned


subsidiary of the American company Standard Oil. Amoco
entered into a joint venture with NPC (Iranian company
controlled by the Iranian government) to form Khemco, an
Iranian company jointly owned and managed by Amoco
and NPC. The goal of the venture was to process and sell
Iranian natural gas, each contracting party having 50%
shares in the profits to be realized.
In 1980, the Khemco Agreement, which was by its terms
valid for 35 years, was declared null and void by the
Iranian government following the 1979 Iranian revolution
and the implementation of the Single Article Act of 1980
that was intended to complete the nationalization of the
Iranian oil industry.
Amoco then filed a suit for
compensation for the taking of its interests in Khemco.
Irans expropriation of AMOCOs interests in Khemco was
lawful, entitling the latter only to compensation and not
damages.

WHEN LAWFUL
STARETT HOUSING CORPORATION v. IRAN
4 Iran-US Claims Report (1983), supra.

(For facts, refer to p. 152)


The Court ruled that there was constructive expropriation
or indirect expropriation. Despite the fact that Iran did not
issue any law or decree to nationalize or expropriate Shah
Goli or the residential housing project expressly, it is
recognized in international law that measures taken by a
State can interfere with property rights to such an extent
that these rights are rendered so useless that they must be
deemed to have been expropriated, though legal title to
the property formally remains with the original owner and
the State does not purport to expropriate them. The
nature of the measures taken by Iran was aimed at Shah
Goli, and the property interest involved comprised the
physical property and the right to manage the project and
complete the construction in accordance with the
agreements entered into.

In relation to foreign investment law, it was held in this


case the ground for expropriation which was formerly
limited in the Chorzow case to public utility has been
expanded to the more general term public purpose.
Therefore, it is not needed for the expropriating home
state to prove that it wanted to exercise ownership over
the property taken for the use of the public. It is enough
that the taking be done in pursuance of some public
purpose.
The case also reiterated the LIAMCO doctrine that a taking
satisfies international standards of lawfulness when it
provides for a mechanism for the payment of
compensation. In this case, the Single Article Act
mandated that a special commission will be constituted to
determine the amount of the compensation due to the
foreign investor, any disagreement over the quantum of
which may be submitted to arbitration. The fact that
Amoco did not avail of this remedy cannot be said to
equate to the expropriation being unlawful per se just
because Kuwait did not grant compensation in such

154

PUBLIC INTERNATIONAL LAW

manner and within such time as to satisfy the investor.


According to the ruling in this case, what would make an
act of taking unlawful under international law would be
the absence of any provision for compensation.
This case is also instructive in relation to the issue of
discriminatory takings.
In comparison to the BP
Exploration v. Libya case, there it was held that there was
discriminatory expropriation because it was undertaken by
Libya only against BP Exploration and not against other
similar ventures of other nationalities. However, in this
case of Amoco, the tribunal held that an expropriation is
not per se unlawful just because it is directed only against
a particular entity within a larger industry. According to
the arbitration tribunal, the act of expropriation is the
prerogative of the home state and may be undertaken in
such manner as to be determined by the home state in
pursuance of its policies. The non-expropriation of an
entire branch of economic activity is not in itself
discrimination, absent any evidence of patent bad faith or
discriminatory designs. It explained that reasons specific
to the non-expropriated enterprise, or to the expropriated
one, or to both, may justify such a difference of treatment.
Furthermore, a coherent policy of nationalization could
anyway be reasonably operated gradually in successive
stages.
The tribunal also held in this case that stabilization clauses
must be clear in demanding from the home state
obligations which the investor state can enforce against it.
Absent such unequivocal stipulation in the contract, the
home state cannot be deemed to have been a party to the
contract and cannot therefore be held liable under its
terms. In this case, no clear obligation was imposed by the
concession contract on the Iranian government. There
was no showing that the contract contained a
stabilization clause that would have obligated Iran to
insulate the contract from any change in domestic law that
would affect the contracts operation. As such, the Iranian
government cannot be said to have expropriated Amocos
property in breach of its obligations because no obligation
exists on its part. The tribunal concluded that Irans
expropriation was a lawful on under international law
which meant that only compensation and not damages
would be the consequence of its actions.
Professor Virally of the Anglo-Iranian Tribunal in this
case took the analysis several stages further from the
LIAMCO case. Whereas Mahmassani, like every
arbitrator before him, had emphasized the sanctity of
contracts and had accepted that a nationalization
required compensation from a prematurely ended
contract, Professor Virally simply rejected that
sovereign states are bound by contracts with private
parties as, in his view, this would allow private
interests to prevail over duly established public
interest, making impossible actions required for the
public good. Professor virally also concluded in this

A2015

case that in a lawful expropriation only the just price


of what was expropriated, representing the value at
the moment of dispossession should be paid. Thus
there would be damnum emergens (actual loss) but
no lucrum cessans (loss of profits).
Note however that Higgins herself does not agree
with Professor Virallys view. According to her, a
state may still engage in what it sees as actions in the
public good that violate contracts; but there is no
reason why the foreign investor should underwrite
this exercise in state sovereignty.
CLASS NOTES

PHILLIPS PETROLEUM COMPANY IRAN v.


ISLAMIC REPUBLIC OF IRAN
21 Iran-US Claims Report

Phillips entered into a Joint Structure Agreement with Iran


to exploit oil. In 1978, Imam Khomeini sparked a revolution,
which succeeded in toppling the former regime. The
revolutionary government decided to withdraw all oil
contracts with foreign companies under the guise of
nationalization. The foreign companies asked for just
compensation, citing the deprivation of their contractual
rights. Iran countered this by invoking the defense of force
majeure and that the workers refusal to work for
foreigners.
The court held that due to the lack of proof that workers
refused to follow the orders of Iranian authorities (which
refusal forms the basis of Irans defense of force majeure),
the foreign companies rights were not obliterated by
force majeure. As regards expropriation, the court held
that an expropriation does not need to be in a specific
form (by a law or de facto). It must be noted that the
control over property by a government does not
automatically justify a conclusion that the property has
been taken by the government. However, such a
conclusion of a take-over by the government is warranted
when events demonstrate that the owner was deprived of
fundamental rights of ownership and that the deprivation
is not merely ephemeral. According to the court, the
intent of the government is less important than the effects
of the measures on the owner, and the form of the
measures of control or interference is less important than
the reality of their impact.
Because the court recognized that the foreign companies
were deprived of their contractual rights, it ruled that Iran
must pay just compensation from the point of deprivation
(i.e., the date when it was said/declared that there was no
reasonable prospect of a return and that the Joint
Structure Agreement must be regarded as terminated).
Note that the point of deprivation or taking, when the
taking is through a chain of events, is when the
interference has deprived the claimant of fundamental

155

PUBLIC INTERNATIONAL LAW

A2015

rights of ownership and such deprivation is not merely


ephemeral or when it becomes an irreversible deprivation.
Regarding the compensation due, it must be in an
effectively realizable form which represents the full
equivalent of the property taken. The compensation may
not be for less than the full value, despite Irans invocation
of the dynamic nature of customary international law and
recent trades, since the court ruled that this fact cannot
prevail over specific terms of the treaty. (Remember, lex
specialis).
On Irans argument that, based on the Chorzow case, the
amount of the compensation must be mitigated since the
expropriation is lawful, the court said that the legality of
the taking is of no moment since the treaty in this case
does not distinguish between lawful and unlawful taking.
Chorzow does not provide any basis for the assertion that
a lawful taking requires less compensation than an
unlawful taking.

THE TAKING OF PROPERTY BY THE STATE:


RECENT DEVELOPMENTS IN INTERNATIONAL
LAW
by Rosalyn Higgins

Some important definitions:

Indirect takings deprivation of property rights


through acts of the State other than outright
takings [Form: nationalization, expropriation,
confiscation, requisition, or sequestration]

Property rights as human rights jurisprudence


in this area is not in line with international law
on the taking of property
The Concept of Property
Property is defined by the municipal legal system. The
concept of property provides the owner with the
protection of the law in certain key respects. In The
Theory of Nationalization, Katzarov identified the positive
and negative aspect of property.

Positive: Right of disposal which is both


absolute and unlimited in point of time

Negative: Exclusive; the holder of the property


has the power to prevent another person from
performing an act of disposal
Property includes chattels and land, as well as contractual
rights (as a species of property), if the said rights can be
transferred from one person to another. In English, they
are referred to as things, and in French, as choses in
action. Aside from these, property may also consist of
abstract things such as debts, shares, patents and
copyrights. International law cases accept that property is
both choses and choses of action; tangibles and
intangibles.

Legal
and
classification)

Social

Property

(Ackermans

Social Property: A persons right to control the


use of his property is generally recognized in his
dealings with individuals

Legal Property: An appeal to the opinion of a


legal specialist is necessary for a person to
believe himself justified in claiming something as
his.

On Assessing Compensation for Loss of Choses in


Action
There is a difficulty in classifying bundles of rights and
assessing compensation for loss of choses in action, as
shown by the treatment of the legal nature of petroleum
concessions (as to whether they are property rights or
contractual rights). This classification affects the right of
the state to interfere with the said right. Some new
property theorists, with an aim to broaden the matters
covered as property, argue that property should include
non-proprietary rights that fulfill the same economic and
social functions as rights of property.
Entitlement to Property
Katzarov describes two fundamental instincts in man the
drive to appropriate and the instinct, which drives him to
seek the company of his fellows. The two instincts have
taken form in the social institutions of property and State.
Social Function of Property
Higgins mentioned the following with respect to the social
function of property

property is a particular freedom the owner is


enjoying in his activities, which ultimately
depends on the assistance that a claimant
receives from the community

Property is subject to overriding powers of the


state

International law affirms that property rights be


exercised in a manner that is not dangerous and
does not harm others.

Private property may be used by the state for


authorized punitive purposes. (notion accepted
both at municipal and international level)These
takings are for purposes of state authority widely
perceived as legitimate and do not enrich society
as a whole. It is required that the taking only be
for a public purpose, and with compensation.

On Public Use and Compensation Requirements


Compensation measures must be interpreted to
encourage the even distribution of benefits and burdens
over the long run.
Tolerated Takings
There exists a basic prohibition with respect to
interference by one state in the property of another.

156

PUBLIC INTERNATIONAL LAW

If there is a treaty between two states in respect


of property, it will not be lawful to interfere with
property even if it is located within ones
territory.

The principles of territorial jurisdiction give way


to the precept of pacta sunt servanda.
This holds even with respect to what the author
said are normal permitted exceptions to the
prohibition on interference.

Domestic legislation cannot be used to justify a


violation of an international obligation.

In the event of the existence of a state of war


between parties, the protection of the treaty
might be removed but it is removed not just
because of the existence of war but because of
the rule of international law that certain treaties
become suspended or cancelled after the
outbreak of war. The determining factor is
always international law.

Relations between States and Private Parties in


respect of Property Matters
Whether or not a State is entitled to interfere with foreign
property rights by virtue of its territorial sovereignty
depends on the nature of the property and attendant
circumstances.
Acquired rights
Acquired rights are protected by international law.
Acquired rights include:
a) those
acquired
under
municipal
and
international law,;
b) Historic rights or historic title;
c) In the context of intertemporal law:
International tribunals have sought to identify
whether at a critical time sovereignty has been
acquired [a juridical fact must be appreciated in
light of contemporary law]; AND
d) In context of succession of States: successor
States must respect rights acquired under its
predecessor
Permanent Sovereignty over Natural Resources
General Assembly Resolution 1803 (XVII): International law
and the national legislation in force shall govern capital
imported to exploit and develop natural resources, as well
as the earnings on that capital. Profit-sharing shall be in
accordance with the agreement of the investors and the
recipient state, and the states sovereignty over its natural
wealth and resources must not be impaired. Par. 4 of this
resolution states, among others, that nationalization,
expropriation or requisitioning shall be based on grounds
or reasons of public utility, security or the national interest,
both domestic and foreign.
International law requires that taking be for a public
purpose public utility or otherwise.

A2015

Par. 4: The owner shall be paid appropriate compensation,


in accordance with the rules in force in the State taking
such measures in the exercise of its sovereignty and in
accordance with international law. In any case where the
question of compensation gives rise to a controversy, the
national jurisdiction of the State taking such measures
shall be exhausted. However, upon agreement by
sovereign States and other parties concerned, settlement
of the dispute shall be made through arbitration or
international adjudication.
Assessment of quantum of compensation is a solely
domestic matter
Resolution 3171, par. 3 provided for the states discretion
with respect to the determination of the amount of
possible compensation (as opposed to appropriate
compensation) and the mode of payment. It also provided
that in the event of disputes, these should be settled in
accordance with the national legislation of each state.
Compensation due to developing states was for
exploitation and depletion of and damages to their
natural resources and all other resources. International
legal standards are deemed irrelevant on the ground that
they are preferential. It is said that if domestic law chooses
not to compensate nationals for a taking of property, then
foreign investment shall also not be entitled to
compensation, a point to which Higgins does not agree. It
was also said that not all takings of property are in the
form of nationalizations or expropriations.
Act of State doctrine
The courts of the forum may be party to a deprivation of
property that may or may not have been lawful, but it is
incorrect for an international tribunal to offer as a reason
for rejecting restitution the fact that nationalization is
qualified as an Act of State immune from control.
Deference given by some courts to nationalization of
foreign states does not equate to immunity of
nationalization in general to judicial or other control at the
international level.
Recent trends in the international law of
petroleum concession and licenses
A State may in principle take the property of a foreign
private person within its own jurisdiction, provided:
- That it does so for a public purpose and in the
absence of discrimination

- That compensation is paid


Deeds of concession often have the appearance of a
contract, in which there is an agreed identification of
mutual benefits and obligations between the State and the
concession holder. Essential features of a concession are
that
a) it is a state act, and
b) It is a vesting of property rights in the
concessionaire.

157

PUBLIC INTERNATIONAL LAW

Types of Concessions

Public service concession - concessionaire


undertakes a public service and obtains profit
from charges incurred by users of the service

Public works concession - concessionaire


undertakes to build and maintain a public work
On Different Tribunals Rulings on the Question of
the Status of Certain Concessions.

Aramco case: mining and oil concessions have


remained in the rudimentary stage in Moslem
law and is not the same in different schools

Texaco v. Libyan Arab Republic: Texaco


concession was not an administrative law
contract it was not for a public service, not
entered into by administrative authority, did not
confer upon the administrative authority the
unusual powers of alteration or abrogation.

Liamco-Libya Arbitration: concessions were


essentially contractual in nature, but were not
administrative contracts. The stabilization clause
emphasized the contractual basis of the
concession

BP v. Libya: the government could alter or


terminate such contracts unilaterally, but they
could only do so in pursuance of a true public
interest
Legal Effect of Stabilization Clauses on Permanent
Sovereignty over Natural Resources
The greater the incompatibility of State action with
stabilization clauses, the more necessary it is for specific
provisions to have been written in if they are to be found
unlawful under the concession. Governments seek to
introduce changes into its relationship with
concessionaires, reasoning that those changes are for the
public good and it has the tax or regulatory power to do so,
or that such changes are compatible with obligations
under the concession. In light of this, holders of
concessions should resist and protest every change
introduced by the government.
The Taking of Property and Human Rights
International law on the rights of states over property
located in their jurisdictions has becomes overlaid with
parallel legal considerations, such as those arising from the
notion of property rights as human rights. Human rights
here represent a set of widely shared demands, expressed
with a high level of intensity about the rights of individuals
or groups vis--vis the state.
- Powerful trend is to accord special status to the
entitlement to property, at least as a matter of
treaty-based human rights law.
o UN Declaration on Human Rights, Art.
17 provides that everyone has a right
to own property alone as well as with

A2015

others, and that no on shall be


arbitrarily deprived of his property.

In the 1960s, the concept of permanent


sovereignty over natural resources was pressed
as a legal obligation, which ran counter to the
notions of property entitlement as a human right.
As a consequence, neither the Intl Covenant on
Economic, Social and Cultural Rights nor the Intl
Covenant on Civil and Political Rights had private
property protection clauses.

With respect to the European Convention on


Human Rights, the approval of a provision on
property rights as human rights was heavily
disputed, particularly as to compensation (e.g.,
w/n the phrase such possessions cannot be
subject to arbitrary confiscation of itself implies
a right to compensation.
o To solve this, a formula was evolved
where there continued to be no
reference to arbitrary takings of
property or to the duty to compensate
but reference to general principles of
international law was introduced. Art.
1 of the 1st Protocol to the European
Convention begins with a statement of
entitlement to legal and natural
persons to peaceful enjoyment of
possessions, but no mentioned
entitlement to ownership. It also
contains
a
prohibition
against
deprivation of possessions, which
deprivation shall be subject to
conditions provided for by law and by
the general principles of international
law.
o All parties to the European Convention
accepted that a taking of foreigners
property entails a requirement to pay
compensation.

Standard of compensation: For the UK, Adequate,


prompt and effective compensation. The
European Conventions organs have not had
occasion to pronounce whether the general
principles of international law require such a
standard.

[MOST IMPORTANT] W/N Compensation is due only to


foreigners, or to nationals as well: The silence on
compensation in the Protocol entails that as a matter of
practice, all persons whose property is nationalized is
taken to be compensated and that there is an obligation to
make such payment in the case of foreigners. The precise
standard of compensation depends upon ones appraisal
of the requirements of contemporary general principles of
international law.

This was confirmed by the case of Gudmundsson


v. Iceland before the European Commission on
Human Rights. In this case, the Commission

158

PUBLIC INTERNATIONAL LAW

found that the measures taken by a state with


respect to the property of its own nationals are
NOT subject to the general principles of
international law in the absence of a particular
treaty clause specifically so providing, and that
the records of the preparatory work as to the
drafting and adoption of Article 1 of the Protocol
confirm that the contracting parties in the said
protocol had no intention of extending the
application of these principles to the case of
taking the property of nationals.
Higgins said that none of the subsequent case
law on Article 1 of the Protocol indicates a
change of heart from the pronouncement
quoted above.
In the Handyside case, it was held that Art. 1 of
the Protocol requires member States to respect
the property of every natural or legal person
within their jurisdiction, which includes nationals.
There is no statement of an express departure
from the holding in Gudmundsson but an
affirmation that national and non-national alike
are entitled to protection from the arbitrary
confiscation of their property.
In the case of Sporrong, the Court, interpreting
Art. 1 of the Protocol, held that interferences
with property may occur that are neither
deprivations nor control for a public purpose;
the test to see whether such an interference
violates the right to property is a determination
as to whether a fair balance was struck between
the demands of the general interest of the
community and the requirements of the
protection of the individuals fundamental rights
(Balancing Test)
o According to Higgins, the effect of this
is that the State is permitted to
interfere with property rights beyond
the limits expressed in Art. 1,
contingent upon a further balancing
test the content of which is uncertain.

On the Public Purpose Requirement


A public purpose is an objective test. This requirement has
been understood as a means of differentiating takings for
purely private gain on the part of the ruler from those for
reasons related to the economic preferences of the
country. With respect to international law, the controversy
as to the meaning or scope of takings for a public purpose
is as to whether it includes retaliatory takings. According
to Higgins, in the case brought against the UK with respect
to its nationalization of the Iron and Steel Industry in 1967,
the pronouncement of the court was very close to saying
that what the democratically elected Parliament decides is
needed is definitionally in the public interest.

A2015

Higgins said it is difficult for an international tribunal to say


that a proposal is NOT in the public interest if a parliament
elected by the people, operating within democratic
principles of accountability decides on the said proposal
after careful debate.
On the Control of the Use of Property
The right of a State to enforce laws to control the use of
property (as stated in par. 2 of Art. 1 of the Protocol) in
accordance with the general interest is not impaired by
the proscription of Art. 1 of the Protocol against
deprivation of possession of property. The difficulty as
regards this matter of control is that it can at times be so
substantial as to amount to a taking of property. As
regards the requirement of par. 2 of Art. 1 of general
interest as distinguished from the public interest in par.
1, there is yet no authoritative pronouncement, but a
suggestion exists that public interest is contrasted with
private, personal interests while general interest, is
contrasted with sectional group interests. But based on
case-law, matters are still unclear as there is unexplained
cross-referring with respect to the 2 terms.
Conclusion
Property rights as human rights are still in a very formative
stage. The European Convention is likely to provide the
major focus for developments. Questions of permanent
sovereignty over natural resources, compensation, public
interest, concessions, regulatory controls, and human
rights are all intertwined. If we isolate them, we exclude
relevant factors from consideration.

STATE RESPONSIBILITY FOR THE


NATIONALIZATION OF FOREIGN-OWNED
PROPERTY
by Eduardo Jimenez De Arechaga

Contemporary international law recognizes the right of


every state to nationalize foreign-owned property as a
corollary of the permanent sovereignty which the state
possesses even if a predecessor state or previous
government engaged itself by treaty or contract not to do
so.

Sovereignty as permanent: state never loses its


legal capacity to change the status or method of
exploitation of those resources, despite any
arrangements which may have been made.

Traditional international law view: nationalization as


unlawful and as violative of acquired rights which are
internationally protected; in the event of such a
nationalization, the state must make restitution or pay a
sum of money with damages. The compensation must be
just or adequate and prompt and effective.
On Unjust Enrichment

159

PUBLIC INTERNATIONAL LAW

What must be taken into account is the beneficial gain


obtained by the nationalizing state and not the loss
suffered by the owner of the expropriated property. There
are thus instances where there is no duty to compensate,
as when nothing is gained by the nationalizing state, like in
the suppression of a detrimental industrial activity.
Compensation under the UN Charter
Art. 2, par. 2: Each State has the right: (c) To
nationalize, expropriate or transfer ownership of
foreign property, in which case appropriate
compensation should be paid by the State
adopting such measures, taking into account its
relevant laws and regulations and all
circumstances that the State considers pertinent.
In any case where the question of compensation
gives rise to a controversy, it shall be settled
under the domestic law of the nationalizing State
and by its tribunals, unless it is freely and
mutually agreed by all States concerned that
other peaceful means be sought on the basis of
the sovereign equality of States and in
accordance with the principle of free choice of
means.
According to the author, Art. 2, par. 2 does not mention
prompt, adequate and effective compensation nor is it
based on a position which denies the existence of any
obligation to pay compensation. Rather, it is rooted in
equitable considerations. Appropriate compensation
under the UN charter allows a domestic or international
decision-maker to consider elements of unjust enrichment
in the background of investment to determine what
constitutes appropriate compensation. As such, the UN
charter cannot be said to have utterly rejected
international law. Doctrine of prompt, adequate and
effective compensation was simply replaced by the
equitable principle.
On Investment Agreement between States and
Private Persons
There was a disagreement as to the legal status of
investment agreements between States and private
companies. Industrialized States view: agreements
concluded by a state with private foreign companies are
on the same footing as inter-state agreements
Countries of the Group of 77 view: Agreements between
states and private foreign companies are not international
agreements and because they were not concluded
between states, they are governed by the domestic law of
the state concerned; such agreements did not have
international status because private companies are not
subjects of international law.

Reason behind this view: fear that giving such


agreements the status of international
agreements might give the character of general

A2015

international law to solutions like the one


sponsored by the World Bank.
Result of this disagreement: A dispute whether a
compensation is appropriate is to be settled in an
arbitration which places the private company and the
developing States on the same level of adversary
proceedings rather than in litigation between interested
States
Anglo-Iranian Oil Co. case: Investment agreements cannot
be considered international treaties. The cancellation of
such agreements by the nationalizing state is not a breach
of international obligation, but it is subject appropriate
compensation.
On Stabilization Clauses
A stabilization clause is a clause which states that the
agreement will not be altered during its term w/o the
consent of both parties. According to the author, despite
such clauses, the state still has the right to nationalize due
to its permanent sovereignty. The only consequence is
that such nationalization must have been paid with special
compensation.
On Calvo Clauses
Calvo Clauses are those which state that commercial
companies, national or foreign, are subject, without
restrictions, to the laws of the Republic. In every state
contract with foreigners or in the concession contracts
granted in their favor, it must be expressly stated that they
will submit to the laws and courts of the republic and
renounce all diplomatic claims. In effect, the private party
agrees not to call on his state of nationality in any issues
arising out of the said clauses. Industrialized states have
disputed the validity of these clauses, saying they
constitute a waiver by a private party f a states inalienable
right to protect its citizens abroad. However, the author
said that as a governmental party is expected to comply
with an arbitration or stabilization clause of a contract, a
Calvo clause must be observed on the basis of the
principle of good faith.
As such, the equitable balancing nature of the provision
and the concept of good faith as applied to international
obligations must be considered in interpreting the rights
and duties of States under Art. 2, par. 2 of the UN Charter.
Absence of an express reference to the principle of good
faith in the said Article does not mean the duty to perform
contractual obligations in good faith has been excluded
from the Charter. International law may act as a factor to
limit the freedom of a state when an aliens interest is
affected, even if Art. 2 of the Charter does not expressly
say so.

ISSUES OF COMPENSATION AND


NATONALITY IN THE TAKING OF ENERGY

160

PUBLIC INTERNATIONAL LAW

A2015

INVESTMENTS
By Eli Lauterpacht (1990)

(Note: The article is a review of the ICJ and the Iran-US


Claims Tribunal decisions regarding disputes arising out of
the expropriation of energy investments. The main issue
here is compensation for when a corporation of one
nationality enters into relations with a foreign State to
develop and use the latters energy resources, and the
latter decides to take the investment.)
The qualification of nationality necessary before a
company or its shareholders can lodge an international
claim is what establishes the locus standi of the protecting
State.
Barcelona Traction Co. nationality of the corporation
rather than the nationality of the shareholders is what
matters in the protection of corporate investment abroad,
in terms of customary international law

Exception in favor of the shareholder: where the


company is incorporated in the wrongdoing
state.

Caveat by Lauterpacht: Exception must be


regarded with caution due to the doubt raised in
the ELSI case; only safeguard lies in a treaty
between the investment-receiving State and the
State whose nationals are likely to be the
effective investors confirming the right of the
latter State to intervene on behalf of its
nationals, even if they own their interest in the
investment-receiving
State
through
a
corporation established in that or a third country

ELSI case treaty involved did not contain an express


clause providing for protection of the corporations wholly
owned by foreign corporations, with the closest form of
protection being a substantive provision which permits
corporations of one party to organize, control and manage
corporations of the other party.

Judge Oda: it was possible that ELSI couldve


suffered wrongs that did not necessarily affect
Raytheon (ELSIs parent company; Raytheon is a
US company) and thus, the US and Raytheon
couldnt have lodged an international claim.

In sum, the wide power shareholders of one nationality to


bring claims on behalf of companies of another nationality
must be expressly spelled out, as was done in the Claims
Settlement Declaration in the Iran-US Claims Tribunal
where the claims of nationals were characterized as being
owned indirectly by such nationals through ownership of
capital stock or other proprietary interests in juridical
persons, provided that the ownership interests of such
nationals were sufficient at the time the claim arose to
control the corporation or other entity.

Normally, the risks to which investments are exposed are


political in nature (principally expropriation or
nationalization). 2 types of risk are (a) direct, express and
obvious [when it occurs because of legislation] or (b)
indirect, covert, or creeping interference with investors
freedom to control his enterprise and derive economic
benefit from it.
When the taking by the State of a foreign investment NOT
unlawful: (a) for a public purpose, (b) not discriminatory, (c)
accompanied by compensation. The third is the most
important and the most controversial, particularly with
respect to the amount. Lauterpacht says that customary
international law is uncertain about the amount of
compensation needed. ICJ has no jurisprudence on the
matter, and its predecessor (PCIJ) only has one judgment
(but not explicit in its treatment of the level of
compensation for lawful taking); only the Iran-US Claims
Tribunal has jurisprudence. As a result, and because of
differing views of neutral members of the tribunal, there is
a certain lack of uniformity in relevant jurisprudence. With
respect to the question of compensation between Iran and
the U.S., the prescribed compensation as regulated by the
Iran-US Treat of Amity of 1955 is that which is in an
effectively realizable form and which represents the full
equivalent of the property taken.
On Reaching a Cash Figure to Reflect a Full
Equivalent
The traditional Roman law distinction between damnum
emergens (associated with intrinsic value of the property
unrelated to its earning capacity) and lucrum cessans
(identified with loss of profits) has long dominated
international legal thinking on this subject.
Development in recent years: International tribunals have
shown willingness to appreciate that the value of an asset
is not something separable from its revenue-generating
capacity. In the case of the Iran-US Claims Tribunal, it has
adopted this view through the Discounted Cash Flow (DCF),
where the earning capacity of an asset during its
productive life is determined, deducting from such the
cost of its doing so then using an appropriate discount rate
to produce a capital sum representing the present value of
the future flow of earnings.
Aside from these, Lauterpacht noted that there is
inclination to introduce equity as an element in the
calculation of compensation. Lauterpacht pointed out that
despite the attractiveness of the concept of equity, t it is
not a concept that can be sprinkled like salt on every part
of the law, particularly in situations where the law
prescribes absolute rules not qualified by equitable
requirements. He said that qualifications that an absolute
rule is subject to equity or equitable considerations must
be expressly stated, lest these weaken the legal effect of
clear rules.

Nature of Risk to Investments

161

PUBLIC INTERNATIONAL LAW

A2015

When must equitable principles be taken into


account?
o In converting the established value of
an asset into a specific sum to be
awarded as compensation or damages

M. MEDELSON WHAT PRICE EXPROPRIATION?


COMPENSATION FOR EXPROPRIATION: THE
CASE LAW
by M. Medelson (1985)

Thesis: The formula used by international case law for


lawful expropriations by the government of an aliens
property, is the Hull formula or the prompt, adequate,
effective compensation

The paper is in response to an Editorial


Comment written by Professor Schachter that
the use of the Hull formula is questionable and
that the case law actually uses a flexible
standard that is not necessary full compensation,
so long as it is just.
In analyzing the case law, Medelson first examined the
prewar cases (also cited by Schachter in his Comment):

Chorzow Factory case contrary to Schachters


claims that the Court only required payment of
fair compensation, a perusal of the decision
shows that the court required, as a matter of
obiter dicta, that Poland should pay the just
price of what was expropriated and the value of
the undertaking at the moment of the
undertaking at the moment of dispossession
o (consistent with the full compensation
standard)
o The Court here also differentiated the
pecuniary obligations in a lawful and
unlawful taking
o if the payment is unlawful, if
restitution in integrum is impossible,
then compensation for consequential
loss is also necessary

Norwegian Shipowners Claims (1922)


applicable standard used here is just
compensation but Medelson stressed that this
just compensation is based on the notion of just
compensation as used in the US. Based on the
Fifth Amendment of the US constitution, just
compensation is the fair valuation of the
property based on what a willing buyer is willing
to pay a willing seller. Again, this is full
compensation.
In addition to these cases, Medelson also listed some
international cases that used the standard of full
compensation:

Administrative Decision No. 2 decided by USGermany Mixed Claims Commission Germany

is required to pay full, adequate and complete


compensation for the losses suffered by
Americans
Goldenberg case based on the Treaty of
Versailles, full compensation should be made
even in case of lawful taking (not 1/5 of its value,
otherwise, there will be wrongful compensation
for the unpaid 5/6)
De Sabla case taking by the government of an
aliens property constitutes an international
responsibility and the state should pay full
compensation

Postwar cases:

LIAMCO cases (in relation to Libyas


nationalization decrees confiscating foreignowned oil concessions in Libya as also discussed
in Texaco v. Libya, BP v. Libya) the nationalizing
state should pay full compensation for the loss
sustained based on the fair market value of the
plant and properties. The Court also awarded an
equitable compensation with some elements of
compensation for loss profits due to the
confiscation of the concession.

AMINOIL case taking for nationalization


purposes is not per se unlawful but the former
owner is entitled to full compensation or the
depreciated replacement value of its assets

American International Group v. Iran the


Tribunal did not decide on the applicability of
the Treaty of 1955 to decide the amount of
compensation but held that customary law
provides for the standard of prompt, adequate
and effective compensation. The Tribunal
required Iran to pay the fair market value of the
shares at the time of nationalization, including
loss of future profitability and good will.

WORLD TRADE ORGANIZATION


THE PHILIPPINES AND THE WTO: SURVEY OF
CURRENT PRACTICES WITH EMPHASIS ON
ANTI-DUMPING, COUNTERVAILING DUTIES
AND SAFEGUARD MEASURES
by H. Harry Roque

Constitutional Framework
The Philippines is the only World Trade Organization (WTO)
member whose Supreme Court has pronounced on the
constitutionality of the countrys entry into the WTO.

Taada v. Angara: Petitioners contended that


the WTO provisions, such as the most-favorednation (MFN) clause, the national treatment
principle and the Agreement on Trade-Related
Investment Measures (TRIMS Agreement)

162

PUBLIC INTERNATIONAL LAW

provisions violated Articles II and XII of the 1987


Constitution. The Court ruled that the WTO was
not in violation of the aforesaid constitutional
provisions for these are not self-executing
provisions which will give rise to a cause of
action in court if disregarded.
The SC also said that the WTO will not wipe out
local industries as the WTO has a built-in
protection against unfair trade practices (e.g.,
anti-dumping, safeguard measures against
import surges) which developing countries (like
the Philippines) may avail of. Prof. Roque said
that the decision may be criticized on the basis
that the Court only considered arguments in
support of the WTO without necessarily
examining the antithetical arguments
SC in effect ruled on the countrys unequivocal
commitment to the WTO as a matter of treaty
obligation. Its provisions furthermore, are
enforceable in the entire territory of the country
as forming part of the law of the land.
Case Study on Compliance: Anti-Dumping,
Countervailing, and Safeguard Measures

Anti-dumping, countervailing, and safeguard


measures are duties which may be imposed as
tools of fair trade to correct instances of
dumping, unfair advantage because of subsidies,
and surges in imports of commodities. These
measures are intended to promote fairness in
the regime of free trade among nations.
o Article VI, GATT 1994 on Dumping:
when the export price of a commodity
is less than its normal value in the
exporting state.
o Agreement
on
Subsidies
and
Countervailing Measures (ASCM): a
subsidy is a financial contribution by a
government body or any public body
where there is either a direct fund
transfer, a revenue which otherwise
due is foregone or not collected, or
when a government provides goods or
services (also, when a state maintains
any form of income or price support
and a benefit is conferred)

Safeguard measures: used when there is a


dramatic increase in the imports of a particular
commodity.

The WTO does not prohibit the imposition of


these duties, though it regulates the conditions
under which these may be imposed. It seeks to
achieve this by requiring Member nations to
amend their domestic laws and regulations to
conform to the provisions of the Marrakesh
Agreement.

A2015

Substantially, the Agreements seek to achieve consistency


in the laws of Member nations by: (a) due process
requirement before measures are imposed, (b)
requirement of a local body established by member
nations to conduct the required procedure before
resorting to the imposition of these measures, (c) setting
the kind of evidence that would justify the imposition of
the measures, and (d) amount of duties that may be
imposed.
For the Antidumping Agreement and ASCM, the following
are required before imposition of measures: (a) an
instance of dumping, or a subsidy, (b) an injury to the
domestic industry, (c) a causal relationship between either
the dumping, or the subsidy.
The Philippines enacted Republic Act 878233 to implement
the Antidumping Agreement, Republic Act 875134 to
implement the ASCM, and Republic Act 8800 to implement
the AS. The said laws comply substantially with the WTO
provisions (substantially, not completely, because of
protectionist elements in Congress). The differences are
below:
1. Dumping and countervailing measures were
proper even for alleged dumping which might
injure or likely to injure the domestic industry.
The WTO requires an actual material injury and
not a mere likelihood;
2. Domestic industry was merely the major
proportion of total domestic production;
3. Provisional duties could be issued earlier than 60
days from date of initiation of the investigation;
4. Dumping duties were twice the dutiable value;
5. The test for like products was merely that it be
substantially the same, a substitute, or serves
the same or similar purpose. Under the WTO,
test of like product is only identical in all respects
or characteristics resembling product under
consideration.
Tariff Commission Rulings
The Tariff Commission has had the opportunity to rule on
at least six investigations; to wit: anti-dumping
investigations against Cold Rolled Coils/Sheets (CRCs)
from Taiwan and Malaysia, Steel Billets from Russia,
figured glass from China, and polypropylene resins from
Korea.

It found positive evidence of dumping against


the CRCs from Malaysia, steel billets from Russia
and resins from Korea. In all three cases, though,
the collections of the anti-dumping duties were
suspended.

CRCs from Malaysia and Steel Billets from Russia


investigations: the collections were suspended
until such time that the Protestant, the National
Steel Corporation, resumes its operations.

163

PUBLIC INTERNATIONAL LAW

An anti-dumping duty was levied on


CRCs from Malaysia only by reason of
default since both the Malaysian
exporter and the Malaysian Embassy
refused to participate in the
investigation

Resins from Korea case: collection of the duty


was suspended, in response to consultations
against the duty requested by Korea in Geneva
pursuant to the WTO dispute resolution
mechanism.

In the other cases, the Tariff Commission refused to


impose the duty even if Protestants in all instances were
able to prove dumping and even material injury, because
the Protestants failed to prove the required causal
connection between dumping and the material injury.
Safeguard Measures
Requirement by the WTO for safeguard measures = proof
of a surge of imports either because of unforeseen
circumstances OR the implementation of the provisions of
the WTO (e.g., tariff reduction), a serious injury or threat
to domestic industry. The threshold for safeguards is lower
than dumping duties and countervailing duties (only a
serious injury or a threat of it and not material injury may
resort to safeguards temporarily, and solely to give them
the chance to compete against the sudden surge of
imports)
2 Factors Which Tempers the Resort to Safeguard
Measures:
1. Measures are applied on commodities regardless
of origin
2. Stringent reportorial requirements where
member nations have to report even the start of
a safeguard investigation
Safeguard measures, by way of a case study on the
Philippines compliance with the WTO, are illustrative of
Philippine State Practice and how much our competent
authorities know about the WTO.

Portland cement investigation finding: safeguard


measures were not imposed

Cement tile investigation finding: imposed


safeguards

Criteria for the two findings: a) existence of a surge in


imports as result of unforeseen developments, b) that
product in consideration was being imported in such
increased quantities as to cause or threaten to cause
a serious injury, c) domestic product is a like product
(relative or absolute likeness), d) presence and extent
of serious injury or threat to the domestic industry of
the like product, and e) existence of a causal
relationship between increased imports and the
serious injury or threat thereof.

A2015

The difference in the 2 cases was in the issue of the


existence of increase imports of the relevant
commodities and in the elements of serious injury
and causal relationship:
Ceramic tile case: There was a dramatic increase
in imports and increase relative to domestic
production from 17% to 68%. Also noted was the
decline in market share of the domestic industry
and an erosion of its competitive position (which
equates to serious impairment of the overall
market position for domestically produced like
products)
Portland Cement case: The Tariff Commission
determined the existence of a surge in imports
from 1996 to 2000 but concluded there was no
serious injury or a threat of injury to the
domestic industry and thus, no need to prove a
causal relationship. The Commission noted that
the decline in domestic consumption and not the
entry of imports caused the decline in domestic
sales of local products, that there was no
significant decline in production and total goods
sold, no underutilization of capacity and no
uniformity in the financial performance of
domestic producers (as only the complainants in
this case suffered losses, according to the
commission). The decision not to impose
safeguard measures was based on positive
evidence that one of the elements required for
the imposition of the measures was lacking.
DTI Sec. Mar Roxas described the decision as
wrong and declared he would impose
permanent safeguard measures or extend the
provisional duty on cement. Under the law, he
couldnt do either because such power is
granted to the Tariff Commission. Prof. Roque
said this episode demonstrates the need to
educate our highest ranking competent
authorities not only on the issue of compliance
but also with respect to our treaty obligations
under the WTO. Roxas ended up promulgating a
decision stating that he was bound by the
negative finding of the Tariff Commission and
has no alternative but to abide by the Tariff
Commissions recommendations. The application
of safeguard measures was thus denied. The CA
ruled that the DTI Secretary was not bound by
recommendations of the Tariff Commission, but
the SC overturned this ruling. This case shows
the independence of the Tariff Commission and
the fact that its factual findings constitute the
final determination as to whether 1) a product is
being imported into the country in increase
quantities [whether the product is absolute or
relative to domestic production, and 2) whether

164

PUBLIC INTERNATIONAL LAW

A2015

the importation in increased quantities causes


serious injury or threat to domestic industry.

just a hortatory provision which cannot be legally enforced


as a matter of right without any supporting legislation.

The Philippines and the WTO Dispute Settlement


Mechanism
The Philippines has been a complainant once, in the
desiccated coconut case against Brazil. The case was filed
by a Philippine delegation shortly after a Filipino, Justice
Feliciano, was elected to be the first ever President of the
Appellate Body of the WTO. The complaint arose from a
121.5% countervailing duty levied on Philippine desiccated
coconut, despite the minimal amounts of coconut
exported by the country to Brazil, which incidentally, is
another coconut producing country.

The Philippines lost after Brazil pointed out that


the proper venue for the Philippine action was
not the WTO but the GATT95 dispute settlement
mechanism since the levy was imposed under
the GATT.

The signing of the WTO Agreement should not be viewed


as a limitation on economic sovereignty. The WTO
remains as the only viable structure for multilateral trading
and a forum for the development of international trade
law. Its alternative is isolation, stagnation or economic
self-destruction.
The
Philippines
accommodates
international trade agreements anchored on the policy of
equality and reciprocity.

Since 1995, the Philippines has preferred to settle all


claims against itself

In the Korean resins case, the collection of the


anti-dumping duty imposed on the resins was
suspended)

In the case of American import restraints against


shrimp and shrimp products, the Philippines has
abandoned its challenge to the said import
restraints
Conclusion
Our actual participation in the dispute settlement
mechanism of the WTO has been a case of non-exercise of
treaty rights since we have resorted to this mechanism
only once, despite the fact that case law seem to be in our
favor in some other controversies confronting us.

TANADA v. ANGARA
G.R. No. 118295 (1997)

Petitioners sought to nullify the Philippine ratification of


the World Trade Organization (WTO) Agreement on the
ground that it limits, restricts and impairs Philippine
economic sovereignty and legislative power and does not
take into consideration the Constitutions Filipino First
policy since it gives foreign trading intervention.
The Court ruled that the Philippine Constitution adopts the
generally accepted principles of international law as part
of the law of the land as stated in the Declaration of
Principles and State Policies and by the doctrine of
incorporation, the country is bound by generally accepted
principles of international law which are automatically
considered part of the Philippines laws. As it is an
international agreement, it must be performed in good
faith (pacta sunt servanda). A treaty creates a legally
binding obligation on the parties. The Filipino First policy is

Amicus Curiae Memo of Lilia Bautista

AMICUS CURIAE MEMORANDUM OF AMB.


LINDA R. BAUSTISTA
In Taada v. Angara, G.R. No. 118295 (1997)

Lilia Bautista, the Permanent Representative to the UN,


WTO, and other International Organizations in Geneva,
Switzerland, was requested by the Court to prepare and
submit a paper
a) providing a historical background of the WTO
agreements; and
b) summarizing said agreements
Historical Background of the WTO Agreements
The Havana Charter
The idea of setting up an international organization on
trade was conceived when the United Nations Economic
and Social Council set up a Preparatory Committee to draft
the charter of an International Trade Organization. The ITO
was meant to set a code of principles on fair trade and
related economic transactions designed to remove
protectionist measures for a freer trade environment. It
was also intended to be the organizational structure to
oversee adherence to the principles.
The negotiations for the ITO were concluded in 1948 in
Havana. However, the charter did not materialize.
Nonetheless, 23 countries exchanged tariff reductions in
1947 and took out the Commercial Policy Chapter of the
Havana Charter, and recast it into the General Agreement
on Tariffs and Trade (GATT), before the conclusion of the
negotiations on the charter of the ITO.
GATT 1947
GATT is premised on the recognition that trade and
economic endeavor should be conducted with a view to
raising the standards of living, ensuring full employment,
allowing optimal use of the worlds resources, and
expanding the production and exchange of goods. GATT
was meant to create order and predictability in
international trade relations. The function of GATT was to
prevent such policies and put order in the system. It
resolves not only conflict of interest between nations, but
also conflicts of interest within.

165

PUBLIC INTERNATIONAL LAW

The Uruguay Round and Philippine Participation


The Uruguay Round was the 8th round of multilateral
trade negotiations. The Philippines participated in the
Ministerial Meeting which launched the round. Like other
developing countries, improved market access for its
exports was the main goal in Philippine participations.
Tariff reduction on tropical products and other agricultural
products was pushed by developing countries.
The GATT refers to trade in goods. The new areas in the
Uruguay negotiations not covered by previous rounds
were (1) services, (2) trade related aspects of intellectual
property rights, and (3) trade related investment measures.
In the area of services, only those services actually offered
by a party were treated as bound commitments. The
system of offers in the area of services allowed
impositions of conditions on market access and national
treatment. We have offered only four sectors in the area
of services: telecommunications, transport, financial
services, and tourism.
On TRIPS, most countries agreed that bringing it within the
ambit of a multilateral trading system will deter some
countries from resorting to unilateral trade measures to
enforce their rights as intellectual property rights holders.
It was also agreed that developing countries should be
given adequate time to adopt their intellectual property
regulations with the requirements of the TRIPS agreement.
A multilateral discipline in TRIPS would afford is protection
against the use of unilateral measures such as that
provided in the Trade Law of the US.
The Final Act embodying the results of the Uruguay Round
of Multilateral Trade Negotiations was signed in 1994,
after 8 years of negotiations. The results referred not only
to the agreement establishing the WTO but also to
ministerial decisions and understandings adopted on
December 15, 1993, and at the Marrakesh Ministerial
Meeting in 1994. It is provided in the Final Act that the
representative who signed the Final Agreement agrees to
submit to his respective competent authorities for
approval, the WTO Agreement in accordance with his
countrys procedures.
Our constitution sets a hierarchy of goals and aspirations
for its nationals which must be taken into account in
passing the implementing legislations. The choice of
instruments in assisting Philippine industry, labor, and
consumers are varied but they are not unlimited and one
group of beneficiaries should not be sacrificed for the
other. Congress has to balance the economic objectives
enunciated in the Constitutions with the benefits of
extensive international economic relations free of
unnecessary restrictions.
Summary of WTO Agreements
Agreement Establishing the WTO

A2015

The WTO provides the common institutional framework


for the conduct of trade relations among its members in
matters related to the agreements and associated legal
instruments annexed to the Agreement.
The WTO decides by consensus whenever possible;
otherwise, decisions of the Ministerial Conference and the
General Council shall be taken by the majority of the votes
cast, except in cases of interpretation of the Agreement or
waiver of the obligation of a member, which would require
3/4 vote. Amendments would require 2/3 vote in general.
Amendments to the MFN provisions and the Amendments
provision will require assent of all members. Any member
may withdraw from the Agreement upon the expiration of
six months from the date of notice of withdrawal.
Each member shall ensure the conformity of its laws,
regulations, and administrative procedures with its
obligations as provided in the covered agreements.

JAPAN TAXES ON ALCOHOLIC BEVERAGES


(1996)
The Japanese Liquor Tax Law established a system of
internal taxes for all liquors at different rates based on
categories. This law taxed shochu lower than tax imposed
on whisky, vodka, cognac, and other alcoholic beverages.
The European Communities (EC), Canada and the US
claimed that spirits exported to Japan were discriminated
against under the Japanese Liquor Tax Law because of the
lower tax imposed on shochu as compared to other
alcoholic beverages.
The Appellate Body in this case upheld the panels finding
that the alcoholic beverages in question were taxed in
excess of shochu, which violated Art. III: 2 of GATT (as
regards the requirement that imported products must not
be subjected to internal charges in excess of those
imposed on like domestic products). The Appellate Body
upheld the panels finding that shochu, and whisky, brandy,
rum, gin, genever and liquors were not similarly taxed, and
such a move amounts to affording protection to domestic
production, which is violative of Art. III. The Body said that
3 issues must be considered to determine if a certain
measure is inconsistent with Art III, namely: 1) W/N the
imported and domestic products are directly competitive
or substitutable products; 2) W/N the directly competitive
or substitutable imported and domestic products are not
similarly taxed; and 3) W/N the dissimilar taxation of the
directly competitive or substitutable imported and
domestic products is applied so as to afford protection to
domestic production.
As regards the US application for binding arbitration to
determine the reasonable period of time for
implementation by Japan of the Appellate Bodys
recommendations, the arbitrator found that the

166

PUBLIC INTERNATIONAL LAW

reasonable period for implementation is 15 months from


the date of adoption of the reports.

KOREA TAXES ON ALCOHOLIC BEVERAGES


The measures in dispute are provisions in Korea's Liquor
Tax Act and Education Tax Act (the Act). The Dispute
Settlement Body and the Panel held that the measures in
dispute result in dissimilar taxation which leads to a
protection of domestic production inconsistent with the
GATT 1994. The appellate body and the panel
recommended that the Dispute Settlement Body request
Korea to ensure that the Act complies with its obligations
under GATT1994. Korea agreed to implement the DSBs
recommendations but said it required a reasonable period
of time to complete the implementation process of the
recommendations. The EC and the US requested that
binding arbitration determine the reasonable period of
time. Korea wanted the arbitrator to declare 15 mos. as
the reasonable time for implementation (a longer time,
since it wants to go through the ordinary session of the
National Assembly). The EC contends that the reasonable
time for the implementation of the recommendations
should not exceed 6 mos. from the date of the adoption of
the appellate body report and panel report, arguing that
members are not automatically entitled to the 15-month
period asked for by Korea. The US argued that instead of
going through the ordinary session of the National
Assembly, it can use extraordinary sessions in amending
the bill.
In this case, it was held that when the reasonable period of