PUBLIC INTERNATIONAL LAW
o International legal system is uncertain, because although the actors may
THE INTERNATIONAL SYSTEM
 International Law as Process
 Continuing Process, Not Fixed Rules
 International law – unique system of law that continuously evolves from the
process of identifying normative conduct, which primarily governs relations
among states, and secondarily governs other actors in the international system,
such as international organizations and individuals acting as collectivities
 National legal system vs. International legal system
o National legal system
- operates under a highly developed institutional apparatus
- has codified or easily identified body of rules, all promulgated under
the theory that the state has a monopoly of force to coerce its citizens
to obey the law
- usually characterized by a tripartite system that performs the three
main functions of legislation, execution, and adjudication
- follow the principle of individual responsibility
o Individual responsibility – the individual alone is liable
o International legal system
- does not recognized a sovereign authority with power to impose its will
on the world
- follows the principle of collective responsibility
o Collective responsibility - both that the whole State community
is liable for any breach of international law committed by any
State representative and that the whole State community may
suffer from the consequences of the wrongful act.
o Principle of self determination – legal right to free choice
 Exemplified under Art. 20 of African Charter on Human and People’s
Rights to Self determination
o All people shall have the right to existence. They shall have the
unquestionable and inalienable right to self-determination. They
shall freely determine their political status and shall pursue their
economic and social development according to the policy they
have freely chosen
o Colonial or oppressed peoples shall have the right to free
themselves from the bonds of domination by resorting to any
means recognized by the international community
 It is a process
o behavioral approach to international relations has been applied to
international law as a “policy-oriented” movement, therefore international
law is a comprehensive process of authoritative decision in which rules are
continuously made and remade
o to accommodate the universal nature of international law, because such a
definition allows for Third World countries to challenge inequitable norms
predesigned by the First and Second World countries to suit their economic
advantage.
o To define international law as a set of inherited rules would be to defeat the
principle of determination for all peoples, which applies whether the peoples
are industrialized, socialist, or developing
 McDougal and New Haven School
o international law – continuing process of decision, involving choices aimed
at realizing the common value of human dignity
DANA-ANDREI Notes
 Uncertainty in International Law
agree on the provisions of particular norms of conduct, they do not always
agree on how those norms should be identified.
o Positivist theory in relation to international law – people should follow
laws formally passed by Congress, and that States should follow rules
approved by the UN Security Council or US General Assembly
o American hegemonic theory
 a single state has a predominance of power, is most conducive to the
establishment of a stable, open international economic system
 the powers of the American president as commander in chief and chief
executive under the Constitution are superior to the Geneva
Conventions and customary international law
 International Law as Culture
 States as Principal Actors
o In the international legal culture, the principal players are the sovereign and
independent states, while the secondary players are the individuals
o When individuals act, they do so to effectuate the will of corporate
structures, and thus act as tools of structures; (officials of the state)
 Restrictions on State Freedoms
o factors
1. network of international treaties
2. legal restrictions on the right to use force, led by the United Nations
Charter
3. development of jus cogens
o jus cogens – preemptory norms which cannot be derogated by
international agreement among states
o Principle of effectiveness
 International law accepts that only those claims and situations which
are effective can produce legal effects
o Principle of self-interest
 most customary and treaty rules are binary, in that they confer rights,
or impose duties, on pairs of states only, although they may be general
in character and are addressed to all the contracting parties
o ergo omnes – duties owned to all other contracting states, and
accompanied by a corresponding right belonging to every other
contracting state, whether or not it has suffered any prejudice
from the infraction of the duty
Such community duties include amelioration of workers,
prohibition of genocide, and the ban on aggression
 International Law Today
o Old & new patterns of international law
 Old
1. Force as the primary source of legitimation
2. Extreme decentralization of the legal functions
3. Unfettered freedom of states
4. Unrestricted right to resort to armed violence
 New
1. Creation of international organizations
2. Restraints on the use of force
o International activism –raises concerns over its alleged excesses, in
countries with vigilant nationalist and populist movements
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 International Law as Law – accepted as law by states, and it usually obeyed  Naturalist v. Positivist theories
 Akehurst lists some factors, other than breaches of international law,  Founder of modern international law
which would cause international disputes: o Francisco Vittoria
1. A genuine uncertainty about facts  Since international law was based on natural law which is universal,
2. A genuine uncertainty about the law therefore international law covers not only Europeans, but also non
3. A demand for a change in the law Europeans
4. An unfriendly but legal act o Francisco Suarez
5. A violation of a body of rules not forming part of international law, such as  International is obligatory, because it is based on natural law. Natural
international courtesy, ideals, or the doctrine of spheres of influence law provides that agreements should be observed, therefore this
 Although the international legal process is complex and often uncertain, principle should also be observed in international law
international law is useful for: o Hugo Grotius
1. consistency among domestic legal orders  Dutch and called the father of international law
2. mutual benefit  main argument: natural law is founded exclusively on reason, and not
3. pursuit of common international goals on divine law
 Security Council and World Court  doctrine of freedom of the seas – prohibits any state from claiming
o main function is not law enforcement, but peace preservation ownership of any part of the high seas
o it exercised its powers in 4 different kinds of conflict  Naturalist v. Positivist School
1. state aggression o naturalist school – regards natural law as a moralistic system
2. state dissolution o positivist school – rejects reliance on theory, and gives more importance
3. civil war to the actual practices of states
4. sponsorship of aircraft terrorism  Monist v. Dualist Theories
 Historical Background o Monism – claims that both national and international law are based on one
 International law began in the West, some 400 years ago fundamental principle. This principle is either the concept of “right” or social
 Treaties have been discovered in ancient Mesopotamia, Egypt, and other rival solidarity, or the rule that agreements must be carried out (pacta sunt
Middle Eastern powers servanda)
 Before the birth of Jesus, India and China followed rules to create harmony o Dualism – claims that international law is not binding on a state without its
among their vast and various territories consent
treaty obligations were observed, and no there was yet no international
community of states
 In the sixth century BS, ancient Greek philosophy analyzed man and nature
which gives to international law a technique of thinking which was later adopted
by the Roman Empire
 Romans embraced the Greek concept of natural law
 During renaissance, the concept of an international community of separate and
sovereign states emerged
 In the twentieth century, the colonial empires disintegrated giving birth to the new
states of Third World
o During colonial regime, the principles of international law supported the
power and domination of the West
o Third World states rejected those principles, and now espouse the principles
of sovereignty, and equality of states, non-aggression, and non intervention

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DANA-ANDREI Notes
 Principle of the International System - Cassese
1. Sovereign equality of states
o incorporates 2 distinct notion
a. Sovereignty – relates to jurisdiction over the national territory, and
includes territorial integrity, political independence, sovereign immunity
for official state representatives, and immunity for acts of state from the
jurisdiction of foreign courts
b. Legal equality – relates to the vantage point from which all states are
treated in the same way
2. Non-intervention in the internal or external affairs of other states
o imposes duty to refrain from entering into agreements with other States with
a view to intervening or interfering in internal or external affairs of other
States
3. Prohibition of the threat or use of force
o As specified in the 1970 Declaration on Friendly Relations and the 1974
Declaration on the Definition of Aggression, the threat or use of armed
force, as well as of economic force, is proscribed
o it also prohibits economic pressure or coercion, political destabilization, or
facilitating domestic unrest
o conquest would not transfer a legal title of sovereignty
o an individual state may lawfully resort to force only in self defense, but
probably not in anticipatory self-defense
4. Peaceful settlement of disputes
o If a state rejects one specific mode of settlement proposed by the other
litigant, the unwilling state cannot be obliged to agree. Neither can it be so
obliged, if it rejects the terms of a certain form of settlement. In that event,
conceivably the UN Security Council and General Assembly would have to
exert pressure on the litigants to reach a peaceful settlement
5. Respect for human rights
o includes a proscription of racial discrimination, apartheid, slavery, genocide,
as well as provision for self-determination of peoples, civil and political
freedoms, trade union rights, and basic economic, social, and cultural rights
o conflicts with two other principle: sovereign equality of states and non
interference in the domestic affairs of other states
6. Self-determination of people
o qualified right
o It is a question whether the principle applies only to people dominated by a
colonial, alien, or racist regime, or whether the principle now applies to
people dominated by an oppressive and authoritarian regime
 Common features of these principles
o Since these principle are the result of conflicting views of states, some are
ambiguous
o there principles bind all actors in the international community. The only
exception is the principle of sovereign equality, which applies solely to
states
o there principle entitle all actors in the international community to invoke
them, Thus, they confer community rights
o These principle are jus cogens – that they are standards of the international
community, from which no derogation is permitted
 any treaty contrary to jus cogens is null andvoid
o These principle rely heavily on the UN for implementation and enforcement

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DANA-ANDREI Notes
INTERNATIONAL LEGAL PERSONALITY
 International Legal Persons
 is an entity serving as a factor in the creation, development, and enforcement of
international law
 Under the New Haven School of international jurisprudence, international legal
person is one that has impact on, and an interest in, interstate relations.
The focus is on actors as a material phenomenon
 is an entity capable of possessing and exercising rights and duties under
international law, which has received some form of community acceptance
o Dixon identifies 4 main capacities of an international legal person
1. To make claims before international (or national) tribunal in order to
vindicate rights given by international law
2. To be subject to some or all of the obligations imposed by international
law
3. To have the power to make valid international agreements (treaties)
binding in international law
4. To enjoy some or all of the immunities from the jurisdiction of the
domestic courts of other states, this being an attribute of a legal person
governed by international, as distinct from national law
o Only states possess full international legal personality
 Two types of international personality
1. Original personality – belongs to states ipso facto once they satisfy
the criteria of statehood
2. Derived personality – flows from the recognition by states that other
entities may have some competence in the field of international law
 Legal persons v legal actors
o Legal persons
 possess 2 distinct features:
1. It participates in the process of international law
2. It has received some form of community acceptance. Legal personality
is inferred from practice or from need
 legal persons are best denominated as “actors” rather than as “subjects”
o “actors” – one who acts – connotes activism
o “subject” – connotes a sovereign, which does not exist in
international law – connotes passivism
o the term “subject” is obsolete, because it was proper only at the time
when international law was views as a system of rules, and not as a
process
o Legal actors
 states, international organizations, private companies, and individuals
 not all legal actors are legal persons
 belong to two categories:
1. Traditional actors – are:
a. states – only states possess permanent control over territory
b. insurgent communities – are born from a wound in the body of a
particular state, who tear themselves apart from the mother state
by force, and then claim certain sovereign rights. If victorious,
they turn into states; if not, they disappear
2. Modern actors – are:
a. international organizations – have gained international
recognition by carrying out international action on behalf of all the
participating states, and by discharging autonomous powers, with
rights and duties distinct from those of its member states
b. national liberation movements – have acquired international
status by virtue of the doctrine of self-determination of peoples
DANA-ANDREI Notes
c. individuals – have emerged in the international scene by virtue of
the doctrine of human rights, and its implicit acceptance of the
right of individuals to call states to account before international
bodies
 Classification between traditional and modern actors could also be
denominated as original and derivative, primary and secondary. principal
and ancillary
 States
 State as Primary Actor
o Critics:
 In a State oriented system, a state could repress its own people, and it
cannot prevent from doing so by international law
 some states are too weak to protect their own people, because of
widespread poverty, corruption, climatic burdens, or population
o Doctrine of equality – all states possess the ff. capacities:
1. Participate n the lawmaking processes of international law
2. Make the initial determination about whether their rights have been
violated; and if so, what is the legal remedy
3. Bear international responsibility for failure to comply with their
international obligations
o Principle of uti possidetis – the parties to a treaty retain possession of what
they acquired by force during the war – observe existing international
boundaries or internal boundaries within the colony
o Self determination does not create statehood, but only a claim to statehood
 Criteria for Statehood
o requirements of statehood
1. A permanent population
 no minimum number of people necessary to constitute a state
 small enough to be well governed, and large enough to be self-
sufficing
2. A defined territory
 no minimum required geographical area
3. Government
 qualified as “effective government” but does not have to be
absolutely, but only relatively, effective
 relative effectiveness – that the control exercised must be sufficient
to guarantee the rights under international law of foreign States,
such as protection of aliens and their property, and prevention of the
use of the territory contrary to the interests of other States
 even when a state has no government, the state continues to exist
4. Capacity to enter into relations with the other states
o elements of statehood
 in theory
1. a central structure capable of exercising effective control over a given
territory
2. a territory which does not belong to any other sovereign state, with a
community whose members do not owe allegiance to other outside
authorities
 in practice
1. principle of effectiveness
2. recognition extended by existing states
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 o Consequences after a statehood is established
1. The state has plenary competence to perform acts in the international
sphere
2. The state is exclusively competent with respect to its internal offices
3. The state is not subject to international process without its consent
4. States are regarded in international law as formally equal, although this is
not a moral or political principle
5. The state is entitled to the presumption that any derogation from the
previous principles must be clearly established
6. By implication, the state is entitled to claim immunity from suit
o juridical state v failed state
 juridical state – one where the central governments lost control of
important areas in their jurisdiction during struggles with rival political
organizations
 failed state – one where there is no longer an effective, single, central
government authority over the whole territory of the state; or where there
is minimal order
 Recognition of States
o Recognition – a method of accepting certain factual situations and endowing
them with legal significance
 is a political act not a legal act
o 2 theories on the nature of recognition
1. Declaratory theory
 maintains that once the factual criteria of statehood have been
satisfied, a new state exists as an international person
 considers recognition as discretionary, and as constituting evidence
in support of the claim of statehood
2. Constitutive theory
 maintains that it is only through recognition as a duty, if the
recognizing state is satisfied that the entity is legally a state
 Oppenheim: there is no doubt that statehood itself is independent
recognition. International law does not say that a state is not in
existence so long as it is not recognized, but it takes no notice of it
before its recognition
 recognition is a declaratory of facts and constitutive of rights
(Lauterpacht)
o Express/implied recognition
 recognition is express; absence of an express announcement is
presumed to indicate that it does not intend to recognize another state pr
government
 Implied recognition could be drawn only from the establishment of
diplomatic relations
 Following acts do not constitute implied recognition
1. Exchange of trade missions, permanent or not
2. Presentation of an international claim
3. Payment of compensation
4. Entering into a treaty with an unrecognized state or government, such
as UN Charter
o 2 legal features
1. Recognition has a unilateral character
 it is discretionary on the part of the state, which could act or not on
the basis of purely political considerations
 state may not use this discretionary power to withdraw recognition,
unless the facts change in such a way that a recognized state is no
longer a state
2. Recognition has international legal consequences
DANA-ANDREI Notes
o Non recognizing a state v non recognition
 Non recognizing a state – arising as it does from the laws of status and
state discretion, may take the form of taking no decision, choosing not to
recognize for political reasons not related to status, or not recognizing
because it would be unlawful or premature to do so
 Non-recognition – arising as it does from the rule of state responsibility,
happens when customary or treaty law prohibits recognition, or when the
Security Council imposes an obligation not to recognize
o Recognition of states vs. recognition of governments
 States face more decisions on recognition of governments, then on
recognition of states
 A single state can have two governments: the government de jure and a
government de facto operating within state territory
 A state may adopt a policy of neither “recognizing” nor “not recognizing” a
government of another state (Estrada Doctrine)
o State building – external creation by international organizations or by states of
a new state
 International organizations
 Definition and Characteristics
o International Law Commissions defines international organizations – an
organization established by treaty or other instrument governed by
international law and possessing its own international legal personality
o Akande identifies the key criteria for identifying whether an entity is an
international organization:
1. It must be composed predominantly of States and/or other international
organizations
2. It must be established by international law, such as by treaty, by the
resolution of another international organization, or by joint unilateral acts
by states
3. It must possess autonomous organs having a will, which is separate from
that of the members, meaning that it must have a separate legal
personality, and be able to act on a majority basis
o International organization vs. International non-governmental
organization
1. International organization
 composed predominantly of states and other intergovernmental
organizations
2. International NGO
 composed of private entities operating in more than one state
o 2 Kinds of international organization on the basis of membership:
1. International organizations with open or universal membership, which are
open to all states
2. International organizations with limited membership, based on certain
criteria
 Legal Personality
o first international organization was perhaps created by the 1648 Peace of
Westphalia
o Functions of International organization
1. A forum for discussing matters of common interest
2. A forum for developing rules on such matters
3. A forum for resolving international disputes
4. Vehicles for taking action on such disputes or problems
5. Vehicles for compliance monitoring and information gathering on state
practice
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 o Approach to phenomenon of international organizations in the world
order
1. Rationalist approach – emphasizing a world order of states moving
forward more sophisticated types of order, eventually culminating in a
true world community based on a valid moral and legal principles
2. Revolutionary approach – emphasizing the use of international
organizations for attaining the final objective, which could be the victory of
the proletariat, or the rearrangement of existing states, perhaps into
continental units
3. Realistic approach – emphasizing, not utopia, but the struggle for power
and supremacy, and thus using international organizations to reinforce
the world balance of power
4. Functional approach – emphasizing cooperation among states as a
basic step to world peace
o opinion juris – the belief that a state activity is legally obligatory
o to possess international legal personality, and international organization
must meet two criteria laid down by the ICJ
1. It must be shown that member states intended the organization to give it
the competence necessary for the effective discharge of its functions
2. In actual fact, the organization should enjoy autonomy from similar states
and the effective capacity necessary for it to act as an international legal
actor
o Brownlie sets the criteria for legal personality of an international
organization
1. A permanent association of states, with lawful objects, equipped with
organs
2. A distinction, in terms of legal process and purposes, between the
organization and its member states
3. The existence of legal powers exercisable on the international plane, and
not solely within the national systems of one or more states
o Consequences of legal personality
1. It distinguishes the organization from the members
2. the organization and not the members becomes liable for the non-
fulfillment of its obligation
3. Under international customary law, the organization acquires certain
privileges and immunities within the host state, if they are necessary for
its efficient and independent functioning
4. the organization acquires the power to conclude agreements that are
subject to the law of treaties
 Interpretation of Constituent Instruments
o constituent instruments are usually treaties, and hence their interpretation is
governed by the Vienna Convention on the Law of Treaties
o are interpreted under the principle of effectiveness, under which the Court will
seek to determine what are the purposes and objectives of the organization
and will give to the words in question an interpretation which will be most
conducive to the achievement of those ends
o when the text of the treaty is silent or ambiguous, the Court will interpret the
treaty in accordance with subsequent practice
 Powers of International Organizations
o express – found in the constituent instrument
o Doctrine of implied powers is applied in two cases:
1. when the implied power is necessary to carry out an express power or
function
2. when the implied power is essential to fulfill the organization’s objects
and purposes
DANA-ANDREI Notes
o decision of an international organization is legally binding in two cases
1. when its constitution gives it the power, express or implied, to take
binding decisions
2. when the language of the decision reveals an intention on the part of the
organ to issue a binding decision
o organization may also make non-binding decisions in the ff:
1. Recommendations to members on matters within the scope of the
organization
2. Determinations consisting of findings of fact on characterizations
3. Declaration of principles applicable in a certain area
4. A provision in a separate international treaty exhorting the parties to have
regard to non-binding decisions of an international organization
 Privileges and Immunities
o 5 main privileges and immunities (Akande)
1. Absolute immunity from the judicial jurisdiction of states such as that
enjoyed by the UN
 the organization cannot be sued in domestic courts, unless it
consents and waives its immunity
2. Immunity from measures of execution of a judicial judgment, such as
seizure of its property or other assets
 A waiver of jurisdictional immunity does not include a waiver of the
enforcement jurisdiction which must be given expressly and
separately
3. Inviolability of premises, property, and archives
 they are immune from search, requisition, confiscation, or other
forms of interference by state authorities
 the national authorities may not enter its premises without its
consent, even if a crime was committed there and the criminal is still
there
4. Currency and fiscal privileges
 International organizations may hold funds and operate accounts in
any currency, and transfer them freely or convert them
 International organization are exempt from direct taxation of their
assets, income and property
 they are also exempt from customs duties, and other import and
export restrictions, on articles for official use
 International organization have to pay charges for public utility
services, excise duties, or sales tax
5. Freedom of communication
 no censorship
Page | 6
  UN System  it decides disputes submitted to it, and gives advisory opinions on
o The paradigmatic international organization is the United Nations legal questions, at the request of the Security Council or the General
system, which under the UN Charter, Article 1 was established for the ff. Assembly
purposes:  Before the Court can acquire jurisdiction over a dispute, the state
1. To maintain international peace and security, by taking effective collective parties to the dispute must first consent to its jurisdiction
measures  The court consists of 15 judges, elected for nine years by the
2. To promote respect for the principle of equal rights and self-determination Security Council and the General Assembly
of peoples UN practice always elects the candidate of each Security Council
3. To promote respect for human rights and fundamental freedoms for all permanent member, while the remaining ten vacancies are
without distinction unofficially distributed among various regions of the world
4. To be a centre for harmonizing the actions of nations in the attainment of  Court asserts jurisdiction, even when it has concurrent jurisdiction,
these common ends as in the ff. cases:
o Principles under Article 2 1. the issue is also the subject of active negotiation between parties
1. Sovereign equality of states 2. the issue is also the subject of good offices activity by the UN
2. Fulfillment in good faith of Charter obligations Secretary-General
3. Peaceful settlement of disputes 3. the issue is already under consideration by the Security Council
4. Prohibition on the use of force  The Court’s capacity to decide disputes operates under the following
o UN Charter’s Six principal organs conditions:
1. Security Council 1. the litigants are states that are parties to the Statute, and not
 15 state Council bears the primary responsibility for international mere international organizations or private persons
peace and security, on which it votes 2. the state is not a party to the Statute, but the state deposits with
 two main powers the Court Registrar a declaration that it accepts the jurisdiction of
1. peaceful settlement of disputes the Court, and undertakes to comply in good faith with its
2. adoption of enforcement measures decisions
 Composition 3. the state parties may refer a particular dispute by a compromise,
o 5 permanent members meaning a special agreement specifying the terms of the dispute
1. USA and the framework within which the Court shall operate
2. Russia 4. the state parties consent to the Court’s jurisdiction, either in a
3. UK document, or by their own conduct
4. France 5. the contending states are parties to an international treaty, which
5. China contains a “compromissory clause” awarding jurisdiction to the
o other 10 members are elected every two years by the General Court in cases of the interpretation and application of the treaty
Assembly 6. the state parties to the Statute avail of the “optional clause” by
 a single vote of any permanent member is enough to veto any declaring that they recognize ipso facto and without agreement,
Council resolution, except ona procedural question, which requires Court jurisdiction in all international legal disputes
only nine affirmative votes 5. The Secretariat
2. General Assembly  consist of the UN staff, headed by the Secretary General, and
 Its plenary organ is composed of all member states constitutes the international civil service
 it is not legislative, but deliberative, in that it discusses and makes  Secretary General is authorized to bring the attention of the Security
recommendations Council any matter which he or she considers may threaten
 Assembly resolutions are purely recommendatory, and cannot bind international peace and security
its members. But a General Assembly Resolution could establish 6. Trusteeship Council
binding legal obligations for members, under the ff. conditions:  its work was suspended in 1994 when Palau, the last of the Trust
1. If the Assembly resolution merely reflects already existing rules of territories, achieved independence
customary international law  Other International Organizations
2. If the Assembly resolution constitutes evidence of state practice o Other international organizations may possess international personality, if so
leading to the formation of a new customary rule endorsed by their constituent instruments
3. Economic and Social Council o The governing law should clothe the international organization with the ff.
 it is the primary organ responsible for economic and social matters, indicia
especially the promotion of human rights 1. An ability to contract
 it makes recommendations to the General Assembly 2. An ability to sue and be sued
 has 54 members, with three-year terms 3. An ability to own property
4. International Court of Justice 4. A capacity to take decisions which bind the members
 it is the principal judicial organ of the UN

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DANA-ANDREI Notes
 Individuals
 Individual – a legal person that can be a natural person, such as a human being;
or a non natural person, such as a corporation
o international legal person – an entity that has direct international rights and
responsibilities, can bring claims, and is able to participate in the creation,
development, and enforcement of international law
o International law imposes direct international obligations on individuals
when they violate rules relating to:
1. Armed conflict
2. Crimes against humanity
3. Crimes of genocide
4. Crimes of aggression
5. Crimes of terrorism
6. Crimes of torture
o ubi jus, ubi remedium – when there is a right, there is a remedy
o To enforce individual’s rights, he may avail of the ff. procedures:
1. file criminal suits against the alleged perpetrators of such crimes in the
national court with the proper jurisdiction
2. Bring to the attention of the Prosecutor of the International Criminal Court
the alleged crimes
3. Petition international human rights bodies to investigate the state for
which the alleged criminal was acting as an agent
 limitations of the individual’s right to petition international bodies
(Cassese)
a. the individual is given only the procedural right to file a
complaint on international proceedings before an international
body. Thereafter, the complaint is not allowed to participate in
international proceedings. The international body will proceed
to determine if the state complained of has unlawfully violated
the treaty. If the international body finds that there was a
violation, the individual has no right to seek enforcement
against the state. The accused state has the power to decide
what to do. It may stop the violation or give reparation for the
wrongful act, but only if it is willing to do so
b. the right to petition is granted only by treaties
c. Such treaties may include clauses which limit the control
mechanism, only to state parties which explicitly accept such
clauses
d. International bodies in general are not judicial in character,
hence, their international proceedings are still rudimentary
 International Rights and Responsibilities
o rights of the individual
1. Right to bring a claim against the state
2. Right of immunity from action against the individual
3. Right against racial discrimination
4. Right of self-determination
o Crimes the gives rise to individual responsibility
1. Aggression
2. Genocide
3. Crime against humanity
4. Crime against UN and associated personnel
5. War crimes
DANA-ANDREI Notes
 Attitudes of States
 Western States
o seeks to maintain intact the traditional framework, and to accept legal change,
only if it is gradual, and if it is effected with their active participation
 Socialist States
o consisting of European socialist states, adheres to the Marxist ideology, and
hence subordinate law to the communist party as the leading force of the
society
o socialist perceive law as merely a means of social control
o Eastern European states are committed to the three tenets of
1. sovereignty
 their concept of sovereignty dictates that only states and
international organizations can be international subjects, and not
individuals or private organizations
 they accept only consent as the source of international law
 they apply international law in the domestic legal order, if their
municipal law allows it
2. peaceful coexistence
 insist on prohibiting the use or threat of force, and intervention in
domestic affairs
 insists in equality and peaceful settlement of disputes
3. socialist principles
 Developing States
o constitute the overwhelming majority of the international community: about 135
out of 192 states
o Instead of viewing the law as systematic, logical, and rigorous, Third World
cultures seriously regard law as religious, ethical, or social
 Third World Attitudes
 Elements in the attitudes of Third World states toward international law:
1. Non-Participation
2. Poor
3. Resentment
4. Demand for Change
 Select paper
 The Status of IRRI as an International Organization in National and
International Law
o IRRI – International Rice Research Institute – an autonomous, non-profit,
agricultural research and training organization with offices in more than ten
nations
 goal: to improve the well-being of present and future generations of rice
farmers and consumers, particularly those with low incomes
 objectives: to generate and disseminate rice-related knowledge and
technology of short- and long-term environmental social, and economic
benefits and to help enhance national rice research and extension
systems
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RELATIONSHIP BETWEEN INTERNATIONAL AND NATIONAL LAW

 International and National Law

 Theories
o Monistic theory
 theory that there is only one single system of law
 international law is incorporated into the law of the land
 reflects the extreme nationalism and authoritarianism of a few great
powers
o Pluralistic theory
 theory that there are two essentially different legal systems
 international law must first be transformed by an act of the legislative,
before it becomes part of the law of the land
 reflects moderate nationalism
o Theory of a monistic doctrine giving primacy to international law
 In cases of conflict, international law prevails; transformation is
unnecessary
 reflects internationalism and pacifism
 elevates international values and imperatives over national postulates
 In case of conflict between international law and national law, which shall prevail
o depends on the nature of the court adjudicating the issue
o As a rule. an international court will uphold international law, while a national
court will uphold national law
o if the country is
a. monist –national court will apply international law directly
b. dualist – national court will also apply international law, but only if the
national legislature has passed an act recognizing and authorizing the
assumption of legal obligations
o Doctrine of self-executing treaties
o between an international treaty and national law, the one last in date will
control
 Philippine Cases
 International and National Law
1. Philip Morris, Inc. v. CA
2. Abbas v. CA
3. La Chemise Lacoste, S.A. v. Fernandez
4. Moss v. Director of Lands
5. Guerrero’s Transport Services v. Blaylock Transportation Services
Employees Association-Kilusan (BTEA-KILUSAN)
6. Collector of Internal Revenue v. Campos Rueda
7. Gonzales v. Hechanova
8. In Re: Garcia
9. Ichong v. Hernandez
10. Singh v. Collector of Customs
 International Law as Part of the Law of the Land
1. Marcos v. Manlapus
2. Reyes v. Bagatsing
3. Agustin v. Edu
4. Sison v. Board of Accountancy and Ferguzon
5. Kuroda v. Jalandoni
6. Ingenohl v. Olsen & Co.
7. Bosque v. United States

Page | 9
DANA-ANDREI Notes
INTERNATIONAL LAWMAKING
 Treaties
 International Lawmaking  Lawmaking treaties are binding because the state parties consciously create the
 international law is heteronomous – that it does not rest on the free will of law that binds them
states but is a law imposed from the outside  treaties are always voluntary, except for a limited category called treaties ergo
 jus cogens v jus dispositivism omnes (against the whole world)
o jus cogens – preemptory norms which cannot be derogated by  a treaty does not bind a state which is not a party, even if the obligation under the
international agreement among states treaty is identical to the obligation under customary law
o jus dispositivism – norms which can be replaced by subjects in their  Treaty and custom overlaps:
private dealings o A treaty provision can bind a state not part to the treaty, if the provision
 Sources of International Law articulates what is already customary international law
 2 categories of source of International law o If a treaty provision represents new law, it binds only states parties
1. those that create law o If a treaty provision represents new law, there is a possibility that it could
 treaty graduate into a norm-creating provision. If such a provision is later accepted
 general principles of law as such by opinion juris, it becomes binding even on countries which are not
2. those that identify the law party to the treaty
 state practice o If a treaty provision simply repeats an existing norm, the provision is
 judicial decisions obligatory in all states
 writing of jurists  contract treaties vs. lawmaking treaties
 General Assembly resolution o contract treaties – intends to achieve a particular object
 Some sources are mentioned in the ICJ Statute Art. 38 o lawmaking treaties – intends to govern the conduct of states for the
o International conventions indefinite future
o International custom  1969 Vienna Convention on the Law of Treaties – most important document on
o General principles of law treaties
o Judicial decisions, and the teachings of the most highly qualified publicists  In the matter of participation in treaties – Doctrine of universality of treaties –
 Both treaties and custom depend upon the consent of states. In case of conflict, States are allowed to make reservation, unless they are expressly prohibited by
resolution should be based on the maxims governing norms arising from the the treaty or are incompatible with its purpose
same source:  Interpretation of treaties provision– interprets according to purpose
o Lex posteruir derogate priori – a later law repeals an earlier law  Termination of treaties
o Lex posterior generalis non derogate priori speciali – a later law, o grounds
general in character, does not derogate from an earlier law which is special a. violation of provision essential to the accomplishment of the object or
in character purpose of the treaty
o Lex specialis derogate generali – a special law prevails over a general b. rebus sic stan tibus – a fundamental change of circumstances, except
law when the treaty establishes a boundary, or when the fundamental
change is the result of a breach by the party invoking it
c. jus cogens – any existing treaty which is in conflict with that nom
becomes void and terminates

Page | 10
DANA-ANDREI Notes
 Custom
 formed by a concurrence of state practice and opinion juris
 2 requirement must coexist during the formation of a new norm
1. development of the norm, the gradual death of the norm
2. its replacement by another norm
 Customary international law – practice consistently repeated by a significant
number of states over time, and accepted by them as obligatory
o It is consistent, general, temporal, and supported by opinion juris
 consistent – state practice must be constant and uniform
 general – a rule must be generally adopted in the practice of states,
but does not required unanimity
- In determining whether state practice is sufficiently general – the
main consideration is the practice of those states which will be
directly affected by the rule
 temporal – repetition over a period of time
- instant custom – arose from a single act; ex. law of outer space
 opinion juris – belief by states that a practice is obligatory, and not
merely convenient or habitual
- proof of opinion juris depends upon the subject matter
 custom is obligation involuntarily undertaken
o if one or other states protest, they will merely slow the formation of the new
legal rule, or prevent a unilateral act from being opposable. But if a rule of
general application still manages to emerge, it is a question whether the
protest of a state will exempt it from the application of the new customary
rule
o If a state objects to a practice observed by other states, the objection will
not prevent the development of customary law
 no state has capability to veto the rest)has no power to veto the rest
- exception: one state could effectively veto an emerging rule, if
that state is a preeminently important operator in a particular field.
Eventually persistent objector shall conform to the rest
- persistent objector – a state must make both initial and
sustained objection
o A subsequent objection to a rule of customary law which has already been
established would not bound a state, if it is a new state that did not exist at
the time the custom developed, and if the rule is discriminatory or colonial in
origin
o Whether new states are bound by international law, which they view as
colonial
 grievance procedure to make sustained objection to the rule, until two
objectives are reached
1. to persuade other states to acquiesce in the deviation, and then to
absolve the subsequent objector from legal liability
2. to replace the old rule with a new one, by means of widespread
objections or deviations
o Kinds of Custom
a. International custom – practice consistently repeated by a significant
number of states over time, and accepted by them as obligatory
b. regional or local custom – is any practice recognized as binding by
at least two states
 Treaty vs. Custom
o If the treaty is later in time than custom, the treaty will prevail, with an
exception for the rules of jus cogens
o If the custom is later in time than the treaty, the treaty continues to prevail,
unless the parties to the treaty reach a manifest and overwhelming
consensus to abandon the treaty
DANA-ANDREI Notes
 Theory of parallel obligations – where custom and treaty stipulate the same
legal obligations, then a state would be bound by one or both
 Rules governed in jus cogens
o A treaty does not prevail over jus cogens, regardless of whether the rule of
jus cogens developed before or after the treaty came into force. No treaty
can modify jus cogens. On the contrary any treaty provision conflicting with
a rule of jus cogens is void
 Published evidence (How to access Customary law)
1. Archives of the Foreign Ministry
2. Laws and judicial decisions of a state
3. Judgments of international tribunals and writings of international lawyers
4. Treaties
5. Resolution of international organizations, notably the UN General Assembly
 A treaty constitutes evidence of customary law, if it is declaratory of customary
law, or if it is intended to codify customary law
 soft international law – rules which are neither strict binding nor completely void
of any legal significance
 UN resolutions would not be sufficient to create new law or to change existing
law, because the determining factor should be the actual practice of states
 Compared to treaty law, customary law is a much more complicated source of
international law. Unlike treaty provision, acustomary rule requires proof of
consistent state practice, which is difficult and occasionally impossible to find
 General Principles of Law – principles common to all national laws; the procedural
and administrative rules which are inherent in the concept of every legal system and,
therefore, part of the law of every state
 “Civilized nations” – term has now become obsolete and meaningless, since all
states are civilized, allowing for variations in political and economic development
 In Strict Positivist view
o only source are treaties and custom, since both manifest practice; general
principles of law is not a source but only an evidence of international law
o 2 sources of law under this view
a. formal – treaties and custom
b. material – rules whose validity of which exist outside of the state
practice
 If the dichotomy between formal and material sources is accepted,
then general principles are material sources only, because general
principle do not create law
 Distinction between general principles and treaties and customs – lies not in
the relationship of general principles to national law, but to international law – it
refers to principles common to all national laws and not merely to principles of
national law
 General principles of law includes:
1. Right of legal actors to judicial litigation
2. Right to be heard before judgment
3. Exclusion of circumstantial evidence
4. Right to compensation for injury
5. Concept of trust
6. Concept of subrogation
7. Concept of limited liability
8. Right to due process
9. Concept of contract
10. Confidentiality of written communications between lawyer and client
11. Prohibition of torture
12. Liability for damages
13. Prohibition of unjust enrichment
Page | 11
 14. Right of passage over territory  When a General Assembly resolution is adopted in the form of a Declaration, it is
15. Administrative law declaratory in the sense of serving as authentic evidence of existing law.
16. Doctrine of res judicata However, if a resolution does not confirm existing law, but seeks to lay down new
 Function: fills gaps in treaty law and customary law – gap-filling function should law, resolution is not an evidence of the law as it is but lays doen, de lege
be called for, only when the principle is suited to the international law ferenda, what the law ought to be
environment  A resolution has a quasi-legislative effect binding on all members to whom it is
o Restatement (Third) of the Foreign Relations Law of the United States addressed, if the power is so given to the organ of the international institution
provides: General principles common to the major legal systems, even if not  In voting on resolutions
incorporated or reflected in customary law or international agreement, may o a particular state could be bound by the principle of estoppels. If it has
be invoked as supplementary rules of international law where appropriate consistently voted in favor of a usage, it would not later be allowed to deny
the existence of a usage
 Judicial Decisions – subsidiary means for the determination of rules of law o if not oly one state, but vast majority of states, consistently vote for
 3 sources of international law under Art. 38 of ICJ Statute resolutions and declarations on a topic, that action amounts to state practice
1. international conventions  Hierarchy of Sources
2. international custom  Akehurst concludes: The different sources of international law are not arranged
3. general principles of law in a strict hierarchical order. Supplementing each other, in practice they are often
 Art. 59 states that the decision of the court has no binding force except between applied side by side. However, if there is a clear conflict, treaties prevail over
the parties and in respect of that particular case custom and custom prevails over general principles and the subsidiary sources
o stare decisis et non qieta movere – courts should stand by precedent, o general principles are intended only to fill the gaps in treaty and customary
and should not disturb a settled point law
o stare decisis – when the court has once laid down a principle of law as  if the parties mutually agree by their conduct to allow the treaty to fall into
applicable to a certain state of facts, it will adhere to that principle, and apply desuetude – a new rule of customary law will emerge, in turn of overriding the
it to the future cases, where the facts are substantially the same ignored treaty
 Stare decisis does not apply in international law  In this cyclical pattern, a treaty and custom are of equal weight, and which one
 international decision includes not only ICJ decision but also international arbitral prevails over the other is a question of which comes later in time
awards and decision of national courts  Jus Cogens and Ergo Omnes Obligations
 Arbitral tribunals vs. Judicial courts  jus cogens requires acceptance and recognition by an overwhelming majority of
Arbitral tribunal Judicial courts states
Arbitrators negotiate and employ Judges decide questions of fact and  concept of jus cogens leads to the concept of ergo omnes obligations and so
diplomacy law called international crimes
Arbitrators operate toward reaching a Judges operate within technical rules  Obligations ergo omnes are concerned with enforceability of norms of
compromise of procedure international law, the violation of which is deemed to be an offense not only
Concerned with settling a dispute Concerned with guaranteeing that against the state directly affected by the breach, but also against all members of
conduct shall conform with the international community
international law  the following prohibitions may have attained the status of jus cogens
1. use or threat of force
 Writings of Publicists 2. Genocide
 Art. 38 (1) (d) provides that the Court shall apply the teachings of the most highly 3. Slavery
qualified publicists of the various nations, as subsidiary means for the 4. Gross violations of the right of people to self determination
determination of rules of law 5. Racial discrimination
 publicist – learned writers (Akehurst) 6. Torture
 Acts of International Organizations
 can be a source of law only if they are taken as part of a process
 UN General Assembly resolution could serve as evidence of customary law,
because it would reflect the view of the states voting for it
 3 requirements
o Practice
o repetition
o opinion juris
 3 schools of thought on the legal relevance of a resolution purporting to be
a declaratory of contemporary international law
1. UN resolutions are recommendatory but not binding
2. Certain UN resolutions may be a first step in the process of law creation
3. UN General Assembly resolutions are quasi-legislative

Page | 12
DANA-ANDREI Notes
 Philippine Cases
 Since the Philippine Constitution adopts the generally accepted principles of
international law as part of the law of the land, it follows that both customary and
conventional laws on treaties are part of the law of the land.
Art. 7, Sec. 21 “No treaty of international agreement shall be valid and effective
unless concurred in by at least 2/3 of all the members of the State.”
 If the foreign country know that the Philippines had violated the constitutional
requirement of Senate concurrence, then the treaty or agreement would be
invalid.
 Treaties and Executive Agreements
1. China National Machinery and Equipment Corp. v. Santamaria
 requirements of the exec. agreements to be valid
2. Liban v. Gordon
3. Pharmaceautical and Health Care Association of the Philippines v.
Duque III
4. Department of Budget and Management Procurement Service v.
Kolonwel
5. Pimentel v. Office of the Executive Secretary
6. Ocejo v. Consul General of Spain
o Validity of the RP-US Non-Surrender Agreement
1. Bayan Muna v. Romulo
 how was int law discussed
 what is an exchange of notes
o Visiting Forces Agreement
1. Nicolas v. Romulo
 self executor treaty
2. Bayan (Bagong Alyansang Makabayan) v. Zamora
o Executive Agreements
1. Commissioner of Customs v. Eastern Sea Trading
2. USAFFE Veterans Association, Inc. Treasurer of the Philippines
o Exchange of Notes
1. Abaya v. Ebdane
 Judicial Decisions
1. Gibbs v. Rodriguez
 Jus Cogens and Ergo Omnes Obligations
1. Vinuya v. Romulo
 description of legal personality
 conflict w/ executive department
 Philippine Statute
 Executive Order No. 459 Providing for the Guidelines in the Negotiation of
International Agreements and its Ratification (1997)
 ASEAN Instrument
 ASEAN Charter
 Select Paper
 International Agreements in Constitutional Law:
The Suspended RP-China (ZTE) Loan Agreement (2007)
 Procedure for Senate Concurrence to Treaties (2007)

Page | 13
DANA-ANDREI Notes
TERRITORIAL SOVEREIGNTY
 4 types of spatial regimes
1. territorial sovereignty
a. land territory, including islands, islets, rocks, and reefs
b. territorial sea appurtenant to the land
c. seabed and subsoil of the territorial sea
2. territory not subject to the sovereignty of any state or states and which
possesses a status of its own (such as trust territories)
3. res nullius, which has not yet been placed under the territorial sovereignty of
any state
4. res communes, consisting of outer space and the high seas, including
exclusive economic zones
 State territory forms the basis of the legal competence, which is described
by the terms:
1. Sovereignty – the status of statehood; “the typical case of legal
competence” (Brownlie)
2. Jurisdiction – a particular aspect of statehood, such as rights or claims,
liberties, and powers; “particular rights, or accumulation of rights
quantitatively less than the norm” (Brownlie)
 Concept of Sovereignty
 Sovereignty
o analogous to ownership
o includes:
1. Imperium – refers to the general power of government, administration,
and disposition
2. Dominium – refers to ownership of property, whether public or private
o Sovereignty remains as an attribute of legal personality and is NOT
derogated by the temporary administration of the territory, such as occurs
during belligerent occupation of enemy territory in time of war
o Shared sovereignty
a. condominium – exists when two or more states exercise sovereignty
conjointly over a territory
b. dominance – cases of vassalage, suzerainty, and protection
 Parts of State Territory
 Territorial sovereignty is exercised over land permanently, above low-water mark,
and the territorial subsoil, airspace, and internal waters associated with or
analogous to land territory.
sovereignty over the surface = sovereignty over the subsoil
 res communes – things owned by no one and subject to use by all
 Airspace
o no right of innocent passage over airspace
o Under customary law, other states may use superjacent airspace for
navigation or other purposes only with the consent of the territorial
sovereign
o aerial trespass justifies merely preventive action on the part of the sovereign
state, but NOT attack with intent to destroy
 Internal waters – are lakes and rivers included in the land territory of a state, as
well as on the landward side of baselines from which the breadth of the territorial
sea is calculated, including landlocked seas and historic bays
o no right of innocent passage for foreign vessels in internal waters, unlike in
the territorial sea
DANA-ANDREI Notes
 Concept of Title
 Sovereignty has two senses:
1. concept of title – refers to the validity of claims to territorial sovereignty
against other states
2. legal competence flowing from title – title which confers competence
 determination of the frontier line in frontier disputes is governed by
the “thalweg principle” – provides when a river is navigable, the middle f the
principal channel of navigation is the boundary
 nemo dat quod non habet – no man can give another any better title than he
himself has
 Acquisition of Sovereignty
 Sovereignty is the most extensive form of jurisdiction, because it is absolute and
complete (Lotus case)
 Conventional modes of acquisition of sovereignty over territory
1. Occupation and Prescription
o Method of Effective control
a. free territory or terra nullius (occupation)
with title by occupation – uninterrupted display is
sufficient, even if verbal objection is made by another state
- terra nullius includes new land, abandoned territory, or
territory possessed by people who cannot be considered as
a social and political community
a. territory belonging to another state (prescription)
with title by prescription – title may be prevented by
former titleholder’s objection, which may take the form of
diplomatic protest, statements in international organizations,
promulgation of national law intended to govern the territory,
or referral to a tribunal
o intention to acquire sovereignty, coupled with minimal acts of effective
occupation are sufficient
 effective control is not necessarily decisive, IF another state could
establish some paramount legal title, such as uti possidetis, or the
right to retain captured territory
o There is no system for registration of title in international law
o Animus occupandi or animus possidendi – intention to act as
sovereign – crucial to claim sovereignty
 Proof of animus occupandi requires 2 elements:
a. the intention and will to act a sovereign
b. some actual exercise or display of such authority
o actual display of sovereignty
 state either make extensive display of authority,
publish notices of sovereignty, or declare the
application of national laws to the occupied
territory
 to be continuous – must be ongoing, and must
exist up to the critical date (date at which the
question of sovereignty is to be assessed…the
date at which the dispute between the 2 parties
becomes crystallized and after which no acts can
be taken into account in determining sovereignty)
 must be peaceful – meaning it is not challenged by
other states
o Any dispute should be settled by the application of the law existing at
the critical date, meaning the time of settlement
o Occupation does not necessarily mean actual settlement or a physical
holding, instead it refers to state activity,
Page | 14
 o Effective occupation calls for proof of possession by states, of
manifestations of sovereignty legally more potent than those of the
other claimant or claimants, or, in brief, proof of the better right
o Occupation: Past vs Present
 Past – settlement and close physical possession
 Present – display of state activity, particular acts of administration
o As part of the general concept of effective occupation, symbolic
annexation would constitute part of the evidence of state activity
 symbolic annexation – a declaration or other act of sovereignty
or an act of private persons, duly authorized, or subsequently
ratified by a state, intended to provide unequivocal evidence of
the acquisition of sovereignty over a parcel of territory or an island
- does not give title; it is merely a proof of state activity leading
to effective occupation
o Principle of immemorial possession
ancient, original or historic title
 this concept relies on traditional boundaries, and relies upon
evidence of general repute or opinion as to matters of historical
fact
o Principles that helps to determine the actual extent of sovereignty
1. continuity
2. contiguity
3. geographical unity
2. Discovery
o gives only an inchoate title to territory, which matures into full
sovereignty, only if it is followed within a reasonable time by effective
occupation
3. Cession and Treaty
o non dat qui non habet – what is not had cannot be transferred
o Conquest is no longer a legal mode of acquisition, thus a treaty of
cession obtained by force is void
o 2 principles of customary law governing the modern process of
territorial acquisition
1. uti possidetis – upon independence the frontiers of an old colonial
territory become permanent, and thereafter, cannot be altered by
the unilateral act of another state
2. self determination – people are entitled as a matter of legal right
to exercise sovereignty over a newly-independent state; or within
an already independent state, where they constitute a distinct
ethnic or religious group
people have choices:
a. to affiliate with another state, whether within a federal
system or an addition to existing territory
b. to secede from a federation
c. to break away from a colonial territory
4. Conquest
5. Accretion and Avulsion
6. Judicial decisions
DANA-ANDREI Notes
 Creation and Transfer of Sovereignty
 Doctrine of Intertemporal law –refers to the law that international courts apply
to evaluate changes in international law after the formulation of a treaty and
changes in the meaning of the expressions in the treaty. The existence of a right
must be determined based on the law at the time of the creation of the right and
the international law applicable to the continued existence of that right.
 Different legal systems prevailing at successive periods – distinction must be
made between the creation of rights and the existence of rights
 In any boundary dispute – decision will likely turn on certain critical dates,
depending “on the logic of the law applicable to the particular facts and, in other
cases, on the practical necessity of confining the process of decision to relevant
and cogent facts and thus to acts prior to the existence of a dispute (Brownlie)
 Roots of title (Brownlie)
1. Treaty of cession - agreement between a grantor who confers a right to
possess certain territory as sovereign to the grantee, who takes possession
in accordance with the treaty
2. Other dispositions by treaty – a treaty marking a reciprocal recognition of
sovereignty in solemn form
3. Consent in other forms – absence of any formal agreement and instead to
an informal expression of consent, such as acquiescence, estoppel and
recognition
4. Uti possidetis – general principle, that pre-independence boundaries of
former administrative divisions all subject to the same sovereign remain in
being
5. Disposition by joint decision of the principal powers – the territory of
the Central Powers in the First World War, and of the Axis Powers in the
Second World War
Brownlie suggest, that the legal basis for this power of disposition is “a right
to impose measures of security, which may include frontier changes, or an
aggressor consequent on his defeat in a war of collective defense and
sanction
6. Renunciation or relinquishment – the territory which does not become
terra nullius, and where there is no element of reciprocity.
Renunciation may be a recognition that another state has title
7. Adjudication by a judicial organ – a declaration by the ICJ on the status
of territory
8. Agreements concluded with local rulers – the territories inhabited by
tribes or peoples having a social and political organization which were not
regarded as terra nullius…Such agreements…were regarded as derivative
roots of title, and not original titles obtained by occupation of terra nullius
 Changes of Sovereignty – also known as state succession (present a complicated
problem, because attempts at codification have so far failed)
 Dispositive treaties – treaties dealing with rights over territory
o Unaffected by changes of sovereignty
 Principles
o Continuity – a successor state automatically succeeds to territorial
boundaries, whether fixed by treaty or customary law
o Rule of automatic succession to boundaries treaties – newly independent
state have inherited the boundaries drawn by the former colonial powers
o Territorial integrity or uti possidetis
o Moving treaty boundaries – treaties concluded by the predecessor state
are no longer applicable to that territory, while the treaties of the successor
state automatically apply to it
exception: if the application of a particular treaty to a certain territory is
incompatible with the object and purpose of the treaty
Page | 15
  In recent times, state succession has taken place through:
1. Secession
2. Dismemberment–State themselves took the position that they were new
independent states, not successor states; refusing to be bound by any
doctrine state succession to bilateral or multilateral treaties
3. Unification – involved the complete incorporation of one state into another
state, not a mere transfer of state territory
 Other Consequences
 There is succession to:
1. Nationality
i.e. the subjects of the predecessor state, who inhabit the territory,
automatically lose their old nationality and acquire the nationality of the
successor state
2. Public property
must belong to the state, and not to its nationals or inhabitants
3. National debt
If succession takes place by dismemberment, the proportion of the debt that
should be borne by each successor state should be settled by treaty
 No succession to:
1. International claims for compensation for illegal acts (Brown’s case)
2. Private property
o private property rights do not lapse automatically when territory is
transferred
o If the successor state subsequently wishes to expropriate privately
owned property in the territory which it has acquired, the extent of its
power to do so depends on the nationality of the owner
 If the owner has the nationality of the successor state, the
successor state’s right to expropriate his property is unlimited
under customary international law
 If the owner is a national of the predecessor state or of a third
state, the successor state must comply with the minimum
international standard for the treatment of aliens; expropriation
must be for a public purpose and must be accompanied by
compensation
 Concession – a contract or agreement, under which the state grants to a
company or individual right to operate an undertaking on special terms, usually
consisting of exploitation of natural resources or delivery of public utilities

Page | 16
DANA-ANDREI Notes
 Philippines Cases 34. Peralta v. Director of Prisons
o History  Transfer of Sovereignty from Spain to America
 Philippines came to the knowledge of the Europeans, after Ferdinand 1. People v. Perfecto
Magellan reached the Spice Islands (Maluku) and consequently reached the 2. United States v. Daniel Pagaduan
country in 1521 – this led to the colonization of the Philippines by Spain 3. Government of the Philippine Islands v. Monte de Piedad
(1565-1898) 4. Endencia v. Loalhati
 Under the 1898 Treaty of Paris, Spain ceded the Philippines to the United 5. Espana v. Lucido
State for $20 M 6. Cabantag v. Wolfe
 During World War 2, Japan occupied the country during the period of 1941-  Cession
1944 1. Iloilo Arbitration
 Philippine Commonwealth was reestablished 2. Province of North Cotabato v. Government of the Republic of the Philippines
 Philippines proclaimed independence from the United States in 1946 Peace Panel on Ancestral Domain (GRP)
o During Japanese military occupation
 Philippine puppet government was a de facto government – whose acts  Select Paper – Sabah Issue in International Law
remained valid even after military occupation had ended, excepts acts of  History
political nature o Philippines and the island of Borneo was once one land mass until it lost the
 Court based its rulings on the jus postlimini doctrine land bridge
“property taken by the enemy is either recaptured or rescued from him, by th o Spaniards came and forced the various Sultans to enter into treaties. Under
e fellow subjects or allies of theoriginal owner, it does not become the prope the treaty, the Spaniards allegedly recognized the independence of the 2
rty of the recaptor or rescuer, as if it had been a new prize, but it is restored sultanates
tothe original owner by right of postliminy” o Sulu sulatan entered into a deed of pajak with the representative of a British
 Sovereignty During Foreign Military Occupation company; “Pajak” means for:
1. Heirs of Tuhadi v. Manila railroad Co. (PNR) o Philippines – lease
2. Blanco v. Compania Gral. de Tabacos de Filipinas and Central Azucarera o Malaysia – cession
de Tarlac o Under treaty of Paris, Spain sold the Philippines to the US; allegedly did not
3. Vda. de Villaruel v. Manila Motor Co. include Sabah
4. Cu Unjieng Sons v. Board of Tax Appeals o During WW2, Japanese occupies Brunei. After war, British Crown granted
5. Navarre v. Barredo Brunei the status of crown colony. In 1963 Sabah joined Malaysia
6. Tan Se Chiong v. The Director of Posts  Issue
7. Brownell v. Bautista o Territorial dispute over Sabah between Philippines and Malaysia
8. Erlanger & Galinger v. Exconde  Philippine Claim
9. Philippine Refining Co., Inc. v. Ledesma  Malaysian Claim
10. Pacific Commercial Co. v. Go Tian Gee & Co.  Principles of International law
11. Filipinas Compania de Seguros v. Christern, Huenefeld & Co., Inc. o Principle of Lease of Territory
12. Noceda v. Escobar o Principles of Effectivities
13. People v. Sigue o Principle of Diplomatic Protection
14. Tan Tuan v. Lucena Food Control Board o Pacific Settlement of the Dispute
15. Untal v. Chief of Staff, AFP  Inquiry and Fact-finding
16. Hilado v. De La Costa o Principles of Necessity and of Proportionality
17. Banaag v. Encarnacion
18. Notor v. Martinez
19. Gibbs v. Rodriguez
20. Everett Steamship Corporation v. BPI
21. Del Rosario v. Sandico
22. Haw Pia v. China Banking Corporation
23. Palanca v. Republic
24. Camat v. Director of Prisons
25. Laurel v. Misa
26. Montebon v. Director of Prisons
27. Etorma v. Ravelo and Director of Lands
28. Cantos v. Styer
29. People v. Jose
30. Yamashita v. Styer
31. Alcantara v. Director of Prisons
32. Co Kim Cham v. Valdez Tan Keh 75 Phil. 113
33. Co Kim Cham v. Valdez Tan Keh 75 Phil. 371
Page | 17
DANA-ANDREI Notes
JURISDICTION AND IMMUNITY
 Jurisdiction refers to particular aspects of the general legal competence of
states often referred to as sovereignty. Jurisdiction is an aspect of sovereignty
and refers to judicial, legislative, and administrative competence (Brownlie)
 Prescriptive or legislative jurisdiction – power to make decisions or rules
 Enforcement or prerogative jurisdiction – power to take executive action in
pursuance of or consequent on the making of decisions or rules
 Judicial or adjudicative jurisdiction – power of the courts of a state to hear
cases concerning the persons, property, or events in question
 Basis for jurisdiction is sovereignty
 International Jurisdiction
 Akehurst: international law does not seem to impose any restrictions on the
jurisdiction of courts in civil cases
 Brownlie – there is no major difference between international and criminal
jurisdiction
 Principles of jurisdiction in international law constitute limitations imposed by
international law on the jurisdiction of national courts
 Kinds of Jurisdiction
 State Jurisdiction extends over persons, property, and territory
 2 kinds of jurisdiction:
1. Prescriptive – power to assert that national law applies to any person,
property, territory, or event wherever and whenever they are situated or may
transpire
2. Enforcement – power to enforce national law only within state territory
 Territorial jurisdiction is complete and absolute, unless modified by general
principles of international law or obligations freely assumed by the state
 5 Categories of jurisdiction over person (Unofficial 1935 Harvard Research
Draft Convention on Jurisdiction with Respect to Crime)
1. Territorial – extends over all matters arising in the territory of a state
2. Nationality – extends over all nationals, wherever they may be situated
Thus, a Filipino could be convicted of bigamy, even though the second act
of marriage takes place outside the Philippines
3. Universal – extends to crimes against all mankind, which place the
perpetrator beyond the protection of any state
 Since they are grave offenses against the law of nations itself or delicta
juris gentium, the jurisdiction to try crimes is universal
 Universal jurisdiction allows any state to assert criminal jurisdiction
over certain offences, even if the act occurred outside its territory, or
was committed by a person not its national, or inflicted no injury to its
nationals
 The crime should not merely violate international law, but should
constitute an attack against international order
- war crimes, crimes against peace, and crimes against humanity
(list in the Nuremberg Tribunal Charter)
- piracy (1948 Geneva Convention on the High Seas)
4. Protective – extends to any crime, regardless where and by whom it is
committed, which produces a deleterious effect on the state
 operates extraterritorially – reaches acts which take place outside of
state territory
 “effects” doctrine – the state claims jurisdiction over any matter
which produces an effect in its territory, whether or not the matter is
adverse to some public or national interest
DANA-ANDREI Notes
5. Passive Personality – exercised by a state over all crimes where the victim
was a national, regardless of the place where the crime was committed, or
the nationality of the offender
 however state prefer the other principles because states reject the
implication that persons who come into contact with a national are also
subject to the laws of his state of nationality
o Effect jurisdiction
 Jurisdiction after Abduction
 Abduction cannot defeat universal jurisdiction, by definition; therefore, abduction
is irrelevant in such international crimes as war crimes, crimes against humanity,
or possibly slavery. Otherwise, abduction would be a violation of due process as
a normative element of human rights law
 Effects of Jurisdiction
 is based on the controversial theory that jurisdiction may be exercised over
persons abroad, even if non-nationals, for acts that took place abroad and
produced significant harmful effects within the territory asserting jurisdiction
 2 sides to debate
1. effects jurisdiction is unlawful, because no rule permits it
2. effects jurisdiction is lawful, because in international law, conduct is
permitted, unless it is prohibited
 as extraterritorial jurisdiction it applied to 2 main cases:
1. general crimes, such as murder, extortion, and drug-running
2. restrictive trade practices which harm the consumer and keep prices high
 Conflicts of Jurisdiction
 GR: conviction or acquittal in a foreign country is treated as a bar to a
subsequent prosecution in another country
o not all states observe the rule against double jeopardy
 Extradition
 one state hands over a criminal suspect to another state, whose laws are said to
have been violated by the suspect
 includes the surrender of convicted criminals
 In the absence of treaty
o there is no duty to extradite
o there is no duty to refrain from extradition
o state has right to grant asylum, or refuge, to a fugitive criminal
right of asylum is granted to the state, not to the individual
 State Immunity
 the legal rules and principles determining the conditions under which a foreign
state may claim freedom from the jurisdiction of another state (Akehurst)
 State will often claim immunity in 2 cases:
1. immunity from jurisdiction of national courts of another state
2. immunity from enforcement measures against its state property
 2 Kinds of State immunity
1. Absolute immunity under classical international law – based on status of
being a state or government
2. restrictive or qualified immunity under modern international law – based
on the activity or transaction
o Restrictive immunity
 2 Kinds of activity under restrictive doctrine
1. Acta jure imperii or acts in public authority – state enjoys
immunity for acta jure imperii
2. Acta jure gestionis, commercial or private acts – state does
not enjoy immunity for acta jure gestionis
Page | 18
  Test to determine between acts imperii and gestioni  Diplomats shall not be liable to any form of arrest or detention, and that
1. Test of purpose of the transaction: Is the purpose of the appropriate steps must be taken to protect them from attack (Art. 29)
contract a high state matter or a matter of sovereign  Other privileges and immunities are extended to the premises of a diplomatic
authority mission and the private residence of a diplomat – permission of the sending state
2. Test of the nature of the transaction: Is the act one that is necessary, before agents of the receiving state can enter them
may be performed by anyone, or only by a sovereign  Inviolability extends to archives, documents, and other property belonging to a
o Qualified immunity diplomatic mission or diplomat; communication with the sending state; official
 State itself enjoys only qualified immunity – it has immunity only correspondence; and the diplomatic bag
for governmental acts or acts jure imperii and not for commercial  the premises of the mission are exempt from all taxes, except those which
acts, or acts jure gestionis represent payment for specific services rendered, such as water utilities (Art.23)
 objections to the rule of qualified immunity  Diplomats are exempt from all taxes, with certain exemptions (Art. 34)
- municipal court might decline jurisdiction, even if the foreign  A diplomat and his family are allowed to import articles for the official use of the
state is not a party to court proceedings, because certain mission, and articles for their personal use, free of customs duties (Art. 36)
acts may involve delicate issues of international politics  Consul are immune from civil or criminal jurisdiction, only in respect of official
- emprecise distinction between governmental and acts. They are allowed duty-free importation of articles for their personal use,
commercial acts only at the time of first appointment
Distinction is either based on the nature of the act, or the
 Since the immunity is conferred on the state, it can waive immunity even against
objective test; or on the purpose of the act, or the subjective
the wishes of its own diplomat. If the state or diplomat sues as plaintiff, the
test
immunity is automatically waived for counter claims from the same subject matter
 Act of State Doctrine
 Organizational Immunity
 the acts of a state within its own territory, cannot be challenged in the courts of
 International organization enjoys Organizational immunity which is assimilated to
other states
diplomatic immunity; NOT to sovereign immunity because an international
 covers acts performed by a state which are contrary to its own law, but it is a organization has no sovereign authority
question whether the doctrine covers acts contrary to international law
 basis of grant is good faith – an organization that has been allowed into a
 contemplates a case where an individual is sued in the courts of one state for particular country should be provided with all that is necessary in order that it can
acts which he performed as a servant or agent of another state perform its functions
 does not contemplate a situation where a state expropriates property situated  determined by treaty law; and if there is no treaty, by customary international law
within its territory and sells it to a private individual, who is then sued by the
original owner in the courts of another state
 Exceptions to the act of state doctrine:
1. War crimes
2. Crimes against peace
3. Crimes against humanity
 Diplomatic Immunity
 is a rule of customary law which is codified in the 1961 Vienna Convention on
Diplomatic Relations; hence most provisions of the Convention can be used as
evidence of customary law, even against states not parties to this Convention
 A diplomatic agent enjoys immunity from the criminal jurisdiction of the receiving
state. He also enjoys immunity from civil and administrative jurisdiction, except in
actions relating to private immovable property, to succession, or to any
professional or commercial activity outside his official functions. His immunity
extends to his family (Art. 31 (1))
o Despite diplomatic immunity, the diplomat could be made liable for injury.
He could be approached for private settlement; if settlement proves
unavailing, plaintiff could bring action in the sending state against him
 the receiving state may require that the size of a mission be kept within limits
considered by it to be reasonable and normal (Art. 11)
o receiving state could use this provision to punish a recalcitrant diplomat
o in extreme cases, receiving state may at any time declare a diplomat
persona non grata or unacceptable; this would force his withdrawal by the
sending state
 Since diplomatic immunity is functional, the immunities of subordinate staff are
less than those of diplomatic agents. Even diplomatic agents, if they are
nationals or permanent residents of the receiving state, are similarly restricted.
These personnel enjoy complete immunity from criminal jurisdiction. However,
their civil and administrative immunity extends only to their official acts
Page | 19
DANA-ANDREI Notes
 Philippine Cases 1. Philippine Admiral Case
 Concept of Jurisdiction 2. Philippine Embassy Case
1. Subic Bay Metroplitan Authority v. Universal International Group of Taiwan  Foreign Judgments
2. Manila Hotel Corp. v. Naional Labor Relations COmmission 1. Fujiki v. Marinay
3. Hongkong and Shanghai Banking Corporation v. Sherman 2. Mijares v. Ranada
4. Brownnell v. Sun Life Assurance  Philippine Statute
5. People v. Lol-Lo  PD No. 1069 – Philippine Extradition Law
 Jurisdiction in Foreign Military Bases
1. Reagan v. Commissioner of Internal Revenue
2. People v. Acierto
3. Miquiabas v. Philippine-Ryukyus Command
4. Tubb and Tedrow v. Griess
5. Raquiza v. Bradford
 State Immunity
1. China National Machinery and Equipment Corp. v. Santamaria
2. ATCI Overseas Corporation v. Echin
3. Deutsche Gesellschaft Fur Technische Zusammenarbeit v. Court of Appeals
4. Republic of Indonesia v. Vinzon
5. Jusmag Philippines v. NLRC
6. United States of America v. Reyes
7. M.H. Wylie v. Rarang
8. Shauf v. Court of Appeals
9. Sanders v. Veridiano
10. Commissioner of Internal Revenue v. Robertson
11. United States of America v. Ruiz
12. Baer v. Tizon
13. Lim v. Brownell
14. Lyons, Inc. v. U.S.A.
15. Johnson v. Turner
16. Parreno v. Mcgranery
17. Syquia v. Lopez
18. United States v. Sweet
 Diplomatic Immunity
1. Liang v. People 323 SCRA 692
1. Liang v. People 355 SCRA 125
2. Minucher v. Court of Appeals
3. Schneckenburger v. Moran
 Immunity of International Organizations
1. Ebro v. National Labor Relations COmmission
1. Department of Foreign Affairs v. NLRC
2. Callado v. International Rice Research Institute
3. Holy See v. Rosario
4. Southeast Asian Fisheries Development Center v. Acosta
5. Southeast Asian Fisheries Development Center-Aquaculture Department v.
National Labor Relations COmmission
6. International Catholic Migration Commission v. Calleja
7. Commissioner of Internal Revenue v. John Gotamco & Sons, Inc.
8. World Health Organization v. Aquino
 Extradition
1. Government of Hong Kong Special Administrative region v. Olalia
2. Government of the United States of America v. Puruganan
3. Cuevas v. Muñoz
4. Secretary of Justice v. Lantion 322 SCRA 160
5. Secretay of Justice v. Lantion 343 SCRA 377
6. Evangelista v. Court of First Instance of Bulacan
 Restrictive Immunity for the Philippines as Held by Foreign Courts
Page | 20
DANA-ANDREI Notes
IMMUNITY FROM JURISDICTION
 Immunity from jurisdiction
 GR: jurisdiction of a state within its territory is complete and absolute
o Exception:
1. sovereign immunity
 covers both a head of state and the state itself
2. immunity of the representative of states or diplomatic and consular
immunities
 Immunity of head of state
 Mighell v. Sultan Johore
o The Sultan of Johore was sued for breach of promise to marry in a British
court. The subject of the suit therefore was a private matter, not a state
matter. Upon verification of his being a sitting foreign sovereign, the case
was dismissed. The immunity that is recognized here is absolute for a sitting
head of state.
 Pinochet Case
o General Augusto Pinochet led a 1973 military coup that overthrew
democratically-elected Chilean President Salvador Allende.
o During hid dictatorship, many died, disappeared and tortured
o In 1998, while seeking medical help in London, British authorities detained
Augusto Pinochet on an arrest warrant issued by Spanish Magistrate
BaltasarGarzon.
o Garzon who had charged Pinochet with genocide, terrorism, and torture
committed during the Chilean dictatorship and was seeking his extradition.
o British law lords ruled that Pinochet did not enjoy immunity from prosecution
as a former head of state and could be extradited to Spain. This decision,
based largely on customary international law
o . . . [i]n my judgment, Senator Pinochet as former head of state enjoys
immunity rationemateriae in relation to acts done by him as head of state as
part of his official functions as head of state.
o whether the alleged organisation of state torture by Senator Pinochet (if
proved) would constitute an act committed by Senator Pinochet as part of
his official functions as head of state.... Can it be said that the commission
of a crime which is an international crime against humanity and jus cogens
is an act done in an official capacity on behalf of the state?
o implementation of torture as defined by the Torture Convention cannot be a
state function. The idea that individuals who commit international crimes are
internationally accountable for them has now become an accepted part of
international law.
o “It can no longer be doubted that as a matter of general customary
international law a head of state will personally be liable to be called to
account if there is sufficient evidence that he authorized or perpetrated such
serious international crimes.”
 State immunity
 The principle that the state may not be sued without its consent found in the
Philippine Constitution is both municipal law and also international law applicable
to foreign states.
 This is based on the principle of equality of states: par in parent non habet
imperium.
 The Schooner Exchange v. MacFaddon
o Chief Justice Marshall noted that “the nation within its own territory is
necessarily exclusive and absolute. It is susceptible of no limitation not
imposed by itself.” However, he immediately added that absolute territorial
jurisdiction “would not seem to contemplate foreign sovereigns nor their
sovereign rights as its objects. One sovereign being in no respect amenable
DANA-ANDREI Notes
to another; and being bound by obligations of the highest character not to
degrade the dignity of his nation, by placing himself or its sovereign rights
within the jurisdiction of another, can be supposed to enter a foreign territory
... in the confidence that the immunities belonging to his independent
sovereign station, though not expressly stipulated, are reserved by
implication, and will be extended to him.”
o Relation of Equality of States to state immunity:
 “This perfect equality and absolute independence of sovereigns, and
this common interest impelling them to mutual intercourse, and an
interchange of good offices with each other, have given rise to a class
of cases in which every sovereign is understood to waive the exercise
of a part of that complete exclusive territorial jurisdiction, which has
been stated to be the attribute of every nation.”
o Immunity is reserve:
 reserved only for acts jure imperii (governmental acts) but not for acts
jure gestionis
 Drallev. Republic of Czechoslovakia
o by international law so-called actagestionis are NOT exempt from municipal
jurisdiction. This subjection of the actagestionis to the jurisdiction of States
has its basis in the development of the commercial activity of States.
o The classic doctrine of immunity arose at a time when all their political
activities, either by the purchase of commodities for their diplomatic
representatives abroad, or by the purchase of war material for war
purposes, etc. Therefore, there was no justification for any distinction
between private transactions and acts of sovereignty. Today the position is
entirely different; States engage in commercial activities and, as the present
case shows, enter into competition with their own nationals and with
foreigners.
o Accordingly, the classic doctrine of immunity has lost its meaning and,
rationecessante, can no longer be recognized as a rule of international law.
 United States of America v. Hon. V.M. Ruiz
o The traditional rule of State immunity exempts a State from being sued in
the courts of another State without its consent or waiver. This rule is a
necessary consequence of the principles of independence and equality of
States.
o In the case, the projects [repair of base facilities] are an integral part of the
naval base which is devoted to the defense of both the US and the PH,
indisputably a function of the government of the highest order, they are not
utilized for nor dedicated to commercial or business purposes
o a State may be said to have descended to the level of an individual and can
thus be deemed to have tacitly given its consent to be sued only when it
enters into business contracts
o The rule that a state may not be sued without its consent is a necessary
consequence of principle of independence and equality of states
o we held that the conduct of public bidding for the repair of a wharf at a
United States Naval Station is an act jure imperii.
Page | 21
  United States v. Hon. Luis Reyes
o What are outside the cloak of immunity:
1. Commercial acts
2. Private acts
o The claim of immunity was rejected when it was shown that the acts of the
American official were committed not only outside the scope of her authority
but also contrary to law
o acts of government officials or officers are not acts of the State, and an
action against the officials or officers by one whose rights have been
invaded or violated by such acts, for the protection of his rights, is not a suit
against the State within the rule of immunity of the State from suit.
 the discretion of the incoming Chief of Administration
 Holy See v. Eriberto Rosario, Jr.,
o where it was claimed that the Holy See had waived its sovereign immunity
by entering into a contract for the sale of a piece of land
o the Court said: In the absence of legislation defining what activities and
transactions shall be considered “commercial” and as constituting acts jure
gestionis, the mere entering into a contract by a foreign state with a private
party cannot be the ultimate test. Such an act can only be the start of the
inquiry.
o The logical question is whether the foreign state is engaged in the activity in
the regular course of business. If the foreign state is not engaged regularly
in a business or trade, the particular act or transaction must then be tested
by its nature.
o If the act is in pursuit of a sovereign activity, or an incident thereof, then it is
an act jure imperii, especially when it is not undertaken for gain or profit.
o In the case at bench, if petitioner has bought and sold lands in the ordinary
course of a real estate business, surely the said transaction can be
categorized as an act jure gestionis.
o However, petitioner has denied that the acquisition and subsequent disposal
of Lot 5-A were made for profit but claimed that it acquired said property for
the site of its mission or the Apostolic Nunciature in the Philippines.
o Private respondent failed to dispute said claim.
o The Court also indicated how a state claiming sovereign immunity should
proceed:
1. In Public International Law, when a state or international agency
wishes to plead sovereign or diplomatic immunity in a foreign court, it
requests the Foreign Office of the state where it is sued to convey to
the court that said defendant is entitled to immunity.
2. In the Philippines, the practice is for the foreign government or the
international organization to first secure an executive endorsement of
its claim of sovereign or diplomatic immunity. But how the Philippine
Foreign Office conveys its endorsement to the courts varies.
o By way of consolation, however, the Court added: “Private respondent is not
left without any legal remedy for the redress of its grievances. Under both
Public International Law and Transnational Law, a person who feels
aggrieved by the acts of a foreign sovereign can ask his own government to
espouse his cause through diplomatic channels.”
o What actions are not covered by immunity?
 This concept, the restrictive theory, holds that the immunity of the
sovereign is recognized only with regard to public acts or acts jure
imperii, but not with regard to private acts or acts jure gestionis
DANA-ANDREI Notes
 REPUBLIC OF INDONESIA V. VINZON
o Republic of Indonesia entered into a Maintenance Agreement with James
Vinzon, sole proprietor of Vinzon Trade and Services.
o The Agreement stated that respondent shallmaintain specified equipment at
the Embassy Main Building. It is likewise stated therein that the agreement
shall be effective for a period of four years and will renew itself automatically
unless cancelled by either party by giving thirty days prior written notice
from the date of expiry.
o Petitioners claim that sometime prior to the date of expiration of the
agreement, they informed him that the renewal of the agreement shall be at
o When Minister Counsellor Kasim assumed the position of Chief of
Administration, he allegedly found respondent’s work and services
unsatisfactory and not in compliance with the standards set in the
Maintenance Agreement. Hence, the Indonesian Embassy terminated the
agreement
o Hence,respondent filed a complaint against petitioners claiming that the
termination was arbitrary and unlawful
o petitioners filed a Motion to Dismiss, alleging that the Republic of Indonesia,
as a foreign sovereign State, has sovereign immunity from suit and cannot
be sued as a party-defendant in the PH. The said motion further alleged that
Ambassador Soeratmin and Minister Counsellor Kasim are diplomatic
agents as defined under the Vienna Convention on Diplomatic Relations
and therefore enjoy diplomatic immunity.
o In turn, respondent filed an Opposition to the said motion alleging that the
Republic of Indonesia has expressly waived its immunity from suit. He
based this claim upon the following provision in the Maintenance
Agreement: “Any legal action arising out of this Maintenance Agreement
shall be settled according to the laws of the Philippines and by the proper
court of Makati City, Philippines.” Respondent’s Opposition likewise alleged
that Ambassador Soeratmin and Minister Counsellor Kasim can be sued
and held liable in their private capacities for tortious acts done with malice
and bad faith.
o Trial court denied herein petitioners’ Motion to Dismiss.
o Court of Appeals rendered its denied the petition for lack of merit.
o whether or not the petitioners have waived their immunity from suit by using
as its basis the above-mentioned provision in the Maintenance Agreement.
o In the case of foreign States, the rule is derived from the principle of the
sovereign equality of States, as expressed in the maxim par in parem non
habet imperium. All states are sovereign equals and cannot assert
jurisdiction over one another. A contrary attitude would “unduly vex the
peace of nations.”
o The mere entering into a contract by a foreign State with a private party
cannot be construed as the ultimate test of whether or not it is an act jure
imperiior jure gestionis. Such act is only the start of the inquiry.
o If the act is in pursuit of a sovereign activity, or an incident thereof, then it is
an act jure imperii.
o Submission by a foreign state to local jurisdiction must be clear and
unequivocal. It must be given explicitly or by necessary implication. We find
no such waiver in this case.
o Respondent concedes that the establishment of a diplomatic mission is a
sovereign function. On the other hand, he argues that the actual physical
maintenance of the premises of the diplomatic mission, such as the upkeep
of its furnishings and equipment, is no longer a sovereign function of the
State.
o the establishment of a diplomatic mission encompasses its maintenance
Page | 22
 and upkeep. Hence, the State may enter into contracts with private entities
to maintain the premises, furnishings and equipment of the embassy and
the living quarters of its agents and officials.
o petitioner Republic of Indonesia was acting in pursuit of a sovereign activity
when it entered into a contract with respondent for the upkeep or
maintenance of the air conditioning units, generator sets, electrical facilities,
water heaters, and water motor pumps of the Indonesian Embassy and the
official residence of the Indonesian ambassador.
o whether or not petitioners Ambassador Soeratmin and Minister Counsellor
Kasim may be sued herein in their private capacities,
o Article 31 of the Vienna Convention on Diplomatic Relations [exceptions to
diplomatic immunity]
1. (a) a real action relating to private immovable property situated in the
territory of the receiving State, unless he holds it on behalf of the
sending State for the purposes of the mission;
2. (b) an action relating to succession in which the diplomatic agent is
involved as executor, administrator, heir or legatee as a private person
and not on behalf of the sending State;
3. (c) an action relating to any professional or commercial activity
exercised by the diplomatic agent in the receiving State outside his
official functions.
o The act of petitioners Ambassador Soeratmin and Minister Counsellor
Kasim in terminating the Maintenance Agreement is not covered by the
exceptions provided in the abovementioned provision.
 Diplomatic and consular immunities
 How will you characterize the functions exercised by diplomats?
o Personal in a sense that they benefit the person
o But the purpose of the immunities given to them is functional, that is, to
enable them to perform their function properly.
 Diplomatic immunities
 “Head of mission” – is the person charged by the sending State with the duty of
acting in that capacity;
o “members of the mission” are the head of the mission and the members of
the staff of the mission;
o “members of the staff of the mission ” are the members of the diplomatic
staff, of the administrative and technical staff and of the service staff of the
mission;
o “members of the diplomatic staff" are the members of the staff of the
mission having diplomatic rank;
o “diplomatic agent" is the head of the mission or a member of the diplomatic
staff of the mission;
o “members of the administrative and technical staff" are the members of the
staff of the mission employed in the administrative and technical service of
the mission;
o “members of the service staff" are the members of the staff of the mission in
the domestic service of the mission;
o “private servant” is a person who is in the domestic service of a member of
the mission and who is not an employee of the sending State;
o “premises of the mission" are the buildings or parts of buildings and the
land ancillary thereto, irrespective of ownership, used for the purposes of
the mission including the residence of the head of the mission.
DANA-ANDREI Notes
 The functions of the diplomatic mission
1. representing the sending State in the receiving State;
2. protecting in the receiving State the interests of the sending State and of its
nationals, within the limits permitted by international law;
3. negotiating with the Government of the receiving State;
4. ascertaining by all lawful means conditions and developments in the
receiving State, and reporting thereon to the Government of the sending
State;
5. promoting friendly relations between the sending State and the receiving
State, and developing their economic, cultural and scientific relations.
o Diplomatic relations between states are purely by mutual consent. Before
the head of mission is sent to the receiving state, an agreement must first
be obtained. The receiving state is under no obligation to give reasons for
refusing an agreement. (Art. 4) Moreover, the “receiving State may at any
time, and without having to explain its decision, notify the sending State that
the head of the mission or any member of the diplomatic staff of the mission
is persona non grata or that any other member of the staff of the mission is
not acceptable. In any such case, the sending State shall, as appropriate,
either recall the person concerned or terminate his functions with the
mission. A person may be declared non grata or not acceptable before
arriving in the territory of the receiving State.” (Art. 9).
 RIGHTS and PRIVELEGES
o The premises of the mission shall be inviolable.
 The agents of the receiving State may not enter them, except with the
consent of the head of the mission.
 The receiving State is under a special duty to take all appropriate steps
to protect the premises of the mission against any intrusion or damage
and to prevent any disturbance of the peace of the mission or
impairment of its dignity.
 The premises of the mission, their furnishings and other property
thereon and the means of transport of the mission shall be immune
from search, requisition, attachment or execution.
o The archives and documents of the mission shall be inviolable at any
time and wherever they may be.
o Freedom of Communication
 The receiving State shall permit and protect free communication on the
part of the mission for all official purposes.
 In communicating with the Government and the other missions and
consulates of the sending State, wherever situated, the mission may
employ all appropriate means, including diplomatic couriers and
messages in code or cipher.
 However, the mission may install and use a wireless transmitter only
with the consent of the receiving State.
o Diplomatic bag
 The diplomatic bag shall not be opened or detained.
 The packages constituting the diplomatic bag must bear visible
external marks of their character and may contain only diplomatic
documents or articles intended for official use.
 The diplomatic courier, who shall be provided with an official document
indicating his status and the number of packages constituting the
diplomatic bag, shall be protected by the receiving State in the
performance of his functions. He shall enjoy personal inviolability and
shall not be liable to any form of arrest or detention.
 The sending State or the mission may designate diplomatic couriers ad
hoc. In such cases the provisions of paragraph 5 of this Article shall
also apply, except that the immunities therein mentioned shall cease to
Page | 23
 apply when such a courier has delivered to the consignee the
diplomatic bag in his charge.
 A diplomatic bag may be entrusted to the captain of a commercial
aircraft scheduled to land at an authorized port of entry. He shall be
provided with an official document indicating the number of packages
constituting the bag but he shall not be considered to be a diplomatic
courier. The mission may send one of its members to take possession
of the diplomatic bag directly and freely from the captain of the aircraft.
o personal baggage of a diplomatic agent shall be exempt from
inspection, unless there are serious grounds for presuming that it contains
articles not covered by the exemptions mentioned in paragraph 1 of this
Article, or articles the import or export of which is prohibited by the law or
controlled by the quarantine regulations of the receiving State. Such
inspection shall be conducted only in the presence of the diplomatic agent
or of his authorized representative.
 exemptions may be granted on:
a. articles for the official use of the mission
b. articles for the personal use of a diplomatic agent or members of his
family forming part of his household)
o Taxes
 The sending State and the head of the mission shall be exempt from
all national, regional or municipal dues and taxes in respect of the
premises of the mission, whether owned or leased, other than such as
represent payment for specific services rendered.
The exemption from taxation referred to in this Article shall not
apply to such dues and taxes payable under the law of the
receiving State by persons contracting with the sending State or
the head of the mission.
 A diplomatic agent shall be exempt from all dues and taxes, personal
or real, national, regional or municipal, except:
(a) indirect taxes of a kind which are normally incorporated in the price
of goods or services;
(b) dues and taxes on private immovable property situated in the
territory of the receiving State, unless he holds it on behalf of the
sending State for the purposes of the mission;
(c) estate, succession or inheritance duties levied by the receiving
State, subject to the provisions of paragraph 4 of Article 39;
(d) dues and taxes on private income having its source in the receiving
State and capital taxes on investments made in commercial
undertakings in the receiving State;
(e) charges levied for specific services rendered;
(f) registration, court or record fees, mortgage dues and stamp duty,
with respect to immovable property, subject to the provisions of Art. 23.
o a diplomatic agent shall with respect to services rendered for the sending
State be exempt from social security provisions which may be in force in
the receiving State.
o Rules of Arrest/detention of Diplomat
 The person of a diplomatic agent shall be inviolable. He shall not be
liable to any form of arrest or detention. The receiving State shall treat
him with due respect and shall take all appropriate steps to prevent
any attack on his person, freedom or dignity.
o Civil or Admin Proceeding
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of
the receiving State. He shall also enjoy immunity from its civil and
administrative jurisdiction, except in the case of:
DANA-ANDREI Notes
(a) a real action relating to private immovable property situated in the
territory of the receiving State, unless he holds it on behalf of the
sending State for the purposes of the mission;
(b) an action relating to succession in which the diplomatic agent is
involved as executor, administrator, heir or legatee as a private person
and not on behalf of the sending State;
(c) an action relating to any professional or commercial activity
exercised by the diplomatic agent in the receiving State outside his
official functions.
2. A diplomatic agent is not obliged to give evidence as a witness.
3. No measures of execution may be taken in respect of a diplomatic
agent except in the cases coming under sub-paragraphs (a), (b) and
(c) of paragraph 1 of this Article, and provided that the measures
concerned can be taken without infringing the inviolability of his person
or of his residence.
4. The immunity of a diplomatic agent from the jurisdiction of the
receiving State does not exempt him from the jurisdiction of the
sending State.
o Waiver
1. The immunity from jurisdiction of diplomatic agents and of persons
enjoying immunity under Article 37 may be waived by the sending
State.
2. Waiver must always be express.
3. The initiation of proceedings by a diplomatic agent or by a person
enjoying immunity from jurisdiction under Article 37 shall preclude him
from invoking immunity from jurisdiction in respect of any counter-
claim directly connected with the principal claim.
4. Waiver of immunity from jurisdiction in respect of civil or administrative
proceedings shall not be held to imply waiver of immunity in respect of
the execution of the judgment, for which a separate waiver shall be
necessary.
 Who are the other people who may enjoy immunity other than the
diplomats
o Article 37
1. The members of the family of a diplomatic agent forming part of his
household shall, if they are not nationals of the receiving State
2. Members of the administrative and technical staff of the mission,
together with members of their families forming part of their respective
households, shall, if they are not nationals of or permanently resident
in the receiving State,
3. Members of the service staff of the mission who are not nationals of or
permanently resident in the receiving State shall enjoy immunity in
respect of acts performed in the course of their duties, exemption from
dues and taxes on the emoluments they receive by reason of their
employment and the exemption contained in Article 33.
4. Private servants of members of the mission shall, if they are not
nationals of or permanently resident in the receiving State, be exempt
from dues and taxes on the emoluments they receive by reason of
their employment. In other respects, they may enjoy privileges and
immunities only to the extent admitted by the receiving State.
o Article 38
1. Except insofar as additional privileges and immunities may be granted
by the receiving State, a diplomatic agent who is a national of or
permanently resident in that State shall enjoy only immunity from
jurisdiction, and inviolability, in respect of official acts performed in the
exercise of his functions.
Page | 24
 2. Other members of the staff of the mission and private servants who are
nationals of or permanently resident in the receiving State shall enjoy
privileges and immunities only to the extent admitted by the receiving
State. However, the receiving State must exercise its jurisdiction over
those persons in such a manner as not to interfere unduly with the
performance of the functions of the mission
 When can diplomat claim immunity
o Every person entitled to privileges and immunities shall enjoy them
1. from the moment he enters the territory of the receiving State on
proceeding to take up his post or,
2. if already in its territory, from the moment when his appointment is
notified to the Ministry for Foreign Affairs or such other ministry as may
be agreed.
 When will privileges end
o When the functions of a person enjoying privileges and immunities have
come to an end, such privileges and immunities shall normally cease
1. at the moment when he leaves the country, or
2. on expiry of a reasonable period in which to do so, but shall subsist
until that time, even in case of armed conflict.
o However, with respect to acts performed by such a person in the exercise of
his functions as a member of the mission, immunity shall continue to
subsist.
 Consuls and consular immunities
 Scope:
o Consuls are not concerned with political matters. They attend rather to
administrative and economic issues such as the issuance of visas.
 The codification of the law on consular relations may be found in the Vienna
Convention on Consular Relations which entered into force in 1967.
 CONSULAR FUNCTIONS
1. Protecting interest of sending state
2. Furthering development of commercial, economic, cultural, and scientific
relations
3. Ascertaining by all lawful means conditions and developments in the
commercial, economic, cultural and scientific life of the receiving state
4. Issue passports and travel documents
5. Help and assist nationals
6. Act as notary and civil registrar
7. Safeguarding the interests of nationals
8. Safeguarding within the limits imposed by laws and regulations
9. Subject to the practices and procedures obtaining in the receiving state,
representing or arranging appropriate representation for nationals of the
sending state
10. Transmitting judicial and extrajudicial documents or executing letters
rogatory or commissions to take evidence
11. Exercising rights of supervision and inspection
12. Extending assistance to vessel and aircraft
 Exequatur
o authorization from the receiving State to admit the head of a consular post
to the exercise of his functions by an
o There is no prescribed form, but without it, he may not enter upon his duties.
The receiving State may at any time notify the sending State that a consular
officer is persona non grata or that any other member of the consular staff is
not acceptable. In that event, the sending State shall, as the case may be,
either recall the person concerned or terminate his functions with the
consular post.
 RIGHTS and PRIVELEGES
DANA-ANDREI Notes
o Freedom of movement
 Subject to its laws and regulations concerning zones entry into which is
prohibited or regulated for reasons of national security, the receiving
State shall ensure freedom of movement and travel in its territory to all
members of the consular post.
o Freedom of communication
1. The receiving State shall permit and protect freedom of communication
on the part of the consular post for all official purposes. In
communicating with the Government, the diplomatic missions and
other consular posts, wherever situated, of the sending State, the
consular post may employ all appropriate means, including diplomatic
or consular couriers, diplomatic or consular bags and messages in
code or cipher. However, the consular post may install and use a
wireless transmitter only with the consent of the receiving State.
2. The official correspondence of the consular post shall be inviolable.
Official correspondence means all correspondence relating to the
consular post and its functions.
3. The consular bag shall be neither opened nor detained. Nevertheless,
if the competent authorities of the receiving State have serious reason
to believe that the bag contains something other than the
correspondence, documents or articles referred to in paragraph 4 of
this Article, they may request that the bag be opened in their presence
by an authorized representative of the sending State. If this request is
refused by the authorities of the sending State, the bag shall be
returned to its place of origin.
4. The packages constituting the consular bag shall bear visible external
marks of their character and may contain only official correspondence
and documents or articles intended exclusively for official use.
o Communication and contact with nationals of the sending State
1. (a) consular officers shall be free to communicate with nationals of the
sending State and to have access to them. Nationals of the sending
State shall have the same freedom with respect to communication with
and access to consular officers of the sending State;
2. (b) if he so requests, the competent authorities of the receiving State
shall, without delay, inform the consular post of the sending State if,
within its consular district, a national of that State is arrested or
committed to prison or to custody pending trial or is detained in any
other manner. Any communication addressed to the consular post by
the person arrested, in prison, custody or detention shall also be
forwarded by the said authorities without delay. The said authorities
shall inform the person concerned without delay of his rights under this
sub-paragraph; (c) consular officers shall have the right to visit a
national of the sending State who is in prison, custody or detention, to
converse and correspond with him and to arrange for his legal
representation. They shall also have the right to visit any national of
the sending State who is in prison, custody or detention in their district
in pursuance of a judgment. Nevertheless, consular officers shall
refrain from taking action on behalf of a national who is in prison,
custody or detention if he expressly opposes such action.
o Personal inviolability of consular officers
 Consular officers shall not be liable to arrest or detention pending trial,
except in the case of a grave crime and pursuant to a decision by the
competent judicial authority.
o Notification of arrest, detention or prosecution
Page | 25
  In the event of the arrest or detention, pending trial, of a member of the
consular staff, or of criminal proceedings being instituted against him,
the receiving State shall promptly notify the head of the consular post.
o Immunity from jurisdiction
1. Consular officers and consular employees shall not be amenable to the
jurisdiction of the judicial or administrative authorities of the receiving
State in respect of acts performed in the exercise of consular functions.
2. The provisions of paragraph 1 of this Article shall not, however, apply
in respect of a civil action either:
(a) arising out of a contract concluded by a consular officer or a
consular employee in which he did not contract expressly or impliedly
as an agent of the sending State; or
(b) by a third party for damage arising from an accident in the receiving
State caused by a vehicle, vessel or aircraft.
o Lilability to give evidence
1. Members of a consular post may be called upon to attend as
witnesses in the course of judicial or administrative proceedings.
2. A consular employee or a member of the service staff shall not, except
in the cases mentioned in paragraph 3 of this Article, decline to give
evidence.
3. If a consular officer should decline to do so, no coercive measure or
penalty may be applied to him.
o Waiver
 The sending State may waive, with regard to a member of the consular
post, any of the privileges and immunities
o US DIPLOMATIC AND CONSULAR STAFF IN IRAN CASE
 Iranian students seized the US Embassy in Tehran and a number of
consulates in outlying cities.
 The Iranian authorities failed to protect the Embassy and later
appeared to adopt the students’ actions.
 Over 50 US nationals (mostly diplomatic and consular staff) were held
for 444 days.
 The ICJ had indicated provisional measures against Iran (ICJ Rep
1979 7), and in this case the US sought a declaration, that Iran had
violated the two Vienna Conventions, and calling for the release of the
hostages and the vacation of the Embassy and consulates. The Court
considered whether the initial attack by the students could be attributed
to the Iranian Government and whether Iran was therefore in violation
of its international obligations.
 The Court conclude, in regard the Iranian authorities:
 though they have the means, they have failed to perform their
obligations to take appropriate steps to protect the premises of
the United States Embassy and its diplomatic and consular staff
from any attack and from any infringement of their inviolability,
and to ensure the security of such other persons as might be
present on the said premises;
 The occupation having taken place and the diplomatic and consular
personnel of the United States’ mission having been taken hostages,
the action required of the Iranian Government by the Vienna
Conventions and by general international law manifest. Its plain duty
was at once to make every effort, and to take every appropriate step,
to bring these flagrant infringements of the inviolability of the premises,
archives and diplomatic and consular staff of the United States
Embassy to a speedy end, to restore the Consulates at Tabriz and
Shiraz to United States control, and in general to re-establish the
status quo and to offer reparation for the damage.
DANA-ANDREI Notes
 Iranian Government did not declared, or indicated any intention to
declare, any member of the United States diplomatic or consular staff
in Tehran persona non grata. The Iranian Government did not,
therefore, employ the remedies placed at its disposal by diplomatic law
specifically for dealing with activities of the kind of which it now
complains. Instead, it allowed a group of militants to attack and occupy
the United States Embassy by force, and to seize the diplomatic and
consular staff as hostages; instead, it has endorsed that action of
those militants and has deliberately maintained their occupation of the
Embassy and detention of its staff as a means of coercing the sending
State. It has, at the same time, refused altogether to discuss this
situation with representatives of the United States.
 Is there a duty to protect the embassy? YES
 Can you apply the pacta sunt servanda? YES
 The Act of State Doctrine
 The act of state doctrine arose from a series of cases in the United States where
the issue was whether United States courts could consider the validity of acts of
a foreign state alleged to be in violation of international law.
 Underhill v. Hernandez
o a 1892 revolution in Venezuela against the legitimate government.
o General Hernandez commanded the anti-administration party and, after
defeating the army of the administration, he entered Bolivar to assume
leadership of the government.
o George F. Underhill was a citizen of the United States who had constructed
a waterworks system for the city of Bolivar, under a contract with the
government, and was engaged in supplying the place with water. He also
carried on a machinery repair business.
o Some time after the entry of Gen. Hernandez, Underhill applied to him for a
passport to leave the city.
o Hernandez refused this request as well as requests made by others in
Underhill’s behalf. The purpose of Hernandez’s refusal was to coerce
Underhill to operate his waterworks and his repair works for the benefit of
the community and the revolutionary forces.
o After Underhill was finally allowed to leave, he filed suit in the United States
to recover damages for the detention caused by reason of the denial of his
permit to leave, for his alleged confinement to his own house, and for
certain alleged assaults and affronts by the soldiers of Hernandez’s army. In
denying the plea of Underhill, the U.S. court ruled with what is now known
as the “act of state doctrine”:
o Every sovereign state is bound to respect the independence of every other
sovereign state, and the courts of one country will not sit in judgment on the
acts of the government of another, done within its own territory. Redress of
grievances by reason of such acts must be obtained through the means
open to be availed of by sovereign powers as between themselves.
o What is the constitutional underpinnings
 The act of state doctrine does, however, have “constitutional”
underpinnings. It arises out of the basic relationships between
branches of government in a system of separation of powers. It
concerns the competency of dissimilar institutions to make and
implement particular kinds of decisions in the area of international
relations. The doctrine as formulated in past decisions expresses the
strong sense of the Judicial Branch that its engagement in the task of
passing on the validity of foreign acts of state may hinder rather than
further this country’s pursuit of goals both for itself and for the
community of nations as a whole in the international sphere....
Page | 26
 o What was the limitation in the dunhillcase
 whether the failure of Cuba to return to Dunhill funds mistakenly paid
by Dunhill for cigars that had been sold to Dunhill by certain
expropriated Cuban cigar businesses was an “act of state” by Cuba
precluding an affirmative judgment against respondents.
 If we assume with the Court of Appeals that the Cuban Government
itself had purported to exercise sovereign power to confiscate the
mistaken payments belonging to three foreign creditors and to
repudiate interventors’ adjudicated obligation to return those funds, we
are nevertheless persuaded by the arguments of petitioner and by
those of the United States that the concept of an act of state should not
be extended to include the repudiation of a purely commercial
obligation owed by a foreign sovereign or by one of its commercial
instrumentalities. Our cases have not yet gone so far, and we decline
to expand their reach to the extent necessary to affirm the Court of
Appeals.
 Kirkpatrick case doctrine
o a contract was entered into between the Nigerian government with
Kirkpatrick for the construction and equipment of an aeromedical center at
Kaduna Air Force Base in Nigeria.
o Environmental Tectonics Corporation, an unsuccessful bidder for the
Kaduna contract, learned that Kirkpatrick had bribed Nigerian officals in
winning the contract. Environmental Tectonics brought the matter to the
attention of the Nigerian Air Force and to the United States Embassy in
Lagos. Following an investigation by the Federal Bureau of Investigation,
the United States Attorney for the District of New Jersey brought charges
against Kirkpatrick for violations of the Foreign Corrupt Practices Act of
1977. Kirkpatrick pleaded guilty. Whereupon, Environmental Tectonics
brought a civil action against Kirkpatrick and other private parties involved in
the bribery to seek damages under the Racketeer Influenced and Corrupt
Organizations Act and other statutes. The defendants moved to dismiss the
complaint on the ground that the action was barred by the act of state
doctrine.
o the Court ruled that the act of state doctrine is not applicable where the
validity of a foreign government act
o The short of the matter is this: Courts in the United States have the power,
and ordinarily the obligation, to decide cases and controversies properly
presented to them. The act of state doctrine does not establish an exception
for cases and controversies that may embarrass foreign governments, but
merely requires that, in the process of deciding, the acts of foreign
sovereigns taken within their own jurisdictions shall be deemed valid. That
doctrine has no application to the present case because the validity of a
foreign sovereign act is not at issue.

Page | 27
DANA-ANDREI Notes
STATE RESPONSIBILITY
 In traditional international law, individuals are generally considered “objects” and not
“subjects” of international law. They possess neither international legal rights which
they could assert on their own. Whatever wrongs may be committed against them can
be redressed only by states or organizations with international personality. Individuals,
therefore, can be objects of state vs. state litigation.
 Protection of Aliens
 No state is obliged to admit aliens into its territory unless there is a treaty
requiring it. (as an aspect of sovereignity)
o states generally impose legal standards for admission. Once admitted, at
least under democratic regimes, aliens may not be expelled without due
process.
 The instrument used for the protection of aliens is “diplomatic protection.” This
is still based on the traditional notion that the individual is an inappropriate
subject of international law and hence must have recourse to his or her state of
nationality for protection. The theory underlying the system is that injury to a
national abroad is injury to the individual’s state of nationality. The interest of the
state is in the redress of the injury to itself and not of the injury to the individual.
 States enjoy discretion whether or not to espouse claims raised by individuals in
their own behalf.
 as indicated in the Nottebohm case in Chapter 8, in the case of persons holding
dual nationality, an “effective national link” with the person must exist for a state’s
interest in an individual to be recognized by other states.
 Corporations and Shareholders
o The doctrine of “effective link” as applied to corporations received treatment
in the Barcelona Traction Case.'
o The claim arose out of the adjudication in bankruptcy in Spain of Barcelona
Traction, a company incorporated in Canada.
o The claim’s object was to seek reparation for damage alleged by Belgium to
have been sustained by Belgian nationals, shareholders in the company, as
a result of acts said to be contrary to international law committed towards
the company by organs of the Spanish State.
o The Court found that Belgium lacked jus standi to exercise diplomatic
protection of shareholders in a Canadian company with respect to measures
taken against that company in Spain. It observed that when a State admits
into its territory foreign investments or foreign nationals it is bound to extend
to them the protection of the law and to assume obligations concerning the
treatment to be afforded them. But such obligations are not absolute. In
order to bring a claim in respect of the breach of such an obligation, a State
must first establish its right to do so. The breach, if any, was committed in
this case against the company. Only the company, which was endowed with
legal personality, could take action in respect of matters that were of a
corporate character. It may be true that a wrong done to the company
frequently causes prejudice to its shareholders; but this does not imply that
both are entitled to claim compensation. Whenever a shareholder’s interests
are harmed by an act done to the company, it is to the latter that he has to
look to institute appropriate action. An act infringing only the company’s
rights do not involve responsibility towards the shareholders, even if their
interests are affected. In order for the situation to be different, the act
complained of must be aimed at the direct rights of the shareholder as such,
which was not the case here.
o As to who should have the right to protect the corporation, Barcelona
Traction says that it is the state of nationality of the corporation, in this case
Canada, which has the right, and not Belgium.
DANA-ANDREI Notes
 Standard for the Protection of Aliens
o What is the international standard for the protection of aliens? International
law has gone a long way from ancient times when aliens were treated as
“outlaws” not deserving protection. Roman law progressed from this under
the concept of jus gentium, which was applicable to both citizens and aliens,
as distinct from jus civile which was applicable only to Roman citizens. The
advent of Christianity further improved the condition of aliens. The rights of
aliens expanded further with the growth of international commerce in
modem times leading to development of the concept of “denial of justice” as
an international concern.
o Two standards have emerged in modem times to compete for
recognition as the acceptable standard.
1. doctrine of “national treatment” or “equality of treatment” – Aliens
are treated in the same manner as nationals of the state where they
reside.
 Bright side: aliens would enjoy the same benefits as local
nationals.
 Dark side: if the state is tyrannical and its municipal laws are
harsh and violative of human rights even of its own citizens, then
aliens would likewise be subject to such harsh laws.
2. “minimum international standard” – however harsh the municipal
laws might be against a state’s own citizens, aliens should be
protected by certain minimum standards of humane protection. This is
now the widely accepted standard.
 The “minimum standard” is abstract and it is not easy to
determine what its contents are. An elaboration of this abstract
standard may be seen in a quotation from the resolution of the
Neer Claim
o Mr. Neer was a US national working in Mexico. He was
stopped by armed men and shot to death. It was claimed
that the Mexican government had been negligent in their
investigation of the murder. This was rejected by the Joint
Claims Commission saying:
o . . . [w]ithout attempting to announce a precise formula, it is
in the opinion of the Commission possible to hold (first) that
the propriety of the government acts should be put to the
tests of international standards, and (second) that the
treatment of an alien, in order to constitute an international
delinquency should amount to an outrage, to bad faith, to
willful neglect of duty, or to an insufficiency of governmental
action so far short of international standards that every
reasonable and impartial man would readily recognize its
insufficiency. Whether the insufficiency proceeds from
deficient execution of an intelligent law or from the fact that
the laws of the country do not empower the authorities to
measure up to international standards is immaterial.
o The Harvard Draft Convention on the Responsibility of
States for Damages puts it in terms of the more limited
concept of “denial of justice.”
o Article 9. Denial of justice exists when there is a denial,
unwarranted delay or obstruction of access to courts, gross
deficiency in the administration of judicial or remedial
process, failure to provide those guarantees which are
generally considered indispensable to the proper
administration of justice, or a manifestly unjust judgment. An
Page | 28
 error of a national court which does not produce manifest
injustice is not denial of justice.
 Enforcement Regimes
o The International Court of Justice, when its jurisdiction is appealed to by
states in conflict, can resolve issues of violations of the rights of aliens.
o However, claims may also be settled by ad hoc tribunals established for the
purpose
 Doctrine of State Responsibility
 if a state violates a customary rule of international law or a treaty obligation, it
commits an “internationally wrongful act.”
 What need to be understood are:
1. the elements of an internationally wrongful act;
2. the attributability of the wrongful act to the state; and
3. the enforcement of the obligation that arises from the wrongful act.
 Internationally wrongful act
 Article 1. Responsibility of a State for its internationally wrongful acts
o Every internationally wrongful act of a State entails the international
responsibility of that State.
 Article 2. Elements of an internationally wrongful act of a State
o There is an internationally wrongful act of a State when conduct consisting
of an action or omission:
a) Is attributable to the State under international law; (Subjective element)
b) Constitutes a breach of an international obligation of the State.
(Objective element)
 Article 3. Characterization of an act of a State as internationally wrongful
o The characterization of an act of a State as internationally wrongful is
governed by international law. Such characterization is not affected by the
characterization of the same act as lawful by internal law.
 Article 12. Breach of an international obligation
o There is a breach of an international obligation by a State when an act of
that State is not in conformity with what is required of it by that obligation,
regardless of its origin or character.
 Attribution to the State
 The acts which can be attributed to the state may be acts of state organs, the
acts of other persons, or the acts of revolutionaries.
 Acts of state organs
o Article 4. Attribution to the State of the conduct of its organs
1. For the purposes of the present articles, the conduct of any State
organ acting in that capacity shall be considered an act of that State
under international law, whether the organ exercises legislative,
executive, judicial or any other functions, whatever position it holds in
the organization of the State, and whatever its character as an organ of
the central government or of a territorial unit of the State.
2. For the purposes of paragraph 1, an organ includes any person or
body which has that status in accordance with the internal law of the
State.
o Article 5. Attribution to the State of the conduct of entities exercising
elements of the governmental authority.
 The conduct of an entity which is not an organ of the State under
Article 4 but which is empowered by the law of that State to exercise
elements of the governmental authority shall be considered an act of
the State under international law, provided the entity was acting in that
capacity in the case in question.
o Article 6. Attribution to the State of conduct in fact carried out on its
instructions or under its direction or control.
DANA-ANDREI Notes
 The conduct of a person or group of persons shall be considered an
act of the State under international law if the person or group of
persons was in fact acting on the instructions of, or under the direction
or control of, that State in carrying out the conduct.
o Article 7. Attribution to the State of certain conduct carried out in the
absence of the official authorities
 The conduct of a person or group of persons shall be considered an
act of the State under international law if the person or group of
persons was in fact exercising elements of the governmental authority
in the absence or default of the official authorities and in circumstances
such as to call for the exercise of those elements of authority.
o Article 8. Attribution to the State of the conduct of organs placed at its
disposal by another State
 The conduct of an organ placed at the disposal of a State by another
State shall be considered an act of the former State under international
law if the organ was acting in the exercise of elements of the
governmental authority of the State at whose disposal it had been
placed.
o Article 9. Attribution to the State of the conduct of organs acting outside their
authority or contrary to instructions.
 The conduct of an organ of a State or of an entity empowered to
exercise elements of the governmental authority, such organ or entity
having acted in that capacity, shall be considered an act of the State
under international law even if, in the particular case, the organ or
entity exceeded its authority or contravened instructions concerning its
exercise.
o CAIRE CLAIM France v. Mexico (1929)
 Caire, a French national, was killed in Mexico by Mexican soldiers after
they had demanded money from him.
 the perpetrators of the murder of MJ.B. Caire were military personnel
occupying the ranks of “mayor” and “capitan primero” aided by a few
privates.
 The officers in question, whatever their previous record, consistently
conducted themselves as officers in the brigade of the Villista general,
Tomas Urbina; in this capacity they began by exacting the remittance
of certain sums of money; they continued by having the victim taken to
a barracks of the occupying troops; and it was clearly because of the
refusal of M. Caire to meet their repeated demands that they finally
shot him.
 Under these circumstances, there remains no doubt that, even if they
are to be regarded as having acted outside their competence, which is
by no means certain, and even if their superior officers issued a
counter-order, these two officers have involved the responsibility of the
State, in view of the fact that they acted in their capacity of officers and
used the means placed at their disposition by virtue of that capacity.
 It is generally agreed, that acts committed by the officials and agent of
a State entail the international responsibility of that State, even if the
perpetrator did not have specific authorization.
o CORFU CHANNEL CASE UK v. Albania
 two British cruisers and two destroyers entered the North Corfu Strait.
 One of the destroyers, the Saumarez, when off Saranda, struck a mine
and was gravely damaged. The other destroyer, the Volage, was sent
to her assistance and, while towing her, struck another mine and was
also seriously damaged. Forty-five British officers and sailors lost their
lives, and forty-two others were wounded.
Page | 29
  The United Kingdom Government had protested, stating that innocent
passage through straits is a right recognized by international law; the
 Albanian Government had replied that foreign warships and merchant
vessels had no right to pass through Albanian territorial waters without
prior authorization;
 The two Parties concluded a Special Agreement asking the Court to
give judgment on the following questions:
 1. Is Albania responsible for the explosions, and is there a duty to pay
compensation?
 2. Has the United Kingdom violated international law by the acts of its
Navy in Albanian waters
 the Court draws the conclusion that the laying of the minefield could
not have been accomplished without the knowledge of Albania. As
regards the obligations resulting for her from this knowledge, they are
not disputed. It was her duty to notify shipping and especially to warn
the ships proceeding through the Strait on October 22nd of the danger
to which they were exposed. In fact, nothing was attempted by Albania
to prevent the disaster, and these grave omissions involve her
international responsibility.
o NICARAGUA V. US [1986]
 The Court examines the allegations of Nicaragua that the mining of
Nicaraguan ports or waters was carried out by United States military
personnel or persons of the nationality of Latin American countries in
the pay of the United States.
 After examining the facts, the Court finds that, the President of the
United States authorized a United States Government agency to lay
mines in Nicaraguan ports; that neither before the laying of the mines,
nor subsequently, did the United States Government issue any public
and official warning to international shipping of the existence and
location of the mines; and that personal and material injury was caused
by the explosion of the mines, which also created risks causing a rise
in marine insurance rates.
 Nicaragua attributes to the direct action of United States personnel, or
persons in its pay, operations against oil installations, a naval base,
etc.,.
 The Court finds all these incidents, except three, to be established.
Although it is not proved that any United States military personnel took
a direct part in the operations, United States agents participated in the
planning, direction and support. The imputability to the United States of
these attacks appears therefore to the Court to be established.
 Nicaragua complains of infringement of its air space by United States
military aircraft. After indicating the evidence available, the Court finds
that the only violations of Nicaraguan air space imputable to the United
States on the basis of the evidence are high altitude reconnaissance
flights and low altitude flights causing “sonic booms.” With regard to
joint military manoeuvres with Honduras carried out by the United
States on Honduran territory near the Honduras/Nicaragua frontier, the
Court considers that they may be treated as public knowledge and thus
sufficiently established.
 According to Nicaragua, the United States “conceived, created and
organized a mercenary army, the contra force.” On the basis of the
available information, the Court is not able to satisfy itself that the
Respondent State “created” the contra force in Nicaragua, but holds it
established that it largely financed, trained, equipped, armed and
organized the FDN, one element of the force.
DANA-ANDREI Notes
 It is claimed by Nicaragua that the United States Government devised
the strategy and directed the tactics of the contra force, and provided
direct combat support for its military operations. In the light of the
evidence and material available to it, the Court is not satisfied that all
the operations launched by the contra force, at every stage of the
conflict, reflected strategy and tactics solely devised by the United
States. It therefore cannot uphold the contention of Nicaragua on this
point. The Court however finds it clear that a number of operations
were decided and planned, if not actually by the United States
advisers, then at least in close collaboration with them, and on the
basis of the intelligence and logistic support which the United States
was able to offer. It is also established in the Court’s view that the
support of the United States for the activities of the contras took
various forms over the years, such as logistic support the supply of
information on the location and movements of the Sandinista troops,
the use of sophisticated methods of communication, etc. The evidence
does not however warrant a finding that the United States gave direct
combat support, if that is taken to mean direct intervention by United
States combat forces.
 The Court has to determine whether the relationship of the contras to
the United States Government was such that it would be right to
equate the contras, for legal purposes, with an organ of the United
States Government, or as acting on behalf of that Government. The
Court considers that the evidence available to it is insufficient to
demonstrate the total dependence of the contras on United States aid.
A partial dependency, the exact extent of which the Court cannot
establish, may be inferred from the fact that the leaders were selected
by the United States, and from other factors such as the organization,
training and equipping of the force, planning of operations, the
choosing of targets and the operational support provided. There is no
clear evidence that the United States actually exercised such a degree
of control as to justify treating the contras as acting on its behalf.
 Having reached the above conclusion, the Court takes the view that
the contras remain responsible for their acts, in particular the alleged
violations by them of humanitarian law. For the United States to be
legally responsible, it would have to be proved that that State had
effective control of the operations in the course of which the alleged
violations were committed.
 Acts of Other Persons
o Article 7
 The conduct of a person or group of persons shall be considered an
act of the State under international law if the person or group of
persons was in fact exercising elements of the governmental authority
in the absence or default of the official authorities and in circumstances
such as to call for the exercise of those elements of authority.
o Article 8
 The conduct of an organ placed at the disposal of a State by another
State shall be considered an act of the former State under international
law if the organ was acting in the exercise of elements of the
governmental authority of the State at whose disposal it had been
placed.
o UNITED STATES V. IRAN
 In its Judgment in the case concerning United States Diplomatic and
Consular Staff in Tehran, the Court decided (1) that Iran has violated
and is skill violating obligations owed by it to the United States; (2) that
these violations engage Iran’s responsibility; (3) that the Government
Page | 30
 of Iran must immediately release the United States nationals held as
hostages and place the premises of the Embassy in the hands of the
protecting power; (4) that no member of the United States diplomatic or
consular staff may be kept in Iran to be subjected to any form of
judicial proceedings or to participate in them as a witness; (5) that Iran
is under an obligation to make reparation for the injury caused to the
United States, and (6) that the form and amount of such reparation,
failing agreement between the parties, shall be settled by the Court.
 Acts of Revolutionaries
o Article 10. Conduct of an insurrectional or other movement
1. The conduct of an insurrectional movement, which becomes the new
government of a State, shall be considered an act of that State under
international law.
2. The conduct of a movement, insurrectional or other, which succeeds in
establishing a new State in part of the territory of a pre-existing State
or in a territory under its administration shall be considered an act of
the new State under international law.
3. This article is without prejudice to the attribution to a State of any
conduct, however related to that of the movement concerned, which is
to be considered an act of that State by virtue of articles 4 to 9.
o HOME MISSIONARY SOCIETY CLAIM UJS. v. Great Britain (1920)
 In 1898, the collection of a tax newly imposed [by Great Britain] on the
natives of the Protectorate [of Sierra Leone] and known as the “hut tax”
was the signal for a serious and widespread revolt in the Ronietta
district. The revolt broke out on April 27 and lasted for several days....
 In the course of the rebellion all [the claimant’s]... Missions were
attacked, and either destroyed or damaged, and some of the
missionaries were murdered....
 The contention of the United States Government before this Tribunal is
that the revolt was the result of the imposition and attempted collection
of the “hut tax”; that it was within the knowledge of the British
Government that this tax was the object of deep native resentment;
that in the face of the native danger the British Government wholly
failed to take proper steps for the maintenance of order and the
protection of life and property; that the loss of life and damage to
property was the result of this neglect and failure of duty, and therefore
that it is liable to pay compensation.
 Now, even assuming that the “hut tax” was the effective cause of the
native rebellion, it was in itself a fiscal measure in accordance not only
with general usage in colonial administration, but also with the usual
practice in African countries....
 It was a measure to which the British Government was perfectly
entitled to resort in the legitimate exercise of its sovereignty, if it was
required....
 It is well-established principle of international law that no government
can be held responsible for the act of rebellious bodies of men
committed in violation of its authority, where it is itself guilty of no
breach of good faith, or of no negligence in suppressing insurrection.
 The good faith of the British Government cannot be questioned, and as
to the conditions prevailing in the Protectorate there is no evidence to
support the contention that it failed in its duty to afford to adequate
protection for life and property. ... The Tribunal decides that this claim
must be dismissed.
DANA-ANDREI Notes
 SHORT v. IRAN
o Iran-U.S. Claims Tribunal The claimant, an American national, was
employed by Lockheed, an American company, in Iran. On February 8,
1979, three days before the Islamic Revolutionary Government took office,
the claimant was evacuated from Iran on company orders because of the
deteriorating situation. The claimant sought compensation for salary and
other losses resulting from his alleged expulsion contrary to international
law.
o 33. Where a revolution leads to the establishment of a new government the
State is held responsible for the acts of the overthrown government insofar
as the latter maintained control of the situation. The successor government
is also held responsible for the acts imputable to the revolutionary
movement which established it, even if those acts occurred prior to its
establishment, as a consequence of the continuity existing between the new
organization of the State and the organization of the revolutionary
movement.
o 34. The Claimant relies on acts committed by revolutionaries. ... He is
unable, however, to identify any agent of the revolutionary movement, the
actions of which compelled him to leave Iran. The acts of supporters of a
revolution [as opposed to its agents] cannot be attributed to the government
following the success of the revolution just as the acts of supporters of an
existing government are not attributable to the government. This was clearly
recalled by the International Court of Justice in United States Diplomatic and
Consular Staff in Tehran (
o 35. The Claimant.... [relies] on the declarations made by the leader of the
Revolution, Ayatollah Khomeini... While these statements are of anti-foreign
and in particular anti-American sentiments, the Tribunal notes that these
pronouncements were of a general nature and did not specify that
Americans should be expelled en masse.
o it cannot be said that the declarations referred to by the Claimant amounted
to an authorization to revolutionaries to act in such a way that the Claimant
should be forced to leave Iran forthwith. Nor is there any evidence that any
action prompted by such statements was the caused of the Claimant’s
decision to leave Iran. In these circumstances, the Tribunal is of the view
that the Claimant has failed to prove that his departure from Iran can be
imputed to the wrongful conduct of Iran. The claim is therefore dismissed.
 Preliminary Objections
o When brought before an international tribunal, the claim of denial of justice
may be lost due to failure to answer some preliminary objections. One
objection already seen is the lack of nationality link.
o Another is the failure to exhaust national remedies. The obvious purpose of
this rule is to protect international courts from being swamped with cases
which are better handled locally. However, this rule applies only to cases
founded on diplomatic protection or on injury to aliens. Where the case is
one involving a treaty that touches on state rights which should be resolved
on the international plain. Similarly, where a case involves a treaty which
establishes a Claims Commission, it immediately goes to the Commission.
 Reparation
o Article 31. Reparation
1. The responsible State is under an obligation to make full reparation for
the injury caused by the internationally wrongful act.
2. Injury consists of any damage, whether material or moral, arising in
consequence of the internationally wrongful act of a State.
o Article 32. Irrelevance of internal law The responsible State may not rely on
the provisions of its internal law as justification for failure to comply with its
obligations under this Part.
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  CHORZOW FACTORY CASE Germany v. Poland [1928] PCIJ that agreement that the question of compensation must henceforth be dealt
o [The case concerned the expropriation by Poland of a factory at Chorzow with as though an expropriation properly socalled was involved.
contrary, as the Court had held, to the Geneva Convention of 1922 between  Calvo Clause Rejected
Germany and Poland on Upper Silesia. In this judgment the Court ruled  In the past, there were attempts to limit the ability of a state to give diplomatic
upon a claim by Germany for an indemnity for the damage caused by the protection to its nationals. An example of this is the “Calvo clause, ” a provision in
illegal expropriation.] a contract to the effect that “under no condition shall the intervention of foreign
o The action of Poland which the Court has judged to be contrary to the diplomatic agents in any matter related to the contract” be resorted to. This was
Geneva Convention is not an expropriation — to render which lawful only rejected in North American Dredging Company Claim (1926) by the Mexico-
the payment of fair compensation would have been wanting; it is a seizure United States General Claims Commission. The right to seek redress is a
of property, rights and interests which could not be expropriated even sovereign prerogative of a state and a private individual has no right to waive the
against compensation, save under the exceptional conditions fixed by state’s right.
Article 7 of the said Convention....  Expropriation of Alien Property
o If follows that the compensation due to the German Government is not  Expropriation is the taking of property by the state. The property can be tangible
necessarily limited to the value of the undertaking at the moment of or intangible as in the case of valuable contractual rights.
dispossession, plus interest to the day of payment. This limitation would  Expropriation can be an international wrong if it is done contrary to the principles
only be admissible if the Polish Government had the right to expropriate, of international law. What are these principles?
and if its wrongful act consisted merely in not having paid to the two  The principles may be drawn from a 1962 UN General Assembly Resolution on
Companies the just price of what was expropriated; in the present case, the Sovereignty over Natural Resources which states, among others, that the
such a limitation might result in placing Germany and the interests protected expropriation “shall be based on grounds or reasons of public utility, security or
by the Geneva Convention, on behalf of which interests the German the national inters which are recognized as overriding purely individual or private
Government is acting, in a situation more unfavourable than that in which interests, both domestic and foreign. In such cases the owner shall be paid
Germany and these interest would have been if Poland had respected the appropriate compensation in accordance with the rules in force in the state taking
said Convention. Such a consequence would not only be unjust, but also such measures in the exercise of its sovereignty and in accordance with
and above all incompatible with the aim of Article 6 and following articles of international law.”
the Convention —  The rule thus recognizes the power of eminent domain as an inherent power of
o that is to say, the prohibition, in principle, of the liquidation of the property, sovereignty. The rule conforms with the constitutional principles of public use and
rights and interests of German nationals and of companies controlled by just compensation. But international case law on the subject, generally between
German nationals in Upper Silesia — since it would be tantamount to developed and developing countries, is not without disputations.
rendering lawful liquidation and unlawful dispossession indistinguishable in
so far as their financial results are concerned.
o The essential principle contained in the actual notion of an illegal act — a
principle which seems to be established by international practice and in
particular by the decisions of arbitral tribunals —
o is that reparation must, as far as possible, wipe out all the consequences of
the illegal act and re-establish the situation which would, in all probability,
have exited if that act had not been committed. Restitution in kind, or, if this
is not possible, payment of a sum corresponding to the value which a
restitution in kind would bear; the award, if need be, of damages for loss
sustained which would not be covered by restitution in kind or payment in
place of it —
o such are the principles which should serve to determine the amount of
compensation due for an act contrary to international law.
o This conclusion particularly applies as regards the Geneva Convention, the
object of which it to provide for the maintenance of economic life in Upper
Silesia on the basis of respect for the status quo. The dispossession of an
industrial undertaking — the expropriation of which is prohibited by the
Geneva Convention —
o then involves the obligation to restore the undertaking and, if this be not
possible, to pay its value at the time of the indemnification, which value is
designed to take the place of restitution which has become impossible. To
this obligation, in virtue of the general principles of international law, must
be added that of compensating loss sustained as the result of the seizure.
The impossibility, on which the Parties are agreed, of restoring the Chorzow
factory could therefore have no other effect but that of substituting payment
of the value of the undertaking for restitution; it would not be in conformity
either with the principles of law or with the wish of the Parties to infer from
Page | 32
DANA-ANDREI Notes
INTERNATIONAL HUMAN RIGHTS LAW
 From Alien Rights to Human Rights
 Birth of United Nations: all people became the subject of legislation
 Developing doctrine is antedated by the doctrines on humanitarian intervention,
state responsibility for injury to aliens, protection of minorities, League of Nation’s
Mandates and Minorities Systems, and international humanitarian law
 Human rights, in general terms, are those inalienable and fundamental rights
which are essential for life as human beings.
 There is a connection between human rights on the one hand and ethics
and morality on the other. A distinction can perhaps be made between what
are considered human rights precepts and the differing justification for the
existence of such precepts.
 3 generations of human rights
1. traditional civil and fundamental rights
2. social and economic rights
3. right to peace, clean environment, self-determination, common heritage of
mankind, development, minority rights
 Emerging International Bill of Human Rights
 What distinguishes post- World War II developments from earlier human
rights tradition is the:
o Growing acceptance of the view that the way nations treat people under
their jurisdiction is no longer just a domestic concern but also one that calls
for the attention of the international community.
o This view represents a chipping away at the old concept of sovereignty.
o It recognizes that individuals can be subjects of international law and that
they can find protection and remedies within the international community
against abuses by their own government.
 UN Charter on human rights
o Preamble
 faith in fundamental human rights, in the dignity and worth of the
human person, in the equal rights of men and women.
o Goal
 To achieve international co-operation in solving international problems
of an economic, social, cultural, or humanitarian character, and in
promoting and encouraging respect for human rights and for
fundamental freedoms for all without distinction as to race, sex,
language, or religion
o Obligations assumed by the Organization and its members
 Art. 55 …UN shall promote:
a) Higher standards of living, full employment, and conditions of
economic and social progress and development;
b) Solutions of international economic, social, health, and related
problems; and international cultural and educational cooperation;
and
c) Universal respect for, and observance of, human rights and
fundamental freedoms for all without distinction as to race, sex,
language, or religion
 Art. 56. All Members pledge themselves to take joint and separate
action in co-operation with the Organization for the achievement of the
purposes set forth in Article 55.
o there are here no definitions of human rights, there is no clear commitment
of Members to avoid violations, and there is set down no instrument for the
correction or vindication of violations of human rights that might occur.
 Nothing contained in the present Charter shall authorize the United
Nations to intervene in matters which are essentially within the
DANA-ANDREI Notes
domestic jurisdiction of any state or shall require the Members to
submit such matters to settlement under the present Charter…
o Charter itself recognized the inadequacy of the document; hence, through
Article 62(2) it authorized the UN Social and Economic Council (ECOSOC)
to “make recommendations for the purpose of promoting respect for, and
the observance of, human rights and fundamental freedoms for all” and
commanded it, through Article 68, largely through the intervention of
American non-governmental organizations, to “set up commissions in
economic and social fields and for the promotion of human rights.”
 Universal Declaration
o was adopted and proclaimed by the General Assembly on December 10,
1948.
o It was, however, not seen as law but only as a common standard for nations
to attempt to reach.
o Its authority was primarily moral and political.
o It would take another eighteen years before the United Nations could
convert the aspirations of the Declaration into conventional international
law embodied in the International Covenant on Civil and Political Rights, the
International Covenant on Economic, Social and Cultural Rights and the
Optional Protocol to the Covenant on Civil and Political Rights.
 Distinction between mere declaration and a covenant
o A declaration by contrast admits the presumption that something less than
full effectiveness in terms of law is intended.
o A covenant leaves no doubt about the legal nature of the provisions it
contains, whereas a declaration is often deemed to enunciate moral rules
only. Moreover, the vinculum juris created by a covenant generally absent
from a declaration, places a duty on the contracting parties to bring their
laws and practices into accord with the accepted international obligations
and not to introduce new laws or practices which would be at variance with
such obligations.
 The Covenant on Civil and Political Rights
 Life, liberty and property, and equality.
o On the right to life, the Covenant’s Article 6(2) expresses a bias for the
abolition of the death penalty and allows its imposition, in countries which
still have a death penalty, only after conviction for the most serious crimes
o In Article 6(6) it says: “Nothing in this article shall be invoked to delay or to
prevent the abolition of capital punishment by any State Party to the present
Covenant.”
o Article 9(5) says: “Anyone who has been a victim of unlawful arrest or
detention shall have an enforceable right to compensation,” and Article
14(6) says that a person who has been a victim of miscarriage of justice
“shall be compensated according to law, unless it is proved that the non-
disclosure of the unknown fact in time is wholly or partly attributable to him.
 Torture, ill-treatment and prison conditions
o The Covenant’s proscription of torture and other forms of ill- treatment that
offend not only against bodily integrity but also against personal dignity and
the requirement of humane prison conditions are found in Articles 7 and 10.
 Freedom of Movement
o 3 rights enumerated in Art. 12(3)
a. right to travel within the country
b. right to leave the country and
c. right to change one’s residence
 limitations: those which are provided by law, are necessary to protect
national security, public order, public health or morals or the rights and
freedoms of others, and are consistent with the other rights in the
present Covenant.”
Page | 33
 o Unlike the Philippine provision, which speaks only of the right to travel, the
Covenant in Article 12(4) separates the right to return to one’s country from
the right to leave one’s country. The limit to the right to return to one’s
country in the Covenant is implied in the word “arbitrarily:” “No one shall be
arbitrarily deprived of the right to enter his own country.”
o right of aliens not to be expelled without due process from a territory.
o CASE OF MARCOS
 The Philippine Supreme Court, however, in the case on the return of
Ferdinand Marcos after his involuntary exile, arrived at a different
conclusion.
 The Court argued that since the Declaration of Human Rights and the
Covenant on Human Rights separate the right to leave the country
from the right to return to ones country, the two rights are distinct and
the right to return to ones country is not guaranteed by the specific
guarantees for the right to travel and liberty of abode and that therefore
President Marcos could not appeal to Section 6 of the Bill of Rights.
The vote, however, was a reluctant and embarrassed 8 to 7, and the
decision was prefaced thus: This case is unique. It should not create a
precedent, for the case of a dictator forced out of office and into exile
after causing twenty years of political, economic and social havoc in
the country and who within the short space of three years seeks to
return, is in a class by itself.
 Legal personality, privacy and the family
o Right to be recognized as a person before the law is guaranteed in Article
16 of the Covenant.
o Legal personality vs. capacity to act
 Legal personality belongs to all, whether citizens or aliens;
 Capacity to act may not be available to some by reason, for instance of
infancy, minority, or insanity.
o when does one become a person? The Covenant does not say. The
Philippine Constitution protects “the life of the unborn from conception
 Thought, conscience, religion, expression and political freedoms
o Article 18 of the Covenant guarantees “freedom of thought, conscience, and
religion.”
 Limits: “to protect public safety, order, health, or morals or the
fundamental rights of others”
o The Covenant contains explicit protection of the right of parents in the
matter of religion for their children.
o Article 19 of the Covenant guarantees freedom of expression and Article 21
protects the right of assembly and petition. They do not go beyond our
Constitution’s own guarantees on the same subject. However, the
Covenant’s Article 20 which prohibits “propaganda for war” can come into
conflict with our Constitution’s freedom of expression.
 Associations and unions
o Article 22 of the Covenant has a detailed set of provisions protecting the
right to form associations and unions. The Covenant is silent about the right
of government employees to form unions; the Constitution is explicit in the
assertion of the right.
 Minorities
o Article 27 guarantees “ethnic, religious or linguistic minorities” the right “to
enjoy their own culture, to profess and practice their own religion, or to use
their own language.”
o The concern for minorities has a two-fold aspect.
a. The first is the fear of “a secessionist movement by minorities,
threatening territorial integrity of the state, or about the danger of
DANA-ANDREI Notes
interference by other states with which the minorities are connected by
ties of race, national origin, language, or religion.”
b. The second is a genuine “concern for the human rights of minorities”
and the desire “that minorities will flourish so as to preserve that
diversity of the human race, which, since the beginning of mankind,
has provided a motive power for the development of civilization and
culture by weaving many strands into a single multi-colored tapestry.”
 Self-determination of peoples
o Self-determination covers two important rights:
a. right “freely to determine their political status and freely pursue their
economic, social and cultural development
b. right “for their own ends, to freely dispose of the natural wealth and
resources without prejudice to any obligations arising out of
international cooperation, based upon the principle of mutual benefit,
and international law.”
o Since the adoption of the Covenant, there have been at least two significant
developments.
 On December 14, 1960, the General Assembly adopted the
Declaration on the Granting of Independence to Colonial Countries and
Peoples,
 On December 14,1962, it adopted the Resolution on Permanent
Sovereignty over Natural Resources.
o Who are “peoples” within the meaning of the Covenant?
 “peoples” include those ruled by colonial powers; but under present
circumstances this is now of limited significance. “Peoples” also mean
those who form a component part of a multinational state
o Self-determination has an internal and an external aspect.
 internal right of self determination consists of the elements
enumerated in the first two paragraphs of Article 1: the right “freely to
determine their political status and freely pursue their economic, social
and cultural development” and the right, “for their own ends, [to] freely
dispose of the natural wealth and resources without prejudice to any
obligations arising out of international cooperation, based upon the
principle of mutual benefit, and international law.” These also
necessarily include the other related political rights.
 external right of self-determination belongs to colonies and to those
enumerated in the third paragraph: “non-self-governing and Trust
Territories.”
 Optional Protocol on the Covenant on Civil and Political Rights
 This separate treaty is designed to enable private parties who are victims of
human rights violations. But complaints may be filed only against states which
have ratified the Protocol.
 An eighteen-member Human Rights Committee created by the Covenant
receives and handles the complaints
 The Covenant on Economic, Social and Cultural Rights
 The Covenant on Civil and Political Rights and the Covenant on Economic and
Social and Cultural Rights were adopted on the same day. But why two separate
documents?
o The reasons for the division are both ideological and practical. Ideologically,
the contest was between Western countries on the one hand and socialist
and Third World countries on the other. The American delegation, for
instance, argued that its government would find difficulty in accepting a
treaty containing economic and cultural rights beyond those guaranteed by
the Constitution. For the socialist and Third World countries, on the other
hand, the absence of economic, social and cultural guarantees could render
civil and political guarantees meaningless. On the practical level, however, it
Page | 34
 became obvious that implementing civil and political guarantees, the
classical “Thou shalt nots” of the Western tradition, could be done
immediately; whereas the implementation of economic, social and cultural
rights could only be done gradually and dependently on development
conditions. In the end, the decision to divide, which would at least assure
approval of a document on civil and political rights, prevailed. But
significantly, Article 1 of both Covenants say exactly the same thing about
the right of self-determination of people. Moreover, there are substantial
overlappings on other subjects of the Covenants.
 rights specific to the Covenant on Economic, Social and Cultural Rights are
social welfare rights includes: the right to work(Article 6), to favorable conditions
of work (Article 7), to form free trade unions (Articles 8), to social security and
insurance (Article 9), to special assistance for families (Article 10), to adequate
standard of living (Article 11), to the highest standard of physical and mental
health (Article 12), to education including compulsory primary education (Articles
13 and 14), and to the enjoyment of cultural and scientific benefits and
international contacts (Article 15).
 The Duty to Implement
 The Philippines is a party not only to the United Nations Charter and the
Universal Declaration of Human Rights but also to the two Covenants as well as
to the Optional Protocol to the Covenant on Civil and Political Rights. The nation
is therefore bound, both internally and in its foreign relations, “to bring [its] laws
and practices into accord with the accepted international obligations and not to
introduce new laws or practices which would be at variance with such
obligations.”
 Article 2 of the Covenant on Civil and Political Rights says:
1. Each State Party to this present Covenant undertakes to respect and to
ensure to all individuals within its territory and subject to its jurisdiction the
rights recognized in the present Covenant, without distinction of any kind,
such as race, colour, sex, language, religious, political or other opinion,
national or social origin, property, birth or other status.
2. Where not already provided for by existing legislative or other measure,
each State 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 legislative or other
measures as may be necessary to give effect recognized in the present
Covenant.
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein
recognized are violated shall have an effective remedy, notwithstanding that
the violation has been committed by any person acting in an official
capacity;
(b) To ensure that any person claiming such a remedy shall have his right
thereto determined by competent judicial, administrative or legislative
authorities, or by any other competent authority provided for by the legal
system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies
when granted.
 The self-executing provisions of the Covenants therefore must be implemented in
domestic law. Those which are not self-executing must be attended to by
“necessary steps, in accordance with its constitutional processes and with the
provisions of the present Covenant.” This may be either by legislative or by
executive measures.
 principle of “progressive realization” – a state is obligated to undertake a
program of activities . . . and to realize those rights which are ‘recognized’ by the
Economic Covenant. While the obligation of progressive realization is limited by
DANA-ANDREI Notes
resource constraints, the Economic Covenant indicates that priority should be
given to social welfare and that the level of effort should increase over time.
These obligations apply to any state that has ratified the Economic Covenant,
regardless of that state’s economic resources.
 Other Conventions on Human Rights
 1948 Genocide Convention
 1966 Convention on the Elimination of All Forms of Racial Discrimination
 1979 Convention on the Elimination of All Forms of Discrimination Against
Women
 1984 Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment,
 1989 Convention on the Rights of the Child
 1990 Convention on Migrants Workers.
 Customary human rights law
 some human rights principles have become customary law in the light of state
practice. This would include the prohibition of torture, genocide, slavery and the
prohibition of discrimination.
 International Implementation of Human Rights Law
 An important UN body is the Human Rights Commission, a subsidiary organ of
ECOSOC.
 There are two different procedures used:
1. The 1503 procedure or confidential procedure
 authorizes the Sub-Commission on Prevention of Discrimination and
Protection of Minorities to appoint a working group consisting of not
more than five members to meet once a year in private meetings to
consider all communications, including replies of the governments
concerned, with a view to bringing to the attention of the Sub-
Commission those communications which appear to reveal a pattern of
gross and reliably attested violations of human rights. The confidential
findings of the Sub-Commission are brought to the attention of the
Commission on Human rights. The Commission on Human Rights in
turn is expected to submit its report and recommendation to the
Economic and Social Council. The procedure is kept confidential until
such time as the Commission on Human Rights decides to make
recommendation to the ECOSOC.
 Although the procedure is kept confidential, findings invariably find
their way into media. Reports have touched such countries as
Uruguay, Argentina, the Philippines and other countries.
2. The 1235 procedure (public debate)
 authorized the Commission and its Subsidiary Commission on
Prevention of Discrimination and Protection of Minorities to examine
reports relevant to gross violations of human rights and to examine
whether the violations revealed a consistent pattern and thereafter
make recommendations to ECOSOC.
 The procedure carries out two types of activities.
1. First, it holds annual public debates in which governments and NGOs are
given the opportunity to identify publicly country specific situations which
deserve attention.
2. Second, it engages in studies and investigations of particular situations
through the use of various techniques the Commission might deem
appropriate.
 The International Criminal Court
 earlier tribunals were undermined and weakened by the charges of politically
motivated investigations and selective justice. Unlike the temporary tribunals, the
new court will has been established without any specific country in mind. Thus,
Page | 35
 besides enjoying permanency, it will begin with the virtue of neutrality so
necessary for fairness.
 The goal of the court, moreover, is to demand individual and not collective
accountability. It will therefore shift the stigma of guilt away from the collectivity
and will thereby help facilitate reconciliation by avoiding condemnation of entire
societies.
 How will the court work? It will not function as an all purpose court. Its jurisdiction
will be limited to the most serious international crimes: genocide, crimes against
humanity, war crimes, and the crime of aggression. These crimes are carefully
defined in the treaty.
 An important feature of the court is the principle of complementarity. The court is
meant to be a court of last resort. It normally must await referral of a crime either
by a state party or by the Security Council. The court is not allowed to act when
the local judicial system is able and willing to prosecute. Once a state has taken
the initiative to investigate a crime, even if it ultimately decides that there is no
reason to proceed, the international court cannot intervene. The international
court is not intended to supplant the functioning of military and civilian tribunals in
national judicial systems. However, if a state intentionally tries to avoid its
international obligation by shielding a criminal from responsibility, the court may
come in.

Page | 36
DANA-ANDREI Notes
PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES
 International “dispute”
 a technical term which means “a disagreement on a point of law or fact, a conflict
of legal views or interests between two persons.
 A disagreement does not amount to a dispute if its resolution would have no
practical effect on the relationship between the parties.
 There is no general obligation to settle disputes, except perhaps those which
according to Article 33, might endanger peace and security. But if a decision is
made to settle disputes, the obligation is to settle them by peaceful means.
 Peaceful methods of settling disputes
 Article 33.
1. The parties to any dispute, the continuance of which is likely to endanger
the maintenance of international peace and security, shall, first of all, seek a
solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial
settlement, resort to regional agencies or arrangements, or other peaceful
means of their own choice.
2. The Security Council shall, when it deems necessary, call upon the parties
to settle their dispute by such means.
 Article 36
1. The Security Council may, at any stage of a dispute of the nature referred to
in Article 33 or of a situation of like nature, recommend appropriate
procedures or methods of adjustment.
2. The Security Council should take into consideration any procedures for the
settlement of the dispute which have already been adopted by the parties.
3. In making recommendations under this Article the Security Council should
also take into consideration that legal disputes should as a general rule be
referred by the parties to the International Court of Justice in accordance
with the provisions of the Statute of the Court.
 Article 37
1. Should the parties to a dispute of the nature referred to in Article 33 fail to
settle it by the means indicated in that Article, they shall refer it to the
Security Council.
2. If the Security Council deems that the continuance of the dispute is in fact
likely to endanger the maintenance of international peace and security, it
shall decide whether to take action under Article 36 or to recommend such
terms of settlement as it may consider appropriate.
 Article 38
Without prejudice to the provisions of Articles 33 to 37, the Security Council may,
if all the parties to any dispute so request, make recommendations to the parties
with a view to a pacific settlement of the dispute.
 Classification of peaceful means of settling disputes mentioned in the
Charter
1. non-judicial methods [negotiation, enquiry, mediation, conciliation];
2. quasi-judicial method [arbitration]; and
3. judicial method. Another way of classifying them is into diplomatic and
judicial methods.
 Non-judicial or diplomatic methods
 Negotiation
o There are no set rules for negotiation. It may take place at arm’s length or
face to face. But for a negotiated settlement to be legally binding, the parties
must agree to it. The agreement to negotiate may be formalized in a treaty
or in a simple exchange of notes.
o A preliminary step to negotiation might be “good offices" when a neutral
third party tries to bring two disputants together. Having been brought
together, the usual first step, often required before judicial settlement, is
DANA-ANDREI Notes
negotiation. It may be carried out by diplomatic correspondence, face-to-
face dialogue between permanent envoys or by designated negotiators.
Essentially, negotiation is a give and-take process of looking for a win-win
solution.
 Mediation
o Mediation involves assistance by third parties who either act as bridge
between parties, who do not meet, or who may sit with the disputants to
chair meetings, suggest solutions, cajole, etc. The mediator must be
approved by both parties.
 Inquiry
o Inquiry is fact-finding done by a designated group of individuals or an
institution. When undertaken with the consent of the parties, it frequently
resolves disputes based solely on questions of fact.
 Conciliation
o Conciliation is a more formal technique whereby the parties agree to refer
controversies to an individual, a group of individuals or an institution to
make findings of fact and recommendations. As a rule, parties do not agree
to be bound by recommendations. But this clears the air.
 Quasi-judicial Method
 Arbitration
o Arbitration is the binding settlement of a dispute on the basis of law by a
non-permanent body designated by the parties. The composition, the
jurisdiction and the rules of procedure to be applied are agreed upon by the
parties in a compromis d’arbitrage. States cannot be required to submit to
arbitration unless there is a previous agreement making arbitration
compulsory.
o What mainly distinguishes arbitration from judicial settlement is that parties
have a greater say in deciding, for instance, the law to be applied and the
composition of the arbitral tribunal. The process thereby becomes more
flexible.
o three types of arbitral agreements
1. an arbitration clause that is incorporated as part of a treaty. This is
commonly found in commercial treaties.
2. treaties whose sole function is to establish methods for the arbitration
of disputes. E.g., The Hague Convention for the Pacific Settlement of
Disputes.
3. ad-hoc arbitral agreements. E.g., the agreement for the settlement of
claims between the US and Iran (1981).
 Arbitral decisions
o Arbitral tribunals apply international law unless the parties specify that some
other law should be applied.
o Under certain circumstances, arbitral decisions may be challenged.
The four most commonly accepted bases are:
1. that the arbitral body exceeded its powers;
2. that there was corruption on the part of a member of the body;
3. that there was failure to state the reasons for the awards or a serious
departure from a fundamental rule of procedure;
4. that the undertaking to arbitrate or the compromis is a nullity.
o Domestic courts, however, may refuse to give recognition to awards given
by foreign arbitral tribunals under grounds found in the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards which says:
1. a court in a state party to the Convention may deny recognition or
enforcement to a foreign arbitral award if:
a) the agreement to arbitrate was not valid under applicable law;
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 b) the party against which the award was rendered did not receive
proper notice of the proceedings or was otherwise not afforded an
opportunity to present its case;
c) the award deals with matters outside the terms of the agreement
to arbitrate;
d) the constitution of the arbitral tribunal or the arbitral procedure
was contrary to the agreement of the parties or to the law of the
state where the arbitration took place; or
e) the award has not yet become binding on the parties, or has been
suspended or set aside by a competent court in the state where it
was made.
2. A court of a state party to the Convention may also deny recognition or
enforcement to a foreign arbitral award that meets the requirements of
§ 487 if, under the law of that state:
a) the subject matter of the controversy is not capable of settlement
by arbitration; or
b) recognition or enforcement would be contrary to public policy.
 Judicial method: the International Court of Justice (ICJ)
 All members of the UN are ipso facto parties to the Statute of the International
Court of Justice. Only states may be parties in the court.
 states cannot be compelled to submit disputes to international adjudication
unless they have consented to it either before a dispute has arisen or thereafter.
States are also free to limit their acceptance to certain types of disputes and to
attach various conditions or reservations to their acceptance.
 Composition of the Court
 Article 2.
The Court shall be composed of a body of independent judges, elected
regardless of their nationality from among persons of high moral character, who
possess the qualifications required in their respective countries for appointment
to the highest judicial offices, or are jurisconsults of recognized competence in
international law.
 Article 3.
1. The Court shall consist of fifteen members, no two of whom may be
nationals of the same state.
2. A person who for the purposes of membership in the Court could be
regarded as a national of more than one state shall be deemed to be a
national of the one in which he ordinarily exercises civil and political rights.
 Article 26.
1. The Court may from time to time form one or more chambers, composed of
three or more judges as the Court may determine, for dealing with particular
categories of cases; for example, labour cases and cases relating to transit
and communications.
2. The Court may at any time form a chamber for dealing with a particular
case. The number of judges to constitute such a chamber shall be
determined by the Court with the approval of the parties.
3. Cases shall be heard and determined by the chambers provided for in this
article if the parties so request.
 Article 27.
A judgment given by any of the chambers provided for in Articles 26 and 29 shall
be considered as rendered by the Court.
 Article 31.
1. Judges of the nationality of each of the parties shall retain their right to sit in
the case before the Court.
2. If the Court includes upon the Bench a judge of the nationality of one of the
parties, any other party may choose a person to sit as judge. Such person
DANA-ANDREI Notes
shall be chosen preferably from among those persons who have been
nominated as candidates as provided in Articles 4 and 5.
3. If the Court includes upon the Bench no judge of the nationality of the
parties, each of these parties may proceed to choose a judge as provided in
paragraph 2 of this Article.
4. The provisions of this Article shall apply to the case of Articles 26 and 29. In
such cases, the President shall request one or, if necessary, two of the
members of the Court forming the chamber to give place to the members of
the Court of the nationality of the parties concerned, and, failing such, or if
they are unable to be present, to the judges specially chosen by the parties.
5. Should there be several parties in the same interest, they shall, for the
purpose of the preceding provisions, be reckoned as one party only. Any
doubt upon this point shall be settled by the decision of the Court.
6. Judges chosen as laid down in paragraphs 2, 3, and 4 of this Article shall
fulfill the conditions required by Articles 2, 17 (paragraph 2), 20, and 24 of
the present Statute. They shall take part in the decision on terms of
complete equality with their colleagues.
 Jurisdiction of the ICJ: Contentious jurisdiction
 The Court exercises two types of jurisdiction:
1. contentious jurisdiction
2. advisory jurisdiction.
 Article 36.
1. The jurisdiction of the Court comprises all cases which the parties refer to it
and all matters specially provided for in the Charter of the United Nations or
in treaties and conventions in force.
2. The states parties to the present Statute may at any time declare that they
recognize as compulsory ipso facto and without special agreement, in
relation to any other state accepting the same obligation, the jurisdiction of
the Court in all legal disputes concerning:
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact which, if established, would constitute a breach
of an international obligation;
d. the nature or extent of the reparation to be made for the breach of an
international obligation.
3. The declarations referred to above may be made unconditionally or on
condition of reciprocity on the part of several or certain states, or for a
certain time.
4. Such declarations shall be deposited with the Secretary- General of the
United Nations, who shall transmit copies thereof to the parties to the
Statute and to the Registrar of the Court.
5. Declarations made under Article 36 of the Statute of the Permanent Court of
International Justice and which are still in force shall be deemed, as
between the parties to the present Statute, to be acceptances of the
compulsory jurisdiction of the International Court of Justice for the period
which they still have to run and in accordance with their terms.
6. In the event of a dispute as to whether the Court has jurisdiction, the matter
shall be settled by the decision of the Court.
 jurisdiction of the ICJ is applicable only to disputes between states and disputes
are settled by international law and not by domestic law. But the Court has
jurisdiction only when a case is referred to it by the parties.
 There are three ways through which states may accept jurisdiction of the court.
1. on an ad hoc basis. This can happen when one party applies unilaterally to
the Court and this application is followed by consent by the other state.
2. when parties adhere to a treaty which accepts the jurisdiction of the court on
matters of interpretation or application of the treaty.
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 3. acceptance of jurisdiction can take place by a unilateral declaration that
recognition of jurisdiction in relation to any other state accepting the same
jurisdiction in all legal disputes. This last creates the optional system of
submitting to the jurisdiction of the Court.
 The optional system is operative only for states that “at any time declare that they
recognize as compulsory ipso facto and without special agreement
 Aerial Incidence Case
o The U.S. acceded to the optional clause, thereby accepting the compulsory
jurisdiction of the ICJ, in August 1946. During the ratification process for that
accession, however, Senator Connally added a critical phrase to a U.S.
reservation including “disputes with regard to matters which are essentially
within the domestic jurisdiction of the United States of America as
determined by the United States of America.”
o El Al Israel airliner was driven off course by strong winds in very bad
weather. The plane innocently crossed over into Bulgarian air space. While
trying to return to its authorized course, the plane was shot down by
Bulgarian military fighter planes. All fifty-one passengers and seven crew
members aboard were killed, including six American nationals.
o Investigators argued that the Bulgarian military failed to take actions
required by international civil aviation agreements involving appropriate
interception and identification of intruding aircraft.
o The case was first brought to the ICJ by Israel.
o the Court ruled that it did not have jurisdiction on the grounds that Bulgaria’s
acceptance of the optional clause in the Statute of the Permanent Court of
International Justice (the PCU, precursor to the ICJ) did not carry over to
acceptance of the optional clause for the ICJ when Bulgaria joined the UN in
December 1955, since Bulgaria had not been an original party to the UN
Charter and the Statute of the ICJ.
o U.S. applied to the ICJ for action against Bulgaria based on the violations of
international law and the injuries to U.S. nationals.
o On the grounds of reciprocity and the consensual basis of ICJ jurisdiction,
Bulgaria invoked the Connally Amendment reservation exempting from ICJ
jurisdiction matters within its internal competence. Bulgaria contended that
its airspace security and antiaircraft defenses were within its domestic
jurisdiction. The Bulgarian government argued further that it “cannot admit
that matters which it rightfully determines as being essentially within its
domestic jurisdiction should be considered, directly or indirectly, before the
Court. It requests, accordingly, that the Court declare itself without
competence to adjudicate upon the application of the Government of the
United States.”
o The United States withdrew its application from the Court’s consideration.
On May 30,1960, just one day before oral hearings were to begin, the Court
formally accepted that withdrawal, ending the dispute.
 Nicaragua v. US
o On 14 August 1946, the United States made an Optional Clause Declaration
with a reservation which said that:
“this declaration shall remain in force for a period of five years and
thereafter until the expiration of six months after notice may be given to
terminate this declaration.”
o On 6 April 1984, when it became clear that its dispute with Nicaragua would
be placed before the Court, the Government of the United States deposited
with the Secretary-General of the United Nations a notification signed by the
Secretary of State, Mr. George Shultz (hereinafter referred to as “the 1984
notification”), referring to the declaration of 1946, and stating that:
“the aforesaid declaration shall not apply to disputes with any Central
American State or arising out of or related to events in Central America, any
DANA-ANDREI Notes
of which disputes shall be settled in such manner as the parties to them
may agree.
“Notwithstanding the terms of the aforesaid declaration, this proviso shall
take effect immediately and shall remain in force for two years, so as to
foster the continuing regional dispute settlement process which seeks a
negotiated solution to the interrelated political, economic and security
problems of Central America.”
o In order to be able to rely upon the United States declaration of 1946 to
found jurisdiction in the present case, Nicaragua has to show that it was a
“State accepting the same obligation” as the United States within the
meaning of Article 36, paragraph 2, of the Statute. The Court found
Nicaragua that it was a state accepting the same obligation but on the basis
of a declaration it made under the Statute of the Permanent Court of
International Justice. [Arguments towards this conclusion omitted.]
o Finding: the Court therefore finds that the Nicaraguan declaration of 1929 is
valid and that Nicaragua accordingly was, for the purposes of Article 36,
paragraph 2, of the Statute of the Court, a “State accepting the same
obligation” as the United States at the date of filing of the Application and
could therefore rely on the United States declaration of 1946.
o B. The declaration of the United States (paras. 52-76)
o The notification of 1984 (Paras. 52-66)
o The acceptance of the jurisdiction of the Court by the United States on
which Nicaragua relies is the result of the United States declaration of 14
August 1946. However, the United States argues that effect should be given
to the letter sent to the Secretary- General of the United Nations on 6 April
1984 (see p. 4 above). It is clear that if this notification were valid as against
Nicaragua at the date of filing of the Application, the Court would not have
jurisdiction under Article 36 of the Statute. After outlining the arguments of
the Parties in this connection, the Court points out that the most important
question relating to the effect of the 1984 notification is whether the United
States was free to disregard the six months’ notice clause which, freely and
by its own choice, it has appended to its declaration, in spite of the
obligation it has entered into vis-a-vis other States which have made such a
declaration. The Court notes that the United States has argued that the
Nicaraguan declaration, being of undefined duration, is liable to immediate
termination, and that Nicaragua has not accepted “the same obligation” as
itself and may not rely on the time-limit proviso against it. The Court does
not consider that this argument entitles the United States validly to derogate
from the time-limit proviso included in its 1946 declaration. In the Court’s
opinion, the notion of reciprocity is concerned with the scope and substance
of the commitments entered into, including reservations, and not with the
formal conditions of their creation, duration or extinction. Reciprocity cannot
be invoked in order to excuse departure from the terms of a State’s own
declaration. The United States cannot rely on reciprocity since the
Nicaraguan declaration contains no express restriction at all. On the
contrary, Nicaragua can invoke the six months’ notice against it, not on the
basis of reciprocity, but because it is an undertaking which is an integral part
of the instrument that contains it. The 1984 notification cannot therefore
override the obligation of the United States to submit to the jurisdiction of
the Court vis-a-vis Nicaragua.
 Case Concerning East Timor
o In its Judgment the Court recalls that on 22 February 1991 Portugal
instituted proceedings against Australia concerning “certain activities of
Australia with respect to East Timor.” According to the Application Australia
had, by its conduct, “failed to observe — the obligation to respect the duties
and powers of [Portugal as] the administering Power [of East Timor] ... and
Page | 39
 ... the right of the people of East Timor to self-determination and the related
rights.” In consequence, according to the Application, Australia had
“incurred international responsibility vis-a-vis both the people of East Timor
and Portugal.”
o As the basis for the jurisdiction of the Court, the Application refers to the
declarations by which the two States have accepted the compulsory
jurisdiction of the Court under Article 36, paragraph 2, of its Statute. In its
Counter-Memorial, Australia raised questions concerning the jurisdiction of
the Court and the admissibility of the Application....
o The Court then gives a short description of the history of the involvement of
Portugal and Indonesia in the Territory of East Timor and of a number of
Security Council and General Assembly resolutions concerning the question
of East Timor. It further describes the negotiations between Australia and
Indonesia leading to the Treaty of 11 December 1989, which created a
“Zone of Cooperation ... in an area between the Indonesian Province of East
Timor and Northern Australia.”
o The Court then summarizes the contentions of both Parties.
o The Court goes on to consider Australia’s objection that there is in reality no
dispute between itself and Portugal. Australia contends that the case as
presented by Portugal is artificially limited to the question of the lawfulness
of Australia’s conduct, and that the true respondent is Indonesia, not
Australia. Australia maintains that it is being sued in place of Indonesia. In
this connection, it points out that Portugal and Australia have accepted the
compulsory jurisdiction of the Court under Article 36, paragraph 2, of its
Statute, but that Indonesia has not.
o The Court finds in this respect that for the purpose of verifying the existence
of a legal dispute in the present case, it is not relevant whether the “real
dispute” is between Portugal and Indonesia rather than Portugal and
Australia. Portugal has, rightly or wrongly, formulated complaints of fact and
law against Australia which the latter has denied. By virtue of this denial,
there is a legal dispute.
o The Court then considers Australia’s principal objection, to the effect that
Portugal’s Application would require the Court to determine the rights and
obligations of Indonesia. Australia contends that the jurisdiction conferred
upon the Court by the Parties’ declarations under Article 36, paragraph 2, of
the Statute would not enable the Court to act if, in order to do so, the Court
were required to rule on the lawfulness of Indonesia’s entry into and
continuing presence in East Timor, on the validity of the 1989 Treaty
between Australia and Indonesia, or on the rights and obligations of
Indonesia under that Treaty, even if the Court did not have to determine its
validity. In support of its argument, it refers to the Court’s Judgment in the
case of the Monetary Gold Removed from Rome in 1943. Portugal agrees
that if its Application required the Court to decide any of these questions,
the Court could not entertain it. The Parties disagree, however, as to
whether the Court is required to decide any of these questions in order to
resolve the dispute referred to it.
o Portugal contends first that its Application is concerned exclusively with the
objective conduct of Australia, which consists in having negotiated,
concluded and initiated performance of the 1989 Treaty with Indonesia, and
that this question is perfectly separable from any question relating to the
lawfulness of the conduct of Indonesia.
o Having carefully considered the argument advanced by Portugal which
seeks to separate Australia’s behaviour from that of the Indonesia, the Court
concludes that Australia’s behavior cannot be assessed without first
entering into the question why it is that Indonesia could not lawfully have
concluded the 1989 Treaty, while Portugal allegedly could have done so;
DANA-ANDREI Notes
the very subject-matter of the Court’s decision would necessarily be a
determination whether, having regard to the circumstances in which
Indonesia entered and remained in East Timor, it could or could not have
acquired the power to enter into treaties on behalf of East Timor relating to
the resources of its continental shelf. The Court could not make such a
determination in the absence of the consent of Indonesia.
o The Court rejects Portugal’s additional argument that the rights which
Australia allegedly breached were rights erga omnes and that accordingly
Portugal could require it, individually, to respect them regardless of whether
or not another State had conducted itself in a similarly unlawful manner.
o In the Court’s view, Portugal’s assertion that the right of peoples to self-
determination, as it evolved from the Charter and from United Nations
practice, has an erga omnes character, is irreproachable. The principle of
self-determination of peoples has been recognized by the United Nations
Charter and in the jurisprudence of the Court; it is one of the essential
principles of contemporary international law. However, the Court considers
that the erga omnes character of a norm and the rule of consent to
jurisdiction are two different things. Whatever the nature of the obligations
invoked, the Court could not rule on the lawfulness of the conduct of a State
when its judgment would imply an evaluation of the lawfulness of the
conduct of another State which is not a party to the case.
o The Court goes on to consider another argument of Portugal which, the
Court observes, rests on the premise that the United Nations resolutions,
and in particular those of the Security Council, can be read as imposing an
obligation on States not to recognize any authority on the part of Indonesia
over East Timor and, where the latter is concerned, to deal only with
Portugal. Portugal maintains that those resolutions would constitute “givens”
on the content of which the <tourt would not have to decide de novo.
o The Court takes note of the fact that, for the two Parties, the Territory of
East Timor remains a non-self governing territory and its people has the
right to self-determination, and that the express reference to Portugal as the
“administering Power” in a number of the above-mentioned resolutions is
not at issue between them. The Court finds, however, that it cannot be
inferred from the sole fact that a number of resolutions of the General
Assembly and the Security Council refer to Portugal as the administering
Power of East Timor that they intended to establish an obligation on third
States to treat exclusively with Portugal as regards the continental shelf of
East Timor. Without prejudice to the question whether the resolutions under
discussion could be binding in nature, the Court considers as a result that
they cannot be regarded as “givens” which constitute a sufficient basis for
determining the dispute between the Parties.
o It follows from this that the Court would necessarily have to rule upon the
lawfulness of Indonesia’s conduct as a prerequisite for deciding on
Portugal’s contention that Australia violated its obligation to respect
Portugal’s status as administering Power, East Timor’s status as a non-self
governing territory and the right of the people of the Territory to self-
determination and to permanent sovereignty over its wealth and natural
resources. Indonesia’s rights and obligations would thus constitute the very
subject matter of such a judgment made in the absence of that State’s
consent. Such a judgment would run directly counter to the “well-
established principle of international law embodied in the Court’s Statute,
namely, that the Court can only exercise jurisdiction over a State with its
consent.”
o The Court accordingly finds that it is not required to consider Australia’s
other objections and that it cannot rule on Portugal’s claims on the merits,
Page | 40
 whatever the importance of the questions raised by those claims and of the
rules of international law which they bring into play.
o The Court recalls in any event that it has taken note in the Judgment that,
for the two Parties, the Territory of East Timor remains a non-self governing
territory and its people has the right to self-determination
 Provisional Measure
 Article 41
1. The Court shall have the power to indicate, if it considers that circumstances
so require, any provisional measures which ought to be taken to preserve
the respective rights of either party.
2. Pending the final decision, notice of the measures suggested shall forthwith
be given to the parties and to the Security Council
 Nicaragua v. US
 Intervention
 Article 62.
1. Should a state consider that it has an interest of a legal nature which may
be affected by the decision in the case, it may submit a request to the Court
to be permitted to intervene.
2. It shall be for the Court to decide upon this request.
 Article 63.
1. Whenever the construction of a convention to which states other than those
concerned in the case are parties is in question, the Registrar shall notify all
such states forthwith.
2. Every state so notified has the right to intervene in the proceedings; but if it
uses this right, the construction given by the judgment will be equally
binding upon it.
 El Salvador v. Hounduras
o In its Application for permission to intervene, filed on 17 November 1989,
Nicaragua stated that the Application was made by virtue of Article 36,
paragraph 1, and Article 62 of the Statute.
o ***** The Chamber observes that as the Court has made clear in previous
cases, in order to obtain permission to intervene under Article 62 of the
Statute, a State has to show an interest of a legal nature which may be
affected by the Court’s decision in the case ...
o (b) Object of the intervention The Chamber turns to the question of the
object of Nicaragua’s Application for permission to intervene in the case. A
statement of the “precise object of the intervention” is required by Article 81,
paragraph 2(b), of the Rules of Court. Nicaragua’s indication, in its
Application for permission to intervene, of the object of its intervention in the
present case, is as follows: “The intervention for which permission is
requested has the following objects:
1. generally to protect the legal rights of the Republic of Nicaragua in the
Gulf of Fonseca and the adjacent maritime areas by all legal means
available.
2. to intervene in the proceedings in order to inform the Court of the
nature of the legal rights of Nicaragua which are in issue in the dispute.
This form of intervention would have the conservative purpose of
seeking to ensure that the determination of the Chamber did not trench
upon the legal rights and interests of the Republic of Nicaragua.”
o So far as the object of Nicaragua’s intervention is “to inform the Court of the
nature of the legal rights of Nicaragua which are in issue in the dispute,” it
cannot be said that this object is not a proper one: it seems indeed to
accord with the function of intervention. ... Secondly, it does not seem to the
Chamber that for a State to seek by intervention “to protect its claims by all
legal means” necessarily involves the inclusion in such means of “that of
seeking a favourable judicial pronouncement” on its own claims. The “legal
DANA-ANDREI Notes
means available” must be those afforded by the institution of intervention for
the protection of a third State’s legal interests. So understood, that object
cannot be regarded as improper. * * * * *
o The Chamber has now further to consider the argument of El Salvador that
for Nicaragua to intervene it must in addition show a “valid link of
jurisdiction” between Nicaragua and the Parties. In its Application,
Nicaragua does not assert the existence of any basis of jurisdiction other
than the Statute itself, and expresses the view that Article 62 does not
require a separate title of jurisdiction. The question is whether the existence
of a valid link of jurisdiction with the parties to the case — in the sense of a
basis of jurisdiction which could be invoked, by a State seeking to intervene,
in order to institute proceedings against either or both of the parties — is an
essential condition for the granting of permission to intervene under Article
62 of the Statute. In order to decide the point, the Chamber must consider
the general principle of consensual jurisdiction in its relation with the
institution of intervention.
o The pattern of international judicial settlement under the Statute is that two
or more States agree that the Court shall hear and determine a particular
dispute. Such agreement may be given ad hoc, by Special Agreement or
otherwise, or may result from the invocation, in relation to the particular
dispute, of a compromissory clause of a treaty or of the mechanism of
Article 36, paragraph 2, of the Court’s Statute. Those States are the
“parties” to the proceedings, and are bound by the Court’s eventual decision
because they have agreed to confer jurisdiction on the Court to decide the
case, the decision of the Court having binding force as provided for in Article
59 of the Statute. Normally therefore, no other State may involve itself in the
proceedings without the consent of the original parties. Nevertheless,
procedures for a “third” State to intervene in a case are provided in Articles
62 and 63 of the Court’s Statute. The competence of the Court in this matter
of intervention is not, like its competence to hear and determine the dispute
referred to it, derived from the consent of the parties to the case, but from
the consent given by them, in becoming parties to the Court’s Statute, to the
Court’s exercise of its powers conferred by the Statute. Thus, the Court has
the competence to permit an intervention even though it be opposed by one
or both of the parties to the case. The nature of the competence thus
created by Article 62 of the Statute is definable by reference to the object
and purpose of intervention, as this appears from Article 62 of the Statute.
o Intervention under Article 62 of the Statute is for the purpose of protecting a
State’s “interest of a legal nature” that might be affected by a decision in an
existing case already established between other States, namely the parties
to the case. It is not intended to enable a third State to tack on a new case,
to become a new party, and so have its own claims adjudicated by the
Court. Intervention cannot have been intended to be employed as a
substitute for contentious proceedings. Acceptance of the Statute by a State
does not of itself create jurisdiction to entertain a particular case: the
specific consent of the parties is necessary for that. If an intervener were
held to become a party to a case merely as a consequence of being
permitted to intervene in it, this would be a very considerable departure from
the principle of consensual jurisdiction. It is therefore clear that a State,
which is allowed to intervene in a case, does not, by reason only of being an
intervener, become also a party to the case.
o It thus follows from the juridical nature and from the purposes of intervention
that the existence of a valid link of jurisdiction between the would-be
intervener and the parties is not a requirement for the success of the
application. On the contrary, the procedure of intervention is to ensure that a
State with possibly affected interests may be permitted to intervene even
Page | 41
 though there is no jurisdictional link and it therefore cannot become a party.
The Chamber therefore concludes that the absence of a jurisdictional link
between Nicaragua and the Parties to this case is no bar to permission
being given for intervention.
o IV. Procedural Rights of State permitted to intervene Since this is the first
case in the history of the two Courts in which a State will have been
accorded permission to intervene under Article 62 of the Statute, it appears
appropriate to give some indication of the extent of the procedural rights
acquired by the intervening State as a result of that permission. In the first
place, as has been explained above, the intervening State does not become
party to the proceedings, and does not acquire the rights, or become subject
to the obligations, which attach to the status of a party, under the Statute
and Rules of Court, or the general principles of procedural law. Nicaragua,
as an intervener, has of course a right to be heard by the Chamber. That
right is regulated by Article 85 of the Rules of Court, which provides for
submission of a written statement, and participation in the hearings.
o The scope of the intervention in this particular case, in relation to the scope
of the case as a whole, necessarily involves limitations of the right of the
intervener to be heard. An initial limitation is that it is not for the intervener to
address argument to the Chamber on the interpretation of the Special
Agreement concluded between the Parties on 24 May 1986, because the
Special Agreement is, for Nicaragua, res inter alios acta; and Nicaragua has
disclaimed any intention of involving itself in the dispute over the land
boundary. The Chamber then summarizes the aspects of the case in
respect of which Nicaragua has shown the existence of an interest of a legal
nature and those in respect of which it has not, with the consequent
limitations on the scope of the intervention permitted.
 Obligation to comply with decisions
 Article 59 (ICJ Statute)
The decision of the Court has no binding force except between the parties and in
respect of that particular case.
 Article 60
The judgment is final and without appeal. In the event of dispute as to the
meaning or scope of the judgment, the Court shall construe it upon the request of
any party.
 Article 61
1. An application for revision of a judgment may be made only when it is based
upon the discovery of some fact of such a nature as to be a decisive factor,
which fact was, when the judgment was given, unknown to the Court and
also to the party claiming revision, always provided that such ignorance was
not due to negligence.
2. The proceedings for revision shall be opened by a judgment of the Court
expressly recording the existence of the new fact, recognizing that it has
such a character as to lay the case open to revision, and declaring the
application admissible on this ground.
3. The Court may require previous compliance with the terms of the judgment
before it admits proceedings in revision.
4. The application for revision must be made at latest within six months of the
discovery of the new fact.
5. No application for revision may be made after the lapse of ten years from
the date of the judgment.
 Article 94 (UN Charter)
1. Each Member of the United Nations undertakes to comply with the decision
of the International Court of Justice in any case to which it is a party.
2. If any party to a case fails to perform the obligations incumbent upon it
under a judgment rendered by the Court, the other party may have recourse
DANA-ANDREI Notes
to the Security Council, which may, if it deems necessary, make
recommendations or decide upon measures to be taken to give to the
judgment.
 Advisory jurisdiction
 Article 65.
1. The Court may give an advisory opinion on any legal question at the request
of whatever body may be authorized by or in accordance with the Charter of
the United Nations to make such a request.
2. Questions upon which the advisory opinion of the Court is asked shall be
laid before the Court by means of a written request containing an exact
statement of the question upon which an opinion is required, and
accompanied by all documents likely to throw light upon the question.
 Article 66.
1. The Registrar shall forthwith give notice of the request for an advisory
opinion to all states entitled to appear before the Court.
2. The Registrar shall also, by means of a special and direct communication,
notify any state entitled to appear before the Court or international
organization considered by the Court, or, should it not be sitting, by the
President, as likely to be able to furnish information on the question, that the
Court will be prepared to receive, within a time limit to be fixed by the
President, written statements, or to hear, at a public sitting to be held for the
purpose, oral statements relating to the question. 3. Should any such state
entitled to appear before the Court have failed to receive the special
communication referred to in paragraph 2 of this Article, such state may
express a desire to submit a written statement or to be heard; and the Court
will decide. 4. States and organizations having presented written or oral
statements or both shall be permitted to comment on the statements made
by other states or organizations in the form, to the extent, and within the
time limits which the Court, or, should it not be sitting, the President, shall
decide in each particular case. Accordingly, the Registrar shall in due time
communicate any such written statements to states and organizations
having submitted similar statements.
 Article 96.
1. The General Assembly or the Security Council may request the International
Court of Justice to give an advisory opinion on any legal question.
2. Other organs of the United Nations and specialized agencies, which may at
any time be so authorized by the General Assembly, may also request
advisory opinions of the Court on legal questions arising within the scope of
their activities.
 By definition advisory opinions are non-binding. Acceptance or nonacceptance of
the advisory opinion is determined by the internal law of the institution.
 Other active International Courts
 The more active are the Court of Justice of the European Communities, the
European Court of Human Rights, the Benelux Court of Justice and the
InterAmerican Court of Human Rights. The International Criminal Court entered
into force only in 2002.
Page | 42
THE USE OF FORCE SHORT OF WAR
 The Use of Force
 The general principle is that international law recognizes the autonomy of
individual states and their right to freedom from coercion and to the integrity of
their territory.
 Article 2(4) of the UN Charter: “All Members shall refrain in their international
relations from the threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations.”
 It is noteworthy that the text does not use the word war.
The word war is a
technical term which does not include some uses of force. The prohibition in the
Charter therefore broader than the prohibition of war.
 Similarly, it should be noted that the text does not merely prohibit the use of force
against the territorial integrity or political independence of any state. The text
broadly prohibits the use of force in any other manner inconsistent with the
Purposes of the United Nations.
 It does yield the meaning of a very broad prohibition of the use of force because
the purposes of the United Nations, as found in Article 1 of the Charter, go
beyond merely the protection of the territorial integrity and political independence
of states.
 It will be recalled that the Corfu Channel case dealt with British warships, which
had been struck by mines while exercising the right of innocent passage in
Albanian territory. Britain sent additional warships to sweep the minefields within
Albanian territory. The Court used language in support of a broad prohibition of
force:
o The United Kingdom has stated that its object was to secure the mines as
quickly as possible for fear lest they should be taken away by the authors of
the mine laying or by the Albanian authorities:
o This was presented either as a new and special application of the theory of
intervention, by means of which the intervening State was acting to facilitate
the task of the international tribunal, or as a method of selfprotection or self-
help.
o The Court cannot accept these lines of defense. It can only regard the
alleged right of intervention as the manifestation of a policy of force which
cannot find a place in international law.
o As regards the notion of self-help, the Court is also unable to accept it:
between independent States the respect for territorial sovereignty is an
essential foundation for international relations....
 The prohibition of the use of force, however, is not just conventional law. It is
customary international law. In Nicaragua v. US the Court made this
pronouncement:
 The Court finds that both Parties take the view that the principles as to the use of
force incorporated in the United Nations Charter correspond, in essentials, to
those found in customary international law.
 They therefore accept a treaty-law obligation to refrain in their international
relations from the threat or use of force against the territorial integrity or political
independence of any State, or in any other manner inconsistent with the
purposes of the United Nations (Art. 2, para. 4, of the Charter).
 The Court has however to be satisfied that there exists in customary law an
opinio juris as to the binding character of such abstention. It considers that this
opinio juris may be deduced from, inter alia, the attitude of the Parties and of
States towards certain General Assembly resolutions, and particularly resolution
XXV entitled Declaration on Principles of International Law concerning Friendly
Relations and Cooperation among States in Accordance with the Charter of the
United Nations.
DANA-ANDREI Notes
 Consent to such resolutions is one of the forms of expression of an opinio juris
with regard to the principle of nonuse of force, regarded as a principle of
customary international law, independently of the provisions, especially those of
an institutional kind, to which it is subject on
 the treaty-law plane of the Charter.
 A separate opinion was filed by Judge Sette-Camara:
o Judge Sette-Camara fully concurs with the Judgment because he firmly
believes that the non-use of force as well as non- intervention — the latter
as a corollary of equality of States and self- determination — are not only
cardinal principles of customary international law but could in addition be
recognized as peremptory rules of customary international law which
impose obligations on all States.
 The threat of force
 The Charter prohibits not just the use of force but also the threat of force.
 The most typical form of this threat is the ultimatum in which the State to which it
is addressed is given a time-limit within which to accept the demands made upon
it and is told that, if it rejects the demands, war will be declared on it or certain
coercive measures such as a naval blockade, bombardment, or occupation of a
given territory, will be taken.
 However, the threat to use force is not always made in so crude and open a
form. There are sometimes veiled threats that may be very effective, but are
difficult to detect.
 Threat of force was discussed by the ICJ in an advisory opinion on the Legality of
the Threat or Use of Nuclear Weapons in the light of the provisions of the
Charter:
o In Article 2, paragraph 4, of the Charter the use of force against the
territorial integrity or political independence of another State or in any other
manner inconsistent with the purposes of the United Nations is prohibited.
This prohibition of the use of force is to be considered in the light of other
relevant provisions of the Charter.
o In Article 51, the Charter recognizes the inherent right of individual or
collective self-defense if an armed attack occurs.
o A further lawful use of force is envisaged in Article 42, whereby the Security
Council may take military enforcement measures in conformity with Chapter
VII of the Charter.
o These provisions do not refer to specific weapons. They apply to any use of
force, regardless of the weapons employed.
o The Charter neither expressly prohibits, nor permits, the use of any specific
weapon, including nuclear weapons.
o The entitlement to resort to self-defense under Article 51 is subject to the
conditions of necessity and proportionality.
 As the Court stated in the case concerning Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States of America) (I.CJ. Reports
1986,p. 94,para. 176):
o there is a specific rule whereby selfdefence would warrant only measures
which are proportional to the armed attack and necessary to respond to it, a
rule well-established in customary international law.
 The proportionality principle may thus not in itself exclude the use of nuclear
weapons in selfdefense in all circumstances.
 But at the same time, a use of force that is proportionate under the law of self-
defense, must, in order to be lawful, also meet the requirements of the law
applicable in armed conflict which comprise in particular the principles and rules
of humanitarian law.
 And the Court notes that the very nature of all nuclear weapons and the profound
risks associated therewith are further considerations to be borne in mind by
Page | 43
 States believing they can exercise a nuclear response in self- defence in
accordance with the requirements of proportionality.
 In order to lessen or eliminate the risk of unlawful attack, States sometimes
signal that they possess certain weapons to use in self-defense against any
State violating their territorial integrity or political independence.
 Whether a signaled intention to use force if certain events occur is or is not a
threat within certain events occur is or is not a threat within Article 2, paragraph
4, of the Charter depends upon various factors. The notions of threat and use of
force under Article , paragraph , of the Charter stand together in the sense that if
the use of force itself in a given case is illegal — for whatever reason — the
threat to use such force will likewise be illegal. In short, if it is to be lawful, the
declared readiness of a State to use force must be a use of force that is in
conformity with the Charter. For the rest, no State — whether or not it defended
the policy of deterrence — suggested to the Court that it would be lawful to
threaten to use force if the use of force contemplated would be illegal.
 Individual and collective self-defense
 The general prohibition of the use of force does not preclude the right to self-
defense. This is the subject of Article 51:
o Nothing in the present Charter shall impair the inherent right of individual or
collective self-defence if an armed attack occurs against a Member of the
United Nations, until the Security Council has taken measures necessary to
maintain international peace and security. Measures taken by Members in
the exercise of this right of self- defence shall be immediately reported to
the Security Council and shall not in any way affect the authority and
responsibility of the Security Council under the present Charter to take at
any time such action as it deems necessary in order to maintain or restore
international peace and security.
 The subject was discussed at some length in Nicaragua v. USA*
 The question has also been raised whether anticipatory self- defense is allowed.
 The question is valid because of the possibility of instant attacks under present
circumstances. Opinion on the subject is divided.
o Those who claim the existence of the right say that the phrase if an armed
attack occurs is not exclusive. This is reminiscent of the view that protection
of vital interests justifies the use of force.
o In practical terms, however, states do not invoke the right because they are
afraid that it might be used against them too. Practice on the subject is
inconclusive. It will be recalled that Israel launched a preemptive strike
against its Arab neighbors in 1967 but the United Nations did not condemn
the act. The Nicaragua case, even with its extensive discussion of self
defense, did not mention anticipatory self-defense.
 In the case of the Gulf War against Iraq, the Allied forces came on invitation of
Kuwait which was under invasion. The right to use force to defend claimed
territory was rejected in the Falkland war.
 An interesting development in the wake of the September 21 attack on the World
Trade Center is that Article 51 seems to have been used to justify a response
against a non-state aggressor The coalition of forces which joined the United
States in the attacks on Afghanistan had the blessing of the General Assembly,
the Security Council, and of NATO.
 Traditionally allowable coercive measures
 Under international law, certain forms of coercive measures or self help have
been traditionally allowed. These include:
o Since there is no obligation to maintain diplomatic relations, severance of
diplomatic relations is not prohibited. However, this should not be resorted
to unless truly necessary because severance might endanger peace.
DANA-ANDREI Notes
o Moreover, severance should be distinguished from suspension of diplomatic
relations. Suspension involves withdrawal of diplomatic representation but
not of consular representation.
 Retorsion is any of the forms of counter-measures in response to an unfriendly
act. Forms of retorsion include shutting of ports to vessels of an unfriendly state,
revocation of tariff concessions not guaranteed by treaty, or the display of naval
forces near the waters of an unfriendly state.
 Reprisal denotes any kind of forcible or coercive measures whereby one State
seeks to exercise a deterrent effect or obtain redress or satisfaction, directly or
indirectly, for the consequences of the illegal at of another state which has
refused to make amends for such illegal acts. Unlike retorsion, the acts, standing
by themselves, would normally be illegal. Moreover, reprisal must be preceded
by an unsatisfied demand for reparation.
o Under the Charter, however, reprisals have been narrowed down especially
since situations likely to cause disruption of peace should be brought to the
Security Council.
 Embargo is another lawful measure. This can consist of seizure of vessels even
in the high seas. Embargo might also be pacific, as when a state keeps its own
vessels for fear that it might find their way in foreign territory. Their can also be
collective embargo, e.g., on import of drugs or of oil.
 Boycott is a form of reprisal which consists of suspension of trade or business
relations with the nationals of an offending state.
o Some claim that this is a form of economic aggression which should be
prohibited by law.
 Non-intercourse consists of suspension of all commercial intercourse with a
state.
 Pacific blockade is a naval operation carried out in time of peace whereby a
state prevents access to or exit from particular ports or portions of the coast of
another state for the purpose of compelling the latter to yield to demands made
by the blockading state.
o It is essentially a warlike act and therefore frowned upon by the UN
Charter.
 These measures, to the extent that they have not been outlawed by the Charter,
may be employed by individual states or by collective action under the UN.
 Protection of nationals abroad
 Those who assert the right to defend nationals abroad argue that the right to
protect nationals abroad can be defended as an aspect of the right to self-
defense in Article 51 since population is an essential element of statehood.
 Others argue that Article 2(4) does not prohibit it because it does not
compromise the territorial integrity or political independence of a state.
o Examples of forcible rescue of nationals are the raid of Entebee in Uganda
and the US intrusion into Stanleyville to rescue American students. But the
legitimacy of such intervention is not firmly established in international law.
 Humanitarian intervention
 Discussion of armed humanitarian intervention by states in response to massive
violation of human rights in another state begins with the prohibition of force in
Article 2(4). The prohibition is now considered jus cogens. The prevailing opinion
is that intervention without the authorization of the Security Council violates
international law. One author describes the circumstances allowing humanitarian
intervention thus:
o The question of the legality versus the illegality of so-called humanitarian
intervention must be answered in light of the foregoing.
o Thus, if the Security Council determines that massive violations of human
rights occurring within a country constitute a threat to the peace, and then
calls for or authorizes an enforcement action to put an end to these
violations, a humanitarian intervention by military means is permissible. In
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 the absence of such authorization, military coercion employed to have the
target state return to a respect for human rights constitutes a breach of
Article 2(4) of the Charter.
o Further, as long as humanitarian crises do not transcend borders, as it
were, and lead to armed attacks against other states, recourse to Article 51
is not available. For instance, a mass exodus of refugees does not qualify
as an armed attack.
o In the absence of any justification unequivocally provided by the Charter the
use of force could not be the appropriate method to monitor or ensure ...
respect [for human rights], to use the words of the International Court of
Justice in its 1986 Nicaragua judgment.
o In the same year, the United Kingdom Foreign Office summed up the
problems of unilateral, that is, unauthorized, humanitarian intervention as
follows:
o the overwhelming majority of contemporary legal opinion comes down
against the existence of a right of humanitarian intervention, for three main
reasons:
 firstly, the UN Charter and the corpus of modem international law do
not seem to specifically incorporate such a right;
 secondly, State practice in the past two centuries, and especially since
1945, at best provides only a handful of genuine cases of humanitarian
intervention, and, on most assessments, none at all; and
 finally, on prudential grounds, that the scope for abusing such a right
argues strongly against its creation.... In essence, therefore, the case
against making humanitarian intervention an exception to the principle
of nonintervention is that its doubtful benefits would be heavily
outweighed by its costs in terms of respect for international law.
o The same author, however, asks whether perhaps the law on the subject
has changed under the shock of genocide and crimes against humanity. He
concludes:
 By way of conclusion to this section: whether we regard the NATO
threat employed in the Kosovo crisis as an ersatz Chapter VII
measure, humanitarian intervention, or as a threat of collective
countermeasures involving armed force, any attempt at legal
justification will ultimately remain unsatisfactory.
 Hence, we would be well advised to adhere to the view emphasized
and affirmed so strongly in the German debate, and regard the Kosovo
crisis as a singular case in which NATO decided to act without Security
Council authorization out of overwhelming humanitarian necessity, but
from which no general conclusion ought to be drawn.
 What is involved here is not legalistic hair-splitting versus the pursuit of
humanitarian imperatives. Rather, the decisive point is that we should
not change the rules simply to follow our humanitarian impulses; we
should not set new standards only to do the right thing in a single case.
 The legal issues presented by the Kosovo crisis are particularly
impressive proof that hard cases make bad law.
o Another author, while basically adhering to the legal conclusion above, does
not stop there. He says:
 Be that as it may, any person of common sense is justified in asking
him or herself the following dramatic question: Faced with such an
enormous human-made tragedy and given the inaction of the UN
Security Council due to the refusal of Russia and China to
countenance any significant involvement by the international
community to stop the massacres and expulsions, should one sit idly
by and watch thousands of human beings being slaughtered or brutally
persecuted? Should one remain silent and inactive only because the
DANA-ANDREI Notes
existing body of international law proves incapable of remedying such
a situation? Or, rather, should respect for the Rule of Law be sacrificed
on the altar of human compassion?
 My answer is that from an ethical viewpoint resort to armed force was
justified. Nevertheless, as a legal scholar I cannot avoid observing in
the same breath that this moral action is contrary to current
international law.
 I contend, however, that as legal scholars we must stretch our minds
further and ask ourselves two questions.
o First, was the NATO armed intervention at least rooted in and
partially justified by contemporary trends of the international
community?
o Second, were some parameters set, in this particular instance of
use of force, that might lead to a gradual legitimation of forcible
humanitarian countermeasures by a group of states outside any
authorization by the Security Council?
 Based on these nascent trends in the world community, I submit that
under certain strict conditions resort to armed force may gradually
become justified, even absent any authorization by the Security
Council. These conditions may be enumerated as follows:
o (i) gross and egregious breaches of human rights involving loss of
life of hundreds or thousands of innocent people, and amounting
to crimes against humanity, are carried out on the territory of a
sovereign state, either by the central governmental authorities or
with their connivance and support, or because the total collapse
of such authorities cannot impede those atrocities;
o (ii) if the crimes against humanity result from anarchy in a
sovereign state, proof is necessary that the central authorities are
utterly unable to put an end to those crimes, while at the same
time refusing to call upon or to allow other states or international
organizations to enter the territory to assist in terminating the
crimes. If, on the contrary, such crimes are the work of the central
authorities, it must be shown that those authorities have
consistently withheld their cooperation from the United Nations or
other international organizations, or have systematically refused
to comply with appeals, recommendations or decisions of such
organizations;
o (iii) the Security Council is unable to take any coercive action to
stop the massacres because of disagreement among the
Permanent Members or because one or more of them exercises
its veto power. Consequently, the Security Council either refrains
from any action or only confines itself to deploring or condemning
the massacres, plus possibly terming the situation a threat to the
peace;
o (iv) all peaceful avenues which may be explored consistent with
the urgency of the situation to achieve a solution based on
negotiation, discussion and any other means short of force have
been exhausted, notwithstanding which, no solution can be
agreed upon by the parties to the conflict;
o (v) a group of states (not a single hegemonic Power, however
strong its military, political and economic authority, nor such a
Power with the support of a client state or an ally) decides to try to
halt the atrocities, with the support or at least the nonopposition of
the majority of Member States of the UN;
o (vi) armed force is exclusively used for the limited purpose of
stopping the atrocities and restoring respect for human rights, not
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 for any goal going beyond this limited purpose. Consequently, the
use of force must be discontinued as soon as this purpose is
attained. Moreover, it is axiomatic that use of force should be
commensurate with and proportionate to the human rights
exigencies on the ground. The more urgent the situation of killings
and atrocities, the more intensive and immediate may be the
military response thereto. Conversely, military action would not be
warranted in the case of a crisis which is slowly unfolding and
which still presents avenues for diplomatic resolution aside from
armed confrontation.
o Despite all these possible shortcomings, I believe that it is our task as
international lawyers to pinpoint the evolving trends as they emerge in the
world community, while at the same time keeping a watchful eye on the
actual behaviour of states.
o Standards of conduct designed to channel the action of states are
necessary in the world community as in any human society. And it is not an
exceptional occurrence that new standards emerge as a result of a breach
of lex lata.
o To suggest realistic but prudent parameters in line with the present trends
in the world community might serve the purpose of restraining as much as
possible recourse to armed violence in a community that is increasingly bent
on conflict and bloodshed.

Page | 46
DANA-ANDREI Notes
THE LAW OF WAR (INTERNATIONAL HUMANITARIAN LAW)
 International Humanitarian Law
 What used to be known as the Laws of War now come under what is called
International Humanitarian Law.
 It provides for instances when the use of armed force is justifiable (jus ad be
Hum) and it regulates the conduct of armed conflict (jus in bello).
 Hyde, writing in 1922, said: “It always lies within the power of a State ... to gain
political or other advantages over another, not merely by the employment of
force, but also by direct recourse to war.”
o Early international law did not consider as illegal a war admittedly waged for
such purposes. It rejected, to that extent, the distinction between just and
unjust wars. War was in law a natural function of the State and a prerogative
of its uncontrolled sovereignty.
 Article 2(4) of the UN Charter says: All Members shall refrain in their
international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations. In effect, this provision
outlaws war.
 The paradox, however, is that side by side with the prohibition of armed conflict
is the proliferation of laws of war.
Three facts can explain the paradox:
1. first, those who resort to the use of arms do not give up until they have
achieved victory;
2. second, given the first fact, humanitarian considerations dictate the need for
rules which curtail violence beyond what is necessary to achieve a states
goal;
3. third, there still remains in the hearts of the soldiery an acceptance of
chivalry as a value.
 The Hague Law
 Early laws of war were customary. At present the laws are largely conventional.
 In 1899, twenty-six countries met at The Hague and promulgated Conventions
and Declaration.
 More conferences were held in 1907. The principles adopted in these
conferences constitute that part of the law of armed conflict still known as the
Law of the Hague governing land and naval warfare. Principles governing the
conduct of air warfare were to follow later.
 The Geneva Conventions of 1949
 One of the most significant developments in the law of armed conflicts was the
adoption in 1949 of four Geneva “Red Cross” Conventions governing:
1. I — Wounded and Sick in the Field;
2. II — Wounded, Sick and Shipwrecked at Sea;
3. III — Prisoners of War;
4. IV — Civilians. The Convention on civilians is completely new and is the
result of the experience of civilians in occupied territory during World War II.
o The essence of the Geneva conventions is that persons not actively
engaged in warfare should be treated humanely. The rules apply to any
international armed conflict, whether a declared war or not.
 Customary and Conventional Law
 Much of what is embodied in the Hague and Geneva Conventions are customary
law. Thus, non-parties to the Convention are covered by the customary law of
armed conflict. It has in fact become common practice, when one of the parties to
the conflict is not a party to the conventions, for such party to make a declaration
that it will abide by the terms of the Convention
DANA-ANDREI Notes
 Commencement and Termination of Hostilities
o Under the Hague Convention III, for an armed conflict to be considered a
war in a legal sense, the hostilities should be preceded by a declaration of
war or an ultimatum with a fixed limit
o Thus, while the Constitution gives to the legislature the power to declare the
existence of a state of war and to enact all measures to support the war, the
actual power to make war is lodged elsewhere, that is, in the executive
power which holds the sword of the nation.
 The executive power, when necessary, may make war even in the
absence of a declaration of war. In the words of the American
Supreme Court, war being a question of actualities, “the President was
bound to meet it in the shape it presented itself, without waiting for
Congress to baptize it with a name; and no name given to it by him or
them could change the fact.”
 For that matter, as far as the UN Charter is concerned, there is no
provision requiring a declaration of war or an ultimatum. Normally,
however, the victims of the attack respond with a declaration of war.
o The commencement of hostilities result in the severance of all normal
relations. Political and economic treaties are terminated. However, treaties
of a humanitarian character remain in force.
o Nationals of a combatant state residing in enemy territory become subject to
restrictions which the enemy might impose subject to limitations found in
customary or treaty law. Merchant vessels found in enemy territory are
given a period of grace to depart.
o The laws of armed conflict remain in effect until the conflict is terminated.
There is some conflict as to when armed conflict actually ends. But the
clearest method of termination is by means of a peace treaty. Nevertheless,
even in the absence of a peace treaty, once the combatant states have
made a declaration that hostilities have come to an end, the armed forces
are bound by such declaration.
o Armistice, however, which is an agreement to suspend hostilities, whether
local or general, does not end the conflict. But it puts an end to active
fighting in accordance with the terms of the agreement.
 Protocol I
o Protocol I to the 1949 Geneva Convention created a new category of
international armed conflict. It includes within the definition of international
armed conflict
 armed conflicts in which peoples are fighting against colonial
domination and alien occupation and against racist regimes in the
exercise of their right of self-determination, as enshrined in the Charter
of the United Nations and the Declaration on Principles of International
Law concerning Friendly Relations and Co-operation among States in
accordance with the Charter of the United Nations.
o Those engaged in such a conflict receive combatant status and are entitled
to combatant rights and duties. For instance, when captured, they are not to
be treated as ordinary criminals but as prisoners of war.
 Methods of Warfare: Jus in Bello
 The purpose of the laws on armed conflict is well expressed by the nineteenth
century Declaration of St. Petersburg which said:
o The progress of civilization should have the effect of alleviating as much as
possible the calamities of war: the only legitimate object which states should
endeavour to accomplish during war is to weaken the military forces of the
enemy; for this purpose it is sufficient to disable the greatest possible
number of men; this object would be exceeded by the employment of arms
which uselessly aggravate the sufferings of disabled men, or render their
Page | 47
 death inevitable; the employment of such arms would, therefore, be contrary
to the laws of humanity.
 Thus, it is that the Hague Convention prohibits the employment of “arms,
projectiles or material calculated to cause unnecessary suffering.” There is a
need to balance military necessity and humanitarian consideration. This is also
expressed in the advisory opinion on the Legality of the Threat or Use of Nuclear
Weapons (ICJ 1996):
o The cardinal principles contained in the texts constituting the fabric of
humanitarian law are the following. The first is aimed at the protection of the
civilian population and civilian objects and establishes the distinction
between combatants and non- combatants; states much never make
civilians the object of attack and must consequently never use weapons that
are incapable of distinguishing between civilian and military targets.
According to the second principle, it is prohibited to cause unnecessary
suffering to combatants; its is accordingly prohibited to use weapons
causing them such harm or uselessly aggravating their suffering. In
application of that second principle, states do not have unlimited freedom of
choice of means in the weapons they use.
 The International Commission of the Red Cross published three statements
which sum up the basic rules governing armed conflicts:
I. The Soldier’s Rules
1. Be a disciplined soldier. Disobedience of the laws of war dishonours
your army and yourself and causes unnecessary suffering; far from
weakening the enemy’s to fight, it often strengthens it.
2. Fight only enemy combatants and attack only military objectives.
3. Destroy no more than your mission requires.
4. Do not fight enemies who are ‘out of combat’ [hors de combat] or
surrender. Disarm them and hand them over to your superior.
5. Collect and care for the wounded and sick, be they friend or foe.
6. Treat all civilians and all enemies in your power with humanity.
7. Prisoners of war must be treated humanely and are bound to give
only information about their identity. No physical or mental torture of
prisoners of war is permitted.
8. Do not take hostages.
9. Abstain from all acts of vengeance.
10. Respect all persons objects bearing the emblem of the red cross, red
crescent, red lion and sun, the white flag of truce or emblems
designating cultural property.
11. Respect other people’s property. Looting is prohibited. E
12. Endeavour to prevent any breach of the above rules. Report any
violation to your superior. Any breach of the law of war is punishable.
II. Fundamental Rules of International Humanitarian Law Applicable to
Armed Conflicts
1. Persons hors de combat and those who do not take a direct part in
hostilities are entitled to respect for their lives and moral and physical
integrity. They shall in all circumstances be protected and treated
humanely without any adverse distinctions.
2. It is forbidden to kill or injure an enemy who surrenders or is hors de
combat.
3. The wounded and sick shall be collected and cared for by the party to
the conflict which has them in its power. Protection also covers
medical personnel, establishments, transports and equipment. The
emblem of the red cross or the red crescent is the sign of such
protection and must be protected.
DANA-ANDREI Notes
4. Captured combatants and civilians under the authority of an adverse
party are entitled to respect for their lives, dignity, personal rights and
convictions. They shall be protected against all acts of violence and
reprisals. They shall have the rights to correspond with their families
and receive relief.
5. Everyone shall be entitled to benefit from fundamental judicial
guarantees. No one shall be responsible for an act he has not
committed. No one shall be subjected to physical and mental torture,
corporal punishment or cruel or degrading treatment.
6. Parties to a conflict and members of their armed forces do not have
an unlimited choice of methods and means of warfare. It is prohibited
to employ weapons or methods of warfare of a nature to cause
unnecessary losses or excessive suffering.
7. Parties to a conflict shall at all times distinguish between the civilian
population and combatants in order to spare civilian population and
property. Neither the civilian population as such nor civilian persons
shall be the object of attack. Attacks shall be directed only against
military objectives.
III. Non-International Armed Conflicts
A. General Rules
1. The obligation to distinguish between combatants and civilians is
a general rule applicable in non-international armed conflicts. It
prohibits indiscriminate attacks.
2. The prohibition of attacks against the civilian population as such
or against individual civilians is a general rule applicable in non-
international conflicts. Acts of violence in tended primarily to
spread terror among the civilian population are also prohibited.
3. The probation of superfluous injury or unnecessary suffering is a
general rule applicable in non-international conflicts. It prohibits,
in particular, the use of means of warfare which uselessly
aggravate the sufferings of disabled men or render their death
inevitable.
4. The prohibition to kill, injure or capture an adversary by resort to
perfidy is a general rule applicable in non-international armed
conflicts; in a non-international armed conflict, acts inviting the
confidence of an adversary to lead him to believe that he is
entitled to, or is obliged to accord protection under the rules of
international law applicable in non-international armed conflicts,
with intent to betray that confidence, shall constitute perfidy.
5. The obligation to respect and protect medical and religious
personnel and medical units and transports in the conduct of
military operations is a general rule applicable in non-
international armed conflicts.
6. The general rule prohibiting attacks against the civilian
population implies, as a corollary, the prohibition of attacks on
dwellings and other installations which are used only by the
civilian population.
7. The general rule prohibiting attacks upon the civilian population
implies, as a corollary, the prohibition to attack, destroy, remove
or render useless objects indispensable to the survival of the
civilian population.
8. The general rule to distinguish between combatants and civilians
and the prohibition of attacks against the civilian population as
such or against individual civilians implies, in order to be
effective, that all feasible precautions have to be taken to avoid
injury, loss or damage to the civilian population.
Page | 48
 B. Prohibitions and Restrictions on the Use of Certain Weapons
1. The customary rule prohibiting the use of chemical weapons,
such as those containing asphyxiating or vesicant agents, and
the use of bacteriological (bacterial) weapons is applicable in
non-international armed conflicts.
2. The customary rule prohibiting bullets which expand or flatten
easily in the human body, such as Dum-Dum bullets, is
applicable in non-international armed conflicts.
3. The customary rule prohibiting the use of poison as a means of
warfare is applicable in non-international armed conflicts.
4. In application of the general rules listed in section A above,
especially those on the distinction between combatants and
civilians and on the immunity of the civilian population, mines,
booby-traps and other devices within the meaning of Protocol II
to the 1980 Convention on conventional weapons may not be
directed against the civilian population as such or against
individual civilians, nor used indiscriminately.
The prohibition of booby-traps listed in Article 6 of the Protocol
extends to their use in non-international armed conflicts, in
application of the general rules on the distinction between
combatants and civilians, the immunity of the civilian population,
the prohibition of superfluous injury or unnecessary suffering,
and the prohibition of perfidy.
To ensure the protection of the civilian population referred to in
the previous paragraphs, precaution must be taken to protect it
from attacks in the form of mines, booby-traps and other
devices.
5. In application of the general rules listed in section A above,
especially those on the distinction between combatants and
civilians and on the immunity of the civilian population,
incendiary weapons may not be directed against the civilian
population as such, against individual civilians or civilian objects,
nor used indiscriminately.
 Neutrality
 The decision to adopt or not to adopt a neutral stance is not governed by
international law. It is a dictated by politics. For that reason, there is no special
mode of assertion required.
 Belligerents must respect the rights of neutral states. For their part, neutrals must
not engage in activities which interfere with the activities of the belligerents. The
detailed rules concerning the rights and duties of neutrals and belligerents are
found in Hague Convention V, 1907
 Non-international conflicts
 Civil wars
o Civil wars or rebellion do not violate international law. Article 2(4) of the
Charter does not apply to internal conflicts.
o Outside help for governments experiencing rebellion is generally considered
legitimate provided requested by the government
o Aid to rebels is contrary to international law. The 1970 Declaration on
Principles of international law says that “no state shall organize, assist,
foment, finance, incite or tolerate subversive, terrorist or armed activities
directed towards the violent overthrow of the regime of another state, or
interfere in civil strife in another state.”
 Common Art. 3
o Traditionally, international law on armed conflict does not apply to internal
conflicts such as civil wars or rebellions. In 1949, however, it was decided
that minimum humanitarian protection should also be promulgated to cover
DANA-ANDREI Notes
internal conflict. For this reason, each of the four Geneva Conventions
contains a common Article 3 which says:
o Art. 3. In the case of armed conflict not of an international character
occurring in the territory of one of the High Contracting Parties, each Party
to the conflict shall be bound to apply, as a minimum, the following
provisions:
(1) Persons taking no active part in the hostilities, including members of
armed forces who have laid down their arms and those placed hors de
combat by sickness, wounds, detention, or any other cause, shall in all
circumstances be treated humanely, without any adverse distinction
founded on race, colour, religion or faith, sex, birth or wealth, or any other
similar criteria.
To this end, the following acts are and shall remain prohibited at any time
and in any place whatsoever with respect to the abovementioned persons:
(a) violence to life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and
degrading treatment;
(d) the passing of sentences and the carrying out of executions without
previous judgment pronounced by a regularly constituted court,
affording all the judicial guarantees which are recognized as
indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for. An impartial
humanitarian body, such as the International Committee of the Red Cross,
may offer its services to the Parties to the conflict.
o The Parties to the conflict should further endeavour to bring into force, by
means of special agreements, all or part of the other provisions of the
present Convention. The application of the preceding provisions shall not
affect the legal status of the Parties to the conflict.
o The last sentence means that the application does not convert the conflict
into an international one and therefore does not preclude the possibility that
any participant in the conflict may be prosecuted for treason.
 Protocol II
o The first and only international agreement exclusively regulating the conduct
of parties in a non-international armed conflict is the 1977 Protocol II to the
1949 Geneva Conventions.
o It “develops and supplements Article 3 common to the Geneva Conventions
of 12 August 1949 without modifying its existing conditions or application.”
o A non-international armed conflict covered by this expanded guarantee is
defined in Article I. They are armed conflicts which take place in the territory
of a High Contracting Party between its armed forces and dissident armed
forces or other organized armed groups which, under responsible
command, exercise such control over a part of its territory as to enable them
to carry out sustained and concerted military operations and to implement
this Protocol.
o Article I further adds that the “Protocol shall not apply to situations of
internal disturbances and tensions, such as riots, isolated and sporadic acts
of violence and other acts of a similar nature, as not being armed conflicts.”
This is true even if the armed forces of the territory may have been called
upon to suppress the disorder.
o It will thus be seen that Protocol II sets down requirements for what it calls
“material field of application.”
1. First, the armed dissidents must be under responsible command;
Page | 49
 2. Second, they must “exercise such control over a part of its
territory as to enable them to carry out sustained and concerted
military operations and to implement this Protocol.”
 The Protocol thus sets a very high threshold for applicability, higher
than the threshold for the applicability of Protocol I which does not
require control over territory.
 International Terrorism
 There is no crime named terrorism in Philippine statute books, although some
acts which are considered terroristic are independently punished by the Revised
Penal Code.
 The U.S. has its municipal Anti- Terrorism Law (International Crime Control Act
of 1998) and the UK has the Terrorism Act of 2000. In the British law, what come
under the Terrorism Act are violent moves against person or property or against
public health and safety which have for their purpose to influence the government
or to intimidate a section of the public or to advance a political, religious or
ideological cause. The taking of hostages, indiscriminate killings or destruction of
property for the enumerated purposes come under the law. But these can also be
prosecuted as individual crimes in domestic law.
 In international law, part of the problem in criminalizing terrorism is the difficulty in
defining the prohibited act. A draft of an International Convention for the
Suppression of the Financing of Terrorism adopted by the General Assembly of
the United Nations on December 9, 1999 makes an attempt at a definition. It
says:
o Any person commits an offense [of terrorism] within the meaning of this
Convention if that person, by any means, unlawfully and intentionally, does
an act intended to cause (a) death or serious bodily injury to any person, or
(b) serious damage to a State or Government facility with the intent to cause
extensive destruction of such a place, facility or system, or where such
destruction results or is likely to result in major economic loss, when the
purpose of such act, by its nature or context, is to intimidate a population, or
to compel a Government or an international organization to do or abstain
from doing any act.
 Under traditional international law as now embodied in the UN Charter, self-
defense is a legitimate response to an armed attack by a state.

Page | 50
DANA-ANDREI Notes
INTERNATIONAL ENVIRONMENTAL LAW
 Environmental concerns
 Concern about the environment is expressed by the Philippine Constitution in
Article II, Section 16 thus: “The State shall protect and advance the right of the
people to a balanced and healthful ecology in accord with the rhythm and
harmony of nature.”
 Oposa v. Factoran, Jr.,on the basis of Section 16 linked with the right to health,
recognized a constitutional “right to a balanced and healthful ecology” and “the
correlative duty to refrain from impairing the environment.”
 Laguna Lake Development Authority (LLDA) v. Court of Appeals
o The Supreme Court, relying on Section 16, as also bolstered by the right to
health in Section 15 as well as by the Universal Declaration of Human
Rights and the Alma Conference Declaration of 1978, upheld the authority
of LLDA to protect the inhabitants of the Laguna Lake Area from the
deleterious effects of pollutants coming from garbage dumping and the
discharge of wastes in the area.6 Laguna Lake upheld the exclusive
authority of the Laguna Lake Development Authority to regulate the
exploitation of Laguna Lake, as against the claim of municipalities around
the lake, in order to effectively address the environmental and ecological
stress on Laguna Lake
 Metropolitan Manila Development Authority v. Residents of Manila Bay
o the Supreme Court upheld the validity of an ordinance of the City of Manila
requiring the oil companies to close and transfer the Pandacan Terminals to
another location within a specified period; and ordered various government
agencies to clean up Manila Bay.
 The concern of environmental protection is not just about the atmosphere, the
sea, the land, flora and fauna. It is also about the preservation of the cultural
heritage of mankind as found in archeological and artistic remains. The goal of
environmental protectionists is the rational use of the elements that make up the
environment through control, reduction and, wherever possible, elimination of the
causes of environmental degradation.
 Danube Dam Case
o Thus the long delay of Gorbachev before issuing a statement about the
danger posed by the Chernobyl nuclear disaster was a violation of the
human rights of those affected by the leak. To a lesser degree it can be said
that the failure of the government to prevent pollution of the Pasig and the
failure of the Traffic Bureau to check offending vehicles and factories are a
violations of the the people’s right to a healthy environment.
o ICJ pronounced in the (ICJ Rep. 1997): “The protection of the environment
is a ... vital part of contemporary human rights doctrine, for it is a sine qua
non for numerous human rights such as the right to health, and the right to
life itself.”
 Who have environmental rights”
 Oposa v. Factoran, Jr
o The case involved thirty-four minors who went to Court represented by their
parents pleading the cause of “intergenerational responsibility” and “inter-
generational justice” and asking the Supreme Court to order the Secretary
of Natural Resources to cancel all existing timber license agreements and to
“cease and desist from receiving, accepting, processing, renewing or
approving new timber license agreements.”
o The minors filed the action for themselves as representing “their generation
as well as generations yet unborn.” The Supreme Court recognized the
existence of the right. Although Oposa, Jr. did not order the Secretary
outright to cancel licenses and desist from issuing new ones, the Court
DANA-ANDREI Notes
affirmed the justiciability of the issue raised and remanded the case to the
lower court for further proceedings.
 Trail Smelter Case
o the Arbitral Tribunal also said that “no state has the right to use or permit the
use of its territory in such manner as to cause injury by fumes in or to the
territory of another or the properties or persons therein ...”
 Nuclear Test Cases, supra, was based on the claim that atmospheric nuclear
testing was a breach of customary international law and would also infringe
Australia’s sovereignty over its territory.
 “Sustainable Development”
 It is a concept adopted by the World Commission on Environment and
Development in recognition of competing claims of states in the areas of the
preservation of the environment and the right to development.
 The concept encourages development in a manner and according to methods
which do not compromise the ability of future generation and other states to meet
their needs.
 Sierra Club v. Morton
o The voice of the inanimate object, therefore, should not be stilled. That does
not mean that the judiciary takes over the management functions from the
federal agency. It merely means that before these priceless bits of
Americana (such as a valley, an alpine meadow, a river or a lake) are
forever lost or are so transformed as to be reduced to the eventual rubble of
our urban environment, the voice of the existing beneficiaries of these
environmental wonders should be heard.
 Emerging principles
 Stockholm Declaration
o Stockholm Declaration of 1972 formulated in a UN Conference on the
Human Environment by 113 states.
o The Conference calls upon Governments and peoples to exert common
efforts for the preservation and improvement of the human environment, for
the benefit of all the people and for their posterity.
 Principles
o Principle 1
 Man has the fundamental right to freedom, equality and adequate
conditions of life, in an environment of a quality that permits a life of
dignity and well-being, and he bears a solemn responsibility to protect
and improve the environment for present and future generations. In
this respect, policies promoting or perpetuating apartheid, racial
segregation, discrimination, colonial and other forms of oppression and
foreign domination stand condemned and must be eliminated.
o Principle 2
 The natural resources of the earth, including the air, water, land, flora
and fauna and especially representative samples of natural
ecosystems, must be safeguarded for the benefit of present and future
generations through careful planning or management, as appropriate.
o Principle 3
 The capacity of the earth to produce vital renewable resources must be
maintained and, wherever practicable, restored or improved.
o Principle 4
 Man has a special responsibility to safeguard and wisely manage the
heritage of wildlife and its habitat, which are now gravely imperilled by
a combination of adverse factors. Nature conservation, including
wildlife, must therefore receive importance in planning for economic
development.
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 o Principle 5
 The non-renewable resources of the earth must be employed in such a
way as to guard against the danger of their future exhaustion and to
ensure that benefits from such employment are shared by all mankind.
o Principle 6
 The discharge of toxic substances or of other substances and the
release of heat, in such quantities or concentrations as to exceed the
capacity of the environment to render them harmless, must be halted
in order to ensure that serious or irreversible damage is not inflicted
upon ecosystems. The just struggle of the peoples of ill countries
against pollution should be supported.
o Principle 7
 States shall take all possible steps to prevent pollution of the seas by
substances that are liable to create hazards to human health, to harm
living resources and marine life, to damage amenities or to interfere
with other legitimate uses of the sea.
o Principle 8
 Economic and social development is essential for ensuring a favorable
living and working environment for man and for creating conditions on
earth that are necessary for the improvement of the quality of life.
o Principle 9
 Environmental deficiencies generated by the conditions of
underdevelopment and natural disasters pose grave problems and can
best be remedied by accelerated development through the transfer of
substantial quantities of financial and technological assistance as a
supplement to the domestic effort of the developing countries and such
timely assistance as may be required.
o Principle 10
 For the developing countries, stability of prices and adequate earnings
for primary commodities and raw materials are essential to
environmental management, since economic factors as well as
ecological processes must be taken into account.
o Principle 11
 The environmental policies of all States should enhance and not
adversely affect the present or future development potential of
developing countries, nor should they hamper the attainment of better
living conditions for all, and appropriate steps should be taken by
States and international organizations with a view to reaching
agreement on meeting the possible national and international
economic consequences resulting from the application of
environmental measures.
o Principle 12
 Resources should be made available to preserve and improve the
environment, taking into account the circumstances and particular
requirements of developing countries and any costs which may
emanate from their incorporating environmental safeguards into their
development planning and the need for making available to them, upon
their request, additional international technical and financial assistance
for this purpose.
o Principle 13
 In order to achieve a more rational management of resources and thus
to improve the environment, States should adopt an integrated and
coordinated approach to their development planning so as to ensure
that development is compatible with the need to protect and improve
environment for the benefit of their population.
DANA-ANDREI Notes
o Principle 14
 Rational planning constitutes an essential tool for reconciling any
conflict between the needs of development and the need to protect and
improve the environment.
o Principle 15
 Planning must be applied to human settlements and urbanization with
a view to avoiding adverse effects on the environment and obtaining
maximum social, economic and environmental benefits for all. In this
respect, projects which are designed for colonialist and racist
domination must be abandoned.
o Principle 16
 Demographic policies which are without prejudice to basic human
rights and which are deemed appropriate by Governments concerned
should be applied in those regions where the rate of population growth
or excessive population concentrations are likely to have adverse
effects on the environment of the human environment and impede
development.
o Principle 17
 Appropriate national institutions must be entrusted with the task of
planning, managing or controlling the environmental resources of
States with a view to enhancing environmental quality.
o Principle 18
 Science and technology, as part of their contribution to economic and
social development, must be applied to the identification, avoidance
and control of environmental risks and the solution of environmental
problems and for the common good of mankind.
o Principle 19
 Education in environmental matters, for the younger generation as well
as adults, giving due consideration to the underprivileged, is essential
in order to broaden the basis for an enlightened opinion and
responsible conduct by individuals, enterprises and communities in
protecting and improving the environment in its full human dimension.
It is also essential that mass media of communications avoid
contributing to the deterioration of the environment, but, on the
contrary, disseminates information of an educational nature on the
need to project and improve the environment in order to enable man to
develop in every respect.
o Principle 20
 Scientific research and development in the context of environmental
problems, both national and multinational, must be promoted in all
countries, especially the developing countries. In this connection, the
free flow of up-to-date scientific information and transfer of experience
must be supported and assisted, to facilitate the solution of
environmental problems; environmental technologies should be made
available to developing countries on terms which would encourage
their wide dissemination without constituting an economic burden on
the developing countries.
o Principle 21
 States have, in accordance with the Charter of the United Nations and
the principles of international law, the sovereign right to exploit their
own resources pursuant to their own environmental policies, and the
responsibility to ensure that activities within their jurisdiction or control
do not cause damage to the environment of other States or of areas
beyond the limits of national jurisdiction.
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 o Principle 22
 States shall cooperate to develop further the international law
regarding liability and compensation for the victims of pollution and
other environmental damage caused by activities within the jurisdiction
or control of such States to areas beyond their jurisdiction.
o Principle 23
 Without prejudice to such criteria as may be agreed upon by the
international community, or to standards which will have to be
determined nationally, it will be essential in all cases to consider the
systems of values prevailing in each country, and the extent of the
applicability of standards which are valid for the most advanced
countries but which may be inappropriate and of unwarranted social
cost for the developing countries.
o Principle 24
 International matters concerning the protection and improvement of the
environment should be handled in a cooperative spirit by all countries,
big and small, on an equal footing. Cooperation through multilateral or
bilateral arrangements or other appropriate means is essential to
effectively control, prevent, reduce and eliminate adverse
environmental effects resulting from activities conducted in all spheres,
in such a way that due account is taken of the sovereignty and
interests of all States.
o Principle 25
 States shall ensure that international organizations play a coordinated,
efficient and dynamic role for the protection and improvement of the
environment.
o Principle 26
 Man and his environment must be spared the effects of nuclear
weapons and all other means of mass destruction. States must strive
to reach prompt agreement, in the relevant international organs, on the
elimination and complete destruction of such weapons.
 Rio Declaration
o Principle I
 Human beings are at the centre of concerns for sustainable
development. They are entitled to a healthy and productive life in
harmony with nature.
o Principle 2
 States have, in accordance with the Charter of the United Nations and
the principles of international law, the sovereign right to exploit their
own resources pursuant to their own environmental and developmental
policies, and the responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the environment of other
States or of areas beyond the limits of national jurisdiction.
o Principle 3
 The right to development must be fulfilled so as to equitably meet
developmental and environmental needs of present and future
generations.
o Principle 4
 In order to achieve sustainable development, environmental protection
shall constitute an integral part of the development process and cannot
be considered in isolation from it.
o Principle 5
 All States and all people shall cooperate in the essential task of
eradicating poverty as an indispensable requirement for sustainable
development, in order to decrease the disparities in standards of living
and better meet the needs of the majority of the people of the world.
DANA-ANDREI Notes
o Principle 6
 The special situation and needs of developing countries, particularly
the least developed and those most environmentally vulnerable, shall
be given special priority. International actions in the field of
environment and development should also address the interests and
needs of all countries.
o Principle 7
 States shall cooperate in a spirit of global partnership to conserve,
protect and restore the health and integrity of the Earth’s ecosystem. In
view of the different contributions to global environmental degradation,
States have common but differentiated responsibilities. The developed
countries acknowledge the responsibility that they bear in the
international pursuit of sustainable development in view of the
pressures their societies place on the global environment and of the
technologies and financial resources they command.
o Principle 8
 To achieve sustainable development and a higher quality of life for all
people, States should reduce and eliminate unsustainable patterns of
production and consumption and promote appropriate demographic
policies.
o Principle 9
 States should cooperate to strengthen endogenous capacity building
for sustainable development by improving scientific understanding
through exchanges of scientific and technological knowledge, and by
enhancing the development, adaptation, diffusion and transfer of
technologies, including new and innovative technologies.
o Principle 10
 Environmental issues are best handled with the participation of all
concerned citizens, at the relevant level. At the national level, each
individual shall have appropriate access to information concerning the
environment that is held by public authorities, including information on
hazardous materials and activities in their communities, and the
opportunity to participate in decisionmaking processes. States shall
facilitate and encourage public awareness and participation by making
information widely available. Effective access to judicial and
administrative proceedings, including redress and remedy, shall be
provided.
o Principle 11
 States shall enact effective environmental legislation. Environmental
standards, management objectives and priorities should reflect the
environmental and developmental context to which they apply.
Standards applied by some countries may be inappropriate and of
unwarranted economic and social cost to other countries, in particular
developing countries.
o Principle 12
 States should cooperate to promote a supportive and open
international economic system that would lead to economic growth and
sustainable development in all countries, to better address the
problems of environmental degradation. Trade policy measures for
environmental purposes should not constitute a means of arbitrary or
unjustifiable discrimination or a disguised restriction on international
trade. Unilateral actions to deal with environmental challenges outside
the jurisdiction of the importing country should be avoided.
Environmental measures addressing trans-boundary or global
environmental problems should, as far as possible, be based on an
international consensus.
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 o Principle 13
 States shall develop national law regarding liability and compensation
for the victims of pollution and other environmental damage. States
shall also cooperate in an expeditious and more determined manner to
develop further international law regarding liability and compensation
for adverse effects of environmental damage caused by activities
within their jurisdiction or control to areas beyond their jurisdiction.
o Principle 14
 States should effectively cooperate to discourage or prevent the
relocation and transfer to other States of any activities and substances
that cause severe environmental degradation or are found to be
harmful to human health.
o Principle 15
 In order to protect the environment, the precautionary approach shall
be widely applied by States according to their capabilities. Where there
are threats of serious or irreversible damage, lack of full scientific
certainty shall not be used as a reason for postponing costeffective
measures to prevent environmental degradation.
o Principle 16
 National authorities should endeavour to promote the internalization of
environmental costs and the use of economic instruments, taking into
account the approach that the polluter should, in principle, bear the
cost of pollution, with due regard to the public interest and without
distorting international trade and investment.
o Principle 17
 Environmental impact assessment, as a national instrument, shall be
undertaken for proposed activities that are likely to have a significant
adverse impact on the environment and are subject to a decision of a
competent national authority.
o Principle 18
 States shall immediately notify other States of any natural disasters or
other emergencies that are likely to produce sudden harmful effects on
the environment of those States. Every effort shall be made by the
international community to help States so afflicted.
o Principle 19
 States shall provide prior and timely notification and relevant
information to potentially affected States on activities that may have a
significant adverse trans-boundary environmental effect and shall
consult with those States at an early stage and in good faith.
o Principle 20
 Women have a vital role in environmental management and
development. Their full participation is therefore essential to achieve
sustainable development.
o Principle 21
 The creativity, ideals and courage of the youth of the world should be
mobilized to forge a global partnership in order to achieve sustainable
development and ensure a better future for all.
o Principle 22
 Indigenous people and their communities and other local communities
have a vital role in environmental management and development
because of their knowledge and traditional practices. States should
recognize and duly support their identity, culture and interests and
enable their effective participation in the achievement of sustainable
development.
o Principle 23
DANA-ANDREI Notes
 The environment and natural resources of people under oppression,
domination and occupation shall be protected.
o Principle 24
 Warfare is inherently destructive of sustainable development. States
shall therefore respect international law providing protection for the
environment in times of armed conflict and cooperate in its further
development, as necessary.
o Principle 25
 Peace, development and environmental protection are interdependent
and indivisible.
o Principle 26
 States shall resolve all their environmental disputes peacefully and by
appropriate means in accordance with the Charter of the United
Nations.
o Principle 27
 States and people shall cooperate in good faith and in a spirit of
partnership in the fulfillment of the principles embodied in this
Declaration and in the further development of international law in the
field of sustainable development.
 Some treaties
o The Stockholm and the Rio Declarations are just that, declarations. They
do not have the force of law. There exist, however, some conventions which
are legally binding on the parties. Some of these are:
 In Articles 192-194 of the 1982 LOS there are prohibitions on marine
pollution.
o The Vienna Convention for the Protection of the Ozone Layer of 1985
adopt various measures for the protection of the “ozone layer,” the layer of
atmospheric ozone above the planetary boundary layer.
o The United Nations Conference on Environment and Development,
1992, seeks to achieve “stabilization of greenhouse gas concentration in the
atmosphere at a level that would prevent dangerous anthropogenic
interference with the climate system.”
o The Kyoto Protocol, already ratified by 84 States as of 1 November 1999,
also seeks to protect the atmosphere.
o There is also a Convention on International Trade in Endangered
Species of Wild Fauna and Flora, 1973, and also a Convention on
Biological Diversity, 1992.
o There are also regional conventions involving environmental matters such
as the Treaty of Rome of 1957 (European Union), a 1994 North American
Agreement on Environmental Cooperation, a 1991 Protocol on
Environmental Protection to the Antarctic Treaty of 1991, and the
Amazon Declaration of 1989.
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INTERNATIONAL ECONOMIC LAW
 What is international economic law?
 The (Third) restatement of Foreign Relations Law has this statement: “The law of
international economic relations in its broadest sense includes all the
international law and international agreements governing economic transactions
that cross state boundaries or that otherwise have implications for more than one
state, such as those involving the movement of goods, funds, persons,
intangibles, technology, vessels or aircraft.”
 Because of this broad range, four characteristics can be pointed out.
1. First, IEL is obviously part of public international law. Treaties alone make
this so.
2. Second, IEL is intertwined with muncipal law. The balancing of economic
treaty law with municipal law is important.
3. Third, IEL requires multi-disciplinary thinking involving as it does not only
economics but also political science, history, anthropology, geography, etc.
4. Fourth, empirical research is very important for understanding its operation.
 Important economic institutions
 After the Second World War, the economic advisers of the United States and of
England led an effort to establish mechanisms which could avoid the repetition of
the protectionist policies of the 1930s. The effort led to the Bretton Woods
Conference of 1944.
 The conference had two main objectives:
1. first, to advance the reduction of tariffs and other trade barriers, and
2. second, to create a global framework designed to minimize economic
conflicts. Out of this conference were bom the International Monetary Fund
(IMF) whose function was to provide short-term financing to countries in
balance of payments difficulties; the International Bank for Reconstruction
and Development (World Bank) designed to provide long-term capital to
support growth and development; and the International Trade Organization
(ITO) which was intended to promote a liberal trading system by proscribing
certain protectionist trade rules.
 The intended function of the ITO was eventually taken over by the General
Agreement on Tariff and Trade (GATT) and its successor the World Trade
Organization (WTO). The GATT and the WTO are the most important trade
oriented institutions. They shape domestic import and export laws which impact
on international trade on goods and services.
 GATT went through a series of modifications Rounds with the Uruguay Round of
1994 as the final one. The final agreement proposed the establishment of a
World Trade Organization (WTO) which would oversee the operation of GATT
and a new General Agreement on Trade and Services.
 Key principles of International Trade Law
 Agreed tariff levels.
o The GATT contains specified tariff levels for each state. Each state agrees
not to raise tariff levels above those contained in the schedule. But these
can be renegotiated.
 The most favored nation principle (MFN)
o The MFN clause embodies the principle of non-discrimination. The principle
means that any special treatment given to a product from one trading
partner must be made available for like products originating from or destined
for other contracting partners. In practice, this generally refers to tariff
concessions.
 Principle of national treatment
o This prohibits discrimination between domestic producers and foreign
producers. In practice, this means that once foreign producers have paid the
DANA-ANDREI Notes
proper border charges, no additional burdens may be imposed on foreign
products.
 Principle of tariffication
o This principle prohibits the use of quotas on imports or exports and the use
of licenses on importation or exportation. The purpose of the principle is to
prevent the imposition of non-tariff barriers. But GATT provides for
exceptions on a quantitative and temporary basis for balance of payments
or infant industry reasons in favor of developing states.
 Exceptions to key principles
 The GATT itself contains many exceptions to the key principles. Some of the
exceptions are general in nature such as those referring to public morals, public
health, currency protection, products of prison labor, national treasures of
historic, artistic or archeological value, and protection of exhaustible natural
resources. There are also security exceptions and regional trade exceptions. Of
special significance for the Philippines are the exceptions for developing nations.
 Tanada v. Angara
o WTO Recognizes Need to Protect Weak Economies
o Upon the other hand, respondents maintain that the WTO itself has some
built-in advantages to protect weak and developing economies, which
comprise the vast majority of its members. Unlike in the UN where major
states have permanent seats and veto powers in the Security Council, in the
WTO, decisions are made on the basis of sovereign equality, with each
member’s vote equal in weight to that of any other. There is no WTO
equivalent of the UN Security Council.
o “WTO decides by consensus whenever possible, otherwise, decisions of the
Ministerial Conference and the General Council shall be taken by the
majority of the votes cast, except in cases of interpretation of the Agreement
or waiver of the obligation of a member which would require three fourths
vote. Amendments would require two thirds vote in general. Amendments to
MFN provisions and the Amendments provision will require assent of all
members. Any member may withdraw from the Agreement upon the
expiration of six months from the date of notice of withdrawals.”
o Hence, poor countries can protect their common interests more effectively
through the WTO than through one-on-one negotiations with developed
countries. Within the WTO, developing countries can form powerful blocs to
push their economic agenda more decisively than outside the Organization.
This is not merely a matter of practical alliances but a negotiating strategy
rooted in law. Thus, the basic principles underlying the WTO Agreement
recognize the need of developing countries like the Philippines to “share in
the growth in international trade commensurate with the needs of their
economic development.” These basic principles are found in the preamble
of the WTO Agreement as follows:
 “The Parties to this Agreement,
Recognizing that their relations in the field of trade and economic
endeavor should be conducted with a view to raising standards of
living, ensuring full employment and a large and steadily growing
volume of real income and effective demand, and expanding the
production of and trade in goods and services, while allowing for the
optimal use of the world’s resources in accordance with the objective
of sustainable development, seeking both to protect and preserve the
environment and to enhance the means for doing so in a manner
consistent with their respective needs and concerns at different levels
of economic development.
Recognizing further that there is need for positive efforts designed to
ensure that developing countries, and especially the least developed
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 among them, secure a share in the growth in international trade  Dispute Resolution
commensurate with the needs of their economic development.  A Dispute Settlement Body (DSB) has been established by the WTO Agreement.
o Being desirous of contributing to these objectives by entering into reciprocal It consists of the General Council of the WTO and operates under the
and mutually advantageous arrangements directed to the substantial Understanding on Rules and Procedures Governing the Settlement of Disputes
reduction of tariffs and other barriers to trade and to the elimination of 1994 (DSU). Each state has a right to the establishment of a Panel. The DSU
discriminatory treatment in international trade relations. has also provided for a permanent Appellate Body, consisting of persons with
o Resolved, therefore, to develop an integrated, more viable and durable recognized expertise in law, to handle appeals from a Panel decision.
multilateral trading system encompassing the General Agreement on Tariffs  Expanding Scope of International Economic Law
and Trade, the results of past trade liberalization efforts, and all of the  The Uruguay Round of 1994 has expanded the scope of the multilateral trade
results of the Uruguay Round of Multilateral Trade Negotiations. regime. It now includes intellectual property, services, sanitary and
o Determined to preserve the basic principles and to further the objectives physiosanitary measures and investment, as well as the strengthening of the
underlying this multilateral trading system, . . (emphasis supplied.) rules on subsidies, countervailing duties and antidumping.
o Specific WTO Provisos Protect Developing Countries  As can readily be seen, IEL has become a very specialized field. Most
o So too, the Solicitor General points out that pursuant to and consistent with significantly too, it is affecting the sovereignty of states and their capacity to give
the foregoing basic principles, the WTO Agreement grants developing force to national policy objectives.
countries a more lenient treatment, giving their domestic industries some
protection from the rush of foreign competition. Thus, with respect to tariffs
in general, preferential treatment is given to developing countries in terms of
the amount of tariff reduction and the period within which the reduction is to
be spread out. Specifically, GATT requires an average tariff reduction rate
of 36% for developed countries to be effected within a period of six (6) years
while developing countries — including the Philippines — are required to
effect an average tariff reduction of only 24% within ten (10) years.
o In respect to domestic subsidy, GATT requires developed countries to
reduce domestic support to agricultural products by 20% over six (6) years,
as compared to only 13% for developing countries to be effected within ten
(10) years.
o In regard to export subsidy for agricultural products, GATT requires
developed countries to reduce their budgetary outlays for export subsidy by
36% and export volumes receiving export subsidy by 21% within a period of
six (6) years. For developing countries, however, the reduction rate is only
two-thirds of that prescribed for developed countries and a longer period of
ten (10) years within which to effect such reduction.
o Moreover, GATT itself has provided built-in protection from unfair foreign
competition and trade practices including antidumping measures,
countervailing measures and safeguards against import surges. Where local
businesses are jeopardized by unfair foreign competition, the Philippines
can avail of these measures.
o There is hardly therefore any basis for the statement that under the WTO,
local industries and enterprises will all be wiped out and that Filipinos will be
deprived of control of the economy. Quite the contrary, the weaker
situations of developing nations like the Philippines have been taken into
account; thus, there would be no basis to say that in joining the WTO, the
respondents have gravely abused their discretion. True, they have made a
bold decision to steer the ship of state into the yet uncharted sea of
economic liberalization. But such decision cannot be set aside on the
ground of grave abuse of discretion, simply because we disagree with it or
simply because we believe only in other economic policies. As earlier
stated, the Court in taking jurisdiction of this case will not pass upon the
advantages and disadvantages of trade liberalization as an economic policy.
It will only perform its constitutional duty of determining whether the Senate
committed grave abuse of discretion

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DANA-ANDREI Notes