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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem Atty.

Jamon

I. Nature and Sources of International 4. It can be modified only by a subsequent norm of


Law general international law having the same
character.
LAW AS A CONCEPT

Concept of Law emerged from a set of lectures


H.L.A. Hart delivered in 1952. OBLIGATION ERGA OMNES compulsory
The lectures were preceded by Harts holmes
lecture, positivism and the separation of law and These are obligations that are owed by States to
morals. ALL, regardless of the presence or absence of their
It provides an explanation to a number of traditional
assent to be bound thereby.
jurisprudential questions such as: What is Law?
Must Laws be rules? And what is the relation
between LAW and MORALITY? These obligations are intertwined with the concept
DEFINITION OF PUBLIC INTERNATIONAL LAW of Jus cogens and usually arise from jus cogens
rights.
It is the body of rules and principles which are
recognized as legally binding and which governs
the relations of States and other entities invested
with international legal personality. Concept of aueguo et bono
International Law may include both PILA and
Private International Law, however, it is generally It is based on the principle of justice and equity.
understood to cover only PILA. According to the right and good
International legal system may consist of: From equity and conscience
Natural moral law principles Art. 38 of the Statue of International Court of
A set of generally agreed upon norms of conduct Justice provides that courts may decide cases
And certain authoratives processes for enacting based on equity and conscience only if the parties
and changing these aformentioned norms agree, equitable criteria.

JUS COGENS compelling law PILA distinguished from other disciplines

It is considered as a unique class of customary PILA:


law, that occupy the highest election in Human Its principal sanctions are: reprisal and war
Rights Law hierarchy. Municipal law:
Civil execution and criminal punishment
This group of fundamental norms is superior to PILA- collective responsibility for failures and
omissions; Municipal law- individual responsibilty
other sources of International Law and need not
generally prevails.
agreed upon by states in a treaty in order to from PILA- decentralized; Municipal law- centralized
part of their jurisprudence. PILA- comparatively harder to enforce; Municipal
law- easier to impose.
* Viennna Convention on the Law of Treaties

TREATY

Elements of JUS COGENS An agreement under IL entered into by actors and


IL mainly sovereign states and International
1. Its a peremptory norm of general international Organizations.
law They are the main instruments in which the
international community is equipped to carry out its
2. Its accepted and recognized by the international transactions.
community

3. there can be no derogation CUSTOM LAW

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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem Atty. Jamon

It is the original and earliest source of international SCHROEDER v. BISSEL COLLECTOR


law.
It exists when a clear and continuous habit of doing Facts: Under sec. 447 of the American Tariff Act of
certain things develops under the conviction that it 1922, it is unlawful for any ship to unload any part
is obligatory and right. of its cargo other than port of entry. Now then, an
It is usage which ripens into custom.
English vessel unloaded part of its cargo at a place
19 miles away from the coast of the United States,
THE NUREMBERG JUDGMENT whereupon it was seized by the American coast
guard. It was alleged that the seizure violated the
FACTS: One of the defenses raised by the tenets of international law because it had been
war criminals in Germany was that they made beyond the territorial or maritime zone of the
themselves are mere individuals were not directly U.S.
liable for their acts; that they were merely carrying
out the orders of Hitler, the German dictator; and Held: The seizure is valid despite the alleged
that the individuals have no international duties. violation of international law. What is important is
that a statute of the U.S has been violated. In
HELD: International law punishes not only justifying its position, the American court said that:
states but also individuals. This rule has long been International law is law in so far as we adopt it,
recognized. Crimes against international law are and like all common or statute law, it bends to the
committed by MEN, not by abstract entities, and will of Congress.. Even if the act may contravene
only by punishing individuals who commit such recognized principles of international comity.
crimes can the provisions of international law be
enforced.

THE PAQUETE HABANA The Eastern Extension; Aus & China Tel. Co. v.
U.S
Facts: During the Spanish American War, two
fishing vessels (Paquete and the Lola) flying with Facts: The Spanish Gov in the Ph entered into a
Spanish flag, and while regularly engaged in contract with the petitioners wherby the latter would
fishing on the Cuban coast, were seized by the constitue at its own expense private submarine
U.S. Navy. It was discovered that until the moment cables and telegraph land lines, which the former
of capture, the vessels did not know that a war was would use and for which it would pay an annual
being fought. It was proved that the vessels neither subsidy of 4,500 pounds payable in Manila. After
had an ammunition nor arms; and that neither ship sometime US assumed sovereignty over the Ph.
attempted to run the blockade after its existence
Issue: Whether the US was required to assume
was made known to them. In Florida to which they
said contractual obligation
had been brought, they were considered as prizes
by the U.S. District Court. They then appealed to
HELD: No, the US was not so required. The cables
the Supreme Court (US), alleging that under the and lines were not public property; they were
international law, and considering the privately owned and therefore did not become
circumstances of their capture, they were exempt
US property. The US was not under compulsion to
(with their cargoes and crews) from capture as continue with the said contract, just as it had no
prizes. duty to continue with the services of Spanish-
appointed officials.
HELD: they are exempt from such capture because
of an international custom on the subject a WEST RAND CENTRAL GOLD MINING CO. V.
custom that began in 1403 signed by King Henry THE KING
IV of England, found encouragement in a treaty
entered into in 1521 which the U.S. adhered to. FACTS: The government officials of the Republic
of South Africa allegedly seized 2 parcels of gold
owned by the WRCGMC. Subsequently, the
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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem Atty. Jamon

Republic was conquered by Great Britain, and Mandates and trust territories
annexed to the latter state, A suit was filed by the
company against Great Britain to recover said Mandates administration of former territories of
parcels, on the ground that Great Britain, as defeated states
conqueror, had the duty under international law to
Trust territories territories under trusteeship
assume obligations of the conquered South African
system placed thereunder by means of trusteeship
Republic (with respect to the parcels)
agreements:
ISSUE: Is there such a duty?
1. Territories previously held under a
HELD: It is true that whatever has received the mandate in conformity with article
common consent of civilized nations must have 22 of the covenant
received assent of Great Britain. But any doctrine
so invoked must be one really accepted as binding 2. Territories detached from the
among nations. defeated states as a result of the
Any international law sought to be applied must, second world war
like anything else be proved by satisfactory
evidence, which must show either: 3. Other territories voluntarily placed
a. That the particular proposition alleged has
under the trusteeship system by
been recognized and acted upon the Great Britain;
states responsible for their
b. That it is of such nature, and has been so administration.
widely and generally accepted, that it can hardly be
Colonies and Dependencies
supposed that any civilized state would repudiate From the point of view of classic international law,
it. colonies and dependencies are part of the territory
of the State to which they belong, no matter how
autonomous they may be in the conduct of their
internal affairs. However, this said colonies and
II. Subjects of International Law dependents are still regarded to some extent as
wards of the international community.
Definition of subject
An entity that has international personality.
Status of revolutionary group
States
There may be within a State an organized body of
Four essential attributes or elements of States: men pursuing public ends by force of arms and
temporarily beyond the control of the civil
1. People
authorities.
2. Territory
3. Government
4. Independence
De facto authority
Classes of states
A rebel group is considered a de facto authority
when a territory of a State is under their control and
A. Independent states
a third State, for the sake of protecting its property
1. Simple states
or nationals and without conceding to the
2. Composite states
rebellious forces belligerent status, maintains a
Real unions
relationship between the third State and the rebel
Personal unions group. They do not acquire international
Federal states personality.
confederation
B. Dependent states
C. Neutralized states

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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem Atty. Jamon

De facto political organization the will of States and on agreement concluded by


States in their favor.
When revolutionist are in control of considerable
territory and is able to conduct military operations
in conformity with the laws of war like a legitimate Pactum in favorem tertii Agreement in favor of
government. a third party
They are regarded as having an international legal
personality and may be considered a subject of Examples of international agreements that
international law. grants individuals certain degree of
international personalities:
The Holy See
Hague Convention XII of 1907
Treaty of Washington of December
In February 1949, the Holy See and Italy entered
20,1907
into a treaty, popularly known as Lateran Treaty.
Various peace treaties after World War I
Under this agreement, the Vatican City was
The Treaties of Peace with Austria,
constituted as a territory under the sovereignty of
Hungary, Bulgaria and Turkey
the Holly See and Italy likewise recognized the
The Covenant of the League of Nations
sovereignty of the Holy See in international matters
The International Labor Organization
as inherent in its nature and as being in conformity
with its traditions and the requirements of its
mission in the world.
The Charter of the United Nations
The European Concention on Human
Rights
International Organizations
III. Recognition
A number of specialized agencies working closely
with the United Nations in achieving international
What is Recognition?
cooperation in the economic and social fields have
been established by multilateral agreements which
A discretionary function exercised, usually
lay down their constitutions and define their
unilaterally, by the government of a State
objectives. It is now widely recognized that these
acknowledging the existence of another State or
organizations have a legal personality distinct from
government. It is not governed by law but depends
that of the State which constitute their membership.
upon the decisions of individual States based on
political expediency.
The extent of their capacity for rights and duties
under international law depends on their charter
which is usually in the form of a multilateral treaty
and on the practice which has grown up around Kinds of Recognition
each organization
1. As to Object: Recognition of a State or
International organizations declared as an Recognition of a Government
international person such as the UN means that
the organization can be a subject of international i. Recognition of a State
law and capable of possessing international rights
by bringing international claims but cannot be Two competing theories as to recognition of a
considered as a state or a super state. State, attempt to explain whether recognition is a
necessary requirement for the establishment of de
jure international personality of a new State, or
Status of individuals in International Law merely, a consequence of international personality:
1. Constitutive Theory
States may, by common agreement, recognize the
international personality of individuals not only in It is a process by which a political
their rights and responsibilities, but also in their community acquires personality and becomes a
capacity for international procedural action. members of the family of nations. Recognition is a
However, individuals are only limited subjects of necessary condition for statehood and personality.
international law since their personality depends on
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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem Atty. Jamon

Thus, a States existence is through recognition relations, so far as possible, with the new
only and exclusively. government without regards to its legitimacy.
2. Declaratory Theory

Declaration is a mere formality and has no legal


effect as existence of a State is a mere question of Classification of Recognition of a Government:
fact. Recognition is not important as it only De Facto or De Jure
provides evidence to its existence. A new State
becomes a member of the family of nations ipso 1. De Facto Recognition
facto by coming into existence.
Exists when the new government, although actually
independent and wielding effective power in the
Effect of Recognition of a State
territory under its control, has not yet acquired
sufficient stability or does not as yet offer prospects
Recognition carries with it, without further formality, of complying with other requirements of
recognition of the government in control of the recognition.
State at the time of recognition (Rationale: De Facto Government a government which is in
recognition of a new State implies that the latter
possession of the powers of sovereignty, although
has all the essential requisites of a State at the
time) and the act is irrevocable. the possession may be wrongful.

ii. Recognition of a Government


2. De Jure Recognition
The following are the minimum requirements to
be satisfied for recognition of a government: It is an acknowledgment of the presence of the
minimal requirements of government. It is a full,
complete recognition and does not refer to the
1. Effective and stable government. The
legality of the recognized government.
government should be in possession of the
machinery of the State and without substantial
resistance to its authority. Effect of Recognition of a Government

2. The government must show willingness Recognition amounts to accepting the government
and ability to discharge international obligations. as possessed of the authority to represent the
State it purports to govern and to agreeing to
3. The government should enjoy popular maintain diplomatic relations with it. However, it is
consent or approval of the people. This is the not perpetual, as it may be withheld from a
substance of the Tobar or Wilson Doctrine. succeeding government here the change is
brought about by unconstitutional means. Likewise,
the breaking of diplomatic relations is not
Tobar Doctrine
tantamount to withdrawal of recognition of a
government.
The doctrine precludes recognition to any
government coming into existence by revolutionary
means so long as the freely elected
iii. Recognition of a Belligerent
representatives of the people have not
constitutionally reorganized the government. Community
Estrada Doctrine
Belligerency presupposes the existence of a state
The doctrine named after Mexicos Secretary of of war between two or more States, or actual
hostilities amounting to civil war within a single
Foreign Affairs from 1930-32, Genaro Estrada, said
State.
doctrine enunciates that where a new government Recognizing the belligerents is a matter of policy
is established in another country by revolutionary on the part of the recognizing State or government,
means, Mexico would continue diplomatic since there is no purely legal right to be
recognized. And that recognition of the parent
State or by third States may be express or implied.
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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem Atty. Jamon

Samples of implied recognition: proclamation by i. Expressed


the parent State of a blockade of a port held by
rebels; proclamation of neutrality by third States. It is accomplished by means of a treaty provision, a
formal note or a formal or a formal public
announcement.
Conditions before Rights of Belligerency are ii. Tacit or Implied
Accorded
It is a result of any act which implies the intention
1. An organized government that has control of recognizing a new State or government. It must,
and direction over the armed struggle launched by however, be unequivocal and clearly indicate that a
the rebels. recognizing State has a clear and inescapable
2. Occupation of a substantial portion of the intention to recognize thru: 1) conclusion of a
national territory. bilateral treaty regulating comprehensively the
3. Seriousness of the struggle which must be relations between the two State, 2) formal initiation
so widespread, thereby, leaving no doubt as to the of diplomatic relations, and 3) probably the issue of
outcome. consular exequaturs
4. Willingness on the part of the rebels to
observe rules and customs of war. iii. Conditional

The grant of recognition by an existing state to a


Effect of Recognition of a Belligerent newly born state stipulated on the fulfillment of
Community some conditions in addition to the requirements of
statehood.
Belligerent community is recognized as a separate
State for purposes of the conflict and is entitled to
iv. Unconditional
all the rights and subjected to all obligations of a
full-fledged belligerent under the laws of war.

4. As to State Participation: Individual


Recognition or Collective Recognition
2. As to Plenitude: De Jure Recognition or
DE Facto Recognition i. Individual recognition if it is accorded by
one State
ii. Collective recognition if it is accorded by a
group of States simultaneously and in the same act
i. De Jure Recognition or declaration.

Exists whenever a State is not prepared to


recognize definitely an entity claiming to be a State Legal Effects of Recognition
or Government, yet finds practical reason to have
some sort of official relations with such entity. It Recognition produces legal consequences
means full, complete recognition. It does not refer affecting the rights, powers and privileges of the
to the legality of the recognized government recognized state or government both at
ii. De facto Recognition international law and under the municipal law of
states which have given its recognition.
It is a provisional recognition, a sort of modus Through recognition, a newly recognized state
vivendi , and does not carry with it the full effects of or government:
a recognition de jure. De facto recognition means
the situation created by the continuance or the 1. The recognized government or State
establishment of diplomatic relations with a new acquires the capacity to enter into diplomatic
government, irrespective of its origin relations with recognizing States and to make
treaties with them. Where the recognition is de
facto, full diplomatic intercourse is usually not
3. As to Form brought about.

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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem Atty. Jamon

2. The recognized government or State 1. It is ordinarily deprived of the benefits of


acquires the right of suing in the courts of law of membership in international society, such as
the recognizing State. diplomatic intercourse and participation in some
3. It is immune from the jurisdiction of the international institutions;
courts of law of the recognizing State. 2. It cannot sue in the courts of law of the
4. It becomes entitled to demand and receive State refusing to recognize it;
possession of property situated within the 3. As a general rule, its acts and decrees are
jurisdiction of a recognizing State which formally considered as nullities in the State that refuses to
belonged to the preceding government at the time accord recognition;
of its supersession. 4. Its agents do not possess any diplomatic
5. Recognition being retroactive, validating rank or character.
thereby the acts and decrees of the recognized
State or government, its effect is to preclude the II. Recognition by International
courts of recognizing State from passing judgment Organizations:
on the legality of its acts, past and future.
Recognition of the validity of foreign law does not 1. Does admission of a Member in an
necessarily mean that it will always be allowed to international organization, such as the United
operate in the courts of the recognizing State, Nations, imply recognition of such Member as a
since in Private International Law, there are certain State?
fundamental exceptions to the application of Yes. The admission of an applicant ipso facto
foreign law, as where the law of another State is constitutes recognition by the Organization that, for
against the public policy or sense of morality or the the purpose of membership at least, the applicant
local forum. is a State. It does not, however, constitute implied
6. Where rebels are accorded recognition as de facto or de jure recognition of a State or
belligerents : government by the individual Members of the
a. Legitimate government may no longer be Organization. And that admission to membership is
responsible for their acts; responsibility is shifted to not contingent upon prior recognition of the
the rebel government. applicant by the States already members of the
b. The legitimate government, once it Organization.
recognizes the rebels as belligerents, is bound to
observe the laws and customs of war in conducting
the hostilities. (Rebels upon capture, may not be III. Cases:
executed or shot as they are enemy combatants
that should be accorded the rights of prisoners of Guaranty Trust CO. Of New York v. United
war)
States
c. From the point of view of third States: they
are put under obligation to observe strict neutrality
and abide by the consequences arising from the
position.
d. On the side of the rebels: they are put FACTS:
under responsibility to third States and to the On July 15, 1916, the Imperial Russian
legitimate government for all its acts which do not Government opened a bank account with
conform to the laws and customs of war. petitioner, the Guaranty Trust Company, a New
York banking corporation. On March 16, 1917, the
Imperial Government was overthrown and was
succeeded by the Provisional Government of
Russia which was recognized by the United States
on March 22, 1917. On July 5, 1917, Mr. Boris
Bakhmeteff was officially recognized by the
President as the Ambassador of Russia. On July
Consequences when a new State or
12, 1917, the account being overdrawn,
Government is not recognized: $5,000,000 was deposited in the account by Mr.
Serge Ughet, Financial Attache of the Russian
From the viewpoint of non-recognizing State, it Embassy in the United States. On Nobember 7,
suffers from certain important disabilities, to wit: 1917, the Provisional Government was overthrown
and was succeeded by the government of the

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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem Atty. Jamon

Union of Soviet Socialist Republics, which will be the judgment for petitioner, holding that the New
referred to as the Soviet Government. York statute of limitations does not run against a
At that time there remained on deposit in the foreign sovereign. Moved by the importance of the
account the sum of approximately $5,000,000. On questions involved, we granted certiorari. 302 U.S.
November 28, 1917, the Soviet Government 681, 58 S.Ct. 363, 82 L.Ed. -.
dismissed Bakhmeteff as Ambassador and Ughet
as Financial Attache . But the United States
continued to recognize Bakhmeteff as Ambassador ISSUE/S:
until on June 30, 1922, he withdrew from his
representation of the Russian Government.
Thereafter, until November 16, 1933, it continued
to recognize the Financial Attache, and after the 1. whether, in a suit at law brought in a
retirement of Bakhmeteff as Ambassador it federal District Court to recover the deposit of a
recognized the former as custodian of Russian foreign government with a New York bank, such
property in the United States. government is subject to the local statute of
limitations as are private litigants; and, if so,
On November 16, 1933, the United States whether the assignment of November 16, 1933, by
recognized the Soviet Government, and on that the Russian Soviet Government to the United
date took from it an assignment of all 'amounts States of the right of the former to the bank
admitted to be due that may be found to be due it, account restricts or overrides the operation of the
as the successor of prior Governments of Russia, statute of limitations.
or otherwise, from American nationals, including 2. A subsidiary question is whether in the
corporations.' After making demand upon the circumstances of the case the running of the
petitioner for payment of the balance of the statute of limitations, if otherwise applicable, was
account the United States, on September 21, affected by the US non-recognition of the Soviet
1934, brought the present suit in the District Court Government during the interval of approximately 16
for Southern New York to recover the deposit. years between recognition of the Provisional
Petitioner then moved under the Conformity Act, 28 Government of Russia and recognition of its
U.S.C. 724, 28 U.S.C.A. 724; New York Civil successor.
Practice Act, 307; and Rules 107 and 120 of the
New York Rules of Civil Practice, to dismiss the
complaint on the ground that the recovery was RULING:
barred by the New York 6-year statute of
limitations.

In support of the motion petitioner submitted


numerous affidavits, two depositions, and other 1. First. The rule quod nullum tempus
documentary proof tending to show that on occurrit regithat the sovereign is exempt from the
February 25, 1918, it had applied the balance of consequences of its laches, and from the operation
the account as a credit against indebtedness of statutes of limitationsappears to be a vestigial
alleged to be due to it by the Russian Government survival of the prerogative of the Crown. But
by reason of the latter's seizure of certain ruble whether or not that alone accounts for its origin, the
deposit accounts of petitioner in Russian private source of its continuing vitality where the royal
banks; that on that date it had repudiated all privilege no longer exists is to be found in the
liability on the deposit account; and that it had then public policy now underlying the rule even though it
given notice of such repudiation to the Russian may in the beginning have had a different policy
Embassy and later both to the Financial Attache basis. 'The true reason is to be found in the great
and to Bakhmeteff as Ambassador. The United public policy of preserving the public rights,
States submitted affidavits and exhibits in revenues, and property from injury and loss, by the
opposition. The District Court found that petitioner negligence of public officers. The rule is
had repudiated liability on the account on February supportable now because its benefit and
25, 1918; that it had given due notice of advantage extend to every citizen, including the
repudiation prior to June 30, 1922, to both the defendant, whose plea of laches or limitation it
Financial Attache and Ambassador Bakhmeteff; precludes; and its uniform survival in the United
and that recovery was barred by the applicable 6- States has been generally accounted for and
year statute of limitations of New York. The Circuit justified on grounds of policy rather than upon any
Court of Appeals for the Second Circuit reversed inherited notions of the personal privilege of the
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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem Atty. Jamon

king. United States v. Kirkpatrick, 9 Wheat. 720, accepts whatever liabilities the court may decide to
735, 6 L.Ed. 199; United States v. Knight, 14 Pet. be a reasonable incident of that act. As in the case
301, 315, 10 L.Ed. 465; United States v. of the domestic sovereign in like situation, those
Thompson, 98 U.S. 486, 489, 25 L.Ed. 194; Fink v. rules, which must be assumed to be founded on
O'Neil, 106 U.S. 272, 281, 1 S.Ct. 325, 27 L.Ed. principles of justice applicable to individuals, are to
196; United States v. Nashville, C. & St. L. R. Co., be relaxed only in response to some persuasive
118 U.S. 120, 125, 6 S.Ct. 1006, 30 L.Ed. 81. So demand of public policy generated by the nature of
complete has been its acceptance that the implied the suitor or of the claim which it asserts. That this
immunity of the domestic 'sovereign,' state or is the guiding principle sufficiently appears in the
national, has been universally deemed to be an many instances in which courts have narrowly
exception to local statutes of limitations where the restricted the application of the rule nullum tempus
government, state or national, is not expressly in the case of the domestic sovereign. 3 It likewise
included; and to the Conformity Act. appears from those cases which justify the rule as
applied to the United States suing in a state court,
Whether the benefit of the rule should be extended on the ground that it is sovereign within the state
to a foreign sovereign suing in a state or federal and that invocation of the rule nullum tempus
court is a question to which no conclusive answer protects the public interest there as well as in every
is to be found in the authorities. Diligent search of other state. United States v. Beebe, 127 U.S. 338,
counsel has revealed no judicial decision 8 S.Ct. 1083, 32 L.Ed. 121; Booth v. United States,
supporting such an application of the rule in this or 11 Gill & J., Md., 373; McNamee v. United States,
any other country. 11 Ark. 148; cf. United States v. People of State of
California, 297 U.S. 175, 186, 56 S.Ct. 421, 425,
The only support found by the court below for a 80 L.Ed. 567.
different conclusion is a remark in the opinion of
the court in United States v. Nashville, C. & St. L.R. The statute of limitations is a statute of repose,
Co., supra, where its holding that the United designed to protect the citizens from stale and
States, suing in a federal court, is not subject to the vexatious claims, and to make an end to the
local statute of limitations, was said to rest upon a possibility of litigation after the lapse of a
great principle of public policy 'applicable to all reasonable time. It has long been regarded by this
governments alike.' The statement is but a Court and by the courts of New York as a
paraphrase, which has frequently appeared in meritorious defense, in itself serving a public
judicial opinion, 1 of Mr. Justice Story's statement interest. Bell v. Morrison, 1 Pet. 351, 360, 7 L.Ed.
in United States v. Hoar, supra, already quoted. 174; M'Cluny v. Silliman, 3 Pet. 270, 278, 7 L.Ed.
His reference to the public policy supporting the 676; Campbell v. Haverhill, 155 U.S. 610, 617, 15
rule that limitation does not run against a domestic S.Ct. 217, 39 L.Ed. 280; United States v. Oregon
sovereign as 'equally applicable to all governments' Lumber Co., 260 U.S. 290, 43 S.Ct. 100, 67 L.Ed.
was obviously designed to point out that the policy 261; Brooklyn Bank v. Barnaby, 197 N.Y. 210, 227,
is as applicable to our own as to a monarchical 90 N.E. 834, 27 L.R.A.,N.S., 843; Schmidt v.
form of government, and is therefore not to be Merchants Despatch Transportation Co., 270 N.Y.
discarded because of its former identity with the 287, 302, 200 N.E. 824, 104 A.L.R. 450. Denial of
royal prerogative. We can find in that its protection against the demand of the domestic
pronouncement and in its later versions no sovereign in the interest of the domestic
intimation that the policy underlying exemption of community of which the debtor is a part could
the domestic sovereign supports its extension to a hardly be thought to argue for a like surrender of
foreign sovereign suing in our courts. the local interest in favor of a foreign sovereign and
the community which it represents. We cannot say
It is true that upon the principle of comity foreign that the public interest of the forum goes so far.
sovereigns and their public property are held not to
be amenable to suit in our courts without their We lay aside questions not presented here which
consent. But very different considerations apply might arise if the national government, in the
where the foreign sovereign avails itself of the conduct of its foreign affairs, be treaty or other
privilege, likewise extended by comity, of suing in appropriate action, should undertake to restrict the
our courts. By voluntarily appearing in the role of application of local statutes of limitations against
suitor it abandons its immunity from suit and foreign governments, or if the states in enacting
subjects itself to the procedure and rules of them should discriminate against suits brought by a
decision governing the forum which it has sought. foreign government. We decide only that in the
Even the domestic sovereign by joining in suit absence of such action the limitation statutes of the
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forum run against a foreign government seeking a and state courts was denied to the Soviet
remedy afforded by the forum, as they run against Government before recognition. The Penza, D.C.,
private litigants. 277 F. 91; The Rogdai, D.C., 278 F. 294; Russian
Socialist F. S. Republic v. Cibrario, supra;
The claim of the Russian Government was barred Preobazhenski v. Cibrario, Sup., 192 N.Y.S. 275.
by limitation, the United States as its assignee can But the argument ignores the principle controlling
be in no better position either because of the rule here and recognized by the courts of New York
nullum tempus or by virtue of the terms of the that the rights of a sovereign state are vested in the
assignment. state rather than in any particular government
which may purport to represent it, The Sapphire,
The court could find nothing in the agreement and supra, 11 Wall. 164, 168, 20 L.Ed. 127, and that
assignment of November 16, 1933, which purports suit in its behalf may be maintained in our courts
to enlarge the assigned rights in the hands of the only by that government which has been
United States, or to free it from the consequences recognized by the political department of our own
of the failure of the Russian Government to government as the authorized government of the
prosecute its claim within the statutory period. foreign state. Jones v. United States, 137 U.S. 202,
212, 11 S.Ct. 80, 34 L.Ed. 691; Russian
There is nothing in either document to suggest that Government v. Lehigh Valley R. Co., D.C., 293 F.
the United States was to acquire or exert any 133, 135, aff'd sub nom. Lehigh Valley R. Co. v.
greater rights than its transferor or that the State of Russia, 2 Cir., 21 F.2d 396, 409; Matter of
President by mere executive action purported or Lehigh Valley R. Co., 265 U.S. 573, 44 S.Ct. 460,
intended to alter or diminish the rights of the debtor 68 L.Ed. 1186; Russian S.F.S.R. v. Cibrario, supra;
with respect to any assigned claims, or that the Moore, International Law Digest, 75, 78.
United States, as assignee, is to do more than the
Soviet Government could have done after What government is to be regarded here as
diplomatic recognitionthat is, collect the claims in representative of a foreign sovereign state is a
conformity to local law. Even the language of a political rather than a judicial question, and is to be
treaty wherever reasonably possible will be determined by the political department of the
construed so as not to override state laws or to government. Its action in recognizing a foreign
impair rights arising under them. government and in receiving its diplomatic
representatives is conclusive on all domestic
The assignment left unaffected the right of courts, which are bound to accept that
petitioner to set up against the United States the determination, although they are free to draw for
previous running of the statute of limitations. themselves its legal consequences in litigations
pending before them. Jones v. United States,
2. Second. Respondent, relying on the New supra, 137 U.S. 202, 212, 11 S.Ct. 80, 34 L.Ed.
York rules that the statute of limitations does not 691; Agency of Canadian Car & Foundry Co. v.
run against a suit to recover a bank account until American Can Co., 2 Cir., 258 F. 363, 6 A.L.R.
liability upon it is repudiated, Tillman v. Guaranty 1182; Lehigh Valley R. Co. v. State of Russia,
Trust Co., 253 N.Y. 295, 171 N.E. 61, and that the supra.
statute of limitations does not run against a plaintiff
who has no forum in which to assert his rights, We accept as conclusive here the determination of
Oswego & Syracuse R. Co. v. State, 226 N.Y. 351, our own State Department that the Russian State
359, 362, 124 N.E. 8; Board of Sup'rs of Cayuga was represented by the Provisional Government
County v. State, 153 N.Y. 279, 291, 47 N.E. 288; through its duly recognized representatives from
Parmenter v. State, 135 N.Y. 154, 163, 31 N.E. March 16, 1917, to November 16, 1933, when the
1035, argues that until recognition of the Soviet Soviet Government was recognized. There was at
Government there was no person to whom notice all times during that period a recognized diplomatic
of petitioner's repudiation could be given and no representative of the Russian State to whom notice
court in which suit could be maintained to recover concerning its interests within the United States
the deposit. could be communicated, and to whom our courts
were open for the purpose of prosecuting suits in
It is not denied that, in conformity to generally behalf of the Russian State. In fact, during that
accepted principles, the Soviet Government could period suits were brought in its behalf in both the
not maintain a suit in our courts before its federal and state courts, which consistently ruled
recognition by the political department of the that the recognized Ambassador and Financial
government. For this reason access to the federal Attache were authorized to maintain them.
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which attached to action taken here prior to the


We do not stop to inquire what the 'actual authority later recognition.
of those diplomatic representatives may have
been. When the question is of the running of the
statute of limitations, it is enough that our courts Wulfsohn et al. v Russian Socialist Federated
have been open to suit on behalf of the Russian Soviet Republic
State in whom the right to sue upon the petitioner's
present claim was vested, and that the political FACTS:
department of the government has accorded
recognition to a government of that state, received The Russian Federated Soviet Republic is the
its diplomatic representatives, and extended to existing de facto government of Russia. This is
them the privilege of maintaining suit in our courts admitted by the plaintiff. Otherwise there is no
in behalf of their state. The right and opportunity to proper party defendant before the court. It is
sue upon the claim against petitioner was not claimed by the defendant. The Appellate Division
suspended; and notice of repudiation of the liability states that it is a matter of common knowledge. It
given to the duly recognized diplomatic has not been recognized by the government of the
representatives must so far as our own courts are United States.
concerned, be taken as notice to the state whom The plaintiffs owned a quantity of furs.
they represented. They were stored in Russia and they were
confiscated by the Russian government. Treating
The government argues that recognition of the this act as a conversion the present action is
Soviet Government, an action which for many brought.
purposes validated here that government's ISSUE:
previous acts within its own territory, operates to Whether or not the defendant, which
set at naught all the legal consequences of the hadnt been recognized by the US, can be sued in
prior recognition by the United States of the the courts of the United States.
Provisional Government and its representatives, as RULING:
though such recognition had never been accorded. The government itself is sued for an exercise of
This is tantamount to saying that the judgments in sovereignty within its own territories on the theory
suits maintained here by the diplomatic that such an act, if committed by an individual here,
representatives of the Provisional Government, would be a tort under our system of municipal law.
valid when rendered, became invalid upon It is said that, because of non-recognition by the
recognition of the Soviet Government. The one United States, such an action may be maintained.
operates only to validate to a limited extent acts of There is no relation between the premise and the
a de facto government which, by virtue of the conclusion.
recognition, has become a government de jure. But The result reached by the Court depends on
it does not follow that recognition renders of no whether or not a government exists. The Court has
effect transactions here with a prior recognized stated that no proof is needed as the fact is
government in conformity to the declared policy of conceded that the RFSR is the existing
our own government. The very purpose of the government in Russia.
recognition by our government is that our nationals The court further stated that it is not competent to
may be conclusively advised with what government review the actions of the respondents as the court
they may safely carry on business transactions and may not bring a foreign sovereign before their
who its representatives are. If those transactions, jurisdiction because the foreign sovereign has yet
valid when entered into, were to be disregarded to submit itself to the United States laws,
after the later recognition of a successor recognized or not. As such an attempt, as stated
government, recognition would be but an idle by the court, would be the same as To cite a
ceremony, yielding none of the advantages of foreign potentate into a municipal court for any
established diplomatic relations in enabling complaint against him in his public capacity is
business transactions to proceed, and affording no contrary to the law of nations, and an insult which
protection to our own nationals in carrying them on. he is entitled to resent.(De Haber v. Queen of
Portugal, 17 Q.B. 171. Such case is stated to be
It is concluded by the court that the recognition of not confided to the courts, but to another
the Soviet Government left unaffected those legal department of government. Whenever an act done
consequences of the previous recognition of the by a sovereign in his sovereign character is
Provisional Government and its representatives, questioned, it becomes a matter of negotiation, or
of reprisals, or of war.
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The orders, therefore, appealed from, should be connection with his purchases, that the materials
reversed, with costs in all courts, and motions to purchased were not in compliance with the
vacate attachment granted, with costs, and the contract, but were in large part worthless, and that
question certified to us should be answered in the the time limitation prescribed by the contract was
negative not observed.
It is also charged that various corporations named
as defendants in this action were organized by
Cibrario for the purpose of defrauding the plaintiff,
RUSSIAN SOCIALIST FEDERATED SOVIET and that their sole assets consist of the plaintiff's
REPUBLIC v. CIBRARIO et al 235 N.Y. 255, 139 moneys received by Cibrario in violation of his
N.E. 259 Court of Appeals of New York. March 6, trust.
1923. A receiver was asked of the effects of the
Background of the case in the Appellate Division of defendant Cibrario, as well as of the various
the Supreme Court of New York First Department. corporations organized and controlled by him, and
198 App Div 869( N.Y. App. Div. 1921) of all their property, as well as an injunction
This action is brought by the plaintiff in its alleged restraining the transfer of any of their property, in
capacity of a sovereign State, to compel the order to preserve whatever might remain of
defendants to account for moneys which, it is plaintiff's funds pending the trial of this action.
claimed, the defendant Cibrario fraudulently From the order appointing such receiver this
obtained under a contract made by him on July 24, appeal is taken.
1918, with the Cinematographic Committee of the With regards to such charges the defendants
Commissariat of Public Instruction which is alleged objected that the Russian Socialiast Federated
to be a subordinate government body of the Soviet Republic, never having been recognized as
plaintiff. a sovereignty by the executive or legislative
This contract provided for the purchase by the departments of the United States government, has
cinematographic committee, of certain moving no capacity to sue in the courts of the United
picture machines, apparatus, film and material, at States, or of any of the States.
designated prices mentioned therein, aggregrating The main issue on the case was: Whether or not
16,985,500 rubles, and the committee, in addition the Russian Socialist Federated Soviet Republic,
to paying the prices therein mentioned for the hereinafter referred as the Russian Soviet
goods, were to pay the defendant Cibrario six per Government, is a sovereign State, having its seat
cent on the entire sum to be paid him at once as a of government at Moscow, Russia.
guaranty of fulfillment by the committee. The sum The court stated that such question must be
of $10,000 was in fact paid by the plaintiff to determined by the court, not on its own initiative,
Cibrario as an advance payment on his but by reference to the public acts of the executive
commissions. and legislative departments of the government, of
In August, 1918, plaintiff delivered to Dr. Wm. C. which the courts are bound to take judicial notice.
Huntington, American commercial attache at The court also raised in its decision that: official
Petrograd, the sum of $1,000,000 to be deposited recognition is the sole test of the existence of a
in a reliable banking institution in the United States foreign government, de facto or de jure, but, as
of America, subject to drafts drawn on the well, that the fact of such recognition is to be
conditions contained in the contract referred to, a ascertained from the appropriate governmental
copy of which was to be filed with the institution authority, and that, if at any time such authority
selected. Thereafter Dr. Huntington caused the advises the court of a change in the status of a
said sum of $1,000,000 to be deposited with the foreign government, the court must act on that
National City Bank of New York in accordance with information. And whenever the question has been
the terms of the agreement, a copy of which was raised in this State, it has been held that the test of
deposited with it, and the deposit was accepted the right of a foreign sovereignty to sue in our
subject to the limitations and terms imposed by the courts is its recognition by our own government.
agreement upon the withdrawal of the funds so And while plaintiff claims to be a de facto
deposited. government, and its title and right to sue alike rest
The plaintiff contends that, under the contract, the on that claim, it is unable to show any acts of
defendant Cibrario was acting as its purchasing recognition by the government of this country. On
agent and nothing more, and could not lawfully the contrary, the record proves that, so far as this
make a profit on the purchase and sale of the country is concerned, the plaintiff is non-existent as
goods in question. In substance plaintiff charges a sovereignty. This was proved when it was stated
that Cibrario made large secret profits in by the United States Senate committe that one of
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the party plaintiffs named Ludwig C.A.K. Martens, reciprocal regard, founded on identity of position
one who claims to be a representative for the and similarity of institutions. Fisher, Brown & Co. v.
RFSR, had no status to do so as he was not given Fielding, 67 Conn. 91, 108, 34 Atl. 714, 716
recognition as a representative and that the United The court reached the conclusion that as a foreign
States has never recognized the RFSR. power brings an action to the US courts not as a
The facts appearing without contradiction, it follows matter of right. Its power to do so is the creature of
that plaintiff, never having been recognized as a comity. Until such government is recognized by the
sovereignty by the executive or legistlative United States no such comity exists. Being that the
branches of the United States government, has no plaintiff concededly has not been recognized.
capacity to sue in the courts of this State. There is, therefore, no proper party before the
Due to the determintation that there being no court. It was added that recognition, and,
plaintiff before the court having capacity to sue, it is consequently, the existence of comity, is purely a
unnecessary to discuss the other reasons matter for the determination of the legislative or
advanced by appellants. executive departments of the government. It was
Thus the order appealed from is reversed and further discussed that it is not for the courts to say
motion denied. CLARKE, P.J., SMITH, PAGE and whether the present governments of Russia or
GREENBAUM, JJ., concur. Mexico or Great Britain should or should not be
https://casetext.com/case/russian-socialist- recognized. They are or they are not. That is as far
federated-republic-v-cibrario as they may inquire.
PRESENT CASE:
235 N.Y. 255, 139 N.E. 259 Court of Appeals of And even if such comity did not depend on
New York. March 6, 1923. recognition the court would have still refused to
FACTS: recognize the petitioners as the US State
This is an Appeal from the Supreme Court, Department that:
Appellate Division First Department Decision with He begins by saying that our government will not
the same title. participate in any plan for the expansion of the
In Wulfsohn v. Russian Federated Soviet armistice negotiations between Russia and Poland
Republic, 234 N. Y. 372, 138 N. E. 24, we held that into a general European conference, which would
our courts would not entertain jurisdiction of an in all probability involve two results, from both of
action brought without its consent against an which this country strongly recoils, - Secretary
existing foreign government, in control of the Colby August 10, 1920
political and military power within its own territory, And such position has not receded as it was stated
whether or not such government had been by Secretary Hughes on March 25, 1921, that he
recognized by the United States. postpones any consideration of trade relations until
ISSUE: such time the US government has has convincing
Whether or not such a government may itself evidence of fundamental changes that will fulfill
become a plaintiff in this case. these conditions.
RULING:
The court stated that if said government was
recognized that it may undoubtedly be a plaintiff. It Banco Nacional de Cuba v. Sabbatino, 376 U.S.
also stated that said right may depend on treaty but 398 (1964)
if such treaty does not exist then the privilege rests
upon the theory of international comity. Comity, as FACTS:
stated by the courts, may be defined as that
reciprocal courtesy which one member of the In February and July of 1960, respondent Farr,
family of nations owes to the others. It Whitlock & Co., an American commodity broker,
presupposes friendship. It assumes the prevalence contracted to purchase Cuban sugar, free
of equity and justice. Experience points to the alongside the steamer, from a wholly owned
expediency of recognizing the legislative, subsidiary of Compania Azucarera Vertientes-
executive, and judicial acts of other powers. We do Camaguey de Cuba (C.A.V.), a corporation
justice that justice may be done in return. organized under Cuban law whose capital stock
What is termed the comity of nations is the formal was owned principally by United States residents.
expression and ultimate result of that mutual Farr, Whitlock agreed to pay for the sugar in New
respect accorded throughout the civilized world by York upon presentation of the shipping documents
the representatives of each sovereign power to and a sight draft.
those of every other, in considering the effects of On July 6, 1960, the Congress of the United States
their official acts. Its source is a sentiment of amended the Sugar Act of 1948 to permit a
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presidentially directed reduction of the sugar quota Whitlock, which on the same day was notified of
for Cuba. On the same day, President Eisenhower C.A.V.'s claim that, as rightful owner of the sugar, it
exercised the granted power. The day of the was entitled to the proceeds. In return for a
congressional enactment, the Cuban Council of promise not to turn the funds over to petitioner or
Ministers adopted "Law No. 851," which its agent, C.A.V. agreed to indemnify Farr, Whitlock
characterized this reduction in the Cuban sugar for any loss. Farr, Whitlock subsequently accepted
quota as an act of "aggression, for political the shipping documents, negotiated the bills of
purposes" on the part of the United States, lading to its customer, and received payment for
justifying the taking of countermeasures by Cuba. the sugar.
The law gave the Cuban President and Prime It refused, however, to hand over the proceeds to
Minister discretionary power to nationalize by Societe Generale. Shortly thereafter, Farr, Whitlock
forced expropriation, property or enterprises in was served with an order of the New York
which American nationals had an interest. Supreme Court, which had appointed Sabbatino as
Although a system of compensation was formally Temporary Receiver of C.A.V.'s New York assets,
provided, the possibility of payment under it may enjoining it from taking any action in regard to the
well be deemed illusory. The State Department has money claimed by C.A.V. that might result in its
described the Cuban law as "manifestly in violation removal from the State. Following this, Farr,
of those principles of international law which have Whitlock, pursuant to court order, transferred the
long been accepted by the free countries of the funds to Sabbatino, to abide the event of a judicial
West. It is in its essence discriminatory, arbitrary determination as to their ownership.
and confiscatory." Petitioner then instituted this action in the Federal
Between August 6 and August 9 of 1960, the sugar District Court for the Southern District of New York.
covered by the contract between Farr, Whitlock Alleging conversion of the bills of lading it sought to
and C.A.V. was loaded, destined for Morocco, onto recover the proceeds thereof from Farr, Whitlock
the S.S. Hornfels, which was standing offshore at and to enjoin the receiver from exercising any
the Cuban port of Jucaro (Santa Maria). On the dominion over such proceeds. Upon motions to
day loading commenced, the Cuban President and dismiss and for summary judgment, the District
Prime Minister, acting pursuant to Law No. 851, Court, sustained federal in personam jurisdiction
issued Executive Power Resolution No. 1. It despite state control of the funds. It found that the
provided for the compulsory expropriation of all sugar was located within Cuban territory at the time
property and enterprises, and of rights and of expropriation, and determined that, under
interests arising therefrom, of certain listed merchant law common to civilized countries, Farr,
companies, including C.A.V., wholly or principally Whitlock could not have asserted ownership of the
owned by American nationals. The preamble sugar against C.A.V. before making payment.
reiterated the alleged injustice of the American It concluded that C.A.V. had a property interest in
reduction of the Cuban sugar quota and the sugar subject to the territorial jurisdiction of
emphasized the importance of Cuba's serving as Cuba. The court then dealt with the question of
an example for other countries to follow "in their Cuba's title to the sugar, on which rested
struggle to free themselves from the brutal claws of petitioner's claim of conversion. While
Imperialism." acknowledging the continuing vitality of the act of
In consequence of the resolution, the consent of state doctrine, the court believed it inapplicable
the Cuban Government was necessary before a when the questioned foreign act is in violation of
ship carrying sugar of a named company could international law.
leave Cuban waters. In order to obtain this Proceeding on the basis that a taking invalid under
consent, Farr, Whitlock, on August 11, entered into international law does not convey good title, the
contracts, identical to those it had made with District Court found the Cuban expropriation
C.A.V., with the Banco Para el Comercio Exterior decree to violate such law in three separate
de Cuba, an instrumentality of the Cuban respects: it was motivated by a retaliatory, and not
Government. The S.S. Hornfels sailed for Morocco a public, purpose; it discriminated against
on August 12. American nationals; and it failed to provide
Banco Exterior assigned the bills of lading to adequate compensation. Summary judgment
petitioner, also an instrumentality of the Cuban against petitioner was accordingly granted.
Government, which instructed its agent in New The Court of Appeals, affirming the decision on
York, Societe Generale, to deliver the bills and a similar grounds, relied on two letters (not before
sight draft in the sum of $175,250.69 to Farr, the District Court) written by State Department
Whitlock in return for payment. Societe Generale's officers which it took as evidence that the
initial tender of the documents was refused by Farr, Executive Branch had no objection to a judicial
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testing of the Cuban decree's validity. The court but such refusal to recognize has a unique legal
granted certiorari because the issues involved bear aspect. Political recognition is exclusively a
importantly on the conduct of the country's foreign function of the Executive. The possible deviation of
relations and, more particularly, on the proper role judicial "recognition," by permitting suit, of a
of the Judicial Branch in this sensitive area. For government not recognized by the Executive is
reasons to follow, the court decide that the completely absent when merely diplomatic
judgment below must be reversed. relations are broken.
ISSUE: The view that the existing situation between the
Whether or not petitioner, an instrumentality of the United States and Cuba should not lead to a denial
Cuban Government, should be denied access to of status to sue is due to the circumstance that
American courts. none of the acts of US Government has been
RULING: aimed at closing the courts of the country to Cuba.
It was contended that the petitioner, being an
instrumentality of the Cuban Government, should THE AMBROSE LIGHT. UNITED STATES v. THE
be denied access to American courts because AMBROSE LIGHT
Cuba was an unfriendly power, and did not permit FACTS:
nationals of the US to obtain relief in its courts. But This case was filed to procure the seized
the court ruled that the petitioner should not be brigantine Ambrose Light, which was brought into
barred from accessing the American Courts. the US port as prize on June 3, 1885, by Lieut.
Under principles of comity governing the United Wright and a prize crew, detached from the United
States relations with other nations, the court stated States gun-boat alliance, under Commander
that sovereign states are allowed to sue in the Clarke, by whose orders the brigantine had been
courts of the United States. The Court has called seized on April 24 1885. The seizure was made in
comity as "neither a matter of absolute obligation, the Carribean sea, about 20 miles to the west of
on the one hand, nor of mere courtesy and good Cartagena when the commander was looking for
will, upon the other." Although comity is often the insurgent Preston, by whose orders Colon had
associated with the existence of friendly relations shortly before been fired, to the great loss and
between states, some of the recent lower court injury of the US citizens. Instead of Preston, they
cases which have questioned the right of saw the Ambrose light, which was displaying a
instrumentalities of the Cuban Government to sue Colombian flag. Upon examination, some 60
in the United States courts, the privilege of suit has armed soldiers were found concealed below the
been denied only to governments at war with the decks of the ship and one cannon aboard. Along
United States, or to those not recognized by this with it came papers purporting to be a
country. commissioning the boat as a Colombian vessel-of-
Respondents, also pointed to the severance of war.
diplomatic relations, commercial embargo, and Believing the commission to be irregular,
freezing of Cuban assets in this country, contend and that it had no lawful authority to cruise as a
that relations between the United States and Cuba vessel-of-war on the high seas, Commander
manifest such animosity that unfriendliness is Clarke reported the Ambrose light as under seizure
clear, and that the courts should be closed to the to Admiral Jouett who in turn directed them to take
Cuban Government. The Court did not agree. It it to New York for adjudication as prize.
stated that the court is hardly competent to assess The vessel was at first supposed to belong
the relationship with another recognized sovereign to citizens of the United States. The proofs showed
power as embracing the privilege of resorting to that it had been sold to, and legally belonged to,
United States courts. Colente, one of the chief military leaders of the
.Although the severance of diplomatic relations is insurgents at Barranquilla. It was engaged upon a
an overt act with objective significance in the hostile expedition against Cartagena, and
dealings of sovereign states, the Court was designed to assist in the blockade and siege of that
unwilling to state that it should inevitably result in port by the rebels against the established
the withdrawal of the privilege of bringing suit. government of the United States of Colombia. The
Severance may take place for any number of boat had left Sabanilla on April 20th, bound for
political reasons but it was stated that it does not Baru, near Cartagena, where she expected the
imply a declaration of war. soldiers aboard to disembark. The Ambrose light
It was further discussed that non-recognition of a was under the orders of the colonel of the troops,
government in certain circumstances may reflect whose instructions were to shoot the captain if
no greater unfriendliness than the severance of disobedient to his orders. Further instructions were
diplomatic relations with a recognized government, to fight any Colombian vessel not showing the
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white flag with a red cross. Sabanilla, and a few Recognition of belligerent rights may be
other adjacent sea-ports, and the province of tacit, implied or express. It is express when made
Barranquilla, including the city of Barranquilla, had by a proclamation of neutrality. It is implied in a
been for some months previous, and still were, declaraction of blockade, as in that of President
under the control of the insurgents. Lincoln during April 19, 1861. And it is a tacit
As respects to any recognition of the insurgents by recognition when there has been long
foreign powers, it did not appear in evidence that acquiescence in belligerent acts affecting another
up to the time of the seizure of the vessel on April nations interests, without protest or objection, such
24, 1885, a state of war had been recognized as as the blockading of ports or the use of nations
existing, or that the insurgents had ever been ports as a harbor for prizes.
recognized as a de facto government, or as having And has been stated by the court, the
belligerent rights, either by the Colombian attitude assumed by the US government is of a
government, or by the US government, or by any recognition by necessary implication of the existing
other nation. The claimants introduced in evidence insurrection as constituting a state of civil war. It
a diplomatic note from the US secretary of state to assumes that the Colombian government, as
the Colombian minister, dated April 24, 1885, respects the ports in question, is a belligerent; that
which, it was contended, amounted to a recognition the insurgents hold those ports as a de facto
by implication of a state of war. The government power, to the exclusion, for the time being, of the
claimed the forfeiture of the ship as piratical, under Colombian government and of its sovereign
the law of nations, because she was not sailing authority; that they are in arms against the latter
under the authority of any acknowledged power. government; and it is declared that the US
The claimants contended that, being actually government will not recognize any attempt by the
belligerent, she was in no event piratical by the law Colombian government to close these ports by
of nations; but if so, that the subsequent virtue of its own sovereignty as lawful or valid; nor
recognition of belligerency by the US government any closure, except by means of an effectual
by implication entitles her to a release. blockade, i.e., by acts of war. In saying that it
ISSUE: would recognize no rights of the Colombian
Whether or not the insurgents had or had not government at those ports, except belligerent
obtained any previous recognition of belligerent rights, our government implies belligerent rights in
rights, either from their own government or from those who hold those ports adversely.
the political or executive department of any other The US government could not say that Colombia
nation shall exercise no rights but belligerent rights, and
RULING: at the same time deny such rights to the opposite
The ruling went over the status of the vessel as for party. No stronger assertion by implication of the
lawful warfare or as piratical. The basis of the rebel de facto authority, and of a state of war could
whole decision was bordered on whether the well be made.
insurgents had or had not obtained any previous To avoid irritations among friendly powers it may
recognition of belligerent rights from either their often be expedient, in cases of domestic strife, to
own government or from the political or executive withhold all express announcements of neutrality,
department of any other nation; and that in the or recognition of belligerency, until some occasion
absence of recognition by any government, the makes it necessary; and where the insurgents
tribunals of other nations must hold such studiously avoid interference with foreign vessels
expedition to be technically piratical. In the on the high seas, or with their freedom of
absence of any recognition of the insurgents as commerce, recognition may be long delayed, and
belligerents, the Ambrose Light have been lawfully no occasion arise for foreign nations to take notice
seized, as bound upon an expedition technically of the strife, whether on land or sea.
piratical. The seizure was rightful and the discharge is
But as additional facts proved show, such granted upon causes subsequent. The necessary
a subsequent implied recognition by the US disbursements should therefore fall upon the
government of the insurgent forces as government vessel and not upon the United States. The vessel
de facto, in a state of war with Colombia, and is discharged from US Custody.
entitled to belligerent rights, as should prevent the
condemnation of the vessel as prize. The The Three Friends, 166 U.S. 1 (1897)
communication from the department of state to the FACTS:
Colombian minister, bearing such date of seizure, The steamer Three Friends was seized
seems to have constituted such a recognition by November 7, 1896, by the collector of customs for
necessary implication. the district of St. Johns, Fla., as forfeited to the
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United States under 5283(which prohibited the of damages suffered by our citizens from the
arming of a vessel for hostile purposes against an prevalence of warfare.
entity with whom the United States was at peace.) Belligerency is recognized when a political struggle
of the Revised Statutes, and thereupon, November has attained a certain magnitude, and affects the
12th, was libeled on behalf of the United States in interests of the recognizing power; and, in the
the District Court for the Southern District of instance of maritime operations, recognition may
Florida. It was alleged that the vessel was engaged be compelled, or the vessels of the insurgents, if
in hostile operations in Cuba against the Spanish molesting third parties, may be pursued as pirates.
Government with whom the United States had not The Ambrose Light, 25 F. 408; 3
accorded recognition to the Cuban rebels. The Whart.Dig.Int.Law, 381, and authorities cited.
vessel was appraised at $4,000, and a bond on But it belongs to the political department to
stipulation given for $10,000, upon which she was determine when belligerency shall be recognized,
directed to be released. and its action must be accepted according to the
ISSUE: terms and intention expressed.
Whether or not the release of Three Friends was The distinction between recognition of belligerency
valid. and recognition of a condition of political revolt --
RULING: between recognition of the existence of war in a
The Court has ordered that such order for the material sense and of war in a legal sense -- is
release of the vessel was improvidently made, as it sharply illustrated by the case before us, for here
should not have been released. the political department has not recognized the
Section 5283 of the Revised Statutes is as follows: existence of a de facto belligerent power engaged
"Every person who, within the limits of the United in hostility with Spain, but has recognized the
States, fits out and arms, or attempts to fit out and existence of insurrectionary warfare prevailing
arm, or procures to be fitted out and armed, or before at the time, and since this forfeiture is
knowingly is concerned in the furnishing, fitting out, alleged to have been incurred.
or arming, of any vessel with intent that such On June 12, 1895, a formal proclamation was
vessel shall be employed in the service of any issued by the President, and countersigned by the
foreign prince or state, or of any colony, district, or Secretary of State, informing the people of the
people, to cruise or commit hostilities against the United States that the Island of Cuba was "the seat
subjects, citizens, or property of any foreign prince of serious civil disturbances, accompanied by
or state, or of any colony, district, or people, with armed resistance to the authority of the established
whom the United States are at peace, or who government of Spain, a power with which the
issues or delivers a commission within the territory United States are and desire to remain on terms of
or jurisdiction of the United States, for any vessel, peace and amity;" declaring that "the laws of the
to the intent that she may be so employed, shall be United States prohibit their citizens, as well as all
deemed guilty of a high misdemeanor, and shall be others being within and subject to their jurisdiction,
fined not more than ten thousand dollars, and from taking part in such disturbances adversely to
imprisoned not more than three years. And every such established government, by accepting or
such vessel, her tackle, apparel, and furniture, exercising commissions for warlike service against
together with all materials, arms, ammunition, and it, by enlistment or procuring others to enlist for
stores, which may have been procured for the such service, by fitting out or arming, or procuring
building and equipment thereof, shall be forfeited; to be fitted out and armed, ships of war for such
onehalf to the use of the informer, and the other service, by augmenting the force of any ship of war
half to the use of the United States." engaged in such service and arriving in a port of
As stated by the Court any other conclusion rests the United States, and by setting on foot or
on the unreasonable assumption that the act is to providing or preparing the means for military
remain ineffectual unless the government incurs enterprises to be carried on from the United States
the restraints and liabilities incident to an against the Territory of such government," and
acknowledgment of belligerency. On the one hand, admonishing all such citizens and other persons to
pecuniary demands, reprisals, or even war may be abstain from any violation of these laws.
the consequence of failure in the performance of In his annual message of December 2, 1895, the
obligations towards a friendly power, while on the President said:
other, the recognition of belligerency involves the "Cuba is again gravely disturbed. An insurrection,
rights of blockade, visitation, search, and seizure of in some respects, more active than the last
contraband articles on the high seas, and preceding revolt, which continued from 1868 to
abandonment of claims for reparation on account 1878, now exists in a large part of the eastern
interior of the island, menacing even some
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populations on the coast. Besides deranging the vessels, and for which bond shall not have been
commercial exchanges of the island, of which our given by the claimant. . . ."
country takes the predominant share, this flagrant Section 940 authorizes the judges to do in vacation
condition of hostilities, by arousing sentimental everything that they could do in term time in regard
sympathy and inciting adventurous support among to bonding and sales, and to "exercise every other
our people, has entailed earnest effort on the part incidental power necessary to the complete
of this government to enforce obedience to our execution of the authority herein granted."
neutrality laws and to prevent the territory of the Section 941 provides:
United States from being abused as a vantage "When a warrant of arrest or other process in rem
ground from which to aid those in arms against is issued in any cause of admiralty jurisdiction,
Spanish sovereignty." except the cases of seizure for forfeiture under any
July 27, 1896, a further proclamation was law of the United States, the marshal shall stay the
promulgated, and in the annual message of execution of such process, or discharge the
December 7, 1896, the President called attention property arrested if the process has been levied,
to the fact that "the insurrection in Cuba still on receiving from the claimant of the property a
continues, with all its perplexities," and gave an bond or stipulation in double the amount claimed
extended review of the situation. by the libellant, with sufficient surety, to be
We are thus judicially informed of the existence of approved by the judge," etc.
an actual conflict of arms in resistance of the By section 917, this Court may prescribe rules of
authority of a government with which the United practice in admiralty "in any manner not
States are on terms of peace and amity, although inconsistent with any law of the United States."
acknowledgment of the insurgents as belligerents Rule 11 is as follows:
by the political department has not taken place, "In like manner, where any ship shall be arrested,
and it cannot be doubted that, this being so, the act the same may, upon the application of the
in question is applicable. claimant, be delivered to him upon a due
We see no justification for importing into section appraisement, to be had under the direction of the
5283 words which it does not contain, and which court, upon the claimant's depositing in court so
would make its operation depend upon the much money as the court shall order, or upon his
recognition of belligerency; and, while the libel giving a stipulation, with sureties, as aforesaid, and
might have been drawn with somewhat greater if the claimant shall decline any such application,
precision, we are of opinion that it should not have then the court may, in its discretion, upon the
been dismissed. application of either party, upon due cause shown,
This conclusion brings us to consider whether the order a sale of such ship, and the proceeds thereof
vessel ought to have been released on bond and to be brought into court or otherwise disposed of,
stipulation. as it may deem most for the benefit of all
It is provided by section 938 of the Revised concerned."
Statutes that: In The Mary N. Hogan, 17 F. 813, Judge Brown, of
"Upon the prayer of any claimant to the court that the Southern District of New York, refused to
any vessel, goods, wares, or merchandise seized deliver the vessel on stipulation, and, referring to
and prosecuted under any law respecting the Rule 11, said that it was not in form imperative in
revenue from imports or tonnage, or the registering all cases, but left to the court a discretion which
and recording, or the enrolling and licensing of might be rightly exercised under peculiar
vessels, or any part thereof, should be delivered to circumstances, and that the rule clearly should not
him, the court shall appoint three proper persons to be applied where the object of the suit was "not the
appraise such property, who shall be sworn in enforcement of any money demand, nor to secure
open court, or before a commissioner appointed," any payment of damages, but to take possession
etc. "If, on the return of the appraisement, the of and forfeit the vessel herself in order to prevent
claimant, with one or more sureties, to be approved her departure upon an unlawful expedition in
by the court, shall execute a bond to the United violation of the neutrality laws of the United
States," etc., "the court shall, by rule, order such States."
vessel, goods, wares, or merchandise to be And he added:
delivered to such claimant. . . ." "It is clearly not the intention of section 5283, in
Section 939 provides for the sale of vessels imposing a forfeiture, to accept the value of the
"condemned by virtue of any law respecting the vessel as the price of a hostile expedition against a
revenue from imports or tonnage, or the registering friendly power, which might entail a hundredfold
and recording, or the enrolling and licensing of greater liabilities on the part of the government. No
unnecessary interpretation of the rules should be
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adopted which would permit that result, and yet An entity acquiring the 4 ESSENTIAL
such might be the result, and even the expected REQUISITES of elements is regarded in law as
result, of a release of the vessel on bond. The plain having achieved the status of a state and may
intent of section 5283 is effectually to prevent any
therefore be treated as an international person.
such expedition altogether, through the seizure
and forfeiture of the vessel herself. The
government is therefore entitled to retain her in
custody, and Rule 11 cannot be properly applied to
Generally accepted methods why states are
such a case."
But in section 941 of the Revised Statutes, the created:
exception was introduced of "cases of seizure for
forfeiture under any law of the United States," and 1. Revolution
it seems obvious that the release on bond of a
vessel charged with liability to forfeiture under An overthrow or repudiation and the thorough
section 5283, before answer or hearing, and replacement of an established government or
against the objection of the United States, could political system by the people governed.
not have been contemplated. However, as this
application was not based upon absolute right, but Example: USA
addressed to the sound discretion of the court, it is
enough to hold that, under the circumstances of
this case, the vessel should not have been
released as it was, and should be recalled on the 2. Unification
ground that the order of release was improvidently
made It is the process of being united or made into a
The decree must be reversed, and the cause
remanded to the district court with directions to whole.
resume custody of the vessel, and proceed with
the case in conformity with this opinion.
Ordered accordingly.
Example: Italy

3. Secession
IV. Succession of States and
Governments It is the withdrawal of a group from a larger entity,
especially a political entity, but also any
The Concept of the State organization, union or military alliance.

State - Basic Unit of the international community Example: Bangladesh


and the principal subject of international law. It is
therefore important to understand its concept,
manner of creation, its rights and responsibilities,
4. Assertion of Independence
the duration of its existence, and the modes and
effects of its extinction. A declaration of independence or declaration of
statehood is an assertion by a defined territory that
it is independent and constitutes a state. Such
4 Essential Elements of the State: places are usually declared from part or all of the
territory of another nation or failed nation, or are
1. People breakaway territories from within the larger state.
2. Territory
3. Government Example: Philippines
4. Sovereignty or independence

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5. Agreement

It is built through treaties and talks between


nations.

Example: The Kingdom of Netherlands, Poland

6. Attainment of Civilization
The Robert E. Brown Case (United States of
Japan attained Civilization by seriously challenging America vs Great Britain) (1923)
the 19th century identification of civilization with
Christendom as used by the Westerners. Having Facts:
adhered to several international conventions, and
The Robert E. Brown case arose in the context of
revised their civil and criminal codes, they
the British annexation of the Boer Republics in
managed to negotiate the repeal of the unequal
1902, towards the close of the Second Anglo-Boer
treaties from 1894 onwards, as well as to win back
War. Brown, an American national was deprived of
control over their tarifs, and their victory over
his rights through a proclamation of the Boer
Russia in 1905 simply conrmed their status as a
government in 1895. He brought a suit before the
major Power.
South African courts in 1897 and won, but the
Example: Japan (Became an international person government refused to honor the judgment.
by attainment of Civilization) Following British annexation of the Transvaal
Republic, Brown pressed his case with the British
authorities and was again refused. Finally, Brown
brought a further claim before the Great Britain
THE PRINCIPLE OF CONTINUITY United States Claims Commission for denial of
justice, arguing that as successor to the Boer
Once the identity of the state as an international
Republics, Britain was answerable for their delicts.
person has been fixed and its position in the
international community established, "the state
continues to be the same corporate person
whatever changes may take place in its Held: Although the Commission agreed that a
international operation and government. denial of justice on the part of the South African
authorities had indeed taken place, it refused to
Limitation of sovereignty only reduces it to the hold Britain liable as successor, stating:
status of a dependent state but does not entirely
deprive it of international personality.

[W]e are equally clear that [South African] liability


never passed to or was assumed by the British
The PRINCIPLE OF STATE CONTINUITY Government, Neither in terms of peace granted at
the time of the surrender of the Boer Forces nor
It means that the legal existence of a state
the Proclamation of Annexation can there be
continues notwithstanding changes in the size of its
found any provisions referring to the assumption of
population or territory or in the form of leadership of
liabilities of this nature The contention of the
its government as long as the four (4) elements of
American Agent amounts to an assertion that a
statehood are retained.
succeeding State acquiring territory by conquest
without any undertaking to assume such liabilities
is bound to take affirmative steps to right the

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wrongs done by the former State. We cannot seized over 2,617 ounces of gold from the West
indorse this doctrine. Rand Central Gold Mining Company for
safekeeping. Following the Anglo-Boer War,
Britain conquered the Republic of South Africa and
thereby came into possession of the seized gold.
Haile Selassie vs. Cable and Wireless Co. Ltd;
West Rand Central Gold Mining Company brought
Abyssinia vs Abyssinia vs U.K., 1939
suit seeking recovery of the gold on the premise
that conquest or change of sovereignty by cession
Facts: In December 1936, the King of Italy was
does not affect preexisting contractual rights. The
recognized by the British Government as the de
company relied on United States v. Perchman,
facto Sovereign of Ethiopia, while the Emperor
arguing that the whole of the civilized world would
Haile Selassie continued to be recognized as de
be outrages if private property should be generally
jure Sovereign. In November 1938, the British
confiscated and private rights annulled by the
Government recognized the King of Italy as de jure
Emperor of Ethiopia and withdrew its recognition British conquest.
from the Emperor Haile Selassie.

Issue:
Issue: Whether after annexation, a conquering
state becomes liable to discharge the financial
1. Which government would get the priority
obligations of the conquered state due to
between two recognized governments?
individuals or corporations
2. What would be the consequences of two
recognitions at the same time?
Held: Unpersuaded, the House of Lords held that
where the King of England conquers a country it is
Held: a different consideration, [from peaceable cession],
for there the conqueror by saving the lives of the
The decision of the Court of First Instance had people conquered gains a right and property in
been given before the de jure recognition of the such people, in consequence of which he may
Italian conquest, while the Court of Appeal decided impose upon them what law he pleases. In effect,
after that event. The Court of Appeals reversed the the court declined to extend protection to the
decision of the Chancery Division given in favour of private property rights of a South African
the plaintiff and dismissed Emperor Haile corporation by drawing a distinction between the
Selassies action. After the de jure recognition of circumstances under which such protection applies
the Italian conquest, it was held that in the Court of and those in which it does not. In light of the courts
England, the King of Italy as Emperor of Abyssinia observation that the Crown was freed of any
is entitled by succession to the public property of constraints in deciding what law to apply to
the State of Abyssinia, and the late Emperor of conquered people, it is plausible to argue that the
Abyssinias title thereto was no longer recognized decision was made to match the demands of
as existent. It was further held that right of colonial expediency rather than because the
succession is to be dated bact at any rate to the doctrine required such an outcome on any
date when de facto recognition of the king of Italy principled basis except those consistent with the
as Sovereign of Ethiopia has taken place. designs of the expanding British Empire.

West Rand Central Gold Mining Co. v The King

Facts: V. Rights and duties of states in


general
In the case West Rand Central Gold Mining Co. v
The King in 1905, the Republic of South Africa has *See Abellas report*

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State does not ordinarily fall within the realm of


international law.
VI. Territory of States

Occupation
Territory of the State
Prescription
There is no State without territory. International law
requires that any political group purporting to be a Cession
State occupy a fixed and definite portion of
territory. Subjugation

Territory -consists of the portion of the surface of Accretion


the globe on which that State settles and over
which it has supreme authority. The territory of a
State is an object of the law of Nations, because
Sector Principle: Polar Regions
the latter recognizes the supreme authority of
every State within its territory. Occupation: Means of acquiring a territory not
already forming part of the dominion of any state.
Domain-A more formal expression of the concept
The prime object of settlement by occupation is the
of Territory
incorporation of unappropriated territory into the
national domain of the acquiring State. Territory
must be res nullius or terra nullius.

Classification of Domain:
Primary distinction:
1. Territorial
The territory to be occupied must be an
2. Maritime/Fluvial
uninhabited territory
3. Aerial
Effect is possession and administration
The dominion which a State has over its land
territory, as a rule, is exclusive, and is more
Possession- There is a formal act announcing
absolute than that which it possesses over its
such intention and the fact of possession, either by
maritime and aerial domains proclamation or hoisting of the flag of the acquiring
State. Actual settlement on the land is a sufficient
expression of intention to take possession. It can
Territorial Acquisition be subjective or objective.

Acquisition: Subjective- Intention or will of the sovereign.

Act by which a state gains additional territory by Objective-Actual exercise or display of authority
recognized means via five (5) ways (the
Administration- Effective occupation is completed
recognized means). It is not to be confused with
upon the establishment of government or
the formation of a new State or with the acquisition
administration on the territory. If within a
of territory by entities not having an international
reasonable time after taking possession, the
personality or entities not vested by a sovereign
possessor does not establish some governing
State with authority to acquire territory for it.
functions, there is then no effective occupation
Acquisition of territory by entities other than a

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since in fact no sovereignty is exercised by any hostile territory through military force in time of war
State over the territory. and by which the victorious belligerent compels the
enemy to surrender sovereignty of that territory
thus occupied.

Inchoate title of discovery It is evident during the era of:

Title by which is gained upon initial discovery, Conquest


wherein if a period lapses without the discovering
state to claim such land, other states may occupy World Wars
and claim.

Extent of Occupation
Accretion: Increase of land area via natural
An occupation made is valid only with respect to circumstances (force of nature, or artificial via
and extends only to the area effectively occupied. labor)

Loss of Territory: Loss is possible Under right


circumstances (6 circumstances)
Right of Contiguity- Effective occupation of a
territory makes the sovereignty of the possessor Dereliction-Abandonment of territory by the
extend also over neighboring territories as far as is sovereign State, with the intention of relinquishing
necessary for the integrity, security and defense of sovereignty, is termed dereliction. It is physical
the land actually occupied. cessation of possession coupled with the Intention
of giving up sovereignty which constitutes
Prescription: The acquisition of territory by an relinquishment of title to the territory thus
adverse holding continued through a long term of abandoned.
years. Presumes the existence, or at least a theory
of an earlier title by another. Prescription

It must manifest: Cession-Bilateral Agreement

Continuous/undisturbed holding of a territorial Subjugation


domain and lapse of a period of time
Operation of Nature
Doctrine of immemorial prescription
Revolt
uncontested

Maritime and Fluvial Domain- Sovereignty of the


Cession: Transfer of sovereign from one state to State extends, beyond its land territory and its
another. Bilateral agreement whereby one State internal waters, to a belt of sea adjacent to its coast
transfers sovereignty over a definite portion of described as territorial sea.
territory to another State. Can be fractional or
entirety of the State or Domain.

Internal Waters- Sometimes called national or


inland waters, consists of waters in lakes, canals,
Subjugation: The acquisition of sovereignty of a river together with their mouths, ports and harbors,
certain territory by force of arms, exercised by an and may also include parts of the sea which have
independent power which reduces the vanquished the character of historic waters.
to the submission of its empire. The taking of a
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Article 1 of the Constitution National are those situated so close to a mainland that they
Territory may reasonably be considered part and parcel
thereof, forming more or less an outer coast-line
Rivers- (a) National rivers, (b) Boundary from which the marginal sea is measured.
rivers, (c) Multinational rivers, (d) International
rivers 2. Mid-Ocean/Outlying Archipellago (i.e.
Philippines)
Lakes and Locked Seas
are group of islands situated out in the ocean at
Canals-Artificially constructed waterways. such a distance from the coasts of firm land as to
be considered an independent whole rather than
Territorial Sea Comprises the waters in
forming part of the mainland.
the so-called maritime or marginal belt surrounding
the land area. It may also include bays, gulfs and Continental Shelf-
straits.
Bays and Gulfs
*Extent of Maritime belt of territorial seas
Strait
Conventions:
Aerial Domain: Includes airspace over its domain,
1956 International Law Convention extending over its territorial and maritime areas.

1958 Convention

1960 Convention Four (4) theories:

1974 Convention -Entirely Free and incapable of


appropriation
The two baseline methods -Analogy of Maritime Belt -a lower zone of
territorial air space and a higher unlimited zone of
1. Normal Baseline Method free airspace.
-Airspace-to an unlimited height is entirely
the breadth of territorial sea is measured from the within sovereignty of the subjacent State
low-water line, following the indentions of the -Subject to innocent passage-Foreign civil
coast. aircraft

2. Straight Baseline Method


General Agreement
it is drawn as straight lines connecting appropriate
points on the coast, without departing to any Jurisdiction to the air directly above
appreciable extent from the general direction of the
Admission or Non-admission is discretionary
coast.
Airspace over high seas are free for all
*Terra potestas finitus uli finitus armorum vis =
The ownership over land ends where the force of
arms ends
On Outer Space

Three (3) Schools


Territorial Waters of Archipelago
1. ad infinitum
Two (2) base types: 2. limited to atmosphere
3. free for all
1. Coastal Archipelago
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High Seas- are open to all nations and that no defines the rights and responsibilities of
State may subject any part of the high seas to its nations with respect to their use of the
sovereignty is well-established in international law. world's oceans, establishing guidelines for
businesses, the environment, and the
Freedom to navigate management of marine natural resources

Freedom to fish

Freedom to lay submarine pipes and A. INTERNAL WATERS


cables

Freedom to fly over them


Article 8 (UNCLOS) provides that:

Island of Palmas case:


1. Except as provided in Part IV, waters on the
A title that is inchoate cannot prevail over landward side of the baseline of the territorial sea
a definite title found on the continuous and form part of the internal waters of the State.
peaceful display of sovereignty. The peaceful and
continuous display of territorial sovereignty is as
good as title. However, discovery alone without
subsequent act cannot suffice to prove sovereignty 2. Where the establishment of a straight baseline
over the island. The territorial sovereignty of the in accordance with the method set forth in article 7
Netherlands (D) was not contested by anyone from has the effect of enclosing as internal waters areas
1700 to 1906. The title of discovery at best an which had not previously been considered as such,
inchoate title does not therefore prevail over the a right of innocent passage as provided in this
Netherlands (D) claims of sovereignty. Convention shall exist in those waters.

Clipperton Island case: Covers all water and waterways on the


landward side of the baseline.
On January 28, 1931, King Victor
Emmanuel of Italy declared Clipperton to be a The coastal state is free to set laws,
French possession. It was ruled that Mexico was regulate use, and use any resource.
not able to prove historic right over the Island. Part
Foreign vessels have no right of passage
of the decision says: When France proclaimed her
within internal waters.
sovereignty over Clipperton, the Island was in a
legal situation of terra nullius, and therefore
susceptible to occupation. By the regularity of the
act of France, it is clear that it had the intention to
consider the island as his territory.
B. TERRITORIAL WATERS

The belt of the sea located between the


VII. Law of the Sea coast and internal waters of the coastal state on
the one hand, and the high seas on the other
United Nations Convention on the Law of the
Sea (UNCLOS) Extends up to 12 nautical miles from the
low-water mark, or in the case of archipelagic
also called the Law of the Sea Convention
states, from the baselines (Article 3)
or the Law of the Sea Treaty
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The coastal state is free to set laws, territorial sea it engages in any of the following
regulate use, and use any resource; activities:

Vessels were given the right of innocent (a) any threat or use of force against the
passage through any territorial waters, with sovereignty, territorial integrity or political
strategic straits allowing the passage of military independence of the coastal State, or in any other
craft as transit passage, in that naval vessels are manner in violation of the principles of international
allowed to maintain postures that would be illegal law embodied in the Charter of the United Nations;
in territorial waters.
(b) any exercise or practice with weapons of any
kind;

Article 18 (UNCLOS) Meaning of (c) any act aimed at collecting information to the
passage provides that: prejudice of the defence or security of the coastal
State;
1. Passage means navigation through the
territorial sea for the purpose of: (d) any act of propaganda aimed at affecting the
defence or security of the coastal State;
(a) traversing that sea without entering
internal waters or calling at a roadstead or port (e) the launching, landing or taking on board of any
facility outside internal waters; or aircraft;

(b) proceeding to or from internal waters or a call at (f) the launching, landing or taking on board of any
such roadstead or port facility. military device;

(g) the loading or unloading of any commodity,


currency or person contrary to the customs, fiscal,
2. Passage shall be continuous and expeditious. immigration or sanitary laws and regulations of the
However, passage includes stopping and coastal State;
anchoring, but only in so far as the same are
incidental to ordinary navigation or are rendered (h) any act of wilful and serious pollution contrary
necessary by force majeure or distress or for the to this Convention;
purpose of rendering assistance to persons, ships
or aircraft in danger or distress. (i) any fishing activities;

(j) the carrying out of research or survey activities;

Article 19 (UNCLOS) Meaning of (k) any act aimed at interfering with any systems of
innocent passage provides that: communication or any other facilities or
installations of the coastal State;

(l) any other activity not having a direct bearing on


1. Passage is innocent so long as it is not passage.
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
Fishing, polluting, weapons practice, and
rules of international law.
spying are not "innocent", and submarines and
other underwater vehicles are required to navigate
on the surface and to show their flag.
2. Passage of a foreign ship shall be
considered to be prejudicial to the peace, good Nations can also temporarily suspend
order or security of the coastal State if in the innocent passage in specific areas of their
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territorial seas, if doing so is essential for the


protection of its security.
2. In exercising its rights and performing its
duties under this Convention in the exclusive
economic zone, the coastal State shall have due
C. EXCLUSIVE ECONOMIC ZONES (EEZ) regard to the rights and duties of other States and
shall act in a manner compatible with the
These extend 200 nautical miles (370
provisions of this Convention.
kilometres; 230 miles) from the baseline.

Within this area, the coastal nation has


sole exploitation rights over all natural resources. 3. The rights set out in this article with
In casual use, the term may include the territorial respect to the seabed and subsoil shall be
sea and even the continental shelf. exercised in accordance with Part VI.

The EEZs were introduced to halt the


increasingly heated clashes over fishing rights,
although oil was also becoming important. D. CONTINENTAL SHELF

Article 56 (UNCLOS) - Rights, jurisdiction


and duties of the coastal State in the exclusive
economic zone provides that: Article 76 (UNCLOS) - Definition of the
continental shelf provides that:

1. The continental shelf of a coastal State


1. In the exclusive economic zone, the comprises the seabed and subsoil of the
coastal State has: submarine areas that extend beyond its territorial
sea throughout the natural prolongation of its land
(a) sovereign rights for the purpose of exploring territory to the outer edge of the continental margin,
and exploiting, conserving and managing the or to a distance of 200 nautical miles from the
natural resources, whether living or non-living, of baselines from which the breadth of the territorial
the waters superjacent to the seabed and of the sea is measured where the outer edge of the
seabed and its subsoil, and with regard to other continental margin does not extend up to that
activities for the economic exploitation and distance.
exploration of the zone, such as the production of
energy from the water, currents and winds;

(b) jurisdiction as provided for in the relevant 2. The continental shelf of a coastal State
provisions of this Convention with regard to: shall not extend beyond the limits provided for in
paragraphs 4 to 6.
(i) the establishment and use of artificial islands,
installations

and structures; 3. The continental margin comprises the


submerged prolongation of the land mass of the
(ii) marine scientific research; coastal State, and consists of the seabed and
subsoil of the shelf, the slope and the rise. It does
(iii) the protection and preservation of the marine
not include the deep ocean floor with its oceanic
environment;
ridges or the subsoil thereof.
(c) other rights and duties provided for in
this Convention.

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4. (a) For the purposes of this Convention, 7. The coastal State shall delineate the outer
the coastal State shall establish the outer edge of limits of its continental shelf, where that shelf
the continental margin wherever the margin extends beyond 200 nautical miles from the
extends beyond 200 nautical miles from the baselines from which the breadth of the territorial
baselines from which the breadth of the territorial sea is measured, by straight lines not exceeding 60
sea is measured, by either: nautical miles in length, connecting fixed points,
defined by coordinates of latitude and longitude.
(Extended Continental Shelf)

(i) a line delineated in accordance with


paragraph 7 by reference to the outermost fixed
points at each of which the thickness of 8. Information on the limits of the continental
sedimentary rocks is at least 1 per cent of the shelf beyond 200 nautical miles from the baselines
shortest distance from such point to the foot of the from which the breadth of the territorial sea is
continental slope; or measured shall be submitted by the coastal State
to the Commission on the Limits of the Continental
(ii) a line delineated in accordance with Shelf set up under Annex II on the basis of
paragraph 7 by reference to fixed points not more equitable geographical representation. The
than 60 nautical miles from the foot of the Commission shall make recommendations to
continental slope. coastal States on matters related to the
establishment of the outer limits of their continental
shelf. The limits of the shelf established by a
coastal State on the basis of these
(b) In the absence of evidence to the contrary,
recommendations shall be final and binding.
the foot of the continental slope shall be
determined as the point of maximum change in the
gradient at its base.
9. The coastal State shall deposit with the
Secretary-General of the United Nations charts and
relevant information, including geodetic data,
5. The fixed points comprising the line of the
permanently describing the outer limits of its
outer limits of the continental shelf on the seabed,
continental shelf. The Secretary-General shall give
drawn in accordance with paragraph 4 (a)(i) and
(ii), either shall not exceed 350 nautical miles from due publicity thereto.
the baselines from which the breadth of the
territorial sea is measured or shall not exceed 100
nautical miles from the 2,500 metre isobath, which 10. The provisions of this article are without
is a line connecting the depth of 2,500 metres. prejudice to the question of delimitation of the
continental shelf between States with opposite or
adjacent coasts.
6. Notwithstanding the provisions of
paragraph 5, on submarine ridges, the outer limit of
the continental shelf shall not exceed 350 nautical Article 77 (UNCLOS) - Rights over the
miles from the baselines from which the breadth of continental shelf provides that:
the territorial sea is measured. This paragraph
does not apply to submarine elevations that are 1. The coastal State exercises over the
natural 54 components of the continental margin, continental shelf sovereign rights for the purpose of
such as its plateaux, rises, caps, banks and spurs. exploring it and exploiting its natural resources.

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2. The rights referred to in paragraph 1 are 1. The delimitation of the continental shelf
exclusive in the sense that if the coastal State does between States with opposite or adjacent coasts
not explore the continental shelf or exploit its shall be effected by agreement on the basis of
natural resources, no one may undertake these international law, as referred to in Article 38 of the
activities without the express consent of the coastal Statute of the International Court of Justice, in
State. order to achieve an equitable solution.

2. If no agreement can be reached within a


3. The rights of the coastal State over the reasonable period of time, the States concerned
continental shelf do not depend on occupation, shall resort to the procedures provided for in Part
effective or notional, or on any express XV.
proclamation.

4. The natural resources referred to in this


Part consist of the mineral and other non-living 3. Pending agreement as provided for in
resources of the seabed and subsoil together with paragraph 1, the States concerned, in a spirit of
living organisms belonging to sedentary species, understanding and cooperation, shall make every
that is to say, organisms which, at the harvestable effort to enter into provisional arrangements of a
stage, either are immobile on or under the seabed practical nature and, during this transitional period,
or are unable to move except in constant physical not to jeopardize or hamper the reaching of the
contact with the seabed or the subsoil. final agreement. Such arrangements shall be
without prejudice to the final delimitation.

Article 78 - Legal status of the


superjacent waters and air space and the rights 4. Where there is an agreement in force
and freedoms of other States provides that: between the States concerned, questions relating
to the delimitation of the continental shelf shall be
determined in accordance with the provisions of
that agreement.
1. The rights of the coastal State over the
continental shelf do not affect the legal status of
the superjacent waters or of the air space above
those waters.

A coastal nation has control of all


resources on or under its continental shelf, living or
2. The exercise of the rights of the coastal not, but no control over any living organisms above
State over the continental shelf must not infringe or the shelf that are beyond its exclusive economic
result in any unjustifiable interference with zone. This gives it the right to conduct petroleum
navigation and other rights and freedoms of other drilling works and lay submarine cables or
States as provided for in this Convention. pipelines in its continental shelf.

Article 83 (UNCLOS) - Delimitation of the An example of this is the ongoing dispute


continental shelf between States with opposite over resources in the Arctic area, which will be
or adjacent coasts provides that: decided by the exact mapping of the continental
shelves.

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Shunji Yanai (Japan)

International Tribunal for the Law of the Sea James L. Kateka (United Republic of Tanzania)
(ITlOS)
Albert J. Hoffmann (South Africa)
was established as an international body
pursuant to the Annex VI of the United Nations Zhiguo Gao (China)
Convention on the Law of the Sea (UNCLOS),
Jin-Hyun Paik (Republic of Korea)
signed in 1982 and took force in 1994
Elsa Kelly (Argentina)
Presently composed of 149 States parties
David Joseph Attard (Malta)
COMPOSITION
The tribunal is composed of 21 judges
who are elected for a renewable 9 year term at a Markiyan Z. Kulyk (Ukraine)
meeting of States parties by secret ballot from a list
of nominees. Alonso Gmez-Robledo Verduzco (Mexico)

Tomas Heidar (Iceland)


FUNCTION
Dispute resolution mechanisms in matters
concerning the Conventionss interpretation and
application. JURISDICTION
Parties may submit matter of dispute to
the ITLOS as set forth in the Article 287 of the All disputes over the interpretation of
Convention application of UNCLOS fall within the Tribunals
jurisdiction provided local remedies have been
exhausted in accordance with international law
President
Tribunal may also rely on principles of
Vladimir Vladimirovich Golitsyn (Russian international law amd the regulations of the
Federation) International Seabed Authority when deciding
disputes and applications.
Vice-President

Boualem Bouguetaia (Algeria)


Who owns the SEAS?
Judges
DOCTRINE OF FREEDOM OF THE HIGH SEAS
P. Chandrasekhara Rao (India)
the seas belong to EVERYONE!
Joseph Akl (Lebanon)
freedom to use the seas without restriction
Rdiger Wolfrum (Germany)
History:
Tafsir Malick Ndiaye (Senegal)
In 1609 Mare Liberum advanced the
Jos Luis Jesus (Cabo Verde)
thesis that the open seas cannot become the
Jean-Pierre Cot (France) property of anyone as nature has decreed that its
use should be common to all.
Anthony Amos Lucky (Trinidad and Tobago)
Challenged in the 20th century, which arose from
Stanislaw Pawlak (Poland) economic needs

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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem Atty. Jamon

areas are not overlapped by any possible


entitlement of China,
DOCTRINE OF FREEDOM OF THE HIGH SEAS
(contd)

Economic needs: Baseline

Oil , Gas, Minerals Definition:

Salonga: Countries started to carve up the A baseline, as defined by the United Nations
international maritime regime as the race to divide Convention on the Law of the Sea (UNCLOS), is
the bounty of the oceanscoastal states began to the line along the coast from which the seaward
assert increasing control over portions of the sea limits of a state's territorial sea and certain other
which used to lie beyond the jurisdiction of any maritime zones of jurisdiction are measured, such
State. as a state's exclusive economic zone. Normally, a
sea baseline follows the low-water line of a coastal
state. When the coast is deeply indented, has
fringing islands or is highly unstable, straight
DOCTRINE OF FREEDOM OF NAVIGATION
baselines may be used.
Economic needs:

Oil , Gas, Minerals


Kinds/Types:

1. Normal baseline
Salonga: Countries started to carve up the
a. Reefs
international maritime regime as the race to divide
the bounty of the oceanscoastal states began to 2. Straight baseline
assert increasing control over portions of the sea
which used to lie beyond the jurisdiction of any a. Deep-indented Coastline
State.
b. Fringing Island

3. Archipelagic baseline
ARBITRAL TRIBUNALS VERDICT ON THE
PHILIPPINES vs. CHINA CASE

Normal baseline

The Tribunal concluded that there was no Except where otherwise provided in this
legal basis for China to claim historic rights to Convention, the normal baseline for measuring the
resources within the sea areas falling within the breadth of the territorial sea is the low-water line
nine-dash line, along the coast as marked on large-scale charts
officially recognized by the coastal State.
(UNCLOS, Article 5)

Having found that none of the features


claimed by China was capable of generating an
exclusive economic zone, the Tribunal found that it Reefs
couldwithout delimiting a boundarydeclare that
In the case of islands situated on atolls or of
certain sea areas are within the exclusive
islands having fringing reefs, the baseline for
economic zone of the Philippines, because those
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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem Atty. Jamon

measuring the breadth of the territorial sea is the concerned, the reality and the importance of which
seaward low-water line of the reef, as shown by the are clearly evidenced by long usage.
appropriate symbol on charts officially recognized
by the coastal State. (UNCLOS, Article 6) 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. (UNCLOS,
Straight Baselines Article 7)

1. In localities where the coastline is deeply Archipelagic States


indented and cut into, or if there is a fringe of
islands along the coast in its immediate vicinity, the Definition:
method of straight baselines joining appropriate
points may be employed in drawing the baseline For the purposes of this Convention:
from which the breadth of the territorial sea is
(a) "archipelagic State" means a State constituted
measured.
wholly by one or more archipelagos and may
2. Where because of the presence of a delta and include other islands;
other natural conditions the coastline is highly
unstable, the appropriate points may be selected
along the furthest seaward extent of the low-water
(b) "archipelago" means a group of islands,
line and, notwithstanding subsequent regression of
including parts of islands, interconnecting waters
the low-water line, the straight baselines shall
and other natural features which are so closely
remain effective until changed by the coastal State
interrelated that such islands, waters and other
in accordance with this Convention.
natural features form an intrinsic geographical,
economic and political entity, or which historically
3. The drawing of straight baselines must not
have been regarded as such. (UNCLOS, Article
depart to any appreciable extent from the general
46)
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. Archipelagic baselines How delineated?

4. Straight baselines shall not be drawn to and 1. An archipelagic State may draw straight
from low-tide elevations, unless lighthouses or archipelagic baselines joining the outermost points
similar installations which are permanently above of the outermost islands and drying reefs of the
sea level have been built on them or except in archipelago provided that within such baselines are
instances where the drawing of baselines to and included the main islands and an area in which the
from such elevations has received general ratio of the area of the water to the area of the
international recognition land, including atolls, is between 1 to 1 and 9 to 1.

5. Where the method of straight baselines is 2. The length of such baselines shall not exceed
applicable under paragraph 1, account may be 100 nautical miles, except that up to 3 per cent of
taken, in determining particular baselines, of the total number of baselines enclosing an
economic interests peculiar to the region archipelago may exceed that length, up to a
maximum length of 125 nautical miles.
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3. The drawing of such baselines shall not depart 9. The archipelagic State shall give due publicity to
to any appreciable extent from the general such charts or lists of geographical coordinates
configuration of the archipelago. and shall deposit a copy of each such chart or list
with the Secretary-General of the United Nations.
(UNCLOS, Article 47)

4. Such baselines shall not be drawn to and from Archipelagic Waters


low-tide elevations, unless lighthouses or similar
installations which are permanently above sea
level have been built on them or where a low-tide
elevation is situated wholly or partly at a distance Where the establishment of a straight
not exceeding the breadth of the territorial sea from baseline in accordance with the method set forth in
the nearest island. article 7 has the effect of enclosing as internal
waters areas which had not previously been
considered as such, a right of innocent passage as
provided in this Convention shall exist in those
5. The system of such baselines shall not be waters. [UNCLOS, Article 8(2)]
applied by an archipelagic State in such a manner
as to cut off from the high seas or the exclusive
economic zone the territorial sea of another State.
An archipelagic State may designate sea
lanes and air routes thereabove, suitable for the
continuous and expeditious passage of foreign
6. If a part of the archipelagic waters of an ships and aircraft through or over its archipelagic
archipelagic State lies between two parts of an waters and the adjacent territorial sea. [UNCLOS,
immediately adjacent neighbouring State, existing Article 53(1)]
rights and all other legitimate interests which the
latter State has traditionally exercised in such
waters and all rights stipulated by agreement
between those States shall continue and be Right of archipelagic sea lanes passage
respected.
1. An archipelagic State may designate sea lanes
and air routes thereabove, suitable for the
continuous and expeditious passage of foreign
7. For the purpose of computing the ratio of water ships and aircraft through or over its archipelagic
to land under paragraph l, land areas may include waters and the adjacent territorial sea.
waters lying within the fringing reefs of islands and
atolls, including that part of a steep-sided oceanic
plateau which is enclosed or nearly enclosed by a
2. All ships and aircraft enjoy the right of
chain of limestone islands and drying reefs lying on
archipelagic sea lanes passage in such sea lanes
the perimeter of the plateau.
and air routes.

8. The baselines drawn in accordance with this


3. Archipelagic sea lanes passage means the
article shall be shown on charts of a scale or
exercise in accordance with this Convention of the
scales adequate for ascertaining their position.
rights of navigation and overflight in the normal
Alternatively, lists of geographical coordinates of
mode solely for the purpose of continuous,
points, specifying the geodetic datum, may be
expeditious and unobstructed transit between one
substituted.
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part of the high seas or an exclusive economic 9. In designating or substituting sea lanes or
zone and another part of the high seas or an prescribing or substituting traffic separation
exclusive economic zone. schemes, an archipelagic State shall refer
proposals to the competent international
organization with a view to their adoption. The
organization may adopt only such sea lanes and
4. Such sea lanes and air routes shall traverse the
traffic separation schemes as may be agreed with
archipelagic waters and the adjacent territorial sea
the archipelagic State, after which the archipelagic
and shall include all normal passage routes used
State may designate, prescribe or substitute them.
as routes for international navigation or overflight
through or over archipelagic waters and, within
such routes, so far as ships are concerned, all
normal navigational channels, provided that 10. The archipelagic State shall clearly indicate
duplication of routes of similar convenience the axis of the sea lanes and the traffic separation
between the same entry and exit points shall not schemes designated or prescribed by it on charts
be necessary. to which due publicity shall be given.

5. Such sea lanes and air routes shall be defined 11. Ships in archipelagic sea lanes passage shall
by a series of continuous axis lines from the entry respect applicable sea lanes and traffic separation
points of passage routes to the exit points. Ships schemes established in accordance with this
and aircraft in archipelagic sea lanes passage shall article.
not deviate more than 25 nautical miles to either
side of such axis lines during passage, provided
that such ships and aircraft shall not navigate
12. If an archipelagic State does not designate sea
closer to the coasts than 10 per cent of the
lanes or air routes, the right of archipelagic sea
distance between the nearest points on islands
lanes passage may be exercised through the
bordering the sea lane.
routes normally used for international navigation.
(UNCLOS, Article 53)

6. An archipelagic State which designates sea


lanes under this article may also prescribe traffic
VIII. JURISDICTION OF STATES
separation schemes for the safe passage of ships
through narrow channels in such sea lanes.
JURISDICTION
7. An archipelagic State may, when circumstances
-the right of a state to exercise authority over
require, after giving due publicity thereto, substitute
persons and things within its boundaries, subject to
other sea lanes or traffic separation schemes for
certain exceptions and, subject to the rights of
any sea lanes or traffic separation schemes
other states, over the property and nationals of the
previously designated or prescribed by it.
state beyond its boundaries.

-absolute and exclusive within and throughout the


domain of the state, conditioned, by the rights of
8. Such sea lanes and traffic separation schemes
other states over certain persons and things which
shall conform to generally accepted international
may be found within the boundaries of the former.
regulations.

EXERCISE OF JURISDICTION

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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem Atty. Jamon

-the right of control possessed by other states over local state or territory may or may
persons, usually their nationals, and certain things not be a party to such an agreement
within the territorial boundaries of another state.
treaty of peace of 1919

central powers ceded to allied


CLASSIFICATION OF JURISDICTION and associated powers certain territories subjected
to joint jurisdiction.
1. TERRITORIAL JURISDICTION
in this agreement, territories
-the control and authority exercised by a state over subjected to joint jurisdiction were not made
its entire domain, and over all persons and things parties.
therein found.
authority exercised is usually
specified and defined in the agreement

2. PERSONAL JURISDICTION agreement may also require the


assumption of a corresponding obligation on the
-the exercise of state authority over individuals,
part of the states exercising such jurisdiction
whether within its domain or elsewhere, by virtue of
the tie of nationality or domicile. joint jurisdiction implies a combined
government-authority may be delegated to an
official who is to represent the states concerned in
TERRITORIAL JURISDICTION all matters

o agreement of great britain and egypt


-based on the right of domain

-domain of a state includes ordinarily only such condominium of sudan


expanse of territory over which it possesses and
supreme civil and military command was
exercise the full rights of sovereignty.
vested in one governor general appointed on the
recommendation of british government

b) LEASES
a) JOINT JURISDICTION
-leases of territory which closely resemble the
-absolute and exclusive exercise of jurisdiction may
ordinary leases of private law have not been
be conditioned or even waived by conventional
agreement in such a manner that jurisdiction over a uncommon
defined sphere may overlap. jurisdiction over the
GRANT BY REPUBLIC OF PANAMA TO
same portion of territory exercised by two or more
US
states.
o in perpetuity of the use, occupation and
condominium - exercise of joint jurisdiction
control of a certain portion of its territory for the
over the same portion of territory exercised
construction of an interocean canal through cash
conjointly by two or more states
payment and annual payment as stipulated in the
terms of the agreement.
o establishment of a condominium
o TERM OF LEASES
through an agreeement among
states exercising such jurisdiction

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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem Atty. Jamon

specify the powers to be exercised by the


lessee, and by implication other powers remain in
the lessor state. e) SERVITUDES

sovereignty may be retained by the lessor closely resembles the servitude of roman
state, even though complete jurisdiction may be law or easements of english law
granted to the lessee.
restrictions on free exercise of jurisdiction
nominal sovereignty will be retained for of a state in the way of obligation to allow a foreign
the lessee state. state to do a thing, or to refrain from doing
something

rights ceded or created by treaties in favor


US-RP AGREEMENT (MARCH 14, 1947) of certain states are purely rights in personam

o granted the us the right to use, free of SERVITUDE IN PRIVATE LAW


rent, certain lands of public domain as military
bases for a period of 99 yrs which was reduced to o right in rem-exercisable against any
25 yrs (1966). successor to him in title, and not onky by a
particular owner of the dominant estate, but also by
his successor in interest

c) COLONIAL PROTECTORATES

PROTECTORATE NORTH ATLANTIC FISHERIES CASE

o describing a relation between a state and o Great Britain and us


a native community not sufficiently civilized to be
regarded as a state, and not, as, relation of O rejected the conception of servitude
dependence between two states.
O issue: whether the war of 1812
extinguished the obligations imposed by treaty of
1783 upon british territorial waters
d) SPHERES OF INFLUENCE
O treaty stipulation: the right of the people of
device means no more than that a state, us to fish upon grand banks and in gulf of st.
without establishing its jurisdiction or undertaking Laurence had been recognized
any responsibility for securing good government,
signifies that it regards certain territory as closed to O ruling: the court did not actually state that
the ambitions of any other power, because it servitudes d not exist in international law, but the
intends to convert into a colony/protectorate, or language used implies that the whole doctrine of
because it regards it as strategically necessary to servitudes was incompatible with the modern
the security of part of its existing dominions. political theory, particularly with the essential
sovereignty and independence of every state.
mere assertion of a sphere of influence
gives a state no rights over the territory; it is a
political and not a legal act.

claim is often protected by treaties with


other states mots likely to be affected; in any case,
to disregard it would be deemed to be an unfriendly
act.

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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem Atty. Jamon

JURISDICTION ON LAND temporary allegiance and were not amenable to


the jurisdiction of the country
general rule: state jurisdiction over its land
area over all persons and property within it, is exception: jurisdiction in matters relating to
exclusive and absolute. the internal order and discipline of a foreign vessel,
and affecting solely the ship and its occupants.
jurisdiction has been generally been yielded to the
authorities of the state which the vessel belongs.
MARITIME JURISDICTION

extends over the entire maritime domain,


2) FRENCH RULE
which consists of both the internal waters and
territorial sea. founded on the opinion of the french
council of state (1806)

claims that the local sovereign possesses


a) JURISDICTION OVER INTERNAL
no jurisdiction at all on such matters, unless the
WATERS
offense affects the peace and security of the
territory.
internal waters of a state include its ports,
harbors and bays which are legally considered part
two foreign mechant ships in french ports
of its national domain and are, in principle, fully
(sally and newton), on each of which one member
subject to its jurisdiction.
of the crew had assaulted another.
foreign public vessels, if not engaged in
opinion: vessels were subjected to the
commerce are wholly exempt from local jurisdiction
jurisdiction of the french authorities touching
of the state in whose port or harbor they maybe
interests of the state, in matters of police, and for
anchored.
offenses committed, even on board, by members
of the crew against strangers; in matters of internal
territorial sovereign has exclusive
discipline, offenses by one member of the crew
jurisdiction over foreign merchant vessels and their
against another, local authorities ought not to
occupants in civil matters.
interfere, unless their assistance was invoked or
1) ENGLISH RULE the peace of the port compromised.

principle of criminal jurisdiction rule stresses on the nationality in the


exercise of criminal jurisdiction.
claims jurisdiction over all offenses
committed on board, leaving to the authorities of PEOPLE V. WONG, SC stated that the
the state whose flag the vessel flies control over english rule obtains in the ph jurisdiction.
matters relating to internal discipline
US V. LOOK CHAW, mere possession of
asserts the complete subjection of vessel opium aboard a foreign vessel intransit was not
to local jurisdiction, and regards any derogation triable by the local courts because mere
from it as amatter of comity in the discretion of the possession is not considered a disturbance of the
territorial sovereign public order. however, the conduct of smoking
opium within our territorial limits, even though
chief justice marshall aboard a foreign merchant ship, is a breach of a
public order here established, because it brings
it would be obviously inconvenient and about a pernicious effects within our territory.
dangerous to society, and would subject the laws
to continual, infraction, government to degradation US V. BULL, court declared that when a
if such individuals/merchants did not owe foreign merchant ship enters territorial waters, the
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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem Atty. Jamon

ship officers and crew are subject to the jurisdiction general rule: coastal state may not
of the territorial courts. exercise criminal jurisdiction on board a foreign
ship passing through the territorial sea to arrest
any person or conduct any investigation in
connection with any crime committed on board the
INVOLUNTARY ENTRANCE
ship during its passage.
foreign vessels arriving into port under
stress of weather or by reason of inevitable
exceptions
necessity are regarded as exempted from local
jurisdiction. o if the consequences of the crime extend to
the coastal state;
foreign vessels so circumstanced may not
be compelled to pay fines upon entry or pay duties o if the crime is of a kind to disturb the
for its goods in transit. peace of the country or good order of the territorial
sea;
to claim exception,
o if assistance of local authorities has been
o vessel must have put into port due to
requested by captain of ship or by consul of
urgent necessity for such an act and upon proof of
country whose flag ship flies; and
the fact of urgency of the distress.
o if necessary for suppression of illicit traffic
b) JURISDICTION OVER THE
in narcotic drugs.
TERRITORIAL SEA

Geneva Convention of 1958 (territorial sea


and contiguous zone) c) jurisdiction over the contiguous zone

o sovereignty of state extends, beyond its zones of high sea contiguous to territorial
land territory and its internal waters, to a belt of sea sea
adjacent to its coast
states claimed that the right to exercise
customs jurisdiction against foreign vessels on high
seas, usually with a distance of 12 miles from the
RIGHT OF INNOCENT PASSAGE
shore, for the purpose particularly of preventing
CORFU CHANNEL CASE-codified in smuggling
geneva convention on territorial sea and
contiguous zone
geneva convention (territorial sea and
passage-navigation through territorial sea
contiguous zone)
for the purpose of either traversing through that
sea without entering internal waters, or of -recognizes the right of coastal state to exercise
proceeding to internal waters, or of making for the control over a zone of high sea, contiguous to its
high seas from internal waters territorial sea not extending beyond 12 miles from
the baseline from which territorial sea is measured
foreign fishing vessels exercising right of
innocent passage-must observe laws and -purpose: preventing infringement of its custom,
regulations which the coastal state may make and fiscal, immigration/sanitary regulations within its
publish in order to prevent such vessels from territorys
fishing in the territorial sea.

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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem Atty. Jamon

jurisdiction in the high seas every state may seize on the high seas or
any other place outside the jurisdiciton of any state
cannot be under the sovereignty of any a pirate ship or aircraft, or a ship taken by piracy
state and under the control of pirates, and arrest the
persons and seize the property on board.
state exercise jurisdiction to a certain
extent in respect of persons, property, acts and seizure may only be carried out by
transactions on the high seas. warships or military aircraft, or other ships or
aircraft on government service authorized to that
geneva convention on high seas-codified
effect.
the law relating to the exercise of jurisdiction on the
high seas. art. 122 of rpc: imposes penalty of
reclusion temporal upon any person who, on the
1) jurisdiction over ships in the high seas
high seas, shall attack or seize a vessel or, not
being a member of its complement nor a
geneva convention recognizes the right of
passenger, shall seize the whole or part of the
every state, whether coastal or not, to sail ships
cargo of said vessel, its equipment, or personal
under its flag on the high seas.
belongings of its complement or passengers.
ships have the nationality of the state
whose flag they are entitled to fly. state must
effectively exercise its jurisdiction and control in
3) HOT PURSUIT
administrative, technical and social matters over
ships flying its flag. right of a state, through the instrumentality
of its men-of-war or military aircraft to pursue
ships shall sail under the flag of one state
foreign merchant vessels which have violated the
only.
municipal laws of that state while within its
territorial waters, into the open sea, and bring them
warhips and ships owned or operated by a
back to the national domain for administration of
state on govt non-commercial service shall, on the
justice.
high seas, have complete immunity from the
jurisdiction of any state other than the flag state.

LOTUS CASE: arose out of a collision in


the aegean sea outside turkish territorial waters,
bet french mail steamer (lotus) and turkish collier 4) SUBMARINE CABLES
(boz-kourt). collision resulted in loss of latter vessel
and death of 8 turkish subjects. the turkey had not all states are entitled to lay submarine
acted in conflict with the principles of international cables and pipelines on the bed of the high seas.
law, because the act committed produced its effect
on board the boz-kourt under the turkish flag on
turkish territory.
AERIAL JURISDICTION
2) PIRACY
refers to authority which a state exercise
crime against the law of nations and over the air space above its land territory, internal
pirates are deemed hostes humani generis, who waters and the territorial sea.
may be arrested on the high seas by the warships
as discussed, there is no unanimity of
of any state and brought into port for trial together
opinion as to the upward limit of the territorial
with their ship.
airspace of the subjacent state

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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem Atty. Jamon

with reference to crimes committed in a established the international civil aviation


foreign aircraft navigating the airspace of another organization (icao), a specialized agency of the un
state, the rules applicable to vessels are also charged with coordinating and regulating
applied by many writers. (ex. ph assert criminal international air travel
jurisdiction over offenses committed in ph aircraft
even though outside its territorial jurisdiction) establishes rules of airspace, aircraft
registration and safety, and details the rights of
signatories in relation to air travel

PARIS CONVENTION OF 1919 also that every state has complete and
exclusive sovereignty over airspace above its
the 1st international convention to address the territory
political difficulties and intricacies involved in
international aerial navigation.

recognized five air freedoms as a result of various


agreements among states regarding the use of
BRIEF HISTORY: their aerial domains:

the first passenger carrying airline flight happened 1. the freedom to fly across foreign territory
in 1913 with the st. petersburg-tampa airboat line. without landing;
before that time, aircraft had been used to carry
mail and other cargo. with the start of world war i in 2. the freedom to land for non-traffic
1914, aircrafts were being operated internationally purposes;
to carry not only cargo, but also military assets.
3. the freedom to put down traffic originating
in the state of the aircraft;

the international use of aircraft brought up 4. the freedom to embark traffic destined for
questions about air sovereignty. the arguments the state of the aircraft; and
over air sovereignty at that time factored into one
of two main viewpoints: 5. the freedom to embark traffic destined for
or to put down traffic originating in a third state.
1. either no state had a right to claim
sovereignty over the airspace overlying its territory;
or
convention on offenses and certain other acts
2. every state had the right to do so. committed on board aircraft (september 14, 1963)

it is the state of registration of the aircraft that has


jurisdiction over offenses and acts committed on
the paris convention of 1919 sought to determine board which is in flight or over the high seas or any
the question as part of the process of framing the other area outside the territory of any state.
conventions assumptions, and it was decided that
each nation has absolute sovereignty over the
airspace overlying its territories and water.
no other state may exercise jurisdiction over such
aircraft except when:

CHICAGO CONVENTION OF 1944 1. the offense has effect on the territory of


such state;
superseded the paris convention

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2. the offense has been committed by or domain and of its right to defend the state from
against a national or permanent resident of such such acts that will disturb its peace and security.
state;

3. the offense is against the security of the


state; five general principles on which a more/less
extensive jurisdiction is obtained by the state of the
4. the offense consists of a breach of any present time. these are:
rules/regulations relating to the flight or maneuver
of aircraft in force in such state; 1. THE TERRITORIAL PRINCIPLE,
determining jurisdiction by reference to the place
5. the exercise of jurisdiction is necessary to where the offense is committed;
ensure the observance of any obligation of such
sate under a multilateral international agreement. 2. THE NATIONALITY PRINCIPLE,
determining jurisdiction by reference to the
nationality or national character of the person
committing the offense;
OUTER SPACE
3. THE PROTECTIVE PRINCIPLE,
like open seas, it is not subject to the determining jurisdiction by reference to the national
jurisdiction of any state. interest injured by the offense;

outer space, including the moon and other 4. THE UNIVERSALITY PRINCIPLE,
celestial bodies, shall be free for exploration and determining jurisdiction by reference to the custody
use by all states without discrimination of any kind, of the person committing the offense; and
on the basis of equality and in accordance with
international law. 5. THE PASSIVE PERSONALITY
PRINCIPLE, determining jurisdiction by reference
not subject to national appropriation by to the nationality or the national character of the
claim of sovereignty, by means of use/occupation person injured by the offense.
as by any other means
TERRITORIAL PRINCIPLE

the criminal jurisdiction of a state is


treaty on the principles governing the activities of coextensive with, and does not go beyond, the
states in the exploration and use of outer space national domain.

a state launching an object into outer space shall it is not within the competence of a state to
retain jurisdiction and control over such object and punish individual for breach of its criminal laws if
over any personnel thereof, while in outer space or committed outside its territory.
on a celestial body.

EXCEPTIONS:
CRIMINAL JURISDICTION
1. OBJECTIVE TERRITORIAL
states are in agreement as to this general JURISDICTION
competence to punish persons for offenses
committed with in their territory, regardless of the under a certain circumstance, a crime may
nationality of the offender. this competence is be committed within the territory of a state, though
made necessary by virtues of the obligation of the actor may be physically out of the same
every government to maintain order within its territory, and therefore still justiciable by its criminal
courts.
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a contract to purchase cuban sugar from a wholly


owned subsidaiary of compania azucarera
2. ACTS DIRECTED AGAINST THE vertientes-camaquey de cuba (cav) a corporation
SECURITY OF THE STATE OR ITS FINANCIAL organized under cuban law was made by farr,
CREDIT. whitlock & co. (farr) an american commodities
broker. the cav stock was principally owned by
united states residents. the agreement was for farr
to pay for the sugar in new york upon the
PERSONAL JURISDICTION (NATIONALITY
presentation of the shipping documents. after this
PRINCIPLE)
deal, a law was enacted in cuba which empowered
founded in the principle of personal the government to nationalize forcefully,
supremacy expropriation of property or enterprise in which
american nationals had an interest.
the supreme authority exercised by a state
over a person of its nationals.

hence, the sugar which farr had contracted was


expropriated from compania azucarera. farr
however entered into contracts which was similar
to the one made with cav with the banco para el
US-PHILIPPINE MILITARY BASES AGREEMENT comercio de cuba, which was an instrumentality of
the government. this was done by farr in order to
an agreement between the philippines and the usa
obtain consent from the cuban government before
whereby philippines granted usa the right to retain
a ship carrying sugar could leave cuba.a bill of
the use, free of rent of certain military bases with
lading which was also an instrumentality of the
philippine territory.
cuban government was assigned by the bank to
banco para el comercio de cuba, who presented
the bills and a sight draft as required under the
civilian employees in the service of the armed contract to farr in new york in return for payment.
forces of the united states after cav notified farr of its claim to the proceeds as
rightful owner of the sugar, farr refused the
they are not considered as members of the armed documents.
forces, for the reason that article xi, xvi and xviii of
the agreement make mention of civilian employees
separately from members of the armed forces,
which is a conclusive indication that under said this action of farr resulted in a court order which
agreement armed forces do not include civilian appointed sabbatino (d) as receiver of cavs new
york assets and enjoined it from removing the
employees.
payments from the state. based on the allegation of
cases on jurisdiction of states the conversion of the bills of lading seeking to
recover the proceeds thereof from farr and to
enjoin sabbatino (d), the receiver from exercising
dominion over such proceeds, the banco nacional
1. BANCO NACIONAL DE CUBA V. (p) instituted this action. a summary judgment was
SABBATINO granted against banco nacional (p) by the district
court on the grounds that the act of state doctrine
does not apply when the foreign act in question is
FACTS: in violation of international law. the court of appeals
also upheld this judgment.

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issue: dismissal of ownership and release of the ship was


granted by the district court. however, this
does the judiciary have the authority to examine judgment was reversed by the circuit court and this
the validity of a taking of property within its own did not prevent the united states (d) from appealing
territory by a foreign sovereign even if the taking to the u.s. supreme court.
violated international law?

issue:

are national ships of war viewed as been exempted


held: by the consent of the power of the friendly
jurisdiction whose port the ship enters?
no. the judiciary, in line with the act of state
doctrine will not examine the validity of a taking of
property within its own territory by a foreign
sovereign government recognized by this country
in the absence of international agreements to the
contrary, even if the taking violates customary held:
international law. even in a situation whereby
the court ruled that the right of free passage by an
international law has been violated, the clear
army need usually be explicitly granted (likely
implication of past cases is that the act of state
because such passage inevitably involves physical
doctrine is applicable because the act of state
damage of some sort), by maritime custom a
doctrine does not deprive the courts of jurisdiction
nation's ports were presumptively open to all
once acquire over a case. the damages of
friendly ships. while a nation could close its ports to
adjudicating the propriety of such expropriation
the warships of another country, it would have to
acts, regardless of whether the state department
issue some form of declaration to do so. without
has it did in this case, asserted that the act violated
such a declaration, a friendly foreign warship could
international law are too far-reaching for the judicial
enter a nation's port with its implied consent. chief
branch to attempt. hence the judgment of the court
justice marshall further distinguished the difference
of appeals is reverse and the case remanded back
between private merchant ships and citizens (who
to the district court.
are subject to a nation's jurisdiction when they
enter its ports with the nation's implied consent),
and military ships. namely, private ships do not
2. SCHOONER EXCHANGE V. FADDON carry with them the sovereign status of military
ships, with the privileges that accompany it. from
this, marshall arrived at the conclusion that, by
customary international law, a friendly warship that
facts:
enters a nation's open port are exempted from that
nation's jurisdiction.
two americans (p) claimed they owned and were
entitled to the schooner exchange they seized on
applying this analysis to the facts at hand, marshall
the high seas. the claim which the united states
found that the courts did not have jurisdiction over
attorney (d) put forward for the prevention of the
the case.
ship leaving was that, the ship which was owned
by the emperor of france had been forced to enter
the port of philadelphia due to bad weather
conditions. 3. CORFU CHANNEL CASE

at this point in time, the u.s and france were on


friendly terms. the united states (d) request for the
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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem Atty. Jamon

facts: facts:

on may 15, 1946, two british ships passed through a collision occurred shortly before midnight on the
albanias north corfu channel where they were fired 2nd of august 1926 between the french mail
at by an albanian battery. following this incident, steamer lotus and the turkish collier boz-kourt. the
the united kingdom (plaintiff) and albania french mail steamer was captained by a french
(defendant) entered into diplomatic discussions citizen by the name demons while the turkish
about the right of british ships to pass peacefully collier boz-kourt was captained by hassan bey. the
through albanian waters. albania maintained that turks lost eight men after their ship cut into two and
the ships should not pass through without providing sank as a result of the collision.
prior notification to the albanian government.
however, the united kingdom maintained it had a
right under international law to innocently pass
although the lotus did all it could do within its power
through the straits. between may 15, 1946 and
to help the ship wrecked persons, it continued on
october 22, 1946, the albanian government
its course to constantinople. when lieutenant
allegedly placed mines in the corfu channel in
demons was asked by the turkish authority to go
albanian territorial waters. albania was at war with
ashore to give evidence and after demons was
greece, and the mines were allegedly part of its
examined, he was placed under arrest without
defense. on october 22nd, british warships
informing the french consul-general and hassan
attempted to again pass through the straits, but
bey. demons were convicted by the turkish courts
were destroyed by the mines, with loss of human
for negligence conduct in allowing the accident to
life. the united kingdom brought suit in the
occur.
international court of justice (icj) on the ground that
albania had a duty to warn the approaching british
ships of the mines. it sought damages from
albania. however, albania argued that its territorial demons contended that the court lacked
rights had previously been violated by the british jurisdiction over him and both countries agreed to
ships passing through its straits on may 15, 1946, submit to the permanent court of international
and that it was entitled to a satisfaction. justice.

the explosion of mines in the albanian (p) waters issue:


resulted in the death of a british naval personnel. it
was on this basis that the united kingdom (d) whether the exercise of turkish criminal jurisdiction
claimed that albania (p) was internationally over demons for an incident that occurred on the
responsible for damages. high seas contravened international law.

issue: held:

are international obligations in time of peace no. in this situation, it is impossible to hold that
created through elementary consideration? there is a rule of international law that prohibits
turkey from prosecuting demons because he was
aboard a french ship. this stems from the fact that
the effects of the alleged offense occurred on a
held:
turkish vessel.

4. THE LOTUS
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hence, both states here may exercise concurrent punished in the sufficient tribunal of any country
jurisdiction over this matter because there is no where the offender may be found or into which he
rule of international law in regards to collision may be carried. the jurisdiction of piracy, unlike all
cases to the effect that criminal proceedings are other crimes, has no territorial limits.
exclusively within the jurisdiction of the state whose
flag is flown.

6. ASAALI V. COMMISSIONER OF
CUSTOMS
5. PEOPLE V. LOL-LO
facts:
facts:
five sailing vessels, from borneo toward the ports
six vintas intercepted two dutch boats which were of tawi-tawi and sulu, were spotted and intercepted
on its way in the midst of the islands of buang and in high seas by the custom patrol team. the said
bukid in the dutch east indies. the six vintas were patrol team aboard boat found out that the five
manned by 24 armed moros. the said dutch boats vessels contained 181 cases of herald cigarettes,
were carrying men, women and children. at first, 9 cases of camel cigarettes, and some rattan
the moros asked for food. but when they got on the chairs. the sailing vessels were all philippine
dutch boats, they asked for themselves all the registered, owned and manned by filipino residents
vessels cargo, attacked nearly all of the men and from sulu. petitioners, however, possessed no
brutally violated two of the women by methods too permit from the commissioner of customs so that
tremendous to be described. all of the persons on they can engage in the importation of the goods
the dutch boat, except the two young women, were they carry (as required by section 1363 [a] of the
again placed on it and holes were made in it, the revised administrative code). also, the goods the
idea that it would submerge. the moros finally petitioners carry were not covered by ra 426 or the
arrived at maruro, a dutch possession. two of the import control law. the custom patrol team then
moro marauders were lol-lo, who also raped one of seized the goods even if they were in the high
the women, and saraw. seas.

petitioners claim that the interception and seizure


lol-lo and saraw later returned to their home in of the items were illegal because they were
south ubian, tawi-tawi, sulu. they were arrested intercepted outside the territory of the philippines.
there and were charged in the court of first also, the petitioners contend that they could not
instance of sulu with the crime of piracy. have been engaged to the importation of the
above-mentioned items to incur the forfeiture under
section 1363 of the revised administrative code.

issue:

whether or not philippine courts have jurisdiction the court of tax appeals held that section 1363
over the crime of piracy alleged in this case. should be applied because all the vessels were all
headed to tawi-tawi. no import license and permit
were carried violating ra 426. their course, that is
they are about to enter the philippine territory,
held:
announced loudly that they were about to import
yes, the philippine courts have jurisdiction on the these items in the philippines.
case. piracy is a villainy not against any particular
state but against all mankind. it should be tried and

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issue: A State can subject an aliens admission


to such conditions as it may deem wise to impose.
whether or not the interception and seizure by For example:
customs officials of the vessels valid in the
contention that importation had not yet begun and 1. Specify the kind of aliens that cannot
that the seizure was effected outside our territorial be admitted, for reasons of local
waters. security and public welfare.
2. Devise a quota system, restricting
immigration and discriminating against
certain aliens on racial grounds.
held:
A State has the Right to expel aliens.
the court affirmed the decision of the court of tax Expulsion may be predicated on the following
appeals stating that it is quite irrational for filipino grounds, provided that it is shown that the
sailors to sneak out of the philippines and come a individuals presence is detrimental to the welfare
long way back with highly taxable goods only to of the State:
turn about upon reaching the brink of our territorial
waters and head for another country. 1. That the stay of the alien constitutes a
menace to the security of the State.
2. That his entry was illegal.
3. That his permission to stay has
further, the court said that the contention, regarding expired.
the apprehension and seizure of the items, of the 4. That he has violated any limitation or
petitioner-appellant is without merit. the vessels are condition prescribed for his admission.
all philippine registered and are therefore under the The classes of aliens subject to arrest and
jurisdiction of the philippines as expressed in the deportation are enumerated in Section 37(a) of
revised penal code. the petitioners also violated Commonwealth Act No. 613:
section 1363(a). therefore, the action taken then by
the commissioner of customs was in accordance to 1. They are obnoxious and dangerous
the law. aliens whose presence is a menace to
the peace and order of the
community.
2. Aliens whose entry is illegal or who
IX. STATE were not lawfully admissible at the
IMPUTABILITY/RESPONSIBILITY time of entry.
3. Convicts
4. Violators of law on prohibited drugs
5. Prostitutes or those connected with
A. STATE RESPONSIBILITY REGARDING prostitution
ALIENS 6. Subversives
7. Anarchists

Admission and Exclusion of Aliens

Purely as a matter of legal theory, no


State is under the obligation to admit aliens, in the
absence of a treaty stipulation imposing that duty.
This proposition flows from the concept of
Sovereignty of a State. A State may also subject aliens to
Reconduction, which is the forcible
conveying of aliens. As a State cannot
refuse to receive its subjects who are
expelled from abroad, the home State of
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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem Atty. Jamon

such aliens has the obligation to receive such public duties as police and
them. Such as: militia service, as well as to submit
to special measures such as
1. Destitute aliens quarantine regulations, restricting
2. Foreign vagabonds their personal liberty and the
3. Questionable aliens without enjoyment of their property in the
documents
interest of public welfare.
4. Alien criminals who have served
their punishment and the like. An alien cannot, without the consent of his
Right of Asylum own State, be compelled to serve in the armed
forces of the State of his domicile.
A practice where a State allows entry of
persons who seek refuge in States other than their Ordinarily his position may not be on par
own, in order to escape persecution. with the citizens of the State. He does not possess
political rights such as the right to vote and hold
No refugees or displaced persons who office; he may not be allowed to acquire or hold
express valid objections to return to their countries lands.
of origin may be compelled to do so. The
application of the principle should not interfere with While it is generally correct to say that an
the surrender and punishment of war criminals, alien cannot have a better position than a citizen of
quislings and traitors in conformity with the State where he is, yet where that State has a
international arrangements or agreements. (The low standard of justice towards its own nationals,
General Assembly of the United Nations, 1946). an alien is entitled to a better treatment.

This right however may not be invoked in The rule that an alien must accept the
the case of prosecutions genuinely arising from institutions of a foreign State is subject to the
non-political crimes or for acts contrary to the condition that those institutions must conform to a
purposes and principles of the United Nations. certain international standard, otherwise, for the
(The General Assembly of the United Nations, injury that the alien suffers, his own State may
1948). institute a claim for reparation on his behalf.

The Non-refoulement principle under the United Nations General Assembly (13
1951 Geneva Convention prohibits the return of December 1985)
people to situations where their life or freedom
Article 5
would be threatened on account of their race,
religion, nationality, membership of a particular 1. Aliens shall enjoy, in accordance with
social group or political opinion (Handbook on domestic law and subject to the relevant
European law relating to asylum, borders and international obligations of the State in which they
immigration). are present, in particular the following rights:
Rights of Aliens (a) The right to life and security of person; no
alien shall be subjected to arbitrary arrest or
Transient Aliens
detention; no alien shall be deprived of his or her
Domiciled Aliens liberty except on such grounds and in accordance
with such procedures as are established by law;
They not only have to
obey the local laws and pay the (b) The right to protection against arbitrary or
normal taxes, but if the need unlawful interference with privacy, family, home or
arises, they may be called upon by correspondence;
their State of domicile to perform

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(c) The right to be equal before the courts, of a State shall be admitted to accompany, join and
tribunals and all other organs and authorities stay with the alien.
administering justice and, when necessary, to free
assistance of an interpreter in criminal proceedings Article 6
and, when prescribed by law, other proceedings;
No alien shall be subjected to torture or to cruel,
(d) The right to choose a spouse, to marry, to inhuman or degrading treatment or punishment
found a family; and, in particular, no alien shall be subjected
without his or her free consent to medical or
(e) The right to freedom of thought, opinion, scientific experimentation.
conscience and religion; the right to manifest their
religion or beliefs, subject only to such limitations Article 7
as are prescribed by law and are necessary to
An alien lawfully in the territory of a State may
protect public safety, order, health or morals or the
be expelled therefrom only in pursuance of a
fundamental rights and freedoms of others;
decision reached in accordance with law and shall,
(f) The right to retain their own language, except where compelling reasons of national
culture and tradition; security otherwise require, be allowed to submit the
reasons why he or she should not be expelled and
(g) The right to transfer abroad earnings, to have the case reviewed by, and be represented
savings or other personal monetary assets, subject for the purpose before, the competent authority or
to domestic currency regulations. a person or persons specially designated by the
competent authority. Individual or collective
2. Subject to such restrictions as are expulsion of such aliens on grounds of race,
prescribed by law and which are necessary in a colour, religion, culture, descent or national or
democratic society to protect national security, ethnic origin is prohibited.
public safety, public order, public health or morals
or the rights and freedoms of others, and which are Article 8
consistent with the other rights recognized in the
relevant international instruments and those set 1. Aliens lawfully residing in the territory of a
forth in this Declaration, aliens shall enjoy the State shall also enjoy, in accordance with the
following rights: national laws, the following rights, subject to their
obligations under article 4:
(a) The right to leave the country;
(a) The right to safe and healthy working
(b) The right to freedom of expression; conditions, to fair wages and equal remuneration
for work of equal value without distinction of any
(c) The right to peaceful assembly; kind, in particular, women being guaranteed
conditions of work not inferior to those enjoyed by
(d) The right to own property alone as well as in
men, with equal pay for equal work;
association with others, subject to domestic law.
(b) The right to join trade unions and other
3. Subject to the provisions referred to in
organizations or associations of their choice and to
paragraph 2, aliens lawfully in the territory of a
participate in their activities. No restrictions may
State shall enjoy the right to liberty of movement
be placed on the exercise of this right other than
and freedom to choose their residence within the
those prescribed by law and which are necessary,
borders of the State.
in a democratic society, in the interests of national
security or public order or for the protection of the
4. Subject to national legislation and due
rights and freedoms of others;
authorization, the spouse and minor or dependent
children of an alien lawfully residing in the territory
(c) The right to health protection, medical care,
social security, social services, education, rest and
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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem Atty. Jamon

leisure, provided that they fulfil the requirements State responsibility is founded on three basic
under the relevant regulations for participation and elements. The first element is the existence of an
that undue strain is not placed on the resources of international legal obligation in force between the
the State. concerned States. The second is the occurrence
of a wrongful act or the omission of an act in
2. With a view to protecting the rights of aliens violation of such an obligation, which is imputable
carrying on lawful paid activities in the country in to the State. The third is that loss or damage has
which they are present, such rights may be resulted from such wrongful act or omission.
specified by the Governments concerned in These three elements are the requirements of
multilateral or bilateral conventions. establishing the responsibility of the State, which
have been made in a number of leading
international legal cases and reiterated by the ILC
Articles. The Articles provides that every
internationally wrongful act (a delict) of a State
Article 9 entails responsibility. It defines internationally
wrongful act as a conduct consisting of an action or
No alien shall be arbitrarily deprived of his or omission attributable to the State under
her lawfully acquired assets. International Law and constitutes a breach of an
international obligation of the State. A breach of an
Article 10 international obligation is defined as an act which is
not in conformity with what is required of the State
Any alien shall be free at any time to
by that obligation, regardless of its origin or
communicate with the consulate or diplomatic
character.
mission of the State of which he or she is a
national or, in their absence, with the consulate or International Law does not distinguish between
diplomatic mission of any other State entrusted contractual (conventional) and tortious
with the protection of the interests of the State of responsibility. International responsibility relates
which he or she is a national in the State where he both to breaches of treaty and to other breaches of
or she resides. legal duty. Any violation by a State of any
obligation of whatever origin or character gives rise
to State responsibility and consequently to the duty
STATE RESPONSIBILITY of reparation. Reparation therefore is the
indispensable complement of a failure of a State to
State responsibility is one of the fundamental apply any of its obligations.
principles of International Law. It arises out of the
international legal system and the principles of State responsibility only arises when the act or
State sovereignty and equality of States. It implies omission which constitutes a breach of legal
that if a State commits an internationally wrongful obligation is imputable (attributable) to a State. It
(unlawful) act against another State, it will be may be founded on fault or no fault concept.
internationally responsible for reparation.
Notably, it is important to mention here that a
The law of State responsibility is concerned with State is responsible for wrongful acts which
the nature of the State responsibility, the legal constitute international delicts, not international
consequences resulted from, and the crimes. Because of the controversy concerning
State responsibility for international crimes, the ILC
implementation of such responsibility.
Articles does not mention international crimes.
Section 1: The Basis and Nature of State However, the ILC Draft Articles made a distinction
Responsibility between international crimes and international
delicts. The Draft Articles provided that an
international wrongful act resulting from the breach

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of an international obligation which was essential government which includes the executive, the
for the protection of fundamental interests of the legislature and the judiciary, and includes central
international community and which was recognized authorities as well as local authorities.
as a crime by that community constituted an
international crime; examples of such international It is established by the case law that a State is
crimes were aggression, colonial domination, liable for the conducts of any of its organs. This
slavery, genocide, apartheid and massive pollution established rule is reiterated by the ILC Articles.
of the atmosphere. All other international wrongful The ILC Articles provides that the conduct of any
acts constituted international delicts. State organ (including any person or entity) having
that status under the internal law of that State,
While it is apparent that a State is responsible whether that organ belongs to the constituent,
for international delicts, it is not clear that it is legislative, executive, judicial or other authority,
responsible for international crimes. The question whether its functions are of an international or an
of State criminal responsibility has been highly internal character, and whether it holds a superior
controversial. Some have argued that the concept or a subordinate position in the organization of the
is of no legal value and cannot be justified. Others State, shall be considered as an act of the State
have argued that since 1945 the attitude towards concerned under International Law, provided that
certain crimes committed by State has altered so organ was acting in that capacity in the case in
as to bring them within the scope of International question. The conduct of an organ of a territorial
Law. They have pointed to three specific changes governmental entity within a State shall also be
that have occurred since 1945 to justify States considered as an act of that State under
responsibility for international crimes. The first International law, provided that organ was acting in
change has been the development of the concept that capacity in the case in question. The conduct
of peremptory norms of International Law (jus of an organ of an entity which is not part of the
cogens) as a set of principles from which no formal structure of the State or the territorial
derogation is allowed. The second change is the governmental entity, but which is empowered by
establishment of individual criminal responsibility the internal law of that state to exercise elements
directly under International Law. Finally, the of governmental authorities, shall also be
Charter of the United Nations and its provisions considered as an act of the State under
concerning the enforcement action which may be International Law, provided that organ was acting
taken against a State in case of committing a threat in that capacity in the case in question.
to or breaches of the peace or act of aggression.
In the light of these changes, the ILC, in its Draft It is also established that a State is liable for the
Articles, adopted the approach of including acts of its officials if those acts are imputable
international crimes by States within the scope of (attributable) to the State. This rule depends on the
International Law. However, because of the link that exists between the State and the person or
controversy concerning this question, the ILC persons committing the wrongful act or omission.
omitted any mention of international crimes of The State as a moral legal entity, in reality acts
States in its Articles as finally approved. The through authorized officials. It is not liable under
Articles provides that States are under a duty to International Law for all acts of its officials; it is
co-operate to bring an end, through lawful means, liable only for acts of its officials that are imputable
any serious breach by a State of an obligation to it. Imputability is a legal notion which
arising under a peremptory norm of International assimilates the acts or omissions of the State
law and not to recognize as lawful any such officials to the State itself and which renders the
situation. State liable for damages to persons or properties
resulting from such acts.
A. The Question of Imputability
The question of imputability, however, creates
A State is responsible (liable) only for its own problems when officials exceed or disobey their
acts or omissions. A State is identified with its instructions. Because the evading of liability by a

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State in such a case will be unjust, it is established There are two theories used as foundations for
that a State is liable for the acts of its officials, even State responsibility: the risk theory and the fault
when they exceed or disobey their instructions, if theory.[28] The risk theory is based upon the
those officials are acting with apparent authority principle of objective responsibility which maintains
or if they are abusing powers or facilities placed that the liability of the State is strict. Once a
at their disposal by the State. The ILC Articles wrongful act causing damage has been committed
reiterates such a rule by providing that the conduct by a State official or organ, the State will be
of any organ of a State, having acted in that responsible under International Law to the injured
capacity, shall be considered as an act of the State State irrespective of its intention. In contrast, the
under International Law even if such organ fault theory is based upon the principle of
exceeded its competence according to internal law subjective responsibility which requires the
or disobeyed instructions concerning its authority. establishment of an element of intention, fault or
negligence on the part of the State official or organ
With regard of wrongful acts committed by before rendering the State liable for any damage.
private persons, in principle, a State is not
responsible for such acts. However, it is There is no agreement in the International Law
established by case law and reaffirmed by the ILC on the question of the basis of State responsibility.
Articles that a State is responsible for acts of The relevant cases and the opinions of legal
private persons if those persons are acting on scholars are divided on this question. However,
behalf of that state, on its instructions, under its the majority of cases and opinions tend towards
control, or exercising elements of governmental the risk theory of responsibility.
authority in the absence of governmental officials
and under circumstances which justify them in
assuming such authority.[24] It is also responsible
Section 2: Legal Consequences of State
for acts of private persons if such acts are
Responsibility
accompanied by some act or omission on part of
the State, for which it is liable. Such act or
A State is responsible for its international
omission by the State may take one of the
wrongful act. This responsibility entails certain legal
following forms: encouraging the person to perform
consequences on that State. The first
such act, failing to take reasonable care to prevent
consequence is the cessation of the wrongful act,
the person from performing such act, failure to
and the second is the reparation.
punish the person, obtaining some benefit from the
act of the person, or express ratification of the A. Cessation of the Wrongful Act
persons act.
The first legal consequence of State
With regard of actions of rioters or rebels responsibility under International law is that the
causing loss or damage to a foreign State or its wrongdoing State is obliged to cease the wrongful
nationals, the general principle is that the State is act, if it is continuing, and to offer appropriate
not liable for such actions if it has acted in good assurances and guarantees on non- repetition.
faith and without negligence.[26] However, in such
a case, the State is under a duty to show due B. Reparation
diligence. Nevertheless, when the rebellion
movement succeeds in establishing the new The second legal consequence resulting from
government of a State or a new State in part of the State responsibility for international wrongful act is
territory of the pre-existing State, it will be held that the wrongdoing state is under a duty to
responsible for its activities prior to its assumption remedy its acts. The injured State is entitled for full
of authority; this rule is reaffirmed by the ILC reparation in form of restitution in kind,
Articles. compensation and satisfaction, either singly or in
combination. The wrongdoing State cannot employ
B. The Question of Fault its internal law to avoid providing full reparation.

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Restitution in kind means that the wrongdoing Where several States are injured by the same
State has to re-establish the situation that existed wrongful act, each State may separately invoke
before the committing of the wrongful act. It can be responsibility. Where several states are
provided if it is not materially impossible, not responsible, the responsibility of each may be
involving breach of an obligation arising from a invoked.
peremptory norm of general International Law, not
involving a burden out of all proportion to the However, responsibility cannot be invoked if the
benefit which the injured State would gain from injured State has validly waived the claim, or it has
obtaining restitution in kind instead of caused, by reason of its conducts, in the lapse of
compensation, or not seriously jeopardize the the claim. Any waiver needs to be explicit and
political independence or economic stability of the clear.
wrongdoing state.
An injured State may seek to settle its claim
If restitution in kind is not available, peacefully through any of the peaceful means, or it
compensation for the damage caused must be may take countermeasures against the wrong
paid. Monetary compensation covers any doing State. In a case of an injury affecting its
financially assessable damage suffered by the national, the State may provide him with diplomatic
injured state, and may include interest, and may protection.
include, in certain circumstances, loss of profits. It
A State may present an international claim
may be paid for both material and non-material
against the wrong doing State before an
(moral) damage.
international tribunal. However, a State has to
Satisfaction is the third form of reparation. It is establish its qualifications for bringing the claim
a remedy which is appropriate in cases of moral and the validity of the claim itself before the merits
damage and non-monetary compensation. It may of the claim can be addressed. Where a claim is
take the forms of an official apology, a nominal brought before an international tribunal, objections
damage, the punishment of the guilty officials or may be raised against its admissibility. The first is
the acknowledgement of the wrongful character of an objection to the jurisdiction of the tribunal; if
an act. successful, it will stop all proceedings in the case.
Other objections are the nationality of the claimant,
the non-exhaustion of local remedies, and the
undue delay in presenting the claim.
Section 3: The Implementation of State
Responsibility A. Diplomatic Protection and Nationality of Claims

A State is entitled to invoke the responsibility of The doctrine of state responsibility with regard
another State if the obligation breached is owed to to injuries to nationals is based upon the attribution
it individually or to a group of States, including it, or to one State of the wrongful act or the omission
to the international community as a whole. A State and the capacity of the other State to adopt the
other than an injured State may invoke the claim of its injured national. Nationality is the link
responsibility of another State if either the between the individual and his State as regards
obligation is owned to a group of States including particular benefits and obligations. It is also the
it, and is established for the protection of a link between the individual and the benefits of
collective interest of the group, or the obligation International law. Although International Law is
breached is owed to the international community now tending to grant certain rights to individuals
as a whole. In such cases, a State may demand apart of the intervention of the State, the basic rule
the cessation of the wrongful act, assurances and remains that in a State-oriented world, it is only
guarantees of non-repetition, satisfaction, as well through the State the individual may obtain the full
as reparation. These doctrines are reaffirmed in range of benefits available under International Law,
the ILC Articles. and nationality is the key.

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Although a State is under a duty to protect its the formal presentation of the claim.[47] Where an
nationals, it is not under a duty to provide them individual possesses dual or multiple nationalities,
with diplomatic protection. A State may provide any State of which he is a national may adopt his
diplomatic protection to its nationals. Diplomatic claim against a third State. Where a case involves
protection consists of resorting to diplomatic action more than one State of nationality, the State with
or other means of peaceful settlement by a State which he has the more effective connection may
adopting in its own rights the cause of its nationals adopt his claim against the other State. As far as a
in respect of an injury to any of its national arising moral legal person (such as a corporation) is
from an internationally wrongful act of another concerned, there must be some tangible link
State. Such diplomatic protection is not a right of between it and the State adopting its claim.
the national concerned, but a right of the State
which may or may not choose to exercise. B. The Exhaustion of Local Remedies

The diplomatic protection is the result of the It is established in the customary International
historical reluctance to permit individuals the right Law that before international proceedings are
in International Law to bring claims against foreign instituted or claims or representations made, the
States, for reasons related to the principles of state remedies provided by the local State should have
sovereignty and non-intervention in domestic been exhausted. This rule implies that an injured
affairs of a State. The exercise of diplomatic individual must exhaust remedies in the courts of
protection is not regarded as intervention contrary the defendant State before an international claim
to International Law.[46] A State may take up the can be brought on his behalf. It is a rule which is
claim of its national against another state before an justified by political and practical considerations,
international tribunal. Once a State does this, the not by any logical necessity deriving from the
claim then becomes that of the state, not of the International Law. Among the political and practical
injured individuals. Thus, the State may waive its considerations suggested to justify such rule are
claim, but the individual cannot. the avoidance of resorting to diplomatic protection
in small and insignificant claims, and the greater
In International law, the normal and important suitability and convenience of local courts as
function of nationality is to establish the legal forums for claims of individuals. This rule is
interest of a State when its national suffers injury or reaffirmed in the ILC Articles which provides that
loss caused by another State. The subject matter the responsibility of a State may not be invoked if
of the claim is the individual and his property, and the claim is one to which the rule of exhaustion of
the claim is that of the State. If the plaintiff State local remedies applies and any available and
cannot establish the nationality of the claim, the effective local remedy has not been exhausted.
claim will be inadmissible because of the absence
of the legal interest of the claimant. The The exhaustion of local remedies rule does not
nationality of the claim principle is well apply where one State has been guilty of a direct
established in customary International Law. breach of International Law causing direct injury to
However, there are certain exceptions to the another State. It applies to cases of diplomatic
principle of the nationality of the claim. Examples protection where a State claims injury to its
of such exceptions are the right of protection of an nationals, and when effective remedies are
alien seaman on a ship flying the flag of the available in the wrongdoing State. A claim will not
protecting State, an alien in the service of the be admissible in the International Law unless the
armed forces of a claimant State, and stateless natural or legal foreign person concerned has
person or refuge who at the dates of the injury and exhausted the legal effective remedies available to
presentation of the claim is lawfully and habitually him locally in the Defendant State.
resident in that state.
C. Unreasonable Delay and Improper Activities of
The nationality must exist at the date of the the Injured National
injury, and should continue until at least the date of

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A claim by a State against another State will not Unlike national laws, wherein different rules often
be admissible if it is presented after an apply according to the source of the obligation
unreasonable delay by the Claimant State. It may breached (e.g., contract law, tort law, criminal law),
be inadmissible if the injured national has suffered international law does not concern itself with the
injury as a result of his improper activities. source of the obligation that is breached; in
However, in such a case, the injury suffered by the principle (and unless otherwise specifically
national must be roughly proportional to his provided) the same rules apply to the breach of an
improper activities. obligation whether the source of the obligation is a
treaty, customary international law, a unilateral
D. Resorting to Countermeasures declaration, or the judgment of an international
court.
An injured State may seek to settle its claim
peacefully through any of the peaceful means, or it In August 2001 the International Law Commission
may take countermeasures against the wrong completed its Articles on the Responsibility of
doing State. Countermeasures are acts of States for Internationally Wrongful Acts (ARSIWA),
retaliation which are traditionally known as a project on which it had been working for more
reprisal. They may be in a form non-compliance than forty years. The aim of the articles is to codify
of the injured State with its legal obligations the generally applicable rules of State
towards the wrong doing State, or unilateral responsibility.
coercive actions taken by the injured State against
the wrongdoing State. Such measures are a type It should be noted that the ARSIWA are envisaged
of self help utilized in order to induce the wrong as laying down general rules that apply in default of
doing State to discontinue its wrongful act and to any more specific rule applicable to the obligation
provide reparation. in question. In some cases, special rules may
apply to an obligation (either as a result of the
Today, there are certain legal limits to formulation of the rule itself, or because the
countermeasures. The most important limit is the obligation in question forms part of a special
prohibition of the armed retaliations because of the regime); for instance, it is possible that a particular
general prohibition of the use of force provided in obligation may be subject to a special rule requiring
Article 2(4) of the Charter of the United Nations. fault or damage before there is held to be a breach,
Countermeasures have to be proportional to the or it may be that the category of States entitled to
wrongful act. They must not violate basic human react is wider than the default position under the
rights or the peremptory norms of International ARSIWA. This is the principle of lex specialis (to
Law. the extent that special rules are applicable and
inconsistent with the rules contained in the
STATE RESPONSIBILITY
ARSIWA, the special rules will prevail and displace
the more general rules).
Introduction

The law of State responsibility is the chapter of


international law that concerns the breach by a
The Elements of State Responsibility
State of one or more of its international obligations.
In international law, responsibility is the corollary of The starting point of the articles is that "every
obligation; every breach by a subject of internationally wrongful act of a State entails the
international law of its international obligations international responsibility of that State" . The act
entails its international responsibility. The law of or omission of a State will qualify as an
State responsibility defines when an international "internationally wrongful act" if two conditions are
obligation is to be held to have been breached, as met. First, the act or omission must constitute a
well as the consequences of that breach, including breach of an international obligation, or, as the
which States are entitled to react, and the articles put it, must be "not in conformity with what
permissible means of that reaction. is required" by the international obligation. This
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implies that the obligation in question must be embassy is overrun by a mob, or harm is done to
binding on the State at the time of the conduct, diplomatic staff by private individuals, as occurred
which is said to constitute a breach. Second, the with the U.S. embassy in Tehran during the Iranian
act or omission must be "attributable" to the State. revolution of 1979 to 1980, a State may incur
responsibility, even if those individuals act on their
The general rule is that a State is not responsible own initiative. Equally, under Article V of the 1948
for the acts of private individuals. The State is of Convention on the Prevention and Punishment of
course an abstract entity, unable to accomplish any the Crime of Genocide, the obligation of a State to
physical act itself. Just as in domestic law punish those responsible for genocide earlier on
corporations act through their officers and agents, related to genocide may be breached in instances
so in international law the State normally acts in which a State fails to punish any person
through its organs and officials. The first, and responsible for the genocide, "whether they are
clearest, case of attribution is that of the organs of constitutionally responsible rulers, public officials,
the State (e.g., police officers, the army) whose or private individuals." There is probably a similar
acts are attributable to the State even in instances rule in general international law in relation to
where they contravene their instructions, or exceed crimes against humanity. In both cases, the basis
their authority as a matter of national law. No of responsibility here is not the attribution to the
distinction is made based on the level of the State of the acts of the individuals; it is the failure
particular organ in the organizational hierarchy of by the State as an entity to comply with the
the State; State responsibility can arise from the obligations of prevention and prosecution
actions of a local policeman, just as it can from the incumbent on it.
actions of the highest officials, for instance a head
of state or a foreign minister. Nor is any distinction A somewhat anomalous instance of attribution is
made upon the basis of the separation of powers; that covered by Article 10. As was noted above, in
State responsibility may arise from acts or the normal course of events, a State is not
omissions of the legislature and the judiciary, responsible for the acts of private individuals; a
although by the nature of things it is more common fortiori, it is not responsible for the acts of
that an internationally wrongful act is the insurrectional movements, because, by definition,
consequence of an act or acts of the executive. an insurrectional group acts in opposition to the
Second, the rules of attribution cover situations in established state structures and its organization is
which individuals, not otherwise State organs, are distinct from the government of the State to which it
exercising "elements of governmental authority" at is opposed. However, Article 10(1) provides that
the time that they act. Third, acts of private "the conduct of an insurrectional movement which
individuals are attributable to the State if those becomes the new government of a State shall be
individuals are acting on the instructions of the considered an act of that State under international
State, or under its effective direction or control. law." Article 10(2) provides for a similar rule with
Fourth, in exceptional circumstances in which there respect to an insurrectional movement that
is an absence or default of governmental authority, succeeds in establishing a new State within the
the acts of private individuals may be attributable to territory of a pre-existing State. The effect of the
the State if those individuals, in effect, step into the rule is to attribute retrospectively the conduct of the
breach and perform necessary governmental movement in question to the State. In the case of a
functions. successful insurrectional movement, the acts of the
movement are attributed to the State as if the
movement had been the government at the time of
its acts, even though, if the insurrection had failed,
With regard to certain obligations, a State may
no attribution would be possible. In the case of the
incur responsibility even though actions have been
establishment of a new State, the effect is even
carried out by private individuals, because the
more drastic because acts are attributed to the
essence of the obligation was to ensure that a
State retrospectively to a time when it did not yet
given result occurred. For instance, if a foreign
definitively exist.
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which restitution is materially impossible, the


injured State may have to content itself with
Except in this case, there is no established compensation or satisfaction. Second, the
machinery for attributing collective responsibility responsible State is under an obligation to
(e.g., for war crimes, genocide, or crimes against conclude the internationally wrongful act if it is
humanity) to an armed opposition group. In such continuing, and in an appropriate case, may be
circumstances individual responsibility is the only required to make assurances and guarantees of
possibility at the international level of ensuring a non-repetition.
degree of responsibility for criminal acts.
The Articles mark a decisive step away
Certain circumstances may serve to preclude the from the traditional bilateralism of international law
wrongfulness of a breach of international law by a and toward what has been called "community
State, in much the same way that defenses and interest" in the provisions dealing with the States
excuses work in national criminal law. In that are entitled to react to the breach of an
international law these are termed "circumstances internationally wrongful act. Traditionally, only the
precluding wrongfulness" [8] . For instance, the State that was directly injured, or in some way
consent of the state to which the obligation was "targeted" by the breach of an international
owed will prevent the breach being wrongful, as obligation could demand reparation. In addition,
will, under certain restrictively defined conditions, although any state could take unfriendly measures
force majeure, distress, and necessity. Finally, a that did not constitute the breach of an
State taking countermeasures (defined as the international obligation owed to the State at which
nonperformance of an obligation in response to a they were directed (retorsion), the taking of
prior wrongful act of another State, in order to countermeasures was commonly understood as
induce that State to comply with its obligations) being limited to these "injured States."
may mean that what would otherwise be a breach
of an international obligation is not in fact wrongful. The first major move away from the strict
However, quite apart from the strict procedural bilateralism of international law was the judgment
conditions with which the taking of of the International Court of Justice in the
countermeasures is hedged, it should be noted Barcelona Traction, Light and Power Company
that certain obligations may not be the object of Limited (Belgium v. Spain) case. In that case, the
countermeasures. Among these are the obligation court stated:
to refrain from the threat or use of force, obligations
for the protection of fundamental human rights, An essential distinction should be drawn
obligations of a humanitarian character prohibiting between the obligations of a State towards the
reprisals under peremptory norms of general international community as a whole, and those
international law (jus cogens). This last limitation in arising vis--vis another State in the field of
fact applies generally to circumstances precluding diplomatic protection. By their very nature the
wrongfulness: it is never possible to plead that a former are the concern of all States. In view of the
breach of a peremptory norm was justified. importance of the rights involved, all States can be
held to have a legal interest in their protection; they
The Content of International Responsibility are obligations erga omnes.

Upon the commission of an internationally wrongful In the next paragraph, the court went on to
act, new legal obligations come into existence for state that "such obligations derive, for example, in
the State responsible for that act. First, that State is contemporary international law, from the outlawing
under an obligation to make full reparation for the of acts of aggression, and of genocide, as also
injury caused by the internationally wrongful act. from the principles and rules concerning the basic
Reparation may take one of three forms: rights of the human person, including protection
restitution, compensation, or satisfaction (or some from slavery and racial discrimination." This
combination of them). Traditionally, restitution has distinction between obligations of which only the
played the primary role, although in instances in injured State may complain, and those in the
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observance of which a wider community of States violations of the 1948 UN Genocide Convention,
have an interest, is reflected in Articles 42 and 48, serious violations of human rights, and war crimes
although it should be stressed that the latter that had not been the subject of international
provision is undoubtedly one of the clearest prosecution. At the preliminary objections stage of
examples of progressive development to be found the case (mentioned above) between Bosnia and
within the articles. It seems indisputable that all Serbia-Montenegro, the respondents argued for a
other States have an interest in the observance by restrictive interpretation of the jurisdictional
other States (and individuals) of the prohibitions of provision contained in Article IX of the 1948 UN
genocide and crimes against humanity. However, Genocide Convention. Article IX provides as
the exact implications of this interest require further follows.
working out in the light of State practice.
Disputes between the Contracting Parties
The Relationship between State Responsibility relating to the interpretation, application or
And Individual Responsibility fulfillment of the present Convention, including
those relating to the responsibility of a State for
The relationship between State genocide or for any of the other acts enumerated in
responsibility and individual responsibility has until Article III, shall be submitted to the International
recently been a neglected issue, principally due to Court of Justice at the request of any of the parties
the late development of international individual to the dispute.
criminal responsibility.
Serbia-Montenegro argued that the
In 1947 the International Military Tribunal provision only conferred jurisdiction on the court in
at Nuremberg stated that "crimes against relation to responsibility for failure to comply with
international law are committed by men, not by the obligations to prevent and punish genocide, as
abstract entities, and only by punishing individuals contained in Articles V, VI, and VII of the
who commit such crimes can the provisions of convention, and not to State responsibility for
international law be enforced" . This statement violations of the substantive prohibition of genocide
says much about perceptions of the international contained in Article III. Accordingly, it was argued,
legal system in the immediate aftermath of World as the jurisdiction of the court is based on consent,
War II; however, insofar as it seems to assert that the court had no jurisdiction in relation to the
observance of the rules of international law allegations made by Bosnia and Herzegovina of
prohibiting atrocities can only be achieved through violations of the prohibition of genocide by
the prosecution of individuals, the assertion no individuals whose acts were attributable to Serbia-
longer holds true. Montenegro.

During the 1990s a number of inter-State


cases alleging State responsibility for violations of
the international rules concerned with the outlawing The court dealt with the point briefly, observing:
of atrocities were brought before the International
Court of Justice. Some of these cases, in particular
those between the States that had emerged after
The reference in Article IX to "the
the disintegration of the Socialist Federal Republic
responsibility of a State for genocide or for any of
of Yugoslavia (Bosnia and Herzegovina v.
the other acts enumerated in Article III," does not
Yugoslavia [Serbia and Montenegro], 1993
exclude any form of State responsibility. Nor is the
onward; Croatia v. Yugoslavia, 1999 onward),
responsibility of a State for acts of its organs
concerned situations involving allegations of
excluded by Article IV of the Convention, which
genocide and crimes against humanity that were
contemplates the commission of an act of genocide
concurrently the subject of investigation and
by "rulers" or "public officials".
prosecution of individuals before the International
Criminal Tribunal for the Former Yugoslavia
(ICTY). Other case alleged, among other things,
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Accordingly, it held, a dispute existed It is therefore now generally accepted that


between the parties on this point, as well as on the a single act can give rise to "two distinct types of
"the facts of the case, their imputability, and the responsibility coming under mutually autonomous
applicability to them of the provisions of the legal regimes" [16] . The ILC intentionally left the
Genocide Convention," and was sufficient to its question of the interplay of the two bodies of law
jurisdiction. Two points bear emphasizing. First, the open for future development, inserting a saving
argument of Serbia-Montenegro did not have as a clause as Article 58, ARSIWA, which reads,
necessary premise that State responsibility for "These articles are without prejudice to any
actual acts of genocide attributable to a State does question of the individual responsibility under
not exist; rather, the argument was that State international law of any person acting on behalf of
responsibility of this type did not fall within Article a State." Similarly, the Rome Statute of the
IX. Second, the decision of the court at the International Criminal Court (ICC) provides in its
preliminary objections stage of the case did not Article 25(4) that "[n]o provision in this Statute
definitively decide whether breach of the 1948 UN relating to individual criminal responsibility shall
Genocide Convention by an individual necessarily affect the responsibility of States under
involves State responsibility if the relevant acts are international law."
attributable to a State, as the only hurdle that had
to be surmounted was whether there was a dispute However, although the rules constituting
between the parties as to the interpretation or the general-framework of State responsibility and
application of the convention. However, the tone of international criminal responsibility may constitute
the court's judgment seems to suggest that State distinct bodies of law, there are inevitably certain
responsibility does arise in these circumstances, overlaps or points of contact between the two
and this would be consistent with general principle. systems due to the fact that at the root of both are
the same norms of substantive international law,
Conversely, the ICTY has made reference that is, those prohibiting anyone from committing
to State responsibility in elucidating the law genocide, crimes against humanity, and so on.
relevant to the international criminal responsibility
of individuals. In the Furundzija case the Trial Most obviously, for instance, it is clear that
Chamber held that the international legal norms an individual cannot be found guilty of genocide if
prohibiting torture arising from human rights law he did not have the "specific intent" to "destroy in
and international humanitarian law "impose whole or part, a national, ethnical, racial, or
obligations upon States and other entities in an religious group, as such," required by Article II of
armed conflict, but first and foremost address the 1948 Genocide Convention. Equally, in seeking
themselves to the acts of individuals, in particular to establish State responsibility for genocide, it
to State officials or more generally, to officials of a seems clear that at least one person, if not more,
party to the conflict or else to individuals acting at whose acts are attributable to the State should
the instigation or with the consent or acquiescence have the requisite specific intent. In this sense, the
of a party to the conflict" . As a consequence, 1948 Genocide Convention operates as a lex
specialis in relation to the generally applicable
Under current international humanitarian rules of international law, in which culpa or
law, in addition to individual criminal liability, State intention is not generally required.
responsibility may ensue as a result of State
officials engaging in torture or failing to prevent Second, although the definition of
torture or to punish torturers. If carried out as an genocide is not expressed in such terms, the
extensive practice of State officials, torture logistical and organizational structures necessary
amounts to a serious breach on a widespread for the commission of the crime inevitably involve
scale of an international obligation of essential State or para-statal structures. A person who
importance for safeguarding the human being, thus murders a single person on the basis of the
constituting a particularly grave wrongful act national, ethnic, racial, or religious group to which
generating State responsibility. that person belongs does not commit genocide,

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even though it may be that he would murder all of


the members of the group if he could, and thus
arguably has the required specific intent. A certain 2. In such a case, the breach extends over the
amount of concentration is necessary, and there is entire period starting with the first of the actions or
a certain threshold of scale both for genocide and omissions of the series and lasts for as long as
crimes against humanity (of which, ultimately, these actions or omissions are repeated and
genocide is a species. remain not in conformity with the international
obligation.
In relation to crimes against humanity,
Article 3 of the Statute of the International Criminal
Tribunal for Rwanda (ICTR) requires that the acts According to the commentary, this has specific
have been committed as part of "a widespread or application to crimes against humanity and
systematic attack against any civilian population on genocide.
national, political, ethnic, racial, or religious
Even though it has special features, the
grounds," whereas Article 5 of the Statute of the
prohibition of genocide, formulated in identical
ICTY, which only requires that the acts have been
terms in the 1948 Convention and in later
committed "in armed conflict, whether international
instruments, may be taken as an illustration of a
or internal in character, and directed against any
composite obligation. It implies that the responsible
civilian population" has been interpreted by the
entity (including a State) will have adopted a
ICTY as requiring that there be a widespread or
systematic policy or practice. According to Article
systematic attack. In similar fashion, Article 7 of the
II(a) of the Convention, the prime case of genocide
Rome Statute of the ICC imposes the slightly
is "killing members of [a national, ethnical, racial or
different requirement of "a widespread and
religious group]" with the intent to destroy that
systematic attack directed against any civilian
group as such, in whole or in part. Both limbs of the
population" in its definition of crimes against
definition contain systematic elements. Genocide
humanity. As with genocide, the requirement of "a
also has to be carried out with the relevant
widespread or systematic attack" implies an
intention, aimed at physically eliminating the group
element of scale or of planning, and will in most
"as such." Genocide is not committed until there
cases involve structures and apparatus that will
has been an accumulation of acts of killing,
normally only be disposed of by a State or by an
causing harm, etc., committed with the relevant
armed opposition group, although proof of a plan
intent, so as to satisfy the definition in Article II.
or policy is not a necessary part of the definition of
Once that threshold is crossed, the time of
the crime.
commission extends over the whole period during
It was for reasons of this kind that the ILC included which any of the acts was committed, and any
in its articles a provision dealing specifically with individual responsible for any of them with the
the issue of responsibility for what are termed relevant intent will have committed genocide.
composite actsthat is, acts wherein the gist of
the wrong is the combination of individual acts that
are not in themselves necessarily wrongful or
The Distinction between Commission and
criminal as a matter of international law. Article 15
Failure to Prevent Or Punish
of ARSIWA provides as follows:
The 1948 UN Genocide Convention
distinguishes between the basic prohibition of
genocide and conduct ancillary to genocide
1. The breach of an international obligation by a
incitement, conspiracy, and so on, and the
State, through a series of actions or omissions
question of prevention and punishment. Persons
defined in aggregate as wrongful, occurs when the
committing genocide (whether or not State officials)
action or omission occurs which, taken with the
are to be punished. The State is under an
other actions or omissions, is sufficient to
obligation not merely to enact laws prohibiting
constitute the wrongful act.
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genocide, but also to prevent and punish actual that is attributable to a State, committed by its
violations occurring within its territory. Thus, there agencies or officials or in the exercise of its
is a distinction between the criminal act, which is authority, constitutes a breach of international
committed by individuals and is punishable obligation that is binding at the time the act is
accordingly, and the State's obligation to prevent committed. Such a classic formulation of
and punishfailure to do which is not as such international responsibility is premised on inter se
criminal, but amounts to a breach of an relations of States; an act or omission of one State
international obligation. In the Application of the in breach of an obligation defined by international
Genocide Convention case, as noted already, custom or convention, which it owes to another
Yugoslavia (Serbia and Montenegro) argued that State. However, progress in the theory and
the only obligation that had been incumbent upon it practice of international responsibility has gone
under the convention was to prevent genocide and beyond the scope of bilateral relations. The
punish acts of genocide occurring on its territory; developments towards the consolidation of the
the court rejected this argument, affirming that the institutions making up the International Community
jurisdictional provision did not exclude "any form of of States as a whole have broadened in significant
State responsibility". The court left to the merits scale.
phase of the case the question of the scope of the
obligations under the convention, and accordingly
the extent of State responsibility falling within the
ACTS OR OMISSIONS IMPUTABLE TO THE
jurisdictional provision. However, leaving aside the
STATE
technicalities of jurisdiction, the better view is
thatwhether under the convention or as a matter
of general international lawa State is responsible
for any act of genocide committed by one of its Private Individuals vs. Government Officials or
organs or by other persons whose conduct in the bodies
relevant respect is attributable to the State.
Private Individuals
As indicated by the Bosnia case, it is
arguable that, in these as in other respects, there General Rule :
may be a distinction between on the one hand the
scope of responsibility (and accordingly of The State cannot be held directly or immediately
jurisdiction) under the convention, and on the other responsible for the acts or ommissions of private
the scope of the obligations, and of responsibility individuals, causing damage to aliens or their
under general international law. For example, property
national jurisdiction to try persons suspected of
Exception :
genocide is limited by Article VI to genocide
committed on the territory of the implicated State. It The States responsibility may arise indirectly or
is inconceivable that jurisdiction is so limited under vicariously, but only if it is accompanied by
general international law, given such developments circumstances which indicate manifestations of
as the extension of national jurisdiction over the actual or implied complicity of the government
international crimes in general (including crimes in the act, before or after it, either by directly
less serious than genocide). ratifying or approving it, or by an implied, tacit or
constructive approval in the negligent failure to
prevent the injury or against guilty individual to
Conclusion pursue his civil remedies

Therefore, in international law, responsibility Unless it displayed in the conduct of its organs or
pertains to a State which commits an its officials, patent or manifest negligence in taking
internationally wrongful act against another, giving measures which are normally taken in the
rise to the duty to give reparation. The wrongful act
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particular circumstances to prevent or to punish the The wrongful act of a subordinate official is not the
injurious acts. act of the State unless and until some organ of the
State has expressly or tacitly ratified the act.
First line of inquiry Whether the State ought to
have prevented the injurious act.

Where the injury would not have occurred DENIAL OF JUSTICE


if the State, through its officers, had been
reasonably diligent, the question of State All act or omissions capable of giving rise
responsibility will arise. to international responsibility on the part of the
State for injury to the person or property of an
The claimant has the burden of proving alien, regardless of the State organ which may
the negligence of the government. have been the proximate cause of such injury.

Second line of inquiry Whether the State has A State may not deny access to its courts
taken the remedial steps which the law requires of and yet deny justice
it, assuming that there was no failure of diligence.
Unjust judgment is not a denial of justice
As a result of its failure to use diligence in
bringing the offender to justice and punishing him,
the State becomes responsible internationally for
Why is there is no denial of justice unless the
the damage suffered by the alien.
misconduct is extremely gross?

The reason is that the independence of courts is an


DENIAL OF JUSTICE accepted canon of a decent government, and the
law does not lightly hold a State responsible for
The State cannot be held responsible for it is not errors committed by its courts.
required to insure the effectiveness of its remedial
machinery. CASE :

1. On injuries arising out of a mob violence GARCIA AND GARZA


suffered by the alien
NORTH AMERICAN DREDGING CO.
Lack of evidence may be easily shown if a group of
aliens are attacked. If the authorities have used
due diligence to prevent and repress the riot and
have not denied justice to the alien injured, the
State has no responsibility unless it is under
X. EXTRADITION
obligation to render special protection.
Extradition, definition
The surrender of a person by one
2. The State is not responsible for the
state to another state where he is
injuries sustained by aliens at the hands of
wanted for prosecution or, if already
unsuccessful revolutionists or insurgents convicted, for punishment.
in civil war Sui generis proceeding tracing its
existence wholly to treaty obligations
between different nations.
Administrative in Character.
ACTS OF GOVERNMENT OFFICIALS
Extradition vs. Deportation
EXTRADITION DEPORTATION
Where the office acts beyond the scope of his
Effected at the request Unilateral act of the local
office, his act is like that of any private individual.
of the state of origin. state.
Based on offenses Based on causes arising
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generally committed in in the local state. be punishable under the laws of the
the state of origin. demanding and surrendering States
It calls for the return of An undesirable alien with a minimum penalty of
the fugitive to the state may be deported to a imprisonment for one year.
of origin. state other than his own Difference in Legal System
or the state of origin. Can serve as an obstacle to the
interpretation of what the crime is.
Kinds of Fugitives Some Offenses are not Extraditable
Fugitive Political Offenders Religious Offenses
Fugitive Criminals (Extradition Political Offenses
proceedings applies to them) Military Offenses

2 Types of extradition treaties: Political vs. Ordinary Offense:


List-Type Extradition Treaty (Older or Test: there must be two or more
Classical Type)
parties in the State, each seeking to
- Specifies the offenses for
which extradition is provided. impose the government of their own
Non-List Type Extradition Treaty choice on the other. (Britain)
(Modern Type) Attentat Clause
- No list of offenses, but provides Murder of the head of a
for extradition in all cases where the foreign state, or a member
offense is punishable in both the of his family, should not be
demanding and surrendering States. considered a political crime.
(Belgium)
Purposes of Extradition
Criminal Prosecution Delits Complexes
- Instituted by authorities of the Offenses that are at the
requesting State or same time political acts and
government charging the ordinary crimes.
accused with an offense.
Execution of Prison Sentence
- Imposed by a court of the
requesting State or government, with such Prohibition on Discrimination
Extradition may not be granted if it
duration as that
would subject the fugitive to
stipulated in the treaty to be served by the
prosecutions based on race,
accused.
nationality, or political opinion.

Fundamental Principles of Extradition


Lack of Probable Cause Clause
Bilateral Treaty
The request for extradition must
It is based upon bilateral treaty law
include sufficient prima facie
and does not exist as an obligation
evidence of guilt attributable to the
upon states in customary law.
person requested to be extradited.
Double Criminality
The crime involved should be a
crime in both states concerned. Postulates of Extradition
Criminals should be restored
Principle of Specialty
to the jurisdiction of the
A person surrendered may be tried
locus delicti competent to
and punished only for the offense try and punish them so that
for which extradition had been the number of criminals
sought and granted. seeking refuge abroad will
Montevideo Convention of 1933 be reduced.
Test: the act for which extradition is
sought must constitute a crime and
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The requesting state will


accord due process to the
accused.
The proceedings are sui
generis (on its own kind; a
APPEAL to CA within 1
class of itself; unique).
Compliance shall be in good whose decision shall be
faith. executory.
There is underlying risk of
flight.

Procedure for Extradition (P.D. 1069)

REQUEST through DECISION forwarded to


DIPLOMATIC the DOJ.
REPRESENTATIVES

DFA FORWARDS request to INDIVIDUAL placed at t


DOJ authorities of requesting
expenses to be shoulde
State.

Rights of a Person Arrested and Detained


in Another State
The judge must study the petition for
extradition
Right toand
have his request complied
with by the receiving State to so
its supporting documents and make, as soon as
inform the consular post of his
possible, a PRIMA FACIE (at first face) FINDING
condition.
whether they are sufficient in compliance
Rightwith the
to be informed by the
competent authorities of the
person State without delay his
Extradition Treaty and Law and that the receiving
rights above-mentioned.
Right to have his communication
addressed to the consular post
forwarded by the receiving State
accordingly.

Irregular Rendition
A practice of some States that is
borne of frustration caused by the
unwillingness of a country upon
which a valid extradition request
has been made to carry out its
international obligations.
HEARING
Varieties of Irregular Rendition:

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Transitional Forcible of strangers, as they deem


Abduction convenient."
Informal Protection of wrecked ships, their
Surrender/Disguised passengers and crew, and their
Extradition cargo, from depredation by those who
Lures might find them.
Prosecution of piracy by whomever
Ker-Frisbie Doctrine might be able to capture the pirates,
Criminal defendants may even if those making the capture or
be tried regardless of their nations had not been victims.
whether their presence Care and decent treatment of
before the court was prisoners of war.
secured from outside its Protection of foreign embassies,
territorial jurisdiction by ambassadors, and diplomats, and of
means other than foreign ships and their passengers,
pursuant to a valid crew, and cargo while in domestic
extradition. waters or in port
Asylum Honoring of extradition treaties for
When a State allows an alien to criminals who committed crimes in a
enter and remain in its territory nation with whom one has such a
even if his own State objects. treaty who escape to one's territory or
Aliens have no right of asylum; it are found on the high seas.
is merely the right of the State to Prohibition of enslavement of foreign
grant it. nationals and international trading in
Kinds of Asylum slaves.
Territorial
Exterritorial or Crimes Against Law of Nations
Diplomatic
In the Philippine Setting:
Crimes Against Law of Nations Provided for by the RPC
Crimes which all nations agree to Book II Title I
punish. Divided into three Sections:
It is an act that is internationally agreed to SECTION ONE: Treason and
be of a criminal nature, such as genocide, Espionage
piracy or engaging in slave trade. It is also SECTION TWO: Provoking War and
known as crime against international
Disloyalty in Case of War
law.
No nation can privilege itself to commit a SECTION THREE: Piracy and
crime against the law of nations by a mere Mutiny on the High Seas
municipal regulation of its own.
Treason & Espionage
General elements of Law of Nations ARTICLE 114. Treason
No attacks on foreign nations, ARTICLE 115. Conspiracy and
their citizens, or shipping, without Proposal to Commit Treason
either a declaration of war or ARTICLE 116. Misprision of Treason
letters of marque and reprisal.
ARTICLE 117. Espionage
Honoring of the flag of truce,
peace treaties, and boundary
treaties. No entry across national Provoking War and Disloyalty in
borders without permission of Case of War
national authorities. ARTICLE 118. Inciting to War or
by the law of Giving Motives for Reprisals
nations no member of one ARTICLE 119. Violation of Neutrality
society has a right to intrude into ARTICLE 120. Correspondence with
another [I]t is left in the power Hostile Country
of all states, to take such
measures about the admission
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ARTICLE 121. Flight to Enemys I. The growing importance of the


Country individual person in public international
law who, in the 20th century, has gradually
Piracy and Mutiny on the High attained global recognition;
Seas II. The higher value now being given to
ARTICLE 122. Piracy in General and human rights in the international sphere;
Mutiny on the High Seas III. The corresponding duty of countries
ARTICLE 123. Qualified Piracy to observe these universal human rights
in fulfilling their treaty obligations; and
CASES:
IV. The duty of this Court to balance
BOROVSKY v. COMMISSIONER
OF IMMIGRATION (Deportation the rights of the individual under our
case) fundamental law, on one hand, and
If that case is not comparable with the law on extradition, on the other.
ours on the issues presented, its
underlying principle is of universal
application. In fact, its ratio
XI. Nationality
decidendi applies with greater
force to the present petition, since A. Nationality: Definition
the right of accused to bail Nationality refers to membership in a political
pending appeal of his case, as in community. It is often used interchangeably with
the case of the ten Communists, citizenship. And is also regarded as an inalienable
depends upon the discretion of right of every human being.
the court, whereas the right to be
enlarged before formal charges
are instituted is absolute. As
already noted, not only are there Citizen one who enjoys full political rights
no charges pending against the
National includes a citizen as well as a person
petitioner, but the prospects of
who, not being a citizen, owes permanent
bringing any against him are slim
and remote. allegiance to the State and is entitled to its
protection.
Re: Castioni
A fugitive criminal shall not be
surrendered if the offense in respect *In public international law, however, the distinction
of which his surrender is demanded between citizen and national is of no importance.
is one of a political character.

Re: Meunier
To constitute a political offense there Universal Declaration on Human Rights
must be two or more parties in the (UDHR), being interpreted by the Court as a
State, each seeking to impose the generally accepted principle of International law,
government of their own choice on Article 15 states that everyone has the right to a
the other, which was not the case nationality and that no one shall be arbitrarily
with regard to anarchist crimes, and deprived of his nationality.
therefore the prisoner was liable to
extradition.

Govt. of HK v. Hon. Olalia Importance


Trends in International Law:

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(1) It provides the right to consular assistance


in cases of individuals abroad;
(2) The States may demand reparation for (1) BIRTH
any injuries suffered by them through - Jus Sanguinis (the law of the
failure of the receiving State to observe its blood): the principle by which a
duties under the International law; child acquires the nationality of
(3) In extradition treaties, States may include his or her parents.
clauses making it optional for them to - Jus Soli (the law of the soil): the
surrender their own nationals. principle by which a child born
within a countrys territorial
jurisdiction acquires that countrys
nationality.

B. Acquisition and Loss (2) NATURALIZATION: The grant of


citizenship upon application in regular
proceedings. It also includes the following:
- Marriage
International Law leaves each State free to settle - Legitimation
by its own laws the question of who should be - Option
regarded as its own nationals. This principle was - Acquisition of Domicile
- Appointment as Government
embodied in the Hague Convention of 1930 on
official
Conflict of Nationality Laws, which laid down two
important rules on the subject. (3) RESUMPTION/REPATRIATION: The
recovery of the original nationality upon
fulfillment of certain conditions
- R.A No. 9225 provided that all
Philippine citizens who became
citizens of another country shall
be deemed not to have lost their
Philippine citizenship. It is further
Hague Convention Rules on Acquiring states that natural-born citizens of
Nationality the Philippines who have lost their
Philippine citizenship by reason of
their naturalization as citizens of a
foreign country are hereby
(1) It is not for international law but for the deemed to have re-acquired
municipal law of each State to determine Philippine citizenship upon taking
who are the nationals of a particular an oath of allegiance to the
State.This law, according to the Hague Republic, and that their children
Convention, shall be recognized by other whether legitimate, illegitimate or
States insofar as it is consistent with adopted, below eighteen years of
international conventions, international age, shall be deemed citizens of
customs and the principles of law the Philippines.
generally recognized with regard to
nationality. (4) SUBJUGATION: Any question as to
whether a person possesses the
(2) Any question as to whether a person
nationality of a particular State shall be
possesses the nationality of a particular
determined in accordance with the law of
State shall be determined in accordance
that State
with the law of that State.

(5) CESSION: When one State cedes territory


to another, inhabitants of the region that is
ceded commonly have an opportunity to
Five Modes of Acquiring Nationality
acquire that States nationality

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Hence, Germany has no right to prosecute the


case against Guatemala.

Nottenbohm Case, I.C.J. Reports 1955, p. 4

(Judg. April 6, 1955)


How Nationality is Lost

(1) RELEASE: When a State give their


FACTS: citizens the right to ask for release from
their nationality (e.g. Germany)

(2) DEPRIVATION: When a State unilaterally


- German by birth deprives its citizens of nationality against
his or her will (e.g. upon entry to the
- resided in Guatemala for 34 years, but family military service of a foreign power)
remained in Germany

- 1939: before WWII, he went back to Germany (3) EXPIRATION: When an individual
and was naturalized in Liechstein, but returned voluntarily attempts to terminate his/her
immediately to Guatemala. nationality (e.g. where a national stays
abroad for a long time and has not
indicated any desire to return, some
- 1943: properties were seized in Guatemala, and
States by legislation decree that lost of
Nottenbohm went out of the country nationality results under such
circumstances)
- Liechstein filed suit against Guatemala on behalf
of N, asking for damages and restoration of
properties (4) RENUNCIATION: When a child, upon
reaching the age of majority, renounces
- Guatemala opposed, defense: nationality one citizenship in favor of another
conferred by Liechstein was not binding on - The Philippine law recognizes this
Guatemala mode

(5) SUBSTITUTION: Where the former


Issue: Can Liechstein prosecute the claim on nationality is lost ipso facto by
naturalization abroad or by marriage
behalf of Nottenbohm?

Here, the International Court of Justice ruled that


C. Multiple Nationalities
the naturalization of Nottenbohm was an act
performed by Liechstein in the exercise of its
domestic jurisdiction. However, his real and
effective nationality belongs to Guatemala. This is Dual or multiple nationality may result form the
shown by his attachment to that country, longer concurrent application of the principles of Jus Soli
periods of staying there, that he went back right and Just Sanguinisat birth, from denial by one
after obtaining his naturalization, etc. (this is akin to State of the right of expatriation, from marriage, or
concept of domicile in our own laws) from a formal and voluntary act. Where an
individual has two nationalities, two States
simultaneously demand loyalty and allegiance from
him. This becomes tenuous when the two States
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are involved in strained relationship, ultimately


leading to war. Consequently, the Hague
Convention of 1930 on the Conflict of Nationality
Laws formulated solutions.
Case: Mejoff vs. The Director of Prisons

G.R. No. L-4254, September 26, 1951


Hague Conventions Solution to Multiple
Nationalities
FACTS: Mejoff was a Russian national who worked
(1) A person having two or more nationalities
may be regarded a its national by each of as a Japanese spy when the country was still
the States whose nationality he under Japanese occupation. When Japan has
possesses, and a State may not give been defeated in WWII and the country came
diplomatic protection to one of its nationals under American rule, Mejoff was arrested. He was
against a State whose nationality that ordered to be deported back to Russia, not on
person possesses. account of espionage but for presumably entering
(2) If a person has more than one nationality,
he shall, within a third State, be treated as the country illegally. In 1948 he was transferred to
if he has only one; the third State shall the Cebu Provincial jail to await the arrival of some
recognize exclusively either the nationality Russian vessels. The masters of those boats
of the State in which he is habitually and however refused to take him in, alleging lack of
principally resident, or the nationality of authority to do so. After several attempts, he was
the State with which he appears in fact to transferred to Bilibid.
be more closely connected. This is called
the principle of effective nationality.
(3) If a person, without any voluntary acts of
his own, possesses double nationality, he
1st petition for habeas corpus: denied
may renounce one of them with the
permission of the State whose nationality
he wishes to surrender, and subject to the
This is Mejoffs second petition for habeas
laws of the State concerned, such
corpus, 2 years after the 1st decision was
permission shall not be refused if that
promulgated (during which time, the
person has his habitual residence abroad.
government has not found a way to deport
him)

Issue: Was Mejoffs detention for 2 years


unreasonably long to warrant the issuance of the
writ of habeas corpus?

D. Stateless Persons

Ruling: YES. Writ will issue commanding the


respondents to release the petitioner.
- those who are not considered as nationals by
any State under the operation of its law.
- as long as the link of an individual to international
law is his nationality, international law has no way Aliens illegally staying in the Philippines have no
of assisting an individual, unless his position is right of asylum therein even if they are "stateless,"
made the subject of express regulation in a treaty. which the petitioner claims to be.
Hence, efforts have been exerted to minimize the
conditions giving rise to the condition of
statelessness.
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The protection against deprivation of liberty without 1. An expatriation permit issued by a State shall
due process of law and except for crimes not entail the loss of the nationality of that State
committed against the laws of the land is not unless the person to whom it is issued possesses
limited to Philippine citizens but extends to all another nationality or unless he acquires another
residents, except enemy aliens, regardless of nationality.
nationality.

2. If by her law, a woman loses her nationality on


By its Constitution (Art. II, Sec. 3) the Philippines marriage with a foreigner, this result shall be
"adopts the generally accepted principles of conditional on her acquiring the nationality of her
international law as part of the law of Nation." And husband.
in a resolution entitled "Universal Declaration of
Human Rights" and approved by the General
Assembly of the United Nations of which the
3. The naturalization of the husband during
Philippines is a member, at its plenary meeting on
marriage shall not involve a change of nationality of
December 10, 1948, the right to life and liberty and
the wife except with her consent.
all other fundamental rights as applied to all human
beings were proclaimed. It was there resolved that
"All human beings are born free and equal in
degree and rights" (Art. 1); that "Everyone is 4. If children do not acquire the nationality of their
entitled to all the rights and freedom set forth in this parents as a result of the naturalization of the
Declaration, without distinction of any kind, such as latter, they shall retain their existing nationality.
race, colour, sex, language, religion, political or
other opinion, nationality or social origin, property,
birth, or other status" (Art. 2): that "Every one has
the right to an effective remedy by the competent 5. A child whose parents are unknown or who have
national tribunals for acts violating the fundamental no nationality, or whose nationality is unknown,
rights granted him by the Constitution or by law" shall have the nationality of the country of birth;
(Art. 8); that "No one shall be subjected to arbitrary where adoption causes loss of nationality that
arrest, detention or exile" (Art. 9); etc. result shall be conditional upon the acquisition by
the adopted person of the nationality of the person
by whom he is adopted.

Petitioner's unduly prolonged detention would be


unwarranted by law and the Constitution, if the only
purpose of the detention be to eliminate a danger 6. In a State where nationality is not conferred by
that is by no means actual, present, or the mere fact of birth in its territory, a person born
uncontrollable there of a mother possessing the nationality of that
State and of a father without nationality or of
unknown nationality shall have the nationality of
that State. This was apparently followed by the
Philippine Supreme Court in Serrs vs. Republic
where

it was held that an illegitimate child of a Filipino


In the Hague Convention of 1930, the following
mother follows her nationality.
provisions were agreed upon to avoid
statelessness:

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7. Where a person is rendered stateless as a result Agents of diplomatic intercourse


of being deprived of his nationality after he enters a
foreign country, the State of origin is bound to Head of State
admit him at the request of the State in whose
o Conducts diplomatic negotiations in
territory he is if he is permanently indigent, or if he
person
has been sentenced to not less than one month's o Entitled to all ceremonial honors
imprisonment. o Except if he is traveling
incognito
o Entitled to special protection
o Exempt from civil and criminal
jurisdiction of the Foreign State
o Entitled to same privileges and
All this does not mean, however, that a stateless immunities as compared with a
individual is entirely without recourse under the law monarch
of nations. Under the Covenant Relating to the
Status of Stateless Persons concluded in 1954 -
The Foreign Office
Twenty-two countries, including the Philippines,
agreed to accord to stateless persons within their o Conducts day-to-day activities of
territories treatment at least as favorable as that foreign affairs
accorded to their nationals with respect to: o Conducts diplomatic negotiations in
person or through agents
o Recognized by international law as
intermediary between his government
1. Freedom to practice their religion and freedom and foreign countries
as regards the religious education of their children o Can make binding declarations on
2. Access to the courts of law behalf of his government
3. Rationing of products in short supply
4. Elementary education
5. Public relief and assistance Establishment of resident missions
6. Labor legislation and social security
7. Treatment as favorable as possible or not less Stationed at one anothers capital Embassy
favorable than that accorded to aliens
8. Issuance of identity papers and travel o Composed of:
documents a. head of mission
Shall not expel stateless persons lawfully in their b. diplomatic staff
territory except on grounds of national security or c. administrative and technical staff
public order d. service staff
o Size of staff is determined by the Sending
State, but the Receiving State has to
agree
XII. Diplomatic Intercourse

Establishment of diplomatic intercourse Kind of envoys

To enable states to carry on friendly intercourse o Envoys ceremonial


with one another, they must possess the right of Sent for the purpose of ceremonial
legation, the right to send and receive diplomatic functions
missions.

This is not natural or inherent; will only exist by


o Envoys political
common consent of States (treaty). Sent for political negotiations

Either permanently or temporarily

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unacceptable; States make agreation


before appointment
Class of envoys 3. Should have
a. Diplomatic passport
o Envoys ordinary b. His instructions
Those who permanently represent the c. His letter of credence this
government of one state designates his rank and object of
his mission

o Envoys extraordinary Notification and Reception of Heads of Mission


Those entrusted with a special mission or
accredited to represent the government in 1. Must be notified to the Minister of Foreign
Affairs of the Foreign State
international conferences and congresses 2. Presents his sealed letter of credence
Classes of Heads of Mission
Functions and Duties of Diplomatic Mission
Vienna Convention on Diplomatic Relations 1961
states: Article 3 of Vienna Convention on Diplomatic
Relations 1961 states:
a. ambassadors or nuncios accredited to
Heads of State, and other heads of 1. Representing the sending State in the
mission of equivalent rank;
receiving State;
Representative of their country to a foreign
2. Protecting in the receiving State the
state interests of the sending State and of its
b. envoys, ministers and internuncios nationals, within the limits permitted by
accredited to Heads of State; international law;
Representative of their country to a foreign 3. Negotiating with the Government of the
principal city receiving State;
c. charg s daffaires accredited to Ministers 4. Ascertaining by all lawful means
for Foreign Affairs. conditions and developments in the
They take place in the absence of minister receiving State, and reporting thereon to
residents the Government of the sending State;
5. Promoting friendly relations between the
sending State and the receiving State, and
Diplomatic Corps developing their economic, cultural and
scientific relations.
Collective body of foreign diplomats accredited to a
particular country.
Privileges and Immunities
o Usually headed by the papal nuncio;
otherwise, the oldest ambassador 1. Personal inviolability
2. Inviolability of premises and archives
3. Right to official communication
4. Exemption to local jurisdiction
5. Exemption from subpoena as witness
6. Exemption from taxation
7. Exemption from custom duties and
inspection
Appointment of Heads of Mission
8. Right of asylum
9. Acquisition of nationality
1. Determined by the municipal law of the 10. Right to display flag and emblem
Sending State
2. The receiving State has a right to refuse
whom it considers persona non grata or
Duration
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Start - enters the territory Article IV, Section 11 of Convention on the


Privileges and Immunities of the United Nations
End - departure from territory or on expiration of states:
reasonable period
a) Immunity from personal arrest or detention
and from seizure of their personal
baggage, and, in respect of words spoken
Persons entitled to privileges and immunities or written and all acts done by them in
their capacity as representatives, immunity
Head of the mission from legal process of every kind;
b) Inviolability for all papers and documents;
o fully enjoys the privileges and immunities c) The right to use codes and to receive
Administrative and technical staff papers or correspondence by courier or in
sealed bags;
o does not enjoy exemption from custom d) Exemption in respect of themselves and
duties and inspection their spouses from immigration
o does not enjoy exemption to civil and restrictions, aliens registration or national
administrative jurisdiction service obligations in the state they are
Service staff visiting or through which they are passing
in the exercise of their functions;
o limited immunity in respect of their official e) The same facilities in respect of currency
acts and exemption to taxation on salaries or exchange restrictions as are accorded
only to representatives of foreign governments
on temporary official missions;
f) The same immunities and facilities in
Waiver of privileges and immunities respect of their personal baggage as are
accorded to diplomatic envoys, and also;
may be made only by the Sending State or Head of g) Such other privileges, immunities and
facilities not inconsistent with the
mission
foregoing as diplomatic envoys enjoy,
except that they shall have no right to
Waiver of immunities - must always be express claim exemption from customs duties on
goods imported (otherwise than as part of
their personal baggage) or from excise
duties or sales taxes
Transit through Third State

A diplomat in transitu would be entitled to the Privileges and Immunities of Others


same immunity as a diplomat in situ.
International Officials

o extended to them by treaty or national


Termination of Diplomatic Mission legislation
o based on the interest of function
o death of the envoy o example: an international judge
o recall by his government does not need free
o dismissal by the Receiving State communication with his
o outbreak of war own government
o rupture of diplomatic relations but needs the right of
o expiration of period free transit to and from
o accomplishment or failure of its object his duties to Member
States
Consuls
Privileges and Immunities of Representatives
of Members to International Organizations State agents residing abroad for the purpose of
commerce and navigation.

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o Protect the rights and interests of his


nationals within his district
Kinds of Consul Entitled to advice his nationals and adjust
their differences.
Consules missi professional; nationality of the Visit them while they are imprisoned.
Sending State; fulltime Protect the estate of a deceased, or
absent or incompetent national.
Consules electi may or may not nationality of the o Issuance of passports and visas
Sending State; perform only in addition to their o Registering nationals of the Sending State
o Attesting or legalizing signatures,
regular callings
examining witnesses, administering oaths or
authenticating copies of official documents

Rank of Consular Official


Consular privileges and immunities
1. Consul-general heads several districts
Only entitled to certain privileges and immunities
or a very large district
2. Consul takes charge a small district deemed essential to the performance of consular
3. Vice-consul assists the consul functions
4. Consular agent entrusted to perform
certain functions of consul o Right to communicate freely with his
government
May send in cipher or code; all
Appointment communications are inviolable.
o Entitled to special protection and
1. The letters patent letter of appointment consideration
of the Sending State to Secretary of Greater vigilance in respect to their
Foreign Affairs of the Receiving State security and safety
2. The exequator authorization given by o No immunity from local jurisdiction
the Receiving State to the consul, allowing Can be sued in local courts for civil
to exercise his functions within the and criminal liabilities
territory; granted conditionally. Except acts done in the performance
of their functions
o Exempt from arrest from minor offenses
Consular functions o Not entitled as of right of exemption from
taxation under customary international law
Functions, duties and powers of consuls fixed by Except given by Receiving State or
treaty, by international usage and by national laws provided in treaty
o Cannot grant asylum to refugees
and instruction of the Sending State.
Except imminent peril of refugees life
o Allowed to display coat of arms of their
Sending State
Main function
Termination of consular office
o Promote the commercial interests of the
Sending State.
o Death
Duty to observe conditions which may
o Recall or dismissal by his Sending State
affect the trade and industry of the Sending State.
o Withdrawal of his exequatur
Collects and sends information about
o Outbreak of war with the Receiving State
commerce, industry and agriculture which is
o Notification by the Receiving State that it
beneficial to merchants of the Sending State.
has ceased to consider the consul officer
Also performs functions connected with
matters pertaining to vessels sailing under the flag
of the Sending State.
Other state agents
Other functions

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o Commissioners or members of governed by International Law, whether


commission embodied in a single instrument or in two
For administrative or technical or more related instruments and whatever
negotiations its particular designation
o Commercial agents
For business carried by him PACT

- A treaty formed in part by a mystic


Cases sentiment or an intention of guaranty

Dickinson vs. Del Solar CONVENTION

Diplomatic immunity is a procedural immunity - Generally suggest a multilateral


which, unless waived, constitutes a bar to legal agreement
proceedings against a diplomatic agent. However,
diplomatic immunity is not immunity from legal - Its scope is usually restricted to specific or
liability technical matter

PROTOCOL

Waltier v. Thomson - Amends or supplements an existing treaty


or convention
The decisions have, indeed, always imposed as a
limitation upon the immunity that the official's act - It is used to designate an altogether
must have been within the scope of his powers; independent agreement
and it can be argued that official powers, since they
exist only for the public good, never cover AGREEMENT, ARRANGEMENT OR ACCORD
occasions where the public good is not their aim,
- Instrument of a more limited scope or
and hence that to exercise a power dishonestly is
lesser importance than either a treaty or
necessarily to overstep its bounds. A moment's
convention
reflection shows, however, that that cannot be the
meaning of the limitation without defeating the - Focuses on administrative or technical
whole doctrine. What is meant by saying that the matters and not subject to ratification
officer must be acting within his power cannot be
more than that the occasion must be such as FINAL ACT
would have justified the act, if he had been using
his power for any of the purposes on whose - An instrument which records the winding
account it was vested in him. up of the proceedings of a diplomatic
conference and includes the reproduction
of the texts of treaties, conventions
recommendations and other acts agreed
XIII. International Agreements upon and signed by the plenipotentiaries
attending the conference.
TREATY:
GENERAL ACT
- Agreement between states, including
international organizations of States, - When the instrument which enumerates
intended to create legal rights and the treaties or conventions resulting from a
obligations of the parties thereto. conference itself becomes a Treaty, these
Treaties or conventions derived from that
- International agreement concluded
Conference are called General Act.
between States in written form and

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- Examples: General Act of the Brussels - Obligations devolve on more than two parties
Conference of 1980; General Act of 1928
for the Pacific Settlement of International B. Executory or Executed
Disputes)
Executory
EXCHANGE OF NOTES
- deals with acts which are to be performed
- Informal method whereby States forthwith and which, when performed, disposed of
subscribe to certain understandings or the matter once and for all
recognized certain obligations as binding
Executed
upon them.
- deals with acts to be performed regularly
- Example: Exchange of formal notes
whenever the occasion arises
between the Minister for Foreign Affairs,
acting for his government, and the
C. As to the character of obligation
diplomatic representative of the other
Country Simple

MODUS VIVENDI Conditional

- Temporary agreement intended to be D. As to function and legal character


replaced by a more permanent and detailed
agreement Treaties having the character of
conveyances
PACTUM DE CONTRAHENDO
Treaties having the character of contracts
- Agreement embodying the points to be
incorporated in a future treaty Lawmaking Treaties

COMPROMIS Treaties akin to charters of incorporation

- Denotes an agreement for the submission Essentials conditions for the validity of a Treaty
of a dispute to arbitration or judicial are:
settlement, by which the issues of the
dispute are defined and the procedure to (1) Capacity of the parties
be followed is established
(2) Competence of the Particular Organs
CLASSIFICATION OF TREATIES concluding the Treaty

A. As to the nature of the obligation: (3) Reality of Consent

Unilateral (4) Legality of the object of the Treaty

- Obligations are binding only on one side in a) Treaty-making Capacity of States


favor of the other
Every State possesses capacity to
Bilateral conclude treaties because such capacity
has been regarded as an attribute of
- Obligations are mutually binding on two parties sovereignity.
in favor of each other
LIMITED BY: Qualified status of the
Multilateral States

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IMPACT OF LIMITATION: State may Any forms of intimidations or coercion


enter into treaties with the consent of the exercise on their person would render the
sovereign or through the agency of the treaty invalid
protecting state
EFFECT OF INTIMIDATION / COERCION
IF LIMITATIONS NOT OBSERVED: Treaty entered is void and without legal
Treaties in question will be regarded as effect
Null and Void
EFFECT if consent was obtained through
Protectorate state - is a state or country Fraud or given in error Treaty is voidable
that's protected by a larger, stronger
one. Protectorate is another word for e) Legality of the Object
protected state.
Immoral, illegal or impossible obligations
b) Treaty-making capacity of International can not be object of a valid treaty
Organization
Effect of invalid object Null and Void
Nature: Generally admitted
General Rule: States are free to agree
Article 43, 63 and 79 of UN Charter upon a rule or regime which modifies or
Recognizes the capacity of United Nations departs from rules of customary
to enter into agreements international law as long as those rules
are in the nature of Jus dispositivum
LIMITATION: Limited by the purpose of
the Constitutions of these organization Jus dispositivum means the law adopted
by consent. It is the category of
General rule: Head of the state is the international law that consists of norms
organ that exercises the treaty-making derived from the consent of states.
power
Effect of form of validity
Municipal law determines what organ
may conclude a treaty on behalf of state General rule International law has not
prescriber any form for Treaties.
Constitutions contain provisions
purporting to restrict or regulate the Treaties are normally reduced to writing;
making of treaties (1935 and 1973
Agreement made orally does not affect the
Philippine Constitution)
binding force.
Preponderance of Authority Treaties
made in behalf by organs which are not
constitutionally competent to conclude
Nicaragua vs United States (1986)
them are not binding internationally upon
the State. Overview:

d) Reality of Consent The case involved military and paramilitary


activities carried out by the United States against
This refers to the freedom of consent on
Nicaragua from 1981 to 1984. Nicaragua asked
the part of Diplomat or Ambassadors of
the Court to find that these activities violated
each state to conclude a treaty
international law.

Facts of the case:

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In July 1979, the Government of President the contras, the United States devised
Somoza was replaced by a government their strategy and directed their tactics,
installed by Frente Sandinista de and that the contras were paid for and
Liberacion Nacional (FSLN). directly controlled by the United States

The US initially supportive of the new Nicaragua alleged that aircrafts


government changed its attitude when, belonging to the United States flew
according to the United States, it found over Nicaraguan territory to gather
that Nicaragua was providing logistical intelligence, supply to the contras in the
support and weapons to guerrillas in El field, and to intimidate the population.
Salvador.
The United States did not appear before
In April 1981 the United States stopped its the ICJ at the merit stages, after refusing
aid to Nicaragua and to accept the ICJs jurisdiction to decide
the case. The United States at the
In September 1981, the United jurisdictional phase of the hearing,
States decided to plan and undertake however, stated that it relied on an
activities directed against Nicaragua. inherent right of collective self-defense
guaranteed in A. 51 of the UN Charter
A paramilitary is a semi-militarized force whose
when it provided upon request
organizational structure, tactics, training,
proportionate and appropriate
subculture, and (often) function are similar to those
assistance to Costa Rica, Honduras,
of a professional military, but which is not included
and El Salvador in response to
as part of a state's formal armed forces.
Nicaraguas acts of aggression against
Under the law of war, a state may incorporate a those countries (paras 126, 128).
paramilitary organization or armed agency (such as
Questions before the court:
a national police, a private volunteer militia) into
its combatant armed forces. The other parties to a 1. Can the military and paramilitary activities that
conflict have to be notified thereof. the United States undertook in and against
Nicaragua be justified as collective self-defense?
Though a paramilitary is not a military force, it is
usually equivalent to a military's light infantry force Relevant Findings of the court:
in terms of intensity, firepower, and organizational
structure. A paramilitary may also commonly fall 1. The Court held that the United States could not
under the command of a military, even despite not justify its military and paramilitary activities on the
being part of the military or play an assisting role basis of collective self-defense.
for the military in times of war.
Article 51 provides for a member State to use force
The United States officially in self defense when there is an armed attack
acknowledged its support on these against that State:
armed activities
Nothing in the present Charter shall impair
In 1983 budgetary legislation enacted by the inherent right of individual or collectiveself-
the United States Congress made specific defence if an armed attack occurs against a
provision for funds to be used by United Member of the United Nations, until the Security
States intelligence agencies for supporting Council (SC) has taken measures necessary to
directly or indirectly military or maintain international peace and security.
paramilitary operations in Nicaragua Measures taken by Members in the exercise of this
right of self-defence shall be immediately
Nicaragua also alleged that the United reported to the SC.
States is effectively in control of
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Under international law, several requirements must it encouraged, supported, and aided the military
be met for a State to exercise the right of individual and paramilitary activities against Nicaragua?
or collective self-defence:
Relevant Findings of the Court:
(1) A State must have been the victim of an armed
attack; The Court held that the United States violated its
customary international law obligation not to use
(2) That State must declare itself as a victim of an force against another State when its activities with
armed attack the contras resulted in the threat or use of force.

(3) In the case of collective self-defense, the victim


State must request for assistance.

(4) A State that is attacked, does not,


under customary international law, have the same
obligation as under Article 51 of the UN Charter to
Treaty-making
report to the Security Council that an armed attack
happened but the Court held that the absence of
Process of treaty-making:
a report may be one of the factors indicating
whether the State in question was itself convinced 1. Negotiation
that it was acting in self-defence (see paras 200,
232 -236). Is conducted by the Head of the State in person or
his representative. Full power is usually exchanged
The Court noted that: before the negotiations start.

(1) none of the countries who were allegedly Full powers is a document emanating from a
subject to an armed attack by Nicaragua declared competent authority of a state designating a person
themselves as victims of an armed attack; or persons to represent the state in the negotiating,
adopting or authenticating the text of a treaty, or
(2) they did not request assistance from the United
expressing the consent of the state to be bound by
States to exercise its right of self-defense;
treaty or accomplishing any other act with respect
to treaty.
(3) the United States did not claim that when it
used force, it was acting under Article 51 of the UN
Charter; and
2. Signature
(4) the United States did not report that it was
acting in self-defense to the Security Council. The Is the signing of the text or instrument.
Court concluded that, based on the above, the
United States cannot justify its use of force as Bilateral treaties are signed at the same time and
collective self-defense. place by the plenipotentiaries in each others
presence; While Multilateral treaties are sometimes
kept open for signatures for an agreed period in
time.

Question before the Court:


Agreements which do not require ratification and
Did the United States violate its customary
become binding in signature:
international law obligation not to intervene in the
affairs of another State, when it trained, armed, If the treaty provides the signature shall
equipped, and financed the contra forces or when have such effect

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Established that the negotiating States Facts:


agreed that the signature should have that
effect In 1997, US and PH discussed, among other things
the possible elements of the Visiting Forces
Intention of the State to give that effect to Agreement which provides for the mechanism for
regulating the circumstances and conditions under
that signature (appears: full powers
which US Armed Forces and defense personnel
/representative) may be present is the PH.
In 1999, 2/3 of the members of the Senate
approved the VFA resolution and in June 1, 1991,
the VFA officially entered into force.
3. Ratification

Is the act by which the provisions of a treaty are Issue: Whether the constitutional provision (Sec
formally confirmed and approved by a State. 25, Art XVII) to constitute a legal treaty has been
Usually effected by the Head of the State unless complied with
qualified by the rule.

Decision:

4. Accession Yes. Sec 25, Art XVII disallows foreign military


bases, troops or facilities in the countries, unless
A process by which a non-signatory State becomes these conditions are met:
a party to a treaty. A state can only accede to a 1. It must be under a treaty
treaty only if invited or permitted to do so by the
2. The treaty must be concurred by the
contracting parties.
Senate and, when required by the
Difference between accession and adhesion: congress, ratified by a majority of the
votes cast by the people in a national
Accession-full acceptance of the terms of the treaty referendum

Adherence-acceptance to certain provisions only 3. Recognized as a treaty by the other state

The factual backdrop shows that:

5. Acceptance 1. The concurrence headed by the Senate


through Resolution No. 18 is in
Acceptance is broader and more flexible than accordance with the Constitution, the
ratification or accession. It permits the preparation provision requiring the majority of the
votes cast in a national referendum being
of instrument which does not need to be as formal
unnecessary since the Congress has not
in character. However, The 6th committee of the required it.
general assembly in 1949 voted unanimously 2. US Gov, through Amabassador Hubbard
against the use of acceptance. Since that time has stated that the US gov has fully
the UN have reverted to the classical formula committed to the terms of the VFA. There
which is ratification and accession. is indeed marked compliance with the
mandate of the Constitution.

Treaties enter into force by:

1. The provided manner and date.


- Well drafted treaties contain such provisions.
Case: Bayan v Exec. Ronaldo Zamora 2. States negotiations
- Establishment of the consent of all negotiating
states.
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1. Appeal to public opinion


2. Publication of Correspondence
Upon entry into force, treaties becomes: a.) Legally 3. Protest
Binding and b.) Produces Legal Effects. 4. Demand for Arbitration
5. Rupture of Relations

Difference of when treaties produces legal Reparation - Obligations resulting from a breach in
effects (International and Municipal Law): an International Agreement. Indispensable
complement of the failure to comply with treaty
1. International Law - Entry into Force obligation. There is no necessity to be stated in the
treaty itself.
2. Municipal Law - Varies, but most of the time,
requires Constitutional requirements of the state
concerned.
Effect of treaties on Third States - It is a well
settled rule in International Law that treaties cannot
impose obligations upon States not parties to them.
Doctrine of Incorporation - Any generally
accepted International Law forms part of the Law of
the Land (Municipal Law).
Pacta Tertiis nocent nec prosunt - treaties
creates law only between States which are parties
to it.
Pacta sunt servanda - agreements must be
kept. One of the oldest and most fundamental *exception: An obligation may arise for a Third
rules of International Law. State from a treaty if the parties intend the
provision to be the means of establishing the
obligation and the Third State expressly accepts
the obligation in writing.
Treaty Obligations - Not a mere moral obligation
but a legally binding obligation. Must be performed
in good faith. Modification of Municipal Legislation
as necessary to ensure fulfillment of obligation. Most-Favored-Nation Clause - a pledge by a
contracting party to a treaty to grant to the other
party treatment not less favorable than that which
has been or may be granted to the most favored
Influences of Faithful Observance among other countries.
1. National Self-Interest Types:
2. Sense of Duty 1. Conditional - any benefit or privilege which has
been or may be granted by either party to a Third
3. Respect for promises solemnly given
State shall be extended to the other under the
4. Desire to avoid Obloquy (strong public criticism) same or equivalent conditions as those under the
same or equivalent conditions as those under
which it has been granted to the Third State.

Sanctions for Non-Observance 2. Unconditional - any advantage of whatever kind


which has been or may in future be granted by
either of the contracting parties to a Third State
shall simultaneously and unconditionally be
The injured party may resort to:
extended to the other party.
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Effects of war on Treaties: Termination of Treaties:


Old viewpoint:
Outbreak of war ipso facto terminates all treaties The following are among the causes of
between the belligerents. termination of treaties:

1. Termination of the treaty or withdrawal of a party


in accordance with the terms of the treaty.
2. Extinction of one of the parties to the treaty.
Modern viewpoint: 3. Mutual agreement of the parties to terminate the
International Law today does not preserve or annul treaty.
treaties regardless of the effects produced. 4. Denunciation of the treaty by one of the parties.
5. Supervening impossibility of performance.
6. Conclusion of a subsequent inconsistent treaty
Examples: between the same parties.
7. Violation of the treaty by one of the parties.
1. Operative Treaty - conducts of parties in time of 8. Doctrine of Rebus Sic Stantibus.
war. 9. Outbreak of war between the parties to the
treaty.
2. Unaffected Treaty - border/boundaries fixation 10. Severance of diplomatic or consular relations.
11. Emergence of a new peremptory norm of
related treaties.
general international law renders void and
terminates any existing treaty in conflict with such
3. Abrogated Treaty - treaties dealing with political
norm.
matters such as allegiance between the
parties at war.

Effect of severance of diplomatic or consular


relations - does not affect the legal relation PIMENTEL vs EXEC SEC
established between them by treaty. Does not
prevent the conclusion of treaties between States. FACTS:

*Exception - the existence of diplomatic or consular On 28 December 2000, the Philippines signed the
relations is indispensable for the application of the Rome Statute through Charge d Affairs Enrique A.
Manalo of the Philippine Mission to the United
treaty.
Nations (PMUN). The Rome Statue established the
International Criminal Court which provides shall
have the power to exercise its jurisdiction over
persons for the most serious crimes of international
Rebus Sic Stantibus - things remain as they are concerns. However, the treatys provisions
require that it be subject to ratification, acceptance,
or approval of the signatory states.
Petitioner/s filed an instant petition compelling
Treaty revision - Treaties can be revised or respondents to transmit the signed text of the
modified only with the consent of all the parties treaty to the Senate for ratification. It is on the
concerned. theory that ratification of a treaty is a function of the
Senate. Hence, the duty of the executive it to sign
Interpretation of Treaties - Treaties shall be the same and transmit it thereafter to to the Senate
interpreted in good faith, in accordance with the for concurrence.
ordinary meaning to be given to the terms of the The OSG, representing respondents, contends that
the executive department has no duty to transmit
treaty in their context and in the light of its object
the said treaty to the Senate for concurrence.
and purpose.

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ISSUE: WON Respondents have the ministerial International human rights law lays down
duty to transmit the copy of the subject treaty to the obligations which States are bound to respect. By
Senate signed by a member of the PMUN even becoming parties to international treaties, States
without the signature of the President for
assume obligations and duties under international
concurrence?
law to respect, to protect and to fulfil human rights.
The obligation to respect means that States must
RULING: refrain from interfering with or curtailing the
enjoyment of human rights. The obligation to
No. The President, being the head of the Sate, is protect requires States to protect individuals and
regarded as the sole organ and authority in groups against human rights abuses. The
external relations with foreign nations. In the realm obligation to fulfil means that States must take
of treaty-making, the President has the sole
positive action to facilitate the enjoyment of basic
authority to negotiate with other states.
Although it is correct that the Constitution, in Article human rights.
VII, Section 21, provides for the concurrence of 2/3
of all members of the Senate for validating a treaty Through ratification of international human rights
and is deemed essential to provide check on the treaties, Governments undertake to put into place
executives foreign relations, it is not absolute. The domestic measures and legislation compatible with
power to ratify does not belong to the Senate. their treaty obligations and duties. Where domestic
The process of treaty making: negotiation, legal proceedings fail to address human rights
signature, ratification, and exchance of th
abuses, mechanisms and procedures for individual
instruments of ratification. Petitioners arguments
equate the signing of the treaty by the Phil. complaints or communications are available at the
representative with ratification. However, it should regional and international levels to help ensure that
be noted that signature and ratification is two international human rights standards are indeed
separate steps. Signature is for authentication, on respected, implemented, and enforced at the local
the other hand, ratification is the formal act of level.
acceptance. the latter is generally an executive act
undertaken by the head of the state.
Moreover, under E.O. 459, issued by Pres. Ramos,
provides for guidelines in the negotiation of To Respect
international agreements and its ratification. The
said Order provides that a treaty, after it was States must refrain from interfering with or
signed by the representative of the State, shall be
subject to ratification by the President. before the curtailing the enjoyment of human rights
Senate can concur it, the President must ratify it
first. Article II, Sec. 11, 1987 Constitution
It should be emphasized that under the
Constitution, the power to ratify is vested in the
President, subject to the concurrence of the
Senate. The role of the latter is limited only to Section 11. The State values the dignity of
giving consent to the ratification. Hence, the every human person and guarantees full respect
President has the authority to refuse to submit a for human rights.
treaty to the Senate, and/or refuse to ratify it.

XIV. International Human Rights Law


To Protect
Core International Obligations of States in
International Humanitarian Law States must protect individuals and
groups against human rights abuses

ART. 2 (3) ICCPR

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Each State Party to the present Covenant Dualist Theory


undertakes:

(a) To ensure that any person whose


rights or freedoms as herein recognized are Emphasizes the difference between
violated shall have an effective remedy, national and international law and requires the
translation of the latter
(b) To ensure that any person claiming such a
remedy shall have his right thereto determined by The supremacy of international law is a
competent judicial, administrative or legislative rule in the dualist systems as it is in monist
authorities, or by any other competent authority systems.
provided for by the legal system of the State, and
to develop the possibilities of judicial remedy;
Lex posterior derogat priori
(c) To ensure that the competent authorities
shall enforce such remedies when granted

Later law removes the earlier


To Fulfill

States must take positive action to


In a Monist System
facilitate the enjoyment of basic human rights.

ART. 2 (2), ICCPR


National law
2. Where not already provided for by
Contradicts international Law null
existing legislative or other measures, each State
and void
Party to the present Covenant undertakes to take
the necessary steps, in accordance with its
constitutional processes and with the provisions of
the present Covenant, to adopt such laws or other In a Dualist System
measures as may be necessary to give effect to
the rights recognized in the present Covenant.

International law national law


another national law

What does it mean for a state to ratify or to accede


to an international human rights treaty?

Responsibility of the State for Internationally


Wrongful Acts
Monist Theory

It accepts that the internal and


international legal systems form a unity Every internationally wrongful act of the
State entails the international responsibility of that
International law does not need to be State
translated into national law

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Elements of an Internationally Wrongful Act of a to Respect human rights that is, not to
State violate the rights in the ICCPR;

to Protect the enjoyment of rights


against violations by third parties, such as
A) is attributable to the State under international other individuals or corporations; and
law
to Fulfill individuals rights to take steps
B) constitutes a breach of an international to create an environment in which rights
obligation of the State can be fully achieved

INTERNATIONAL COVENANT ON CIVIL AND The rights protected under the ICCPR include:
POLITICAL RIGHTS
Article 6 Right to life.
What is International Covenant on Civil and Article 7 Freedom from torture.
Political Rights? Article 8 Right to not be enslaved.
Article 9 Right to liberty and security of the
Multilateral treaty adopted by the United person.
National General Assembly in 1966 Article 10 Rights of detainees.
Article 11 Right to not be imprisoned merely on
Force on March 23, 1976 the ground of inability to fulfill a contractual
obligation.
One of three documents that make up the Article 12 Freedom of movement and choice of
residence for lawful residents.
International Bill of Rights
Article 13 Rights of aliens.
Article 14 Equality before the courts and
Key international human rights treaty, tribunals. Right to a fair trial.
providing a range of protections for civil Article 15 No one can be guilty of an act of a
and political rights criminal offence which did not constitute a criminal
offence.
Recognizes the inherent dignity of each Article 16 Right to recognition as a person before
individual and undertakes to promote the law.
conditions within states to allow the Article 17 Freedom from arbitrary or unlawful
interference.
enjoyment of civil and political rights.
Article 18 Right to freedom of thought,
conscience and religion.
As of February 2017, the Covenant has
Article 19 Right to hold opinions without
169 parties. interference.
Article 20 Propaganda for war shall be prohibited
by law.
Article 21 Right of peaceful assembly.
What is Civil and Political Rights? Article 22 Right to freedom of association with
others.
Human rights are commonly divided into Article 23 Right to marry.
civil and political rights and economic, Article 24 Childrens rights
social and cultural rights Article 25 Right to political participation.
Article 26 Equality before the law.
Article 27 Minority protection.

What do States party to the ICCPR actually OPTIONAL PROTOCOLS


promise to do?
Who keeps an eye on the ICCPR?

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The ICCPR establishes the Human Rights The separate human rights into two
Committee which oversees commitment to categories:
the ICCPR. Civil and Political rights and Economic
Social & Culture
Human Rights Committee
Creation of the United Nation Organization (UNO)
Composed of 18 independent experts who The United Nations Organization (UNO)
are persons of high moral character and was created on 24 October 1945
recognized competence in the field of To curb violence, prevent the outbreak of
human rights. a third world war and to restore peace and
The current members of the Committee justice in the world.
come from: Algeria, Argentina, Costa
What are the guaranteed in the International
Rica, Egypt, France, Georgia, Germany,
Covenant on economic, social and cultural
Israel, Japan, Romania, South Africa,
right?
Suriname, Switzerland, The Netherlands,
Social Rights
Tunisia, the United Kingdom, and the
Core needs for a dignified life
United States.
Right to an Adequate Standard of Living
Purpose of Human Rights Committees Economic Rights
Committee meets three times a year for Rights to work
sessions lasting three weeks, normally in Right to social assistance
March at the United Nations headquarters Right to property
in New York, and in July and October at Pre-conditions for enjoyment of social and other
the United Nations Office in Geneva, rights
Switzerland. Countries that have ratified Cultural Rights
the ICCPR are obliged to report to the Right to education
Committee every four years. Three to five Right to participate in one own culture
countries are invited to present their Right to cultural identity
reports at each session.
The Committee examines the report and Article 2
addresses its concerns and Each state party to the present covenant
recommendations to the country in the undertakes to steps, individually and through
form of "concluding observations." The international assistance and cooperation ,
Committee also publishes general especially economic and technical , to the
comments on all treaty bodies, including maximum of its available resources , with a view to
the CCPR. achieving progressively the full realization of the
rights recognized in the present covenant by all
International Covenant on Economic, Social appropriate means, including particularly the
and Cultural Right adoption of legislative measures.
The International Covenant on Economic,
Hernandez vs Philippines
Social and Cultural Rights (ICESCR) is
Ms. Benjaline Hernandez was the Deputy
one of the most important United Nations
Secretary-General of KARAPATANSouthern
(UN) human rights treaties. It is one of the
Mindanao Region, a human rights advocacy group,
two treaties that give legal force to the
and also the Vice-President of the College Editors
Universal Declaration of Human Rights
Guild of the Philippines (CEGP), an alliance of
Human rights are the rights that humans
school publications. She was conducting research
have and are entitled to simply by virtue of
being humans. on the impact of the peace process on the local
community in Arakan, a province in Mindanao,
History of Economic, when the incident occurred. On 5 April 2002, Ms.
social and Cultural Rights Hernandez and three local people were about to
Massive Violation of Human Rights across take their lunch when six paramilitaries from the
the world (First and Second World War) Citizens Armed Force Geographical Unit (CAFGU),
State Party expressed their consent led by 7th Battalion (Airborne) M/Sgt. T., strafed
Treaty Body to monitor the implementation the hut they were in. Four members of the militia
were named by the author. All four members of
Protection of Human Rights during the Cold War KARAPATAN were shot, despite pleading for
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mercy. The autopsy disclosed, inter alia, that two Combatants are those people who take
bullets had been fired at Ms. Hernandez from close direct part in hostilities, such as members
range and that she had been lying on her back of armed forces. The principle of
when she was shot. There was an eyewitness to distinction requires that belligerents
the incident. distinguish between military objectives and
civilian persons and/or objects at all times,
Ruling: and limit attacks to military objectives only.
The State party has recognized the competence of
the Committee to determine whether there has 2. The prohibition on attacking persons no
been a violation of the Covenant or not and that, longer taking active part in hostilities
pursuant to article 2 of the Covenant, the State
party has undertaken to ensure to all individuals Persons who do not, or who are no longer
within its territory and subject to its jurisdiction the taking direct part in hostilities are known
rights recognized in the Covenant, and to provide as hors de combat (from French, meaning
an effective and enforceable remedy in case a out of combat), and are immune from
violation has been established, the Committee being directly targeted.
wishes to receive from the State party, within 180
days, information about the measures taken to give 3. The prohibition on inflicting superfluous
effect to the Committees Views. The State party is injury or unnecessary suffering
also requested to publish the Committees Views.
Parties to the conflict should not use
means or methods of warfare that result in
superfluous injury or unnecessary
suffering; that is, any injury greater than
that strictly necessary to achieve the
military objectives, which uselessly
XV. International Humanitarian Law aggravate the suffering of wounded
International Humanitarian Law personnel, or otherwise render their death
inevitable.
International Humanitarian Law (IHL), also known
as the Law of Armed Conflict, is a branch of 4. The principle of necessity
International Law that seeks to regulate armed
conflict. IHL is also known by the term jus in bello The principle of necessity requires that
which translates from Latin as Justice in War. parties to the conflict only adopt the
measures necessary to weaken the
IHL seeks to regulate the conduct of armed conflict enemy and achieve their surrender; it is
through a number of means, for example: not necessary to bring about total
- Through rules which protect persons who destruction of the enemy, its armed forces,
do not, or who no longer directly or its property.
participate in hostilities; and
- By imposing restrictions on parties to 5. The principle of proportionality
armed conflict with regard to the means
and methods that is permissible to employ Proportionality means that any military
in the conflict. measures taken by parties to the conflict
must be proportionate; the military
IHL seeks to place limitations on the damaging advantage obtained by a particular
effects of armed conflict, especially on the most operation must outweigh the damage
vulnerable civilians, prisoners of war, wounded, caused to civilians and civilian objects.
sick and shipwrecked members of the armed
forces. Categories of International Armed Conflicts

In order to achieve such aims, the rules of IHL are 1. International Armed Conflicts
based on certain fundamental principles:
(IAC) are conflicts between States. The linchpin
1. The distinction between civilians and to determining if an IAC exists is to ask is there a
combatants conflict between states that has lead to the
intervention of armed forces? The scope and
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duration of the conflict does not matter; nor does it To this end, the following acts are and shall remain
matter if there has been a formal declaration of prohibited at any time and in any place whatsoever
war. If there is a conflict between States that has with respect to the above-mentioned persons:
lead to the intervention of armed forces, an IAC a) violence to life and person, in particular
exists. IACs fall under the Geneva Conventions murder of all kinds, mutilation, cruel
through Common Article 2. According to Common treatment and torture;
Article 2, all four (4) Geneva Conventions, as well b) b) taking of hostages;
as both of the Two Additional Protocols, apply in c) c) outrages upon personal dignity, in
their entirety to an IAC. particular humiliating and degrading
treatment;
Article 2 d) d) the passing of sentences and the
carrying out of executions without previous
In addition to the provisions which shall be judgment pronounced by a regularly
implemented in peacetime, the present Convention constituted court, affording all the judicial
shall apply to all cases of declared war or of any guarantees which are recognized as
other armed conflict which may arise between two indispensable by civilized peoples.
or more of the High Contracting Parties, even if the
state of war is not recognized by one of them. The ii.) The wounded and sick shall be collected and
Convention shall also apply to all cases of partial or cared for.
total occupation of the territory of a High An impartial humanitarian body, such as the
Contracting Party, even if the said occupation International Committee of the Red Cross, may
meets with no armed resistance. offer its services to the Parties to the conflict.
Although one of the Powers in conflict may not be The Parties to the conflict should further endeavour
a party to the present Convention, the Powers who to bring into force, by means of special
are parties thereto shall remain bound by it in their agreements, all or part of the other provisions of
mutual relations. They shall furthermore be bound the present Convention.
by the Convention in relation to the said Power, if The application of the preceding provisions shall
the latter accepts and applies the provisions not affect the legal status of the Parties to the
thereof. conflict.

2. NON-INTERNATIONAL ARMED 3. WARS OF NATIONAL LIBERATION


CONFLICTS (NIAC)
Wars of national liberation or national liberation
Non-international Armed Conflicts (NIAC) are all revolutions are conflicts fought by nationalities to
other types of armed conflicts. The law governing gain independence. The term is used in
NIACs was originally written in response to horrific conjunction with wars against foreign powers (or at
civil wars. NIACs fall under the Geneva least those perceived as foreign) to establish
Conventions through Common Article 3 which separate sovereign states for the rebelling
requires that all people be treated humanely, and nationality. From a different point of view, these
the wounded and sick are cared for. Now, under wars are called insurgencies, rebellions, or wars of
customary international law, all of the main LOAC independence. Guerrilla warfare or asymmetric
principles apply in a NIAC. warfare is often utilized by groups labeled as
national liberation movements, often with support
In the case of armed conflict not of an international from other states.
character occurring in the territory of one of the
High Contracting Parties, each Party to the conflict XVI. Neutrality
shall be bound to apply, as a minimum, the Neutrality
following provisions: It denotes a legal status of a special nature,
involving correlative rights and duties as between
i.) Persons taking no active part in the hostilities, the neutral states and the belligerents.
including members of armed forces who have laid
down their arms and those placed hors de combat A state has the right to remain neutral in the event
by sickness, wounds, detention, or any other of the outbreak of war between the other states.
cause, shall in all circumstances be treated
humanely, without any adverse distinction founded Neutrality and the United Nations Charter
on race, colour, religion or faith, sex, birth or Article 2, Paragraph 5 of the United Nations
wealth, or any other similar criteria. Charter
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under certain conditions.


The Obligations of members to give the United
Nations every assistance in any action it takes in Passage of Belligerent Warships
accordance with the Charter and to refrain from
giving assistance to any state against which A Neutral state is not required to forbid, although it
preventive or enforcement action is being taken. may do so, the passage of belligerent men-of-war
through the maritime belt forming part of its
Kinds of Neutrality territorial waters.
1.) Perpetual or Permanent Neutrality - Neutralized
by Special Treaties. The nature and duration of such passage are
subject to the overriding principle that neutral
2.) Armed Neutrality - Takes Place when a neutral territory must be used as a base for warlike
state takes military measures for the purpose of operations by either belligerents.
defending its neutrality against possible or
probable violation by either of the belligerents. Prohibition of Warlike Activities in Neutral
Territory
3.) Absolute Neutrality - Neutral state does not in
any way favor either belligerent directly or The Hague Convention No.XIII provides that
indirectly. It is no longer possible for a member of Belligerents are forbidden to use neutral ports and
the UN to maintain a statute of neutrality. waters as base of naval operations against their
adversaries.
4.) Qualified Neutrality - Neutrality of the state
which remains neutral to the whole but actively or Neutral Asylum to Land and Naval Forces of
passively, directly or indirectly gives some kind of Belligerent
assistance to one of the belligerents in
consequence of an obligation assumed under a The Neutral State is not obliged to grant them
treaty concluded before the war. asylum, although it is not forbidden to do so. If the
Neutral State Grant such soldiers asylum, they
RIghts and Duties of Neutrals must be disarmed and measures should be taken
to prevent them from rejoining their forces.
Abstention - It should not give
assistance, direct or indirectly to either Belligerent warships cannot take shelter in nuetral
belligerent in war efforts or military port for any undue lenght of time in order to evade
operations. capture.
Prevention - The neutral state under
obligation to prevent its territory from It may keep these soldiers in camps or even
becoming a base for hostile operations by confine them in fortresses or in localities asiisgned
one belligerent against the other. for the purpose; if possible they should be kept at
Acquiescence - Neutral states are some distance from the theater of war.
forbidden to permit the passage of
belligerent warships upon its national It may prohibit all belligerent warships from
rivers or canals. entering any of its ports, wheter these vessels
desire entry in order to evade capture or for any
other reason. An exception is accorded by
RIghts and Duties of Belligerents international usage, however to vessels in distress.
Abstention - Refraining from warlike acts Such vessels are allowed to enter even those
on neutral territory or using such territory nuetral ports which have been declared closed to
as a base for hostile operations. belligerent men-of-war.
Prevention - To prevent the ill-treatment
of neutral subjects or injury to neutral
property on enemy territory occupied by it. Right of Angary
Acquiescence - To accept activities of
neutral state which are sanctioned by Is a right of Belligerent to requisition and use,
international law such as internment of the subject to certain conditions, or even to destroy in
members of a belligerent armed forces case of necessity, neutral property found in its
taking refuge in neutral territory or the territory.
granting of asylum to hostile warships
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Subject to 3 Conditions: or leaves the blockaded port or coast through the


There must be an urgent need for the blockaded or forbidden approach.
property in connection with the war
The Property is within the territory or A vessel which reaches or comes from the
jurisdiction of the belligerent. blockaded port through access which is not
Compensation must be paid to its owner. forbidden is not guilty of breach of blockade. There
is likewise no breach of blockade if ingress or
Right of Angary egress is especially licensed by the blockading
i. The name given to the right of a force, or if a vessel is obliged to enter a blockaded
belligerent to seize and apply for the port for urgent repairs, for want of water or
purposes of war any kind of property on provisions, or on account of stress of weather.
belligerent territory, including that which
may belong to subjects or citizens of A vessel found guilty of breach of blockade is liable
neutral state. to condemnation. The cargo may also be
ii. though belonging to companies or private confiscated unless it is shown that at the time it
persons may be used for military was shipped the owner neither knew nor could
operations. have known of the intention to violate the blockade.
iii. All kinds of neutral property whether it
consists of vessels or other means of Contraband
transport, property, whetther it consists of Goods which are susceptible of use in war and
vessels or other means of transport or declared to contraband by a belligerent, and which
arms, provisions or other personal are found by that belligerent on its way to assist the
property may be the object of the right of war operations or war effort of the enemy. To be
angary, provided it is serviceable to deemed contraband, goods must be 1) susceptible
militray needs. of use in war, and 2) destined for the use of a
belligerent in its war operations or war effort.

Blockade Kinds of contraband


A hostile operation by which the vessels and Absolute contraband - are goods which by
aircraft of one belligerent prevent all other vessels, their very nature are intended to be used
including those of neutral states, from entering or in war.
leaving the ports or coasts of the other belligerent, Example: Arms and ammunition.
the purpose being to shut off the place from Conditional contraband are goods which
international commerce and communication with by their nature are not destined
other states. exclusively for use in war, but
nevertheless of great value to a belligerent
Requisites of a valid blockade: in the prosecution of the war. These goods
It must be established by the proper are susceptible of military use, as well as
authorities of the blockading state, usually peaceful uses.
the chief of state. Example: Foodstuff, clothing, and horses.
It must be effective, i.e., it must be
maintained by a force sufficient to prevent
entry into or exit from the enemy coast.
It must be duly communicated in a
declaration specifying: a) the date when Hostile destination
the blockade will begin; b) the Besides being of such nature as to be susceptible
geographical limits of the blockaded coast; for use in war, it is necessary that the goods are
and c) the delay to be allowed neutral destined
vessels for departure. use by the enemy in order that they may be
It must be limited to the ports and coasts considered as contraband.
belonging to, or occupied by, the enemy.
It must be impartially applied to the ships Doctrine of continuous voyage
of all nations. Goods which are destined to a neutral port cannot
be regarded as contraband of war.
Breach of blockade and its consequences. Doctrine of continuous transport
A breach of blockade occurs when a vessel with a Goods are reloaded on another vessel or other
knowledge of the existence of the blockade enters form of transportation.
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environment is understood as
Consequences of contraband carriage encompassing both the creatures and
Neutral States are not under obligation to prevent products of the natural world and those
their subjects from carrying contraband to
of human civilization
belligerent.
International law empowers the belligerent to
Environmental Concern
prohibit and punish carriage of contraband, just as
it empowers them to prohibit and punish breach of
blockade. Neutral States have the duty to Section 16 of the 1987 Constitution:
acquiesce in the suppression by belligerents of
trade in contraband. Vessels carrying contraband The State shall protect and advance the right of
cargo are liable to seizure and confiscation. the people to a balanced and healthful ecology in
accord with rythm and harmony of nature.
Unneutral Service
Consists of acts, of a more hostile character than Laguna Lake Development Authority
carriage of contraband or breach of blockade, (LLDA) v. CA
which are undertaken by merchant vessels of a
neutral state in aid of either of the belligerents. The SC relying on Section 16, to
protect the inhabitants of the
Visitation
Laguna Lake Area from the
The right of belligerents to visit and, if needed, to
search neutral merchantmen for the purpose of deleterious effects of pollutants
ascertaining whether they really belong to the coming from garbage dumping
merchant marine of neutral States, and if this is and the discharge of wastes in
found to be the case, whether they are attempting the area. Laguna Lake upheld the
to break blockade, carrying contraband or exclusive authority of the LLDA to
rendering unneutral service. regulate the exploitation of
Capture Laguna Lake, as against the
Take place if the vessel, or the cargo, or both, are claim of municipalities around the
liable to confiscation, or if grave suspicion requires lake, in order to effectively
further search which can only be undertaken in a address the environmental and
port. Effected by placing a prize crew on the ecological stress on Laguna Lake.
neutral vessel or, if this should prove impracticable,
by ordering her to lower her flag and steer Social Justice Society v. Atienza
according to the captors orders. Captured vessels
may not, as a rule, be sunk, burned or otherwise In 2007, SC held the validity of
destroyed.
and ordinance of the City of
Trial before a Prize Court Manila requiring the oil
The captured vessel and cargo, must be brought companies to close and transfer
before a Prize Court for trial. It is for the Prize the Pandacan Terminals to
Court to determine whether the vessel or cargo, or another location within a specified
both, should be confiscated. Prize Courts are period.
municipal institutions and are established by
municipal law. Similar case to Metropolitan Manila
Development Authority v. Residents of
XVII. International Environment Law
Manila Bay
Definition
SC ordered various government
The branch of public international law agencies to clean up Manila Bay.
comprising of those substantive,
Danube Dame Case
procedural, and institutional rules which
have as their primary objective the The protection of the environment is a vital part of
protection of the environment. contemporary human rights doctrine, for it is sine
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qua non for numerous human rights such as right Treaties


to health, and right to life itself.
Generally concern one of the following broad
It is in fact a challenge of international law examples:
because its demands cannot be met
without intrusion into the domestic 1. Toxic and hazardous substances
jurisdiction and sovereignty of states. The
2. Nuclear damage
nature and magnitude of the challenge are
such that they require not only the joint
3. Ocean and marine sources
action of states but also the involvement of
non-state actors. 4. Ozone and the protection of the atmosphere

Not just about the ATMOSPHERE, the 5. Pollution


SEA, the LAND, FLORA and FAUNA, but
also about the preservation of cultural 6. Biodiversity and the protection and
heritage of mankind as found in conservation of species and wildlife
archeological and artistic remains.
7. Sustainable development
GOAL: Rational use of the elements that
make up the environment through control, 8. Trade and the environment
reduction and, wherever possible,
Examples:
elimination of causes of environmental
degradation. Vienna Convention for the Protection of the
Ozone Layer, 1985
Who have environmental rights? UN Framework Convention on Climate
Change, 1992
Oposa v. Factoran, Jr.
Kyoto Protocol to the UN Framework
Their generation as well as generations yet
Convention on Climate Change
unborn.
Convention on the Law of the Non-
Basically, EVERYBODY. The born and yet
Navigational Uses of International
unborn.
Watercourses
Two Major Declarations

The Declaration of the UN Conference on the


The Rio Declaration on Environment and
Human Environment
Development
1972 Stockholm Declaration
A short document produced at the 1992 UN
Espouses mostly broad environmental policy Conference on Environment and
goals and objectives rather than detailed Development, or the Rio Earth Summit
normative positions
Consists of 27 principles intended to guide
Represented a first major attempt at future sustainable development around the
considering the global human impact on the world
environment and an international attempt to
Guiding Environmental Principles
address the challenge of preserving and
enhancing the human environment Principle of Good Neighborliness

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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem Atty. Jamon

Responsibility to ensure that activities within their Principle of Intergenerational Equity


jurisdiction and control do not cause damage to
the environment of other States or areas beyond Man bears a solemn responsibility to
the limit of national jurisdiction protect and improve the environment for present
and future generations
Sic utere tuo ut alienum non laedas underlies
this principle Principle of Common but
Differentiated Responsibility
Precautionary Approach/Principle
States have special responsibility of
Shall be applied by States in order to protect the shouldering the burden of pursuing global
environment sustainable development

Lack of full scientific certainty shall not be used Principle of Non-


as a reason for postponing cost-effective Discrimination
measures to prevent environmental degradation
where there are threats of serious or irreversible Each State should ensure that its regime
damage of environmental protection when addressing
pollution originating within the State, does not
Polluter Pays Principle discriminate between pollution affecting the State
and pollution affecting other States
Polluter should, in principle, bear the cost of
pollution with due regard to the public interest Standard of Conduct
and without distorting international trade and
investment Strict Liability Theory

Cannot be said to be intended to be legally States are under an absolute obligation to prevent
binding. However, some treaties already require pollution and are thus liable for its effects
parties to apply this principle. irrespective of fault

Principle of Sustainable Development Test of Due Diligence

Sustainable development Standard that is accepted generally as the most


appropriate one
Development that meets the need of the present
without compromising the ability of future For example, states will be required to take all
generations to meet their own needs necessary steps to prevent substantial pollution
and to demonstrate the kind of behavior expected
Industry should make use of the natural of good governments, while such behavior would
resources in a way that allows the resources to probably require the establishment of systems of
regenerate, not in a manner that it be destroyed consultation and notification

Also important to note that elements of remoteness


and foreseeability are part of the framework of the
Environmental Impact Assessment Principle liability of the states

As a national instrument, shall be Damage that occurs must have been caused by
undertaken for proposed activities that are likely the pollution under consideration
to have significant adverse impact on the
environment and are subject to a decision of a Need for International Cooperation
competent national authority

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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem Atty. Jamon

In many cases, it is simply impossible to prove that


a particular damage has been caused by one
particular source.

The approach to dealing with environmental


matters has shifted from the bilateral state
responsibility paradigm to establishment and
strengthening of international cooperation

Long-range Transboundary Air Pollution

Air pollution whose physical origin is


situated wholly or in part within the area
under the national jurisdiction of one State
and which has adverse effects in the area
under the jurisdiction of another State at
such a distance that it is not generally
possible to distinguish the contribution of
individual emission sources or group of
sources
Bases of Liability under International Law

Absolute duty to protect against


harm from ultra-hazardous
activities, which if violated, results
in a State being held strictly liable

Absolute Right Theory


responsibility for negligent or
intentional acts

Good Neighborliness Principle

XVIII. United Nations

*no report posted*

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