Bernas PIL Ch1-9

CHAPTER 1
THE NATURE OF INTERNATIONAL LAW Some Dissenters Pragmatic Theory
What is International Law? A body of rules and principles of action which are binding upon civilized states in their relation to one another A law which deals with the conduct of the states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical Scope of International Law a. Regulation of space expeditions b. Division of the ocean floor c. Protection of human rights d. Management of international financial system e. Regulation of the environment f. Preservation of peace Is International Law a Law? Henkin: It is probably the case that almost all nations observe all principles of international law and almost all of their obligations almost all of the time Brierly: The ultimate explanation of the binding force of all law is that man, whether he is a single individual or whether he is associated with other men in a state, is constrained, in so far as he is reasonable being, to believe that order and not chaos is the governing principle of the world in which he lives Some Theories about International Law Command Theory Austin: Law consists of commands originating from a sovereign and backed up by threats of sanction if disobeyed International law is not law because it does not come from a command of a sovereign International law derives its binding force from the consent of states Treatiesexpression of consent Customvoluntary adherence to common practices, is seen as expression of consent Law is derived by reason from the nature of man International lawapplication of natural reason to the nature of the state-person
Customary lawwhat are regarded as generally accepted principles of law are in fact an expression of what traditionally was call natural law International lawa combination of politics, morality and self-interest hidden under the smokescreen of legal language International law is law because it is seen as such by states and other subjects of international law
Public International Law v. Private International Law Public International Law Referred to as International Law Governs the relationship between and among states and also their relations with international organizations and individual persons Private International Law Referred to as Conflict of Laws Domestic law which deals with cases where foreign law intrudes in the domestic sphere where there are questions of the applicability of foreign law or the role of foreign courts
CHAPTER 2
SOURCES OF INTERNATIONAL LAW
What Sources are Domestic Lawsfound in statute books and in collections of court decisions Classifications of Sources 1. Formal sourcesvarious processes by which rules come into existence a. Legislation b. Treaty making c. Judicial decision making d. Practice of states 2. Material sourcesidentify what the obligations are a. State practice d. Judicial decisions b. UN Resolutions e. Writings of jurists c. Treaties Art. 38(1) of the Statute of the International Court of Justice 1. International conventionsestablishing rules expressly recognized by contesting states 2. International customevidence of a general practice accepted as law 3. General principles of law recognized by civilized nations 4. Subsidiary means for determination of rules of law a. Judicial decisions b. Teachings of the most highly qualified publicists
Consensual Theory
Natural Law Theory
Public International Law
P a g e |1
Restatement of Foreign Relations Law of the US 1. Customary Law 2. International agreement 3. General principles common to the major legal system Sources of International Law 1. Custom 4. Generally recognized principles of law 2. Treaties 5. Judicial decisions 3. International agreements 6. Teachings of highly qualified publicists Custom or Customary Law A general and consistent practice of states followed by them from a sense of legal obligation Elements: 1. Material factorhow state behaves o Elements of Practice of sates or usus a. Durationmay be either short or long; not the most important element North Sea Continental Shelf Cases: Short duration, by itself, will not exclude the possibility of practice maturing into custom provided that other conditions were satisfied. State practice should be extensive & uniform in the sense of the provision invoked, and should have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved. b. Consistencycontinuity and repetition Asylum Case: Colombia wanted Haya de la Torre be granted safe conduct & be a refuge. Columbia had not proven the existence of a constant & uniform practice of unilateral qualification as a right of the State to refuge and an obligation upon the territorial state. c. Generality of the practice of statesuniformity and generality of practice need not be complete but it must be substantial Nicaragua v. US: practice need not be in absolute uniformity with the purported customary rule as long as it is consistent with such rules. Opinio Jurisbelief that a certain form of behavior is obligatory Nicaragua case: for a new customary rule to be formed, not only must the acts concerned amount to a settled practice, but must be accompanied by opinion juris sive necessitas
Dissenting states: subsequent contrary practice o Dissenting states are bound by custom unless they had consistently objected to it while the custom was merely in the process of formation o It is also possible that after a practice has been accepted as law, contrary practice might arise Fisheries Jurisdiction Case: if the contrary practice should gain general acceptance, it might instead become the law Evidence of state practice and opinio juris a. Treaties b. Diplomatic correspondence c. Statements of national leaders and political advisers d. Conduct of states Instant Custom o A spontaneous activity of a great number of states supporting a specific line of action The Martens Clause Until a complete code of laws of war has been issued, inhabitants & belligerents are protected under the rule on the principles of the law of nations as they result from: usages of civilized people, laws of humanity & public conscience 2. Psychological or subjective factorwhy they behave the way they do
Treaties Determine the rights and duties of states just as individual rights are determined by contracts Binding force comes from the voluntary decision of sovereign states to obligate themselves to a mode of behavior Treaties and Custom If the treaty is intended to be declaratory of customary law, it may be seen as evidence of customary law Adherence to treaties can be indicative also of adherence to practice as opinio juris If treaty comes later than a particular custom, treaty should prevail If a later treaty is contrary to a customary rile that has the status of jus cogens, custom will prevail The later custom, being the expression of a later will, should prevail A treaty is void if, at the time of its conclusion, it conflicts with a preemptory norm of general international law Preemptory norm of general international law = a norm accepted and recognized by the international community of States as a whole as a
P a g e |2
norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character General Principles of Law Recognized by Civilized Nations This has reference to principles of municipal law common to the legal systems of the world Judicial Decisions Decisions of the court have no binding force except between the parties and in respect of that particular case Decisions do not constitute stare decisis Decisions of the ICJ are not only regarded as highly persuasive in international circles but they have also contributed to the formulation of principles that have become international law Teachings of Highly Qualified Writers and Publicists Publicists = institutions which write on international law a. The International Commission b. The Institut de Droit International c. International Law Association d. Restatement of Foreign Relations Law of the US e. Annual publication of the Hague Academy of International Law Equity When accepted, is an instrument whereby conventional or customary law may be supplemented or modified in order to achieve justice Where 2 parties have assumed an identical or a reciprocal obligation, one party which is engaged in a continuing non-performance of that obligation should not be permitted to take advantage of a similar nonperformance of that obligation by the other party The Courts recognition of equity as part of international law is in no way restricted by the special power conferred upon it to decide a case ex aequo et bono, if the parties agree thereto Kinds of Equity: 1. Intra legemwithin the law; the law is adapted to the facts of the case 2. Praeter legembeyond the law; used to fill the gaps within the law 3. Contra legemagainst the law; refusal to apply the law which is seen as unjust Other Supplementary Evidence 1. UN Resolutionsgenerally considered merely recommendatory but if they are supported by all the states, they are an expression of opinio juris communis
2.
Soft LawNon-treaty Agreements; international agreements not concluded as treaties and therefore not covered by the Vienna Convention on the Law of Treaties o Administrative Rulesguide the practice of states in relation to international organizations CHAPTER 3 THE LAW OF TREATIES e. Protocols f. Concordat g. Modus vivendi
Various names of Treaties a. Conventions c. Covenants b. Pacts d. Charters
1969 Vienna Convention on the Law of Treaties Governs treaties between states Entered into force in January 1980 Definition of Treaties An international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in 2 or more related instruments and whatever its particular designation Even oral agreement can be binding, however, only written agreements that are new, come under the provisions of the Vienna Convention Characteristics to make it binding: 1. Commitment was very specific 2. There was a clear intent to be bound Qatar v. Bahrain: exchange of notes between 2 heads of state considered an international agreement; minutes are not a simple record of the meeting, they enumerate commitments parties have consented; they create rights and obligations; they constitute an international agreement Norway v. Denmark: oral declaration can be binding Australia v. France and New Zealand: unilateral declarations concerning legal or factual situations may create legal obligations; if given publicly with an intent to be bound, it is binding Functions of Treaties a. Sources of international law b. Charter of international organizations c. Used to transfer territory, regulate commercial relations, settle disputes, protect human rights, guarantee investments
P a g e |3
Different Kinds of Treaties Multilateral Treaties Open to all states of the world; Create the norms which are the basis for a general rule of law Can either be Codification Treaties or Law Making Treaties, or both Operate through the organs of the different states 1. Universal scope 2. Regional In the nature of contractual agreements which create shared expectations such as trade agreements of various forms; Contract Treaties
reaction. Facts to prove: text of Warsaw Convention, drafter by continental jurists, consistent with history of Warsaw Convention, conduct of the parties, US Court precedence Invalidity of Treaties 1. Errorrelates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed 2. FraudState has been induced to conclude a treaty 3. Corruption of a Representative of a State 4. Coercion of a Representative of a State 5. Coercion of a State by the threat or use of force 6. Violation of jus cogenstreaty is void if, at the time of its conclusion, it conflicts with a preemptory norm of general international law Amendment and Modification of Treaties Amendmentformal revision done with the participation, at least in its initial stage, by all the parties to the treaty Modificationinvolves only some parties Termination of Treaties Terminated or suspended according to the terms of the treaty or with the consent of the parties 1. Material Breach a. Repudiation of the treaty not sanctioned by the present Convention b. Violation of a provision essential to the accomplishment of the object or purpose of the treaty 2. Supervening Impossibility of Performance o Results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty 3. Rebus sic stantibus o Resulted in a radical transformation of the extent of the obligations imposed by it, may, under certain conditions, afford the party affected a ground for invoking the termination or suspension of the treaty Fisheries Jurisdiction Case: changes of circumstances which must be regarded as fundamental or vital are those which imperil the existence or vital development of one of the parties. Change in circumstance alleged by Iceland cannot be said to have transformed radically the extent of the jurisdictional obligation. Namibia Case: if revocation only takes place with the concurrence of the mandatory (South Africa), it would be contrary to the general principle of law governing termination on account of the breach and would be an impossibility. Consent of the wrongdoers to such a form of termination cannot be required.
Treaties that create Collaborative Mechanism Bilateral Treaties
The Making of Treaties 1. Negotiationforeign ministries, diplomatic conferences 2. Power to negotiate 3. Authentication of textsigning of the document; so that states will know the contents & avoid misunderstanding 4. Consent to be bound: a. Signature e. Approval b. Exchange of Instruments f. Accession c. Ratification g. Other means if so agreed d. Acceptance 5. Accession to a treatystates which did not participate in the initial negotiation may express their consent to be bound 6. Reservationsunilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to the State 7. Entry into force of treatiesdate agreed or once consent given (but provisional application can also apply) 8. Application of treaties o PACTA SUNT SERVANTAevery treaty in force is BINDING upon the parties and must be PERFORMED by them in GOOD FAITH o A party may NOT INVOKE INTERNAL LAW as justification for its failure to perform a treaty o It is binding upon each party in respect of its entire territory unless a different intention appears in the treaty or is otherwise established 9. Interpretation of Treaties a. Objective approachinterpretation according to the ordinary meaning of the words b. Teleological approachinterpretation according to the telos or purpose of the treaty c. Subjective approachhonors special meaning given by the parties Air Frace v. Saks: airplane passenger became 1 ear deaf. Accident as an unusual or unexpected happening, not passengers own internal
P a g e |4
Danube Dam Case: impossibility of performance may not be invoked when it results from that partys own breach. Changes of political nature, reduced economic viability of the project, and progress of environmental knowledge and international environment law are not of such nature that would radically transform obligations. Violation of other treaty rules or of general international law may justify taking of certain measures but not constitute a ground for termination. Czechoslovakia did not act unlawfully when it constructed works. Procedure for the Termination of Treaties 1. Notify other parties of ground and measure proposed 2. If no objection, carry out the measure proposed 3. If there is an objection, follow Art. 33 Authority to Terminate Belongs to the one who has authority to enter into the treaty In the Philippines, authority to conclude treaties is shared between the Senate and the President Succession to Treaties Clean Slate Rule: newly independent state is not bound to maintain in force or to become a party to any treaty by reason only of the fact that at the date of the succession of states, the treaty was in force in respect of the territory to which the succession of state relates CHAPTER 4 Dualism v. Monism Dualist or Pluralist Theory *when international and municipal law are in conflict, Municipal law must prevail Monism or Monistic Theory *International and Municipal laws belong to only one system of law Municipal Law International Law Product of local Treaties and custom custom or of grown among states legislation As to Regulates relations Regulates relations relations between individual between states they persons under the regulate state As to their Law of sovereign Law between substance over individuals sovereign states Two theories: A. Municipal law subsumes and is superior to international law B. International law is superior to Domestic Law (supported by Kelsen) As to source INTERNATIONAL LAW AND MUNICIPAL LAW
Municipal Law in International Law Follows the dualist tradition and blocks domestic law from entry into the international arena A state which has violated a provision of international law cannot justify itself by recourse to its domestic law A state which has entered into an international agreement must modify its law to make it conform to the agreement International Law in Domestic Law How does international law become part of domestic law for dualists? 1. Doctrine of Transformation o It must be expressly and specifically transformed into domestic law through the appropriate constitutional machinery such as an act of Congress or Parliament o Treaties do not become part of the law of a state unless it is consented to by the state 2. Doctrine of Incorporation o They become part of the law of the land Philippines adheres to the dualist theory and at the same time adopts the incorporation theory and thereby makes international law part of domestic law International law can be used by Philippine courts to settle domestic disputes Art. 2, Sec. 2 of the Constitution: only customary law and treaties which have become part of customary law become part of Philippine law by incorporation Conflict between International Law and Domestic Law: International Rule Before an international tribunal, a state may not plead its own law as an excuse for failure to comply with international law Exception: Art. 46 of Vienna Convention = in cases where the constitutional violation was manifest and concerned a rule of its internal law of fundamental importance Manifest = objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith Conflict between International Law and Domestic Law: Municipal Rule Domestic courts are bound to apply the local law Should a conflict arise between an international agreement and the Constitution, the treaty would not be valid and operative as domestic law Art. 8, Sec. 5 of the Constitution explicitly recognizes the power of the Supreme Court to declare a treaty unconstitutional; however, even if declared unconstitutional, the treaty will not lose its character as an international law Head Money Case: treaty is not superior to acts of Congress
P a g e |5
Whitney v. Robertson: courts will construe a treaty and an act of legislation as to give effect to both. But if the two are inconsistent, the one last in date will control the other. the unsatisfied country will have to present its complaint to the executive, not to the courts. CHAPTER 5 SUBJECTS OF INTERNATIONAL LAW STATES
4. Capacity to enter into relations with other SOVEREIGNTYindependence from outside control
States
Principle of Self-determinationsovereignty as an element of a state is related but not identical to this principleby virtue of this, people freely determine their political status and freely pursue their economic, social and cultural development Levels of claim to Self-determination 1. Establishment of New Statethe claim by a group within an established state to break away and form an new entity 2. Does not involve Establishment of New Statesimply involves claims a. To be free from external coercion b. To overthrow effective rulers and establish a new governmentthe assertion of the right of revolution c. Of people within an entity to be given autonomy International law has not recognized a right of secession from a legitimately existing state Recognition of Statesthe act of acknowledging the capacity of an entity to exercise rights belonging to statehood Can an entity claim to be a state before it is recognized by other states? Declaratory Theory Constitutive Theory Recognition is merely declaratory of Recognition constitutes a state the existence of the state Its being a state depends upon its It is what makes a state a state and possession of the required elements confers legal personality on the entity and not upon recognition States may decide to recognize an entity as a state even if it does not have all the elements of a state Recognition of Governmentact of acknowledging the capacity of an entity to exercise powers of government of a state If a change in government in an existing state comes about through ordinary constitutional procedure = recognition by others comes as a matter of course THE TINOCO ARBITRATION FACTS: Government of Costa Rica was overthrown by Tenneco. The latters government entered into contracts with British corporations. When Tenneco retired and left the country, the old constitution was restored and a Law of Nullities was passed annulling contracts concluded during the Tenneco regime. Great Britain made claims on the basis of the injuries done to its nationals caused by the annulments.
Subjects of International Lawentities endowed with rights and obligations in the international order and possessing the capacity to take certain kinds of action on the international plane Those with international personality Objects of International Lawthose who indirectly have rights under or are beneficiaries of international law through subjects of international law Statespredominant actors; a community of persons more or less numerous, permanently occupying a definite portion of territory, independent of external control, and possession an organized government to which the great body of inhabitants render habitual obedience Commencement of their Existence State, as a person of international law, should possess the following qualifications: (Montevideo Convention of 1933 on Rights and Duties of States) 1. Permanent populationPEOPLEa community of persons sufficient in number and capable of maintain the permanent existence of the community and held together by a common bond of law 2. Defined territoryan entity may satisfy this requirement even if its boundaries have not been finally settled, if one or more of its boundaries are disputed, or if some of its territory is claimed by another state An entity does not necessarily cease to be a state even if all its territory has been occupied by a foreign power or if it has otherwise lost control of its territory temporarily 3. Governmentthat institution or aggregate of institutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state It is the National Government that has legal personality and it is such that is internationally responsible for the actions of other agencies and instrumentalities of the state Temporary absence of government does not terminate the existence of a state
P a g e |6
ISSUE: What is the status of the Tinoco regime in international law? HELD: The non-recognition by other nations of a government claiming to be a national personality, is usually appropriate evidence that it has not attained the independence and control entitling it by international law to be classed as such The rule that a revolution contrary to the fundamental law of the existing government cannot establish a new government is not true in international law. Non-recognition may have aided the succeeding government to come into power; but subsequent presentation of claims based on the de facto existence of the previous government does not work an injury to the succeeding government in the nature of a fraud or breach of good faith. UPRIGHT v. MERCURY BUSINESS MACHINES CO. FACTS: Plaintiff, and individual, sues as the assignee of a trade acceptance drawn on and accepted by defendant in payment for business typewriters sold and delivered to it by a foreign corporation. It alleges that the foreign corporation is the creature of the East German Government, a government not recognized by US. HELD: A foreign government, although not recognized by the political arm of US Government, may nevertheless have de facto existence which is juridically cognizable. In traditional law, the acts of such government may affect private rights and obligations arising either as a result of activity in, or with persons or corporations within, the territory controlled by such de facto government. Consequence of Recognition or Non-Recognition A government, once recognized, gains increased prestige and stability a. Doors of funding agencies are opened b. Loans are facilitated c. Access to foreign courts and immunity from suit are gained d. Military and financial assistance also come within reach Absence of formal recognition bars an entity from all these benefits or, at least, access to them may be suspended Admission of a government to the UN does not mean recognition by all members but only to the extent of the activities of the organization Recognition of a regime is terminated when another regime is recognized
Succession of States Views on Succession A. The new state succeeds to no rights or obligations of the predecessor state but begins with a tabula rasa B. Successor state assumes all obligations and enjoys all the rights of the predecessor Issues on Succession of States 1. Succession to territorywhen a state succeeds another state with particular territory, the capacities, rights and duties of the predecessor state with respect to that territory terminate and are assumed by the successor state 2. Succession to state propertythis is subject to agreement between predecessor and successor states 3. Succession to contractsthis is subject to agreement between the states concerned o Responsibility for the public debt of the predecessor, and rights and obligations under its contracts remain with the predecessor state but is subject to certain exceptions Succession to treaties Moving Treaty Rule / Moving Boundaries Rulewhen part of the territory of a state becomes territory of another state, the international agreements of the predecessor state cease to have effect in respect of the territory o Relief from treaty obligation is rebus sic stantibus b. When a state is absorbed by another state, international agreements of the absorbed states are terminated c. Clean Slate Theorywhen part of a state becomes a new state, the new state does not succeed to the international agreements to which the predecessor state was a party unless, expressly or impliedly, it accepts such agreements d. Uti possidetis Rulepre-existing boundary and other territorial agreements continue to be binding notwithstanding a.
4.
Fundamental Rights of States 1. Independencecapacity of a state to provide for its own well-being and development free from the domination of other states o Right to exercise within its portion of the globe, to the exclusion of others, the functions of a state o Restrictions upon a states liberty either from customary law or from treaties do not deprive a state of independence o There is duty not to interfere in the internal affairs of other states o Rights flowing from independence: a. Jurisdiction over its territory and permanent population b. Right to self-defense c. Right of legation
P a g e |7
2.
Equalityequality of legal rights irrespective of size or power of the state o Within the General Assembly, the doctrine means one state, one vote Peaceful Co-Existencemutual respect for each others territorial integrity and sovereignty, mutual non-aggression, non-interference in each others affairs and the principle of equality
3.
Some Incomplete Subjects 1. Protectoratesdependent states which have control over their internal affairs but whose external affairs are controlled by another state; referred to as a. Autonomous states b. Vassal states c. Semi-sovereign d. Dependent sates 2. Federal statea union of previously autonomous entities o The central organ will have personality in international law but the extent of international personality of the component entities can be a problem Mandated and Trust Territoriesterritories placed by the League of nations under one or other of the victorious allies of WWI o After WWII, this was replaced by trusteeship system Taiwana non-state territory which de jure is part of China The Sovereign Order of Maltathe Italian Court of Cassation in 1935 recognized its international personality The Holy See and Vatican Cityrecognized under Lateran Treaty; it has no permanent population CHAPTER 6 OTHER SUBJECTS OF INTERNATIONAL LAW
Advisory Opinion on the Use of Nuclear Weapons International organizationsgoverned by the Principle of Specialtythey are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them. Powers conferred on international organizationsnormally the subject of an express statement in their constituent instruments but in order to achieve their objectives, they possess subsidiary powers which are not expressly provided for in the basic instruments which govern their activities. Immunitiesbased on the need for the effective exercise of their functions and not from sovereignty These immunities come from the conventional instrument creating them KAPISANAN NG MGA MANGGAGAWA v. IRRI HELD: IRRI was organized and registered with SEC as a private corporation subject to all laws and regulations. However, by virtue of PD 1620, it was granted the status, prerogatives, privileges and immunities of an international organization. SC has consistently recognized the immunity granted to IRRI declaring it to be on the same footing as the International Catholic Migration Commission. The objective of the grant of immunity is to avoid the danger of partiality and interference by the host country in their internal workings. The end result of the protective blanket that has been wrapped around IRRI is the efforts of employees to seek redress for violations of labor rights have been repeatedly rebuffed by SC. For all practical purposes, they are denied the full protection for labor guaranteed in the Constitution. DFA v. NLRB ISSUE: w/n NLRC could assume jurisdiction over a case of illegal dismissal against ADB HELD: ADB enjoys immunity from every form of legal process, except in cases arising out of or in connection with the exercise of its powers to borrow money, to guarantee obligations, or to buy and sell or underwrite the sale of securities.
3.
4. 5. 6.
INTERNATIONAL ORGANIZATIONS An organization that is set up by treaty among 2 or more states which have international personality Constituent instruments of international organizations are multilateral treaties, to which the well-established rules of treaty interpretation apply Non-governmental organizations (NGO)set up by private persons Although international organizations have personality in international law, their powers and privileges are by no means like those of states since it is limited by the constitutional instrument that created them
P a g e |8
WHO v. AQUINO HELD: Diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch of the government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government, it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law officer of the government or other officer acting under this discretion. JEFFREY LIANG v. PEOPLE FACTS: This involved a criminal complaint against Liang, an ADB official, for grave oral defamation. Appeal was made to the political character of Liang as an agent of international organization. HELD: Immunity granted to officers and staff of ADB was not absolute; but limited to acts performed in an official capacity. 5. The United Nations: Structure and Powers Came into being on Oct. 24, 1945 A universal organization charged with peacekeeping responsibilities, development of friendly relations among nations, achievement of international cooperation in solving international problems of an economic, social, cultural and humanitarian character, and the promotion of human rights and fundamental freedoms for all human beings without discrimination UN is enjoined against intervening in matters which are essentially within the domestic jurisdiction of any state International Constitutional Supremacy Clausein the hierarchy of international organizations, the UN occupies a position of preeminence so if there is a conflict with other international agreement, obligations under the UN Charter shall prevail Principal organs of UN: 1. General Assemblyit has plenary power in the sense that it may discuss any question or any matters within the scope of the Charter o GA distinguishes between a. Important questionsdecided by 2/3 majority of the members voting and present b. Other questionsdecided by the majority 2. Security Councilhas primary responsibility for the maintenance of international peace and security 6.
o o
o o 3. 4. o
There are 15 member states, 5 permanent and the others are elected for 2 year terms in accordance with equitable geographic representation Distinguishes between a. Procedural matters b. All other mattersrequires 9 affirmative votes, including the concurring votes of the permanent members The Charter does not specify what matters are procedural, hence, decision on whether a matter is procedural or not requires the concurrence of the permanent members Abstention = veto Economic and Social Council (ECOSOC)has 54 members elected for 3 year terms Trusteeship Councilsupervises non-self governing territories The Council suspended operations after Palau became independent on Oct. 1, 1994 International Court of Justice (ICJ)principal judicial organ of the UN
Secretariatcomprises a Secretary General and such staff as the Organization may require o Secretary Generalelected to a 5 year term by General Assembly upon the recommendation of the Security Council, subject to veto power
Other Agencies: 1. United Nations Educational, Scientific and Cultural Organizations (UNESCO) 2. International Civil Aviation Organization (ICAO) 3. World Health Organization (WHO) 4. Food and Agricultural Organization (FAO) 5. World Bank 6. International Monetary Fund (IMF) Regional Organizationsthey are neither organs nor subsidiary organs of UN They are autonomous international organizations having an institutional affiliation with UN by concluding agreements with UN Created by international agreements for the purpose of dealing with regional problems in general or with specific matters be they economic, military or political ASEANestablished on Aug. 8, 1967 in Bangkok, Thailand with the signing of the Bangkok Declaration by the 5 original member countries: Indonesia, Malaysia, Philippines, Singapore and Thailand
P a g e |9
Brunei Darrusalam joined on Jan. 8, 1994; Vietnam on July 28, 1995; Laos and Myanmar on July 23, 1997; Cambodia in 1999. 3 main objectives: a. Promote economic, social and cultural development of the region through cooperative programs b. Safeguard the political and economic stability of the region against big power rivalry c. Serve as a forum for the resolution of intra-regional differences INSURGENTS Protocol IIfirst and only international agreement exclusively regulating the conduct of parties in a non-international armed conflict Requirements for Material Field of Application: a. Armed dissidents must be under responsible command b. They must exercise such control over a part of its territory as to enable them to carry out sustained and converted military operations and to implement this Protocol Insurgent groups which satisfy the material field of application may be regarded as para-statal entities possessing definite if limited form of international personality a. They are recognized as having belligerent status against the de jure government b. They are seen as having treaty making capacity Common Article 3for armed conflict not of an international character Prohibited acts under Article 3: 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. Passing of sentences and the carrying out of executions without previous judgment pronounced NATIONAL LIBERATION MOVEMENTS Organized groups fighting in behalf of a whole people for freedom from colonial powers Characteristics: a. They can be based within the territory which they are seeking to liberate or they might find a base in a friendly country b. Their goal is self-determinationto free themselves from colonial domination, or a racist regime or foreign occupation c. There is the ultimate goal of controlling a definite territory d. They must have an organization capable of coming into contract with other international organizations
INDIVIDUALS Possess limited rights and obligations (deriving from customary international law) in international law Obligations of individuals are those arising from the regulation of armed conflicts When individual rights are violated, however, individuals still have to rely on the enforcement power of states; but some treaties have provided for the right of individuals to petition international bodies alleging that a contracting state has violated some of their human rights CHAPTER 7 TERRITORY: LAND, AIR, OUTER SPACE
Territory in International Lawan area over which a state has effective control Exact boundaries might be uncertain but there should be a definitive core over which sovereignty is exercised Acquisition of territoryacquisition of sovereignty over territory Includes land, maritime areas, airspace and outer space Modes of Acquisition of Sovereignty over Territory 1. Discovery and Occupation o Occupationacquisition of terra nulliusterritory which prior to occupation belonged to no state or which may have been abandoned by a prior occupant o There is abandonment when occupant leave the territory with the intention of not returning o Discovery of terra nullius is not enough to establish sovereignty; it must be accompanied by effective control WESTERN SAHARA CASE HELD: Territories inhabited by tribes or peoples having a social and political organization were not regarded as terra nullius. The information furnished to the Court shows that at the time of colonization, Western Sahara was inhabited by peoples which, if nomadic, were socially and politically organized into tribes and under chiefs competent to represent them. THE ISLAND OF PALMAS FACTS: Palmas (Miangas) is an island of little economic value or strategic location. The island is located between Mindanao, Philippines and the northern most island, known as Nanusa, of what was the former Netherlands East Indies. In 1898, Spain ceded the Philippines to the
P a g e | 10
United States in the Treaty of Paris (1898) and Palmas sat within the boundaries of that cession to the U.S. In 1906, US discovered that the Netherlands also claimed sovereignty over the island, and the two parties agreed to submit to binding arbitration by the Permanent Court of Arbitration. ISSUE: w/n the Island of Palmas (Miangas), in its entirety, was a part of the territory of the United States or the Netherlands HELD: The Arbitrator, Swiss lawyer Max Huber, ruled in favor of the Netherlands position and stated that the Netherlands held actual title to Palmas. For these reasons, the Arbitrator decides that the Island of Palmas forms, in its entirety, a part of the Netherlands territory. Right by discoveryUS argued that it held the island because it had received actual title through legitimate treaties from the original "discoverer" of the island, Spain. US argued that Spain acquired title to Palmas when Spain discovered the island and the island was terra nullius. Spain's title to the island, because it was a part of the Philippines, was then ceded to US in the Treaty of Paris after Spain's defeat in the Spanish-American War. The arbitrator noted that no new international law invalidated the legal transfer of territory via cession. However, the arbitrator noted that Spain could not legally grant what it did not hold and the Treaty of Paris could not grant to US Palmas if Spain had no actual title to it. The arbitrator concluded that Spain held an inchoate title when Spain discovered Palmas. However, for a sovereign to maintain its initial title via discovery, the arbitrator said that the discoverer had to actually exercise authority, even if it were as simple an act as planting a flag on the beach. In this case, Spain did not exercise authority over the island after making an initial claim after discovery and so the United States claim was based on relatively weak grounds. ContiguityUS also argued that Palmas was US territory because the island was closer to the Philippines than to Indonesia which was then held by the Netherlands East Indies. The arbitrator said there was no positive international law which favored the US approach of terra firma, where the nearest continent or island of considerable size gives title to the land in dispute. The arbitrator held that mere proximity was not an adequate claim to land noted that if the international community followed the proposed United States approach, it would lead to arbitrary results. Continuous and peaceful display of sovereigntythe Netherlands' primary contention was that it held actual title because the Netherlands had exercised authority on the island since 1677. The arbitrator noted that
the US had failed to show documentation proving Spanish sovereignty on the island except those documents that specifically mentioned the island's discovery. Additionally, there was no evidence that Palmas was a part of the judicial or administrative organization of the Spanish government of the Philippines. However, the Netherlands showed that the Dutch East India Company had negotiated treaties with the local princes of the island since the 17th century and had exercised sovereignty, including a requirement of Protestantism and the denial of other nationals on the island. The arbitrator pointed out that if Spain had actually exercised authority, than there would have been conflicts between the two countries but none are provided in the evidence. In resolving island territorial disputes, the following 3 important rules must be followed: 1. Title based on contiguity has no standing in international law 2. Title by discovery is only an inchoate title 3. If another sovereign begins to exercise continuous and actual sovereignty and the discoverer does not contest this claim, the claim by the sovereign that exercises authority is greater than a title based on mere discovery EASTERN GREENLAND CASE HELD: A claim to sovereignty based not upon some particular act or title such as treaty or cession but merely upon continued display of authority, involves 2 elements each of which must be shown to exist: (a) intention and will to act as sovereign, and (b) some actual exercise or display of such authority. Another circumstance which must be taken into account is the extent to which the sovereignty is also claimed by some other Power. One of the peculiar features of the present case is that up to 1931, there was no claim by any Power other than Denmark to the sovereignty of Greenland. 2. Prescriptionrequires effective control and the object is not terra nullius o The required length of effective control is longer than in occupation o May be negated by a demonstrated lack of acquiescence by the prior occupant o 4. o Cessionacquisition of territory through treaty A treaty of cession which is imposed by a conqueror is invalid Conquest and Subjugation Conquesttaking possession of a territory through armed force
3.
P a g e | 11
o o o 5. o o
It is necessary that the war had ended either by treaty or by indication that all resistance had been abandoned Now, conquest is proscribed by international law No territorial acquisition resulting from the use or threat of force shall be recognized as legal Accretion and Avulsionsovereignty by operation of nature Accretiongradual increase of territory by the action of nature Avulsionsudden change resulting for instance from the action of a volcano
CHAPTER 8 TERRITORY: LAW OF THE SEA Importance of the Sea 1. Medium of communication 2. Contain vast natural resources Grotius elaborated the doctrine of the open seas which considers the high seas as res communis accessible to all o The doctrine recognized as permissible the delineation of a maritime belt by littoral states as an indivisible part of its domain o Maritime belt = territorial sea Convention on the Law of the Sea of 1982 prevailing law on maritime domain Art. 2 of the 1982 Law of the Sea provides that 1. Sovereignty of a coastal State extends, beyond its land territory and internal waters and, in case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as territorial sea 2. Sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil 3. Sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law Territorial Sea belt of sea outwards from the baseline and up to 12 nautical miles beyond o The width of this territorial belt of water is the 12-mile rule o However, where the application of the 12-mile rule to neighboring littoral states would result in overlapping the rule is that the dividing line is the median line equidistant from the opposite baselines o Equidistance rule does not apply where historic title or other special circumstances require a different measurement Baselines the low-water line along the coast as marked on large scale charts officially recognized by the coastal State Two ways of drawing the Baseline: 1. Normal baseline one drawn following the low-water line along the coast as marked on large scale charts officially recognized by the coastal State o this line follows the curvatures of the coast and therefore would normally not consist of straight lines 2. Straight baseline drawn connecting selected points on the coast without appreciable departure from the general shape of the coast o Most archipelagic states use straight baselines o Art. 47 of the Convention on the Law of the Sea the length of such baseline shall not exceed 100 nautical miles, except
P a g e | 12
Is Contiguity a Mode of Acquisition? It is impossible to show a rule of positive international law to the effect that islands situated outside the territorial waters should belong to a state from the fact that its territory forms part of the terra firma (Las Palmas Case) Intertemporal Law Rules in effect at the time of the acquisition should be applied AIRSPACE Each state has exclusive jurisdiction over the air space above its territory Sovereignty over airspace extends only until where outer space begins Consent for transit must be obtained from the subjacent nation State Aircraftaircraft used in military, customs and police services No state aircraft of a contracting State shall fly over the territory of another State or land thereon without authorization by special agreement or otherwise, and in accordance with the terms thereof. (Art. 3[a] of Chicago Convention on International Civil Aviation) Aircraft must not only not be attacked unless there is reason to suspect that the aircraft is a real threat but also that a warning to land or change course must be given before it is attacked (Lissitzyn) Civilian aircraft should never be attacked OUTERSPACE Outer space, wherever that might be, and celestial bodies, are not susceptible to appropriation by any state The Moon and other celestial bodies shall be used by all State Parties to the Treaty exclusively for peaceful purposes. (1967 Treaty on the Exploration and Use of Outer Space)
that up to 3% of the total number of baselines enclosing any archipelago may exceed that length up to a maximum length of 125 nautical miles Sovereignty over Territorial Sea same as sovereignty over its land territory o The sea and the strait are subject to the right of innocent passage by other states Right of Innocent Passage passage that is not prejudicial to the peace, good order or security of the coastal state o Applies to ships, aircrafts, and submarines o Coastal states have the unilateral right to verify the innocent character of passage, and it may take the necessary steps to prevent passage that it determines to be not innocent Internal Waters all waters landwards from the baseline of the territory o Coastal states may regulate access to its ports (Nicaragua case) Archipelagic Waters o An archipelagic state may designate sea lanes and air routes thereabove, suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea o The concept of the archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines, and removes straits connecting these waters with the economic zone or high sea from the rights of foreign vessels to transit passage for international navigation Bays well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain land-locked waters and constitute more than a mere curvature of the coast o Considered as internal waters of a coastal state o Indentation shall not be regarded as bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation Historic Bays treated by the costal state as internal waters on the basis of historic rights acknowledge by other states Contiguous Zone an area of water not exceeding 24 nautical miles from the baseline o It extends 12 nautical miles from the edge of the territorial sea o Coastal state exercises authority over that area to the extent necessary to prevent infringement of its customs, fiscal, immigration or sanitation authority over its territorial waters or territory and to punish such infringement
o o
However, the power of control given to the littoral state does not change the nature of the waters Beyond the territorial sea, the waters are high sea and are not subject to the sovereignty of the coastal state
Exclusive Economic Zone or Patrimonial Sea an area extending not more than 200 nautical miles beyond the baseline o Coastal state has rights over the economic sources of the sea, seabed and subsoil but the right does not affect the right of navigation and overflight of other states o The delimitation of the overlapping EEZ between adjacent states is determined by agreement Two Primary Obligations of Coastal States: 1. They must ensure through proper conservation and management measures that the living sources of the EEZ are not subjected to over exploitation 2. They must promote the objective of optimum utilization of the living sources The Continental (Archipelagic) Shelf refers to the a. Seabed and subsoil of the submarine areas adjacent to the coastal state but outside the territorial sea, to a depth of 200 meters or, beyond that limit, to where the depth allows exploitation b. Seabed and subsoil of areas adjacent to islands The Deep Seabed: Common Heritage of Mankind o These are areas of the seabed and ocean floor, and their subsoil, which lie beyond any national jurisdiction o These are the common heritage of mankind and may not be appropriated by any state or person Islands naturally formed area of land, surrounded by water, which is above water at high tide o Artificial islands or installations are not islands o Important due to the possibility of exploiting oil and gas resources around them o Islands can have their own territorial sea, exclusive economic zone and continental shelf o Rocks which cannot sustain human habitation or economic life shall have no exclusive economic zone or continental shelf, but can have a territorial sea The High Seas all parts of the sea that are not included in the territorial sea or in the internal waters of a state o The flag state has exclusive jurisdiction over its ships on the high seas to the extent not limited by agreement
P a g e | 13
Six Freedoms which High Seas are subject to: a. Navigation b. Overflight belongs to both civilian and military aircraft c. Fishing includes the duty to cooperate in taking measures to ensure the conservation and management of the living resources of the high seas d. Lay submarine cables and pipelines e. Construct artificial islands and structures f. Scientific research Hot Pursuit o Art. 111 allows hot pursuit of a foreign vessel where there is good reason to believe that the ship has violated laws or regulations of a coastal state o This must commence when the foreign vessel is within the internal waters, archipelagic waters, territorial waters, exclusive economic zone, continental shelf or the contiguous zone of the pursuing state o Hot pursuit must stop as soon as the ship pursued enters the territorial waters of its own state or of a third state o May be carried out only by warships or military aircraft, or any other ships or aircraft properly marked for that purpose Settlement of Disputes o Peaceful settlement is compulsory CHAPTER 9 JURISDICTION OF THE STATES Jurisdiction authority to affect legal interests o The scope of a states jurisdiction over a person, thing or event depends on the interest of the state in affecting the subject in question o Corresponding to the powers of the government, jurisdiction can be: 1. Legislative jurisdiction prescribe norms of conduct 2. Executive jurisdiction enforce the norms prescribed 3. Judicial jurisdiction adjudicate o International law limits itself to criminal rather than civil jurisdiction o Civil jurisdiction is subject for private international law or conflicts of law o Jurisdiction may also be acquired by treaty o However, there are 5 popular principles on jurisdiction TERRITORIALITY PRINCIPLE o This is generally supported in customary law o Fundamental source of jurisdiction is sovereignty over territory o It is necessary that boundaries be determined
To have jurisdiction, occupation is not enough; control must also be established (Las Palmas Case)
Boundary separating the land areas of two states is determined by the acts of the states expressing their consent to its location o When the boundary between 2 states is a navigable river its location is the middle of the channel of navigation o When boundary between 2 states is a non-navigable river or lake its location is the middle of the river or lake Effects Doctrine o State also has jurisdiction over acts occurring outside its territory but having effects within it 1. Subjective Territorial Principle a state has jurisdiction to prosecute and punish for crime commenced within the state but completed or consummated abroad 2. Objective Territorial Principle state has jurisdiction to prosecute and punish for crime commenced without the state but consummate within its territory The Lotus Case (France v. Turkey) Facts: There was a collision between French steamer Lotus, who was going to Constantinople, and Turkish collier Boz-Kourt, where the Boz-Kourt sank. The Lotus tried to save the people on the Turkish vessel, and did save 10, but 8 Turkish nationals who were on board died. The officer on watch onboard the Lotus, Ltn. Demons, and of the Boz-Kourt, Bey, were taken by Turkish police for examination, and then arrested (pending trial) for criminal prosecution of manslaughter, without previous notice given to the French Consul-General. During trial in Turkey, Demons (French national) submitted that Turkish courts had no jurisdiction, but his objection was overruled. Demons was then sentenced to 80 days imprisonment, and a fine of 22 pounds. The French government protested this, and both countries agreed to bring the issue before this International court at the Hague in Geneva. Issue: w/n the rules of international law prevent Turkey from instituting criminal proceedings against a French national under Turkish law. If yes, what pecuniary reparation is due to Demons? Held: France claims that because the offense was aboard the Lotus, an extension of French territory, the sole right of prosecution of M. Demons is France's, and the Convention of Lausanne of July 24th, 1923 does not allow Turkey to prosecute M. Demons and jurisdiction remains with the French Courts. The court finds that there is no rule of international law which prohibits Turkey from prosecuting M. Demons. The Territorial Principle can be used to justify
P a g e | 14
Turkey's prosecution of M. Demons because the ship is an extension of the territory of Turkey. The court further finds that Territorial Principle can only be overcome if there was customary international law that established the exclusive jurisdiction of the State whose flag was flown. The court also finds that current conventions deal with the policing of the high seas, and not common law offenses. It is impossible to make a deduction from the conventions in question because the conventions in question concern a single ship, making deductions in regards to two different ships and two different jurisdictions is impossible. Turkey claims that Article 6 of the Turkish Penal Code (Used to prosecute the two ship captains) is not contrary to principles of international law. Turkey is allowed to use their penal code, and France is allowed to use their own. The offense spans two jurisdictions, with the origin on board the Lotus, and the effects on board the Boz-Kourt. If this offense didn't span two jurisdictions, it would be a non-existent offense. To protect justice and the interests of both states, the case should be understood to be a matter of concurrent jurisdiction. Jurisdiction over Foreign Vessels in Philippine Territory we follow the English Rule 1. French Rule crimes committed abroad a foreign merchant vessel should not be prosecuted in the courts of the country within whose territorial jurisdiction they were committed unless their commission affects the peace and security of the territory 2. English Rule crimes perpetrated under such circumstances are in general triable in the courts of the country within whose territory they were committed Trail Smelter Arbitration (US v. Canada) Facts: The Consolidated Mining and Smelting Company Limited of Canada operated a zinc and lead smelter along the Columbia river at Trail, British Columbia about 10 miles north of the international boundary with the State of Washington. In the period between 1925 and 1935, the U.S. Government objected to the Canadian Government that sulfur dioxide emissions from the operation were causing damage to the Columbia River valley in an 30 mile stretch from the international boundary to Kettle Falls, Washington. The two governments resorted twice to legal arbitration, once from 1928 to 1931 and again from 1935 to 1941, in an attempt to resolve the dispute. The main concern of the United States was that the smelter's sulfur dioxide emissions were harming the land and the trees of the Columbia River Valley which were used for logging, farming, and cattle grazing; the three industries crucial to the area. The main species affected were yellow pines, Douglas firs, larch, and cedar. Affected harvests included alfalfa, wheat, and oats. Issues and Held: 1. Had damage been done to Washington State by the smelter since January 1, 1932?
It was determined that the Government of Canada should pay the United States US$78,000 for damage that the Trail Smelter had done to the State of Washington from 1932 to October 1, 1937. This compensation was primarily for damage done to land along the Columbia River valley in the United States. The Tribunal decided that the United States had not displayed enough evidence for damage to livestock or businesses in Washington State from the operation of the Trail smelter. 2. If the smelter was found to have done damage, should it be made to refrain from doing so in the future or should it operate under any restrictions?
Trail Smelter should refrain from causing any future damage to the State of Washington from its sulfur dioxide emissions. To ensure this, it mandated that the smelter maintain equipment to measure the wind velocity and direction, turbulence, atmospheric pressure, barometric pressure, and sulfur dioxide concentrations at Trail. Readings from these instruments were to be used by the smelter to keep its sulfur dioxide emissions at or below levels determined by the Tribunal. Moreover, copies of the readings were to be supplied to both governments monthly so that they could see the smelter's compliance. If the smelter could not keep to the prescribed sulfur dioxide levels, then compensation could be awarded to the United States as determined by the Tribunal and the Canadian Government. Notes: In delivering their decision, the tribunal made an historic and often-cited declaration: "Under the principles of international law, as well as of the law of the United States, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence..." The case was landmark because it was the first to challenge historic principles of international law, which subordinated international environmental duty to nationalistic claims of sovereignty and free-market methods of unfettered industrial development. The Trail Smelter decision has since become the primary precedent for international environmental law, which protects the environment through a process known as the "web of treaty law." International environmental law is based on individual governmental responses to discrete international problems, such as the Trail Smelter issue. Legal decisions over environmental disputes between nations are made in reference to a growing body of treaties, conventions, and other indications of "state practices." The Trail Smelter decision has shaped the core principle underlying international environmental law. According to this principle, a country which creates transboundary pollution or some other environmentally hazardous effect is liable for the harm this causes, either directly or indirectly, to another country. A much older precedent for this same principle is rooted both in Roman Law and Common Law: sic utere ut alienum non laedasuse your own
P a g e | 15
property in such a manner as not to injure that of another. Prior to the twentieth century, this principle was not relevant to international law because actions within a nation's borders rarely conflicted with the rights of another. NATIONALITY PRINCIPLE o This is generally supported in customary law o Every state has jurisdiction over its nationals even when those nationals are outside the state Blackmer v. US Facts: A US consular officer in Paris served Blackmer with a notice to return to Washington to testify for the US government. His testimony would help to ascertain the facts during criminal and civil investigations of the scandal. After Blackmer ignored this court order to return to the US, the trial judge found him in contempt of court for failing to appear. Blackmer then petitioned the US Supreme Court for relief from the lower courts contempt order and related fine. Held: The petitioner, Harry M. Blackmer, a citizen of the United States resident in Paris, France, was adjudged guilty of contempt of the Supreme Court of the District of Columbia for failure to respond to subpoenas served upon him in France and requiring him to appear as a witness on behalf of the United States at a criminal trial in that court. Two subpoenas were issued, for appearances at different times, and there was a separate proceeding with respect to each. The two cases were heard together, and a fine of $30,000 with costs was imposed in each case, to be satisfied out of the property of the petitioner which had been seized by order of the court. The decrees were affirmed by the While it appears that the petitioner removed his residence to France in the year 1924, it is undisputed that he was, and continued to be, a citizen of the United States. He continued to owe allegiance to the United States. By virtue of the obligations of citizenship, the United States retained its authority over him, and he was bound by its laws made applicable to him in a foreign country. Thus, although resident abroad, the petitioner remained subject to the taxing power of the United States. For disobedience to its laws through conduct abroad, he was subject to punishment in the courts of the United States. With respect to such an exercise of authority, there is no question of international law, but solely of the purport of the municipal law which establishes the duties of the citizen in relation to his own government. While the legislation of the Congress, unless the contrary intent appears, is construed to apply only within the territorial jurisdiction of the United States, the question of its application, so far as citizens of the United States in foreign countries are concerned, is one of construction, not of legislative power. Nor can it be doubted that the United
States possesses the power inherent in sovereignty to require the return to this country of a citizen, resident elsewhere, whenever the public interest requires it, and to penalize him in case of refusal. In the present instance, the authority to require the absent citizen to return and testify necessarily implies the authority to give him notice of the requirement. As his attendance is needed in court, it is appropriate that the Congress should authorize the court to direct the notice to be given, and that it should be in the customary form of a subpoena. ... The question of the validity of the provision for actual service of the subpoena in a foreign country is one that arises solely between the government of the United States and the citizen. The mere giving of such a notice to the citizen in the foreign country of the requirement of his government that he shall return is in no sense an invasion of any right of the foreign government and the citizen has no standing to invoke any such supposed right. Effective Nationality Link used to determine which 2 states of which a person is a national will be recognized as having the right to give diplomatic protection to the holder of dual nationality The Nottebohm Case (Liechtenstein v. Guatemala) Facts: Nottebohm was born in Germany, and was a German citizen, although he lived in Guatemala since 1903, and conducted a prosperous business there, but never became a citizen of Guatemala. In 1939, he applied to become a citizen of Liechtenstein. The application was approved even though a requirement was that he be in residence there for at least 3 years, but there was an exception and he became a citizen of Liechtenstein. When he tried to re-enter Guatemala in 1943, he was refused entry (probably because of his original German citizenship and because of WWII). Liechtenstein offered Nottebohm protection against the government of Guatemala and sued Guatemala in the International Court of Justice. However, the government of Guatemala argued that Nottebohm did not gain Liechtenstein citizenship for the purposes of international law. Issue: Whether the conferment of the Lichtenstein citizenship is not contrary to int'l law, and if Lichtenstein's claim on behalf of Nottebohm is admissible in court Held: No. The court agreed with Guatemala and held that claims by Lichtenstein were inadmissible. Although the Court stated that it is the sovereign right of all states to determine its own citizens and criteria for becoming one in municipal law, such a process would have to be scrutinized on the international plain in questions of diplomatic protection. The Court upheld the principle of effective nationality, where the national must prove a meaningful connection to the state in question.
P a g e | 16
This principle was previously applied only in cases of dual nationality to determine which nationality should be used in a given case. However, Nottebohm had forfeited his German nationality and thus only had the nationality of Liechtenstein. Corporations state has jurisdiction over corporations organized under its laws Maritime vessels state has jurisdiction over vessels flying its flag o Same applies to aircraft and spacecraft Stateless Persons persons who have no nationality a. De jure stateless persons who have lost their nationality, if they had one, and have not acquired a new one b. De factor stateless persons who have a nationality but to whom protection is denied by their state when out of the State Mejoff v. Director of Prisons Facts: Boris Mejoff, a Russian, was captured as a Japanese spy by the US Army Counter Intelligence Corps on March 18, 1948. He was turned over to the Phil Commonwealth Government for appropriate disposition. His case was decided on by the Board of Commissioners of Immigration who declared him as an illegal alien. The Board ordered his immediate deportation. In the meantime, we was placed in prison awaiting the ship that will take him back home to Russia. Two Russian boats have been requested to bring him back to Russia but the masters refused as they had no authority to do so. Two years passed and Mejoff is still under detention awaiting the ship that will take him home. This case is a petition for habeas corpus. However, the respondent held that the Mejoff should stay in temporary detention as it is a necessary step in the process of exclusion or expulsion of undesirable aliens. It further states that is has the right to do so for a reasonable length of time. Issue: w/n Mejoff should be released from prison awaiting his deportation. Held: The Supreme Court decided that Mejoff be released from custody but be placed under reasonable surveillance of the immigration authorities to insure that he keep peace and be available when the Government is ready to deport him. In the doctrine of incorporation, the Philippines in its constitution adops the generally accepted principles of international law as part of the law of Nations. Also, the Philippines has joined the United Nations in its Resolution entitled Universal Declaration of Human Rights in proclaiming that life and liberty and all other fundamental rights shall be applied to all human beings. The contention that he remains a threat of to the security of the country is unfounded as Japan and the US or the Phils are no longer at war.
PROTECTIVE PRINCIPLE o This is generally supported in customary law o State may exercise jurisdiction over conduct outside its territory that threatens its security as long as that conduct is generally recognized as criminal by states in the international community o However, this is strictly construed to those offenses posing a direct, specific threat to national security Examples of acts covered by Protective Principle: a. Plots to overthrow the government b. Forging its currency c. Plot to break its immigration regulations UNIVERSALITY PRINCIPLE o This recognizes that certain activities, universally dangerous to states and their subjects, require authority in all community members to punish such acts wherever they may occur, even absent a link between the state and the parties or the acts in question Examples of acts covered by Universality Principle: a. Piracy any illegal act of violence or depredation committed for private ends on the high seas or outside the territorial control of any state b. Genocide acts committed with intent to destroy, in whole or in part, a national, ethical, racial or religious group c. Crimes against humanity acts committed as part of a widespread or systematic attack directed against any civilian population 1. Attack directed against any civilian population 2. Extermination internal infliction of conditions of life 3. Enslavement 4. Deportation or forcible transfer of population 5. Torture 6. Forced pregnancy 7. Persecution 8. Crime of Apartheid 9. Enforced disappearance of persons d. War crimes grave breaches of the Geneva Convention of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention e. Aircraft piracy f. Terrorism Filartiga v. Pena-Irala (see previous notes)
P a g e | 17
Attorney General of Israel v. Eichmann (Trial Court Decision) Facts: Adolf Eichmann was a high ranking SS officer who played a central role in the planning and implementation of the persecution of Jews in Germany, Poland, Hungary and several other countries before and during World War II. At the end of the war he escaped to Argentina where he lived and worked under an alias until May, 1960 when he was kidnapped by Israeli agents. Argentina complained to the Security Council about this clear violation of Argentine sovereignty. The Security Council, while making it clear that it did not condone Eichmann's crimes, declared that "acts such as that under consideration [the kidnapping of Eichmann] which affect the sovereignty of a Member State and therefore cause international friction, may, if repeated, endanger international peace and security." The Security Council requested the Government of Israel "to make appropriate reparation in accordance with the Charter of the United Nations and the rules of international law." Argentina did not demand the return of Eichmann, and in August, 1960. the Argentine and Israeli governments resolved in a joint communique "to regard as closed the incident which arose out of the action taken by citizens of Israel, which infringed the fundamental rights of the State of Argentina." Eichmann was then tried in Israel under Israel's Nazi Collaborators Law (a law enacted after Israel became a state in 1948). He was found guilty and the conviction was subsequently upheld by the Supreme Court of Israel. On May 31, 1962 Eichmann went to the gallows, the only person ever formally executed by the State of Israel. Held: It is an established rule of law that a person being tried for an offence against the laws of a State may not oppose his trial by reason of the illegality of his arrest or of the means whereby he was brought within the jurisdiction of that State. The courts in England, the United States and Israel have constantly held that the circumstances of the arrest and the mode of bringing the accused into the territory of the State have no relevance to his trial, and they have consistently refused in all instances to enter upon an examination of these circumstances. Indeed, there is no escaping the conclusion that the question of the violation of international law by the manner in which the accused was brought into the territory of a country arises at the international level, namely, the relations between the two countries concerned alone, and must find its solution at such level. According to the existing rule of law there is no immunity for a fugitive offender save in the one and only case where he has been extradited by the asylum State to the requesting State for a specific offence, which is not the offence for which he was being tried. The accused was not surrendered to Israel by Argentina, and the State of Israel is not bound by any agreement with Argentina to try the accused for any other specific offence, or not to try him for the offences being tried in the present case. The rights of asylum and immunity belong to the country of asylum and not to the offender, and the
accused cannot compel a foreign sovereign State to give him protection against its will. The accused was a wanted war criminal when he escaped to Argentina by concealing his true identity. Only after he was kidnapped and brought to Israel was his identity revealed. After negotiations between the two Governments, the Government of Argentina waved its demand for his return and declared that it viewed the incident as closed. The Government of Argentina thereby refused conclusively to grant the accused any sort of protection. The accused has been brought to trial before the Court of a State which charges him with grave offences against its laws. The accused has no immunity against this trial and must stand trial in accordance with the indictment. Eichmann v. Attorney General of Israel (Supreme Court Decision) Held: One of the principles whereby States assume, in one degree or another, the power to try and punish a person for an offence he has committed is the principle of universality. Its meaning is, in essence, that that power is vested in every State regardless of the fact that the offence was committed outside its territory by a person who did not belong to it, provided he is in its custody at the time he is brought to trial. This principle has wide support and is universally acknowledged with respect to the offence of piracy jure gentium. [One view] holds that it cannot be applied to any other offence, lest this entail excessive interference with the competence of the State in which the offence was committed. A second school agrees to the extension of the principle to all manner of extraterritorial offences committed by foreign nationals. It is not more than an auxiliary principle to be applied in circumstances in which no resort can be had to the principle of territorial sovereignty or to the nationality principle, both of which are universally agreed to. [Holders of this view] impose various restrictions on the applications of the principle of universal jurisdiction, which are designed to obviate opposition by those States that find themselves competent to punish the offender according to either of the other two principles. [One of these reservations is that the extradition of the offender should be offered to the State where his offence was committed.]. A third school holds that the rule of universal jurisdiction, which is valid in cases of piracy, logically applies also to all such criminal acts or omissions which constitute offences under the law of nations (delicta juris gentium) without any reservation whatever or, at most, subject to a reservation of the kind Oust] mentioned. This view has been opposed in the past because of the difficulty in securing general agreement as to the offences to be included. Notwithstanding the differences there is full justification for applying here the principle of universal jurisdiction since the intentional character of the "crimes against humanity" (in the wide meaning of the term) is, in this case, not in doubt, and the unprecedented extent of their injurious and murderous effect is not open to dispute at the present day. In other words, the basic reason for
P a g e | 18
which international law recognizes the right of each State to exercise such jurisdiction in piracy offences applies with all the greater force. PASSIVE PERSONALITY PRINCIPLE o This does not enjoy wide acceptance o State may apply law, criminal law, to an act committed outside its territory by a person not its national where the victim of the act was its national o Not accepted for ordinary torts or crimes but is increasingly accepted as applied to terrorist and other organized attacks on a states nationals by reason of their nationality, or to assassination of a states diplomatic representatives or other officials US v. Fawaz Yunis CONFLICTS OF JURISDICTION modes of resolving conflict of jurisdiction 1. Balancing Test if the answer is yes to all the following questions, then the court will assume jurisdiction a. Was there an actual or intended effect on a states foreign commerce? b. Is the effect sufficiently large to present a cognizable injury to the plaintiffs, and, therefore, a violation of the anti-trust law? c. Are the interests of the state sufficiently strong, vis--vis those of other nations, to justify an assertion of extraordinary authority 2. International Comity state will refrain from exercising its jurisdiction is it is unreasonable o Factors to consider in determining unreasonableness: a. Link or connection of the activity to the territory of the regulating state b. Character of the activity to be regulated c. Existence of justified expectations that might be protected or hurt by the regulation d. Likelihood of conflict with regulation by another state 3. Forum non conveniens application is discretionary with the court o If in the whole circumstances of the case it be discovered that there is real unfairness to one of the suitors in permitting the choice of a forum which is not the natural or proper forum, either on the ground of convenience of trial or the residence or domicile of parties or of its being the locus contractus or locus solutionis EXTRADITION the surrender of an individual by the state within whose territory he is found to the state under whose laws he is alleged to have committed a crime or to have been convicted of a crime o This is a process that is governed by a treaty o Legal right to demand extradition and the correlative duty to surrender a fugitive exist only when created by treaty o Procedure for extradition is normally through diplomatic channels
Principles governing Extradition 1. No state is obliged to extradite unless there is a treaty 2. Differences in legal system can be an obstacle to interpretation of what the crime is 3. Religious and political offenses are not extraditable US v. Alvarez-Machain Facts: Machain is a citizen and resident of Mexico. He was indicted by US DEA (Drug Enforcement Administration) for participating in the kidnap and murder of a DEA agent, by prolonging the victim's life so others could torture him further (allegedly). Machain was forcibly kidnapped from Mexico and brought to Texas for trial. Respondent moved to dismiss the indictment, claiming that his abduction constituted outrageous government conduct, and that the district court lacked jurisdiction to try him because he was abducted in violation of the extradition treaty between US and Mexico. District court dismissed, and ordered that he be repatriated to Mexico, and court of appeals affirmed both. Supreme Court granted certiorari. Issue: Whether there is jurisdiction for a Mexican national, abducted to the US, when US and Mexico had an extradition treaty Held: Yes. The Extradition Treaty says nothing about US and Mexico's obligations to refrain from abducting people, or the consequences if this happens. The Treaty only says that neither party is bound to delivery upon the other its own nationals. The Federal Tort Claims Act's exception to waiver of sovereign immunity for claims arising in a foreign country, bars claims based on any injury suffered in a foreign country, regardless of where the tortuous act or omission occurred and that lvarez was not entitled to recover damages from Sosa under the Alien Tort Statute. Thus, the Alien Tort Statute provides a jurisdictional basis, but does not create an independent cause of action, save for a few exceptions envisioned by Congress at the time of enacting the Alien Tort Statute. These exceptions include and are limited to: rights of safe passage, rights of ambassadors and piracy. Sec. of Justice v. Hon. Ralph Lantion Facts: On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs of the United States requesting for the extradition of Mark Jimenez for various crimes in violation of US laws. In compliance with the related municipal law, specifically Presidential Decree No. 1069 Prescribing the Procedure for Extradition of Persons Who Have committed Crimes in a Foreign Country and the established Extradition Treaty Between the Government of the Philippines and the Government of the United States of
P a g e | 19
America, the department proceeded with proceeded with the designation of a panel of attorneys to conduct a technical evaluation and assessment as provided for in the presidential decree and the treaty. The respondent requested for a copy of the official extradition request as well as the documents and papers submitted therein. The petitioner denied the request as it alleges that such information is confidential in nature and that it is premature to provide such document as the process is not a preliminary investigation but a mere evaluation. Therefore, the constitutional rights of the accused are not yet available. Issues: 1.Whether or not private respondent, Mark B. Jimenez, be granted access to the official extradition request and documents with an opportunity to file a comment on or opposition thereto 2.Whether or not private respondents entitlement to notice and hearing during the evaluation stage of the proceedings constitute a breach of the legal duties of the Philippine Government under the RP-US Extradition Treaty Held: The Supreme Court ruled that the private respondent be furnished a copy of the extradition request and its supporting papers and to give him a reasonable period of time within which to file his comment with supporting evidence. In this case, there exists a clear conflict between the obligation of the Philippine Government to comply with the provisions of the treaty and its equally significant role of protection of its citizens of its right of due process. The processes outlined in the treaty and in the presidential decree already pose an impending threat to a prospective extraditees liberty as early as the evaluation stage. It is not an imagined threat to his liberty, but a very imminent one. On the other hand, granting due process to the extradition case causes delay in the process. The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international law, requires the parties to a treaty to keep their agreement therein in good faith. The doctrine of incorporation is applied whenever municipal tribunals are confronted with situations in which there appears to be a conflict between a rule of international law and the provisions of the constitution or statute of a local state. Efforts should be done to harmonize them. In a situation, however, where the conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts. The doctrine of incorporation decrees that rules of international law are given equal standing, but are not superior to, national legislative enactments.In this case, there is no conflict between international law and municipal law. The United States and the Philippines share a mutual concern about the suppression and punishment of crime in their respective jurisdictions. At the same time, both States accord common due process protection to their respective citizens. In fact, neither the Treaty nor the Extradition Law precludes the rights of due process from a prospective extradite.
Bail in Extradition Cases o Bail may be granted to a possible extraditee only upon a clear and convincing showing that 1. He will not be a flight risk or a danger to the community 2. There exist special, humanitarian and compelling circumstances
P a g e | 20

Bernas PIL Ch1-9

Diunggah oleh

Informasi Dokumen

Deskripsi Asli:

Hak Cipta

Format Tersedia

Bagikan dokumen Ini

Bagikan atau Tanam Dokumen

Opsi Berbagi

Apakah menurut Anda dokumen ini bermanfaat?

Apakah konten ini tidak pantas?

Hak Cipta:

Format Tersedia

Bernas PIL Ch1-9

Diunggah oleh

Hak Cipta:

Format Tersedia

CHAPTER 1

THE NATURE OF INTERNATIONAL LAW Some Dissenters Pragmatic Theory

SOURCES OF INTERNATIONAL LAW

Natural Law Theory

Public International Law

Public International Law

Various names of Treaties a. Conventions c. Covenants b. Pacts d. Charters

Public International Law

Treaties that create Collaborative Mechanism Bilateral Treaties

Public International Law

Public International Law

Public International Law

Public International Law

Public International Law

Public International Law

Public International Law

Public International Law

Public International Law

Public International Law

Public International Law

Public International Law

Public International Law

Public International Law

Public International Law

Public International Law

Public International Law

Anda mungkin juga menyukai