CHAPTER 1THE NATURE OF INTERNATIONAL LAW

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 TheoryAustin: 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

Consensual TheoryInternational law derives its binding force from the

consent of states

Treatiesexpression of consent

Customvoluntary adherence to common practices,

is seen as expression of consent

Natural Law TheoryLaw 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

Some DissentersInternational lawa combination of politics,

morality and self-interest hidden under the

smokescreen of legal language

Pragmatic TheoryInternational 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 LawPrivate International Law

Referred to as International LawReferred to as Conflict of Laws

Governs the relationship between andDomestic law which deals with cases

among states and also their relationswhere foreign law intrudes in the

with international organizations anddomestic sphere where there are

individual personsquestions of the applicability of

foreign law or the role of foreign

courts

CHAPTER 2SOURCES 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 practiced. Judicial decisions

b.UN Resolutionse. 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

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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.Custom4.Generally recognized principles of law

2.Treaties5.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

b. Consistencycontinuity and repetition

c. Generality of the practice of statesuniformity and generality of practice need not be complete but it must be substantial

Opinio Jurisbelief that a certain form of behavior is obligatory

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

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 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

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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 non-performance 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 3THE LAW OF TREATIES

Various names of Treaties

a.Conventionsc. Covenantse. Protocolsg. Modus vivendi

b.Pactsd. Chartersf. Concordat

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

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

Different Kinds of Treaties

Multilateral TreatiesOpen 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

Treaties that createOperate through the organs of the different states

Collaborative1.Universal scope

Mechanism2.Regional

Bilateral TreatiesIn the nature of contractual agreements which create

shared expectations such as trade agreements of

various forms; Contract 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.Signaturee. Approval

b.Exchange of Instrumentsf. Accession

c.Ratificationg. 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

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b. Teleological approachinterpretation according to the telos or purpose of the treaty

c. Subjective approachhonors special meaning given by the parties

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

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 4INTERNATIONAL LAW AND MUNICIPAL LAW

Dualism v. Monism

Municipal LawInternational Law

DualistorAstoProductoflocalTreatiesand custom

Pluralist Theorysourcecustomorofgrown among states

legislation

*whenAstoRegulatesrelationsRegulatesrelations

internationalandrelationsbetweenindividualbetween states

municipal law aretheypersonsunderthe

inconflict,regulatestate

MunicipallawAs to theirLaw ofsovereignLawbetween

must prevailsubstanceover individualssovereign states

MonismorTwo theories:

Monistic TheoryA. Municipal law subsumes and is superior to

international law

*International andB. International law is superior to Domestic Law

Municipallaws(supported by Kelsen)

belongtoonly

one system of 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

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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

CHAPTER 5SUBJECTS OF INTERNATIONAL LAW

STATES

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

4. Capacity to enter into relations with other States SOVEREIGNTYindependence from outside control

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

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Can an entity claim to be a state before it is recognized by other states?

Declaratory TheoryConstitutive Theory

Recognition is merely declaratory ofRecognition constitutes a state

the existence of the state

Its being a state depends upon itsIt is what makes a state a state and

possession of the required elementsconfers 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

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

4. Succession to treaties

a. 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 territoryo 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

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

oRight 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

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

3. 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

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

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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

3. 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

4. Taiwana non-state territory which de jure is part of China

5. The Sovereign Order of Maltathe Italian Court of Cassation in 1935 recognized its international personality

6. The Holy See and Vatican Cityrecognized under Lateran Treaty; it has no permanent population

CHAPTER 6OTHER SUBJECTS OF INTERNATIONAL LAW

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

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

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

Chartero 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

o There are 15 member states, 5 permanent and the others are elected for 2 year terms in accordance with equitable geographic representation o Distinguishes between a. Procedural matters b. All other mattersrequires 9 affirmative votes, including

the concurring votes of the permanent members

o 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 memberso Abstention = veto

3. Economic and Social Council (ECOSOC)has 54 members elected for 3 year terms

4. Trusteeship Councilsupervises non-self governing territories

o The Council suspended operations after Palau became independent on Oct. 1, 1994

5. International Court of Justice (ICJ)principal judicial organ of the UN

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6. 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

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 7TERRITORY: 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

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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

oThere 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

HELD:

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

3. Cessionacquisition of territory through treaty o A treaty of cession which is imposed by a conqueror is invalid

4. Conquest and Subjugation o Conquesttaking possession of a territory through armed force

oIt is necessary that the war had ended either by treaty or by indication that all resistance had been abandonedoNow, conquest is proscribed by international law

o No territorial acquisition resulting from the use or threat of force shall be recognized as legal

5. Accretion and Avulsionsovereignty by operation of nature o Accretiongradual increase of territory by the action of nature

o Avulsionsudden change resulting for instance from the action of a volcano

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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)

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

oThe doctrine recognized as permissible the delineation of a maritime belt by littoral states as an indivisible part of its domainoMaritime 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 beyondoThe 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 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 stateoApplies to ships, aircrafts, and submarines

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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 coastoConsidered 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 baselineoIt 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 However, the power of control given to the littoral state does not change the nature of the waters

o 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 tideoArtificial islands or installations are not islands

oImportant 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

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

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Hot Pursuit

oArt. 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 DisputesoPeaceful 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 oInternational law limits itself to criminal rather than civil jurisdiction

o Civil jurisdiction is subject for private international law or conflicts of law oJurisdiction may also be acquired by treatyoHowever, there are 5 popular principles on jurisdiction

TERRITORIALITY PRINCIPLEoThis is generally supported in customary law

o Fundamental source of jurisdiction is sovereignty over territory o It is necessary that boundaries be determined

o 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

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

NATIONALITY PRINCIPLEoThis is generally supported in customary law

o Every state has jurisdiction over its nationals even when those nationals are outside the state

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

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

PROTECTIVE PRINCIPLEoThis 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

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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

PASSIVE PERSONALITY PRINCIPLEoThis 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

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 crimeoThis 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 oProcedure for extradition is normally through diplomatic channels

Principles governing Extradition1. 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

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

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CHAPTER 10:

IMMUNITY FROM JURISDICTION

GR: Jurisdiction of a state within its territory is complete and absolute.

Exceptions:

1.) Sovereign immunity2.) Diplomatic/consular immunity

A. Immunity of Head of State

- Applies to both the Head of State and to the State itself

Mighell v. Sultan of Johore

The Sultan of Johore was sued for bread of a promise to marry in a British court. Despite the fact that it was a private suit, it was dismissed upon verification that the Sultan was a sitting foreign sovereign.

Pinochet Case: Regina v. Bartle and the Commissioner of Police (House of Lords, 1999)

General Augusto Pinochet led a military coup that overthrew the Chilean President Allende. According to a national truth and reconciliation mission, at least 3,196 people were killed or forcibly disappeared during his dictatorship. British authorities detained Pinochet on an arrest warrant issued by Spanish Magistrate Baltasar Garzon under the charges of genocide, terrorism, and torture.

In affirming that Pinochet did not enjoy immunity from prosecution as a former head of state and could thus be extradited, the House of Lords explained:

a.) Senator Pinochet as a former head of state enjoys immunity rationae materiae in relation to acts done by him in relation to his official function as such.

b.) However, organization of state torture is not an act committed in his official function. The commission of a crime which is an international crime against humanity and jus cogens cannot be a state function. The principle of individual responsibility for international criminal conduct has become an accepted part of international law.

c.) The notion of continued immunity for ex-heads of state is inconsistent with the provisions of the Torture Convention which provides that the international crime of torture can only be committed by an official or someone in official capacity. Since the immunity applies also to officials who carried out the functions of the state, if torture is treated as official business sufficient to justify the immunity, then no party would be held liable and the structure of universal jurisdiction over torture committed by officials is rendered abortive. d.) Thus, Senator Pinochet was not acting in any capacity which gives rise to immunity rationae materiae since authorized and organized torture are contrary to international law.

B. State Immunity

The State may not be sued without its consent.

Based on the principle of equality and independence of states: par in parem non habet imperium.

With the gradual expansion of state involvement in commerce, the principle of state immunity has evolved to one of restrictive state immunity: only acts jure imperii (governmental acts) and not acts jure gestionis (trading and commercial acts) are immune.

The Schooner Exchange v. MacFaddon

States enjoy absolute immunity. Despite the absolute territorial jurisdiction of states, one sovereign, being bound to not degrade the dignity of his nation by placing himself within the jurisdiction of another, can be supposed to enter into 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.

Dralle v. Republic of Czechoslovakia

It can no longer be said that by international law, acta gestionis are exempt municipal jurisdiction. The classic doctrine of immunity arose at a time when there was no justification for any distinction between private transactions and acts of sovereignty. Today, States engage in commercial activities and enter into competition with their own nationals as well as foreigners.

USA v. Hon. V.M. Ruiz (Philippines)

The traditional rule of State immunity is a necessary consequence of the principles of independence and equality of States. However, the rules of International Law are constantly developing and evolving. Because state activities have multiplied, it has become necessary to distinguish them between sovereign and governmental acts, and private, commercial and proprietary acts.

The result is that State immunity now extends only to acts jure imperii. 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. But this does not apply where the contract relates to the exercise of its sovereign functions.

In this case, repairs of base facilities are an integral part of the naval base devoted to the defense of both the US and the Philippines, which is a function of the government not utilized nor dedicated to commercial or business purposes.

US v. Hon. Luis Reyes (Philippines)

A claim of immunity by an American official was rejected when shown to have been committed outside the scope of her authority as well as contrary to law.

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Unauthorized acts of government officials or officers are not acts of the State, and an action against the latter is not a suit against the State within the rule of immunity of the State from suit. The doctrine of state immunity cannot be used as an instrument to perpetrate an injustice.

Holy See v. Eriberto Rosario, Jr. (Philippines)

The mere entering into a contract by a foreign state with a private party cannot be the ultimate test of whether the activity or transaction is

commercial.

One must also question: (a.) whether the foreign state is engaged in the activity in the regular course of business; and (b.) if not, whether the nature of the particular transaction or act is in pursuit of a sovereign activity or an incident thereof. If the answer to (b.) is yes, and especially if it is not undertaken for profit or gain, then the act is jure imperii.

In this case, petitioner has denied having bought and sold lands in the ordinary course of a real estate business. Instead, he claimed that the acquisition of Lot 5-A was for the site of its mission or the Apostolic Nunciature of the Philippines. Respondent failed to dispute such claim.

* How to claim State immunity?

In PIL, a State must request the Foreign Office of the state where it is sued to convey to the court that it is entitled to immunity.

In the Philippines, the foreign government or international organization must first secure an executive endorsement (in whatever form) of its claim of sovereign or diplomatic immunity.

Republic of Indonesia v. Vinzon (2003)

Petitioner, Republic of Indonesia entered into a Maintenance Agreement with respondent, James Vinzon of Vinzon Trade and Services, to maintain specified equipment (aircons, generator sets, electrical facilities, water heaters, water motor pumps) at the Embassy Main and Annex buildings and that the Wisma Duta.

Chief of Administration, Minister Counselor Azhari Kasim allegedly found

Vinzons work unsatisfactory and not in compliance with the agreed standards.Thus, the Embassy terminated the agreement.

Respondent alleges that the termination was arbitrary and unlawful. Vinzon filed a complaint in the RTC Makati. Petitioner filed a Motion to Dismiss based on sovereign immunity from suit as well as diplomatic immunity under the Vienna Convention on Diplomatic Relations, regarding the suit against Ambassador Soeratmin and Minister Counsellor Kasim.

Respondent alleged that the petitioner has expressly waived its immunity from suit based on a provision in the Maintenance Agreement which states that any legal action arising from the agreement will be settled according to the laws of

the Philippines and by the proper court of Makati City, Philippines. In addition, the Ambassador and Minister Counsellor may be sued in their personal capacity for tortious acts done with malice and bad faith.

The trial court denied the Motion to Dismiss, which the CA affirmed.

Petitioner questions the ruling of the CA that the former had waived its immunity from suit based on the agreement.

The SC ruled in favor of the petitioner:

a.) The rules of IL are neither unyielding not impervious to change. The increasing need of sovereign states to enter into purely commercial activities brought about a new concept of immunity. The restrictive theory holds that immunity of the sovereign is recognized only with regard to public acts but not with regard to private acts.

b.) 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 imperii or jure gestionis. If the foreign state is not engaged regularly in a business or commercial activity, as in this case, the particular act or transaction must be then tested by its nature. If it is in pursuit of a sovereign activity or an incident thereof, then it is an act jure imperii.

c.) The existence alone of a provision in the contract stating that any legal action arising out of the agreement shall be settled according to the laws of the Philippines and by a specified court of the Philippines is not necessarily a waiver of state immunity from suit. It is merely meant to apply where: (a.) the sovereign party elects to sue in the local courts; or (b.) otherwise waives its immunity by any subsequent act. The applicability of Philippine laws include the principle recognizing sovereign immunity.

d.) Submission by a foreign state to local jurisdiction must be clear and unequivocal, given explicitly or by necessary implication. There is not such waiver in this case.

e.) The establishment of a diplomatic mission is a sovereign function. It encompasses its maintenance 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 quarter of its agents and officials.

f.) Under Article 31 of the Vienna Convention on Diplomatic Relations, a diplomatic agent may be sued in his private capacity for (c.) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. Bu the acts of the Ambassador and the Minister Counsellor in

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terminating the agreement was committed in relation to their official functions. Thus, they enjoy immunity from suit.

C. Diplomatic and Consular Immunities

Based on customary law.

Official representatives of a state are given immunities and privileges within the territory of another state.

The immunities and privileges are personal (for diplomats benefit) but also functional (to enable the diplomat to perform his functions properly).

The receiving state has a corresponding obligation to protect the representative and his property and office.

* Diplomatic Immunities (Vienna Convention on Diplomatic Relations 1961)

Diplomatic relations are purely by mutual consent.

An agreement by the receiving state (RS) is a prerequisite before the head of mission is sent. The RS has no obligation to explain its refusal, and may at any time and without explanation notify the sending state (SS) that a diplomatic agent is persona non grata or that a staff member is unacceptable.

The SS can either recall the person or terminate his functions with the mission.

Article I. Who can enjoy diplomatic immunities? a.) head of mission

b.) diplomatic agent (head of mission or member of diplomatic staff)

c.) members of the mission including the diplomatic, administrative and technical, and service staff

d.) private servant in the domestic service of a member of the mission, not employed by the sending state

e.) premises of the mission, irrespective of ownership

Article III. Functions of the diplomatic mission: a.) Represent the sending state in receiving state b.) protect its interests and of its nationalsc.) negotiate with the government

d.) report on developments and conditions in the receiving state e.) promote friendly relations

* Rights and Privileges of the diplomatic mission:

a.) Inviolability of mission premises and means of transport; RS has duty to protect the premises and prevent any disturbance to the mission or impairment of its dignity. (Art. 22)

b.) Tax Exemptions for the SS and the head of mission, not extending to those payable under the laws of RS by persons contracting with them. (Art. 23)

c.) Inviolability of archives and documents of the mission. (Art. 24)

d.) Free communication and inviolability of official correspondence, of the diplomatic courier, and of the diplomatic bag. (Art. 27)

- Exceptions:

1.) Mission must have consent of RS to instate and use a wireless transmitter.

2.) Diplomatic bag may only contain diplomatic documents or articles for official use.

e.) Inviolability of the person of diplomatic agent from arrest or detention. (Art. 29)

f.) Inviolability of the private residence, property, papers, and correspondence of a diplomatic agent. (Art. 30)

g.) Immunity of diplomatic agent from criminal, civil, and administrative jurisdiction of RS; immunity from giving evidence as witness; immunity from execution of judgement. (Art. 31)

- Exceptions:

1.) real action relation to private immovable property in the RS, unless held on behalf of the SS for mission purposes

2.) action relating to succession, done as a private person and not on behalf of the SS

3.) action relating to any professional or commercial activity done in the RS outside his official capacity

h.) Express waiver of immunity from suit made by SS or impliedly by diplomatic agent upon initiation of proceedings, but only in respect to compulsory counterclaims. Waiver of immunity from suit is distinct from waiver of immunity from execution. (Art. 32)

i.) Exemption from social security provisions of the RS for services rendered for the SS. (Art. 33)

- Exception:

1.) private servant who is either a national or a permanent resident of the RS; and

2.) not covered by the social security provision in the SS or a third state

j.) Tax exemption of diplomatic agents. (Art. 34) - Exceptions:

1.) indirect taxes incorporated in price of goods or services

2.) dues and taxes on private immovable property in RS (unless on behalf of SS, for mission purpose)

3.) estate, inheritance, succession duties

4.) private income from within RS

5.) charges levied for services rendered

6.) registration, court or record fees, mortgage dues and stamp duty on immovable property

k.) Free entry of articles for official use of the mission and for the personal use of the diplomatic agent or his family. (Art. 36)

- Exception:

1.) personal baggage of the diplomatic agent may be inspected in his/duly authorized representatives presence if there is serious ground to presume that it contains articles not exempted, or prohibited by import or export laws or quarantine regulations

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l.) Extension of immunity to family of diplomatic agent under Art. 29-36; immunity of members of administrative and technical staff and their families under Art. 29-35; immunity of service staff for official acts and tax exemption under Art. 33; and tax exemption of private servant for emoluments due to employment. (Art. 37)

- Exception:1.) nationals of RS2.) permanent resident of RS (not for family of diplomatic agent)

m.) Immunities of a diplomatic agent who is a national or permanent resident of RS is limited to immunity from jurisdiction and inviolability in respect to official acts. For others, only such privileges and immunities that the RS may allow. (Art. 38)

n.) Privileges and immunities begin from entry into RS, or if already there, from notification of appointment to Ministry of Foreign Affairs of the RS. They cease upon leaving the RS, or on reasonable period, but shall subsist even in armed conflict. (Art. 39)

*Obligations of diplomatic mission:

a.) To respect the laws and regulations of the RS (Art. 41)

b.) To refrain from practice for personal profit any professional or commercial activity in the RS. (Art. 42)

Consuls and Consular Immunities (Vienna Convention on Consular Relations 1967) - Not concerned with political matters.

- Attend only to the administrative and economic issues.

- Head of consular post must first be authorized by RS via an exequatur.

- RS may at any time and without explanation notify the SS that a consular officer is a persona non grata or a staff member is unacceptable.

- SS can only recall or terminate his functions with the consular post.

- RS has duty to protect the consular premises, archives and interests of the SS and ensure the unimpeded functioning of the consular offices.

Article V. Consular Functions:

a.) protect the interest of the SS and of its nationals in the RS

b.) further development of economic, commercial, cultural and scientific relations and promote friendly relations between RS and SS

c.) report on development and condition of RS

d.) issue passports and travel documents to nationals of SS and visa and appropriate documents for those who wish to travel to SS

e.) assist nationals

f.) act as notary and civil registrar and perform administrative functions g.) safeguard interests of nationals in cases of succession mortis causa in RS h.) safeguard interest of nationals who are minors or lack full capacity

i.) represent or arrange representation for nationals before the tribunals or other authorities of the RS

j.) transmit judicial and extrajudicial documents or executing letters to take evidence for the courts of the SS

k.) exercise supervision and inspection over vessels under SS flag, aircrafts registered in SS, and their crew

l.) extend assistance to such vessels and aircrafts and their crew m.) other functions not prohibited by laws of RS

* Rights and Privileges of the consular mission: a.) Freedom of movement (Art. 34)b.) Freedom of communication (Art. 35)

c.) Communication and contact with nationals of the SS (Art. 36)

d.) Personal inviolability of consular officers from arrest or detention (Art. 41) - Exceptions:

1.) grave crime; and

2.) pursuant to a decision by a competent judicial authority e.) Notification of arrest, detention or prosecution (Art. 42)

f.) Immunity from jurisdiction for official acts. (Art. 43) - Exceptions:

1.) civil actions arising from contract not entered into in official capacity;

2.) civil action by a 3rd party for damage arising from an accident in the RS cause by a vehicle, vessel or aircraft

g.) Liability to give evidence; a consular employee cant refuse while a consular officer may refuse without threat of coercive measure or penalty. (Art. 44)

h.) Waiver of privilege and immunity under Art. 41, 43, and 44 by SS (Art. 45)

US v. Tehran: US Dipliomatic and Consular Staff in Iran Case ICJ (1980)

Iranian students seized the US embassy in Tehran and a number of consulates in the outlying cities. The Iranian authorities failed to protect the embassy and later appeared to adopt the students actions. Over 50 US nationals were held hostage for 444 days.

Court must decide 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.

In deciding in favor of the US, the ICJ ruled:

a.) The Iranian authorities were fully aware of their obligations under the conventions to protect the premises of the US embassy and its diplomatic and consular staff and were aware of the urgent need for action. They had the means to perform their obligations but failed to do so.

b.) The actions required of the Iranian Government by the Vienna Conventions and by general IL is manifest. They must immediately take every effort and opportunity to bring the flagrant infringements of the inviolability of the premises, archives, and diplomatic and consular staff of the US embassy to a speedy end and to restore the consulates to the US control, and in general reestablish the status quo and offer reparation for damage.

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c.) The Iranian Governments decision to continue the subjection of the embassy to occupation by militants and the staff to detention as hostages clearly gave rise to repeated and multiple breaches of the Vienna Conventions, beyond their failure to prevent the attacks.

d.) The Iranian Government did not break of diplomatic relations with the US, not did it indicate any intention to declare any member of the US diplomatic or consular staff in Tehran persona non grata. Thus, Iran failed to employ the remedies placed at its disposal by diplomatic law specifically for dealing with activities it now complains of.

D. Immunity of International Organization

- The basis of their privileges and immunities is not sovereignty but necessity for the effective exercise of their functions.

E. The Act of State Doctrine

Underhill v. Hernandez

Through the 1982 revolution in Venezuela, Gen. Hernandez who commanded the anti-administration party, assumed leadership of the government.

George Underhill, a US citizen, had constructed a waterworks system for Bolivar under a contract with the government and operated a machinery repair business. Gen. Hernandez refused to grant Underhill a passport to leave the city to coerce him to operate his waterworks and repair works for the benefit of the community and the revolutionary forces.

Underhill files a suit in the US to recover damages for the detention, his alleged confinement to his own house, and for certain alleged assaults and affronts by the soldiers of Hernadezs army.

In denying Underhills plea, the US court applied the act of state doctrine: a.) Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one county will not sit in judgment on the acts of the government of another, done within its own territory.

b.) Redress of grievances due to such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.

Banco Nacional de Cuba v. Sabbatino

The act of state doctrine is not a rule of international law but of judicial restraint in domestic law, embodied by the principle of separation of powers, whereby courts refrain from making decisions in deference to the executive who is the principal architect of foreign relations.

Alfred Dunhill of London, Inc. v. Cuba

The issue is whether or not the failure of Cuba to return to Dunhill funds mistakenly paid by the latter for cigars sold to him by certain expropriated Cuban cigar business was an act of state.

The Court ruled in favor of Dunhill:

a.) The concept of an act of state should not be extended to include the repudiations of a purely commercial obligation owed by a foreign sovereign or by one of its commercial instrumentalities.

Kirkpatrick Co. v. Environmental Tectonics Corp.

A contract was entered into between the Nigerian Government and Kirkpatrick Co. for the construction and equipment of an aeromedical center at Kaduna Air Force base in Nigeria.

Environmental Tectonics, an unsuccessful bidder, found that Kirkpatrick had bribed Nigerian officials to win the contract. It brought the matter to the Nigerian Air Force and the US embassy in Lagos.

US attorney for the District of NJ charged Kirkpatrick with violations of the Foreign Corrupt Practices Act of 1977 to which the latter pleaded guilty.

Environmental Tectonics brought a civil action against Kirkpatrick to seek damages under the Racketeer Influenced and Corrupt Organizations Act.

Defendant moved to dismiss the complaint on the ground of act of state doctrine.

SC ruled that the act of state doctrine is inapplicable where the validity of a foreign government act is not in question, as in this case.

CHAPTER 11

STATE RESPONSIBILITY

PROTECTION OF ALIENS

No State is obliged to admit aliens into its territory unless there is a treaty requiring it

Generally, it is difficult to deny admission to all; Hence, States impose legal standards for admission

Once admitted, at least under democratic regimes, aliens may not be expelled without due process

Aliens = nationals abroad

States protect aliens within their jurisdiction in the expectation that their own nationals will be properly treated when residing or sojourning abroad

Forms of ill-treatment of foreign nationals:

a. Mistreatment by judicial or police authorities

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b. Unlawful expropriation of property

c. Denial of justice or denial of due process of law failure to prosecute those who attack foreign nationals

Diplomatic protection the instrument used for the protection of aliens

o Injury to a national abroad = injury to the individuals State of nationality

o The interest of the State is in the redress of the injury to itself and not of the injury to the individual oIndividuals are at the mercy of their own State

Corporations and Shareholders

The doctrine of effective link

Barcelona Traction CaseFacts:

The claim arose out of the adjudication of bankruptcy in Space of Barcelona Traction, a company incorporated in Canada. The claims object was to seek reparation for damage suffered by its shareholders, Belgian nationals, as a result of acts committed contrary to international law.

Held:

The Court found that Belgium lack jus standi to exercise diplomatic protection of shareholders in a Canadian company with respect to measures taken against that company in Spain.

The breach, if any, was committed against the company, hence, only the company could take action. Whenever a shareholders interests are harmed by an act done to the company, it is to the latter that he has to look to institute appropriate action.

As to who should have the right to protect the corporation, it is the State of Nationality of the corporation, in this case, Canada.

Standard for the Protection of Aliens

Under the Roman Law:

1. Jus gentium applicable to both citizens and aliens 2. Jus civile applicable only to Roman citizens

In modern times

1. National treatment or Equality of treatment aliens are treated in the

same manner as nationalsoBright side: aliens would enjoy the same benefits as local nationals

o Dark side: if the State is tyrannical and its municipal laws are harsh and violative of human rights, then aliens would likewise be subject to such laws

2. Minimum International Standard however harsh the municipal laws might be, aliens should be protected by certain minimum standards of humane protection

Neer Claim

Facts:

Mr. Neer, a US national working in Mexico, was shot to death. It was claimed that the Mexican government had been negligent in their investigation of the murder.

Held:

Treatment of an alien, in order to constitute an international delinquency should amount to an outrage, bad faith, 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.

Denial of Justice

Harvard Draft Convention on the Responsibility of States for Damageso Art. 9. Denial of Justice exists when there is a. Denial

b. Unwarranted delay or obstruction of access to courts

c. Gross deficiency in the administration of judicial or remedial process

d. Failure to provide those guarantees which are generally considered indispensable to the proper administration of justice

e. Manifestly unjust judgment but error of a national court which does not produce manifest injustice is not denial of justice

Enforcement Regimes

Who can resolve issues of violations of the rights of aliens when appealed to by States in conflict?

1. International Court of Justice

2. Ad-hoc tribunals established for the purpose

a.US-Iran Claims Tribunalb. UN Compensation Settlements

3. Lump-sum Settlements (Claims Settlement Agreements)

a.US-Cambodiab. US-Vietnam

DOCTRINE OF STATE RESPONSIBILITY

When an injury has been inflicted, there is need to determine whether the State can be held responsible for it

Internationally wrongful act committed when a State violates a customary rule of international law or a treaty obligation

What needs to be understood?

1. Elements of an Internationally wrongful act 2. Attributability of the wrongful act to the State

3. Enforcement of the obligation that arises from the wrongful act

INTERNATIONALLY WRONGFUL ACT

No State can escape this responsibility when once it has committed an act which satisfies the requirements of an internationally wrongful act

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Elements of Internationally wrongful act:

1. Subjective act must be attributable not to the persons or agencies who performed it, but to the State itself

2. Objective act constitutes a breach of an international obligation of the State

What determines the wrongful character of the act is international law and not internal law

ATTRIBUTION TO THE STATE

1. Acts of State Organs

a. Acts of any State organ whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds,

and whatever its character

o Organ includes any person or body which has that status in accordance with the international law of the State

b. Conduct of an entity which is not an organ of the State but which is empowered to exercise elements of governmental authority provided the entity was acting in that capacity in the case in question

c. Conduct of an organ placed at the disposal of a State by another State acting in the exercise of elements of governmental authority of the State at whose disposal it had been placed

d. Conduct of a State organ or of an entity empowered to exercise elements of governmental authority, such organ or entity having acted in that capacity, exceeding its authority or contravening instructions concerning its exercise

CAIRE CLAIM

Facts:

Caire, a French national, was killed in Mexico by Mexican soldiers after they had demanded money from him.

Issue:

w/n Mexico is responsible for actions of individual military personnel acting without orders or against the wishes of their commanding officers

Held:

Objective responsibility of the States responsibility for the acts of the officials or organs of a State, which may devolve upon it even in the absence of any fault on its own

It tends to impute to the State, in international affairs, the responsibility for all the acts committed by its officials or organs which constitute offenses from the point of view of the law of nations, whether the official or organ in question has acted within or exceeded the limits of his competence.

This responsibility does not find its justification in general principles, those regulating the judicial organization of the State. The act of an official is only judicially established as an act of State if such an act lies within the officials sphere of competence.

The act of an official operating beyond this competence is not an act of State. It should not in principle, therefore, affect the responsibility of the State.

In order to be able to admit this so-called objective responsibility of the State for acts committed by its officials or organs outside their competence, they must have acted at least to all appearances as competent officials or organs, or they must have used powers or methods appropriate to their official capacity.

Applying to the present case, the officers in question consistently conducted themselves as officers in the brigade of the Villista general; in this capacity they began exacting the remittance of certain sums of money and when Caire refused, they finally shot him.

Under these circumstances, there remains no doubt that, even if they are t