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San Beda College of Law PUBLIC INTERNATIONAL LAW

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STATES

Western Sahara

Spain was in the process of

decolonization of its foreign holdingsincluding the Spanish Sahara. The UNGeneral Assembly ordered Spain tohold a referendum on self-determination on the said region.However, Morocco objected to theholding of a referendum, claiming partsof the region, particularly WesternSahara. The Mauritanian entity, for itsparts, also lays claims on the region

alleging that legal ties between the twoterritories exist.

Because of the persistingdisputes, UN General AssemblyResolution 3292 requested that theInternational Court give an advisoryopinion on the following questions:

1. Was Western Sahara (Rio de Oroand Sakiet El Hamra) at the timeof colonization by Spain a

territory belonging to no one(terra nullius)?2. What were the legal ties between

this territory (Western Sahara)and the Kingdom of Morocco andthe Mauritanian Entity?

Jurisdiction of the CourtSpain raised its objection on the

competence of the Court to give anadvisory opinion citing the identicalnature of the subject of the question tothe earlier dispute of Morocco and Spainconcerning Western Sahara, its (Spain)lack of consent to the adjudication of thequestions referred to the Court and the

academic nature, irrelevance, and lackof object of the questions submitted.

Under Article 65, par.1 of theStatute, the Court may give an advisoryopinion on any legal question at the

request of any duly authorized body.The UN General Assembly is suitablyauthorized by Article 96, par.1 of theCharter and the two questionssubmitted are framed in terms of lawand raised problems of the internationallaw. They are in principle questions of alegal character, even if they also embodyquestions of fact.

Spain considers that the subject

of dispute which Morocco invited it tosubmit jointly to the Court for decisionin contentious proceedings, and thesubject of the questions on which theadvisory opinion is requested aresubstantially identical; and Spaininvoked the fundamental rule that aState cannot, without its consent, becompelled to submit its disputes withother States to the Courts adjudication.

However, the object of the GeneralAssembly has not been to bring beforethe Court, by way of a request forAdvisory Opinion, a dispute or legalcontroversy, in order that it may later,on the basis of the Courts opinion,exercise its powers and functions for thepeaceful settlement of that dispute orcontroversy. The object of the request isan entirely different one, and that is toobtain from the Court an opinion whichthe General Assembly deems ofassistance to it for the proper exercise ofits function concerning thedecolonization of the territory.


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Question I. Was Western Sahara at thetime of colonization by Spain aterritory belonging to no one (terranullius)?

In, law occupation was a

means of peaceably acquiringsovereignty over territory otherwisethan by cession or succession; it was acardinal condition of a valid"occupation" that the territory shouldbe terra nullius. According to the Statepractice of that period, territoriesinhabited by tribes or peoples having asocial and political organization werenot regarded as terrae nullius: in their

case sovereignty was not generallyconsidered as effected throughoccupation, but through agreementsconcluded with local rulers.

The information furnished to theCourt shows (a) that at the time ofcolonization Western Sahara wasinhabited by peoples which, if nomadic,were socially and politically organizedin tribes and under chiefs competent torepresent them; (b) that Spain did notproceed upon the basis that it wasestablishing its sovereignty overterraenullius: thus in his Order of 26December 1884 the King of Spainproclaimed that he was taking the Riode Oro under his protection on the basisof agreements entered into with thechiefs of local tribes.Therefore, the answer to the firstquestion must be in the negative.

Question II. What were the legal ties ofthis territory (Western Sahara) with theKingdom of Morocco and theMauritanian Entity?

A) Morocco presented its claim tolegal ties with Western Sahara as a claimto ties of sovereignty on the ground ofan alleged immemorial possession of theterritory and an uninterrupted exercise

of authority. As evidence of its displayof sovereignty in Western Sahara,Morocco invoked alleged acts of internaldisplay of Moroccan authority,consisting principally of evidence saidto show the allegiance of Saharan caidsto the Sultan, including dahirs and otherdocuments concerning the appointmentof caids, the alleged imposition ofKoranic and other taxes, and acts of

military resistance to foreignpenetration of the territory.

However, neither the internal northe international acts relied upon byMorocco indicate the existence at therelevant period of either the existence orthe international recognition of legal tiesof territorial sovereignty betweenWestern Sahara and the Moroccan State.Even taking account of the specific

structure of that State, they do not showthat Morocco displayed any effectiveand exclusive State activity in WesternSahara. They do, however, provideindications that a legal tie of allegianceexisted at the relevant period betweenthe Sultan and some, but only some, ofthe nomadic peoples of the territory,through Tekna caids of the Nounregion, and they show that the Sultandisplayed, and was recognized by otherStates to possess, some authority orinfluence with respect to those tribes.

B) Mauritanian Entity denotesthe cultural, geographical and socialentity within which the Islamic Republic


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of Mauritania was to be created.According to Mauritania, that entity, atthe relevant period, was the BiladShinguitti or Shinguitti country, adistinct human unit, characterized by a

common language, way of life, religionand system of laws, featuring two typesof political authority: emirates and tribalgroups.

According to Mauritania, theMauritanian entity extended from theSenegal River to the Wad Sakiet ElHamra. The territory at present underSpanish administration and the presentterritory of the Islamic Republic of

Mauritania thus together constitutedindissociable parts of a single entity andhad legal ties with one another.

While there existed among themmany ties of a racial, linguistic,religious, cultural and economic nature,the emirates and many of the tribes inthe entity were independent in relationto one another; they had no commoninstitutions or organs. The Mauritanian

entity therefore did not have thecharacter of a personality or corporateentity distinct from the several emiratesor tribes which comprised it. The Courtconcludes that at the time ofcolonization by Spain there did not existbetween the territory of Western Saharaand the Mauritanian entity any tie ofsovereignty or of allegiance of tribes, orof simple inclusion in the same legalentity.

In the relevant period, thenomadic peoples of the Shinguitticountry possessed rights, includingsome rights relating to the landsthrough which they migrated. Theserights constituted legal ties between

Western Sahara and the Mauritanianentity. They were ties which knew nofrontier between the territories and werevital to the very maintenance of life inthe region.

East Timor (Portugal v. Australia)

Judgment of June 30, 1995

FACTS: On 22 February 1991 Portugal

had instituted proceedings against

Australia concerning "certain activities

of Australia with respect to East Timor".

Portugal acted as the administeringPower over East Timor in accordance

with Chapter XI of the Charter of the

United Nations. Portugal claimed that

Australia, by the conclusion of a Treaty

of "Cooperation in an area between the

Indonesian Province of East Timor and

Northern Australia of 11 December

1989", had failed to observe the

obligation to respect the powers andduties of Portugal as the administering

Power of East Timor, as well as the right

of the people of East Timor to self-

determination and the related rights.

Australia, according to Portugal's

allegations, had thereby incurred

international responsibility vis--vis

both the people of East Timor and

Portugal, which claimed to haveremained the administering Power

according to several resolutions of the

General Assembly and the Security

Council, even though it had left East

Timor definitely when Indonesia


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invaded East Timor in 1975. As the basis

of jurisdiction Portugal referred to the

declarations of both States according to

Art. 36 paragraph 2 of the Statute.

Australia objected to the jurisdiction ofthe Court and the admissibility of the

application.

ISSUES: The central issue for the Court

was whether the 1989 Treaty could have

been legally concluded between

Indonesia and Australia or whether

Portugal alone was empowered to

conclude treaties on behalf of East

Timor. Thus, the main question waswhether the Court could decide the case

in the absence of Indonesia which had

not accepted the jurisdiction of the

Court and was not inclined to intervene

in the case.

ARGUMENTS: Australia argued that

the Court was confronted with a

situation comparable to that in theMonetary Gold Case, namely that the

Court would have to decide on the

lawfulness of Indonesia's entry into and

continuing presence in East Timor as

well as the lawfulness of the conclusion

of the Treaty, which could not be done

in the absence of Indonesia. While

Portugal agreed in principle on this

point, it disagreed that the Court had infact to decide on the aforementioned

questions. Portugal argued that the

Court had only to judge upon the

objective conduct of Australia, which

consisted in having negotiated,

concluded and initiated performance of

the 1989 Treaty with Indonesia, and that

this question was perfectly separable

from any question relating to the

lawfulness of the conduct of Indonesia.

HELD: In its judgment, however, the

Court concluded that Australia's

behavior could not be assessed without

first entering into the question of why

Indonesia could not lawfully have

concluded the 1989 Treaty, while

Portugal allegedly could have done so.

The Court was of the opinion that thevery subject-matter of the decision

would necessarily be a determination of

whether Indonesia could or could not

have acquired the power to conclude

treaties on behalf of East Timor relating

to the resources of its continental shelf.

Such a determination, however, could

not be made without the consent of

Indonesia.The Court also rejected Portugal's

additional argument that the rights

which Australia had allegedly breached

were rights erga omnes and as such

permitted Portugal to sue Australia

individually, regardless of whether or

not another State had conducted itself in

a similarly unlawful manner. The Court

fully shared the assertion of Portugalthat the right of peoples to self-

determination had an erga omnes

character. Nevertheless, the Court

considered that the erga omnes character

of a norm and the principle of consent to


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the Court's jurisdiction were two

different things. Whatever the nature of

the obligations invoked, the Court could

not rule on the lawfulness of the

conduct of a State when its judgmentwould imply an evaluation of the

lawfulness of the conduct of another

State not a party to the case.

The Court likewise dismissed the

argument of Portugal that the United

Nations resolutions concerning the

status of Portugal as administering

Power were imposing upon all States an

obligation not to recognize anyauthority of Indonesia over East Timor.

The Court found that without prejudice

to the question of the binding or non-

binding nature of these resolutions such

an obligation could not be inferred from

those resolutions. Therefore, the Court

would necessarily have to rule upon the

lawfulness of Indonesia's conduct as a

prerequisite for deciding Portugal'scontention that Australia violated its

obligation to respect Portugal's status as

administering Power and East Timor's

status as a non-self-governing territory

and the right of its people to self-

determination and to permanent

sovereignty of its natural resources.

Thus, the rights and obligations of

Indonesia would constitute the verysubject-matter of the case and could

only be judged with the consent of

Indonesia. Since this consent was

lacking, the Court had to dismiss the

case, despite the importance of the

questions raised.

REFERENCE RE SECESSION OF

QUEBEC, [1998]Secession is the act of withdrawing from anorganization, union, or especially a politicalentity.

PROCEDURAL ISSUES:Issue 1: Whether or not the questionssubmitted were within the scope of thecourt and not usurping theinternational court?

The Court is not exceeding itsjurisdiction by purporting to act as aninternational tribunal. The Court isproviding an advisory opinion to theGovernor in Council in its capacity as anational court on legal questionstouching and concerning the future ofthe Canadian federation. Further,Question 2 is not beyond thecompetence of this Court, as a domesticcourt, because it requires the Court tolook at international law rather thandomestic law. More importantly,Question 2 does not ask an abstractquestion of "pure" international law butseeks to determine the legal rights andobligations of the legislature orgovernment of Quebec, institutions thatexist as part of the Canadian legal order.International law must be addressed

since it has been invoked as aconsideration in the context of thisReference.

In accordance with well acceptedprinciples of international law, thisCourt's answer to Question 2 would not


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purport to bind any other state orinternational tribunal that mightsubsequently consider a similarquestion. The Court nevertheless hasjurisdiction to provide an advisory

opinion to the Governor in Council in itscapacity as a national court on legalquestions touching and concerning thefuture of the Canadian federation.

Issue 2: Whether or not the substantiveissues are justiciable?

Since the reference questions mayclearly be interpreted as directed to

legal issues, the Court is in a position toanswer them. In the context of areference, the Court, rather than actingin its traditional adjudicative function, isacting in an advisory capacity.

The questions raise issues offundamental public importance andthey are not too imprecise or ambiguousto permit a proper legal answer. Nor hasthe Court been provided withinsufficient information regarding thepresent context in which the questionsarise. Finally, the Court may deal on areference with issues that mightotherwise be considered not yet "ripe"for decision.

SUBSTANTIVE ISSUES:

Issue 1: Under the Constitution of

Canada, can the National Assembly,legislature or government of Quebeceffect the secession of Quebec fromCanada unilaterally?

No. Those who support the existence ofsuch a right found their case primarily

on the principle of democracy.Democracy, however, means more thansimple majority rule. As reflected in ourconstitutional jurisprudence, democracyexists in the larger context of other

constitutional values such as thosealready mentioned.

In the 131 years since Confederation, thepeople of the provinces and territorieshave created close ties ofinterdependence (economically, socially,politically and culturally) based onshared values that include federalism,democracy, constitutionalism and the

rule of law, and respect for minorities.

A democratic decision of Quebecers infavour of secession would put thoserelationships at risk. The Constitutionvouchsafes order and stability, andaccordingly secession of a province"under the Constitution" could not beachieved unilaterally, that is, withoutprincipled negotiation with otherparticipants in Confederation withinthe existing constitutional framework.

Secession is the effort of a group orsection of a state to withdraw itself fromthe political and constitutional authorityof that state, with a view to achievingstatehood for a new territorial unit onthe international plane. The secession ofa province from Canada must beconsidered, in legal terms, to require anamendment to the Constitution, which

perforce requires negotiation.

This right implies a reciprocal duty onthe other participants to engage indiscussions to address any legitimateinitiative to change the constitutional


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order. While it is true that someattempts at constitutional amendment inrecent years have faltered, a clearmajority vote in Quebec on a clearquestion in favour of secession would

confer democratic legitimacy on thesecession initiative whichall of the other participants inConfederation would have torecognize.

The federalism principle, in conjunctionwith the democratic principle, dictatesthat the clear repudiation of the existingconstitutional order and the clear

expression of the desire to pursuesecession by the population of aprovince would give rise to a reciprocalobligation on all parties toConfederation to negotiateconstitutional changes to respond tothat desire.

Quebec could not, despite a clearreferendum result, purport to invoke a

right of self-determination to dictate theterms of a proposed secession to theother parties to the federation. Thedemocratic vote, by however strong amajority, would have no legal effect onits own and could not push aside theprinciples of federalism and the rule oflaw, the rights of individuals andminorities, or the operation ofdemocracy in the other provinces or inCanada as a whole. Democratic rights

under the Constitution cannot bedivorced from constitutionalobligations. Nor, however, can thereverse proposition be accepted. Thecontinued existence and operation of theCanadian constitutional order could notbe indifferent to a clear expression of a

clear majority of Quebecers that they nolonger wish to remain in Canada. Theother provinces and the federalgovernment would have no basis todeny the right of the government of

Quebec to pursue secession, should aclear majority of the people of Quebecchoose that goal, so long as in doing so,Quebec respects the rights of others. Thenegotiations that followed such a votewould address the potential act ofsecession as well as its possible termsshould in fact secession proceed. Therewould be no conclusions predeterminedby law on any issue. Negotiations

would need to address the interests ofthe other provinces, the federalgovernment, Quebec and indeed therights of all Canadians both within andoutside Quebec, and specifically therights of minorities.

The negotiation process would requirethe reconciliation of various rights andobligations by negotiation between two

legitimate majorities, namely, themajority of the population of Quebec,and that of Canada as a whole level. Thefailure of the duty to undertakenegotiations and pursue them accordingto constitutional principles mayundermine that government's claim tolegitimacy which is generally aprecondition for recognition by theinternational community. Conversely,violations of those principles by thefederal or other provincial governmentsresponding to the request for secessionmay undermine their legitimacy. Thus,a Quebec that had negotiated inconformity with constitutionalprinciples and values in the face of


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unreasonable intransigence on the partof other participants at the federal orprovincial level would be more likely tobe recognized than a Quebec which didnot itself act according to constitutional

principles in the negotiation process.

Accordingly, the secession of Quebecfrom Canada cannot be accomplishedby the National Assembly, thelegislature or government of Quebecunilaterally, that is to say, withoutprincipled negotiations, and beconsidered a lawful act. Any attempt toeffect the secession of a province from

Canada must be undertaken pursuant tothe Constitution of Canada, or elseviolate the Canadian legal order.However, the continued existence andoperation of the Canadian constitutionalorder cannot remain unaffected by theunambiguous expression of a clearmajority of Quebecers that they nolonger wish to remain in Canada. Theprimary means by which that

expression is given effect is theconstitutional duty to negotiate inaccordance with the constitutionalprinciples that we have describedherein. In the event secessionnegotiations are initiated, ourConstitution, no less than our history,would call on the participants to workto reconcile the rights, obligations andlegitimate aspirations of all Canadianswithin a framework that emphasizesconstitutional responsibilities as muchas it does constitutional rights.

Issue 2: a) Does international law givethe National Assembly, legislature orgovernment of Quebec the right to

effect the secession of Quebec fromCanada unilaterally? b) In this regard,is there a right to self-determinationunder international law that wouldgive the National Assembly,

legislature or government of Quebecthe right to effect the secession ofQuebec from Canada unilaterally?

a) It is clear that international law doesnot specifically grant component partsof sovereign states the legal right tosecede unilaterally from their "parent"state. International law places greatimportance on the territorial integrity of

nation states and, by and large, leavesthe creation of a new state to bedetermined by the domestic law of theexisting state of which the secedingentity presently forms a partWhere, as here, unilateral secessionwould be incompatible with thedomestic Constitution, international lawis likely to accept that conclusion subjectto the right of peoples to self-determination, a topic to which we nowturn.

(b) The recognized sources ofinternational law establish that the rightto self determination of a people isnormally fulfilled through internal self-determination a people's pursuit of itspolitical, economic, social and culturaldevelopment within the framework ofan existing state. A right to external

self-determination - [t]he establishmentof a sovereign and independent State,the free association or integration withan independent State or the emergenceinto any other political status freelydetermined by a people constitute


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modes of implementing the right of self-determination by that people.

While the International Covenant onEconomic, Social and Cultural Rights

and the International Covenant on Civiland Political Rights do not specificallyrefer to the protection of territorialintegrity, they both define the ambit ofthe right to selfdetermination in termsthat are normally attainable within theframework of an existing state. There isno necessary incompatibility betweenthe maintenance of the territorialintegrity of existing states, including

Canada, and the right of a "people" toachieve a full measure of self-determination. A state whosegovernment represents the whole ofthe people or peoples resident withinits territory, on a basis of equality andwithout discrimination, and respectsthe principles of self-determination inits own internal arrangements, isentitled to the protection underinternational law of its territorialintegrity.

Accordingly, the general state ofinternational law with respect to theright to self-determination is that theright operates within the overridingprotection granted to the territorialintegrity of "parent" states. However,there are certain defined contextswithin which the right to the self-

determination of peoples does allowthat right to be exercised "externally",which, in the context of this Reference,would potentially mean secession: a)The right of colonial peoples toexercise their right to self-determination by breaking away from

the "imperial" power; b) right toexternal self-determination accrues iswhere a people is subject to aliensubjugation, domination orexploitation outside a colonial context;

c) when a people is blocked from themeaningful exercise of its right to self-determination internally.

The international law right to self-determination only generates, at best, aright to external self-determination insituations of former colonies; where apeople is oppressed, as for exampleunder foreign military occupation; or

where a definable group is deniedmeaningful access to government topursue their political, economic, socialand cultural development. In all threesituations, the people in question areentitled to a right to external self-determination because they have beendenied the ability to exert internallytheir right to self-determination. Suchexceptional circumstances aremanifestly inapplicable to Quebec under

existing conditions.

The right to secession only arises underthe principle of self-determination ofpeoples at international law where "apeople" is governed as part of acolonial empire; where "a people" issubject to alien subjugation,domination or exploitation; andpossibly where "a people" is denied

any meaningful exercise of its right toself-determination within the state ofwhich it forms a part.

A state whose government representsthe whole of the people or peoplesresident within its territory, on a basis of


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equality and without discrimination,and respects the principles of self-determination in its internalarrangements, is entitled to maintainits territorial integrity under

international law and to have thatterritorial integrity recognized by otherstates. Quebec does not meet thethreshold of a colonial people or anoppressed people, nor can it besuggested that Quebecers have beendenied meaningful access togovernment to pursue their political,economic, cultural and socialdevelopment. In the circumstances, the

National Assembly, the legislature orthe government of Quebec do not enjoya right at international law to effect thesecession of Quebec from Canadaunilaterally.

De Facto Secession

Although there is no right, under theConstitution or at international law, tounilateral secession, that is secessionwithout negotiation on the basis justdiscussed, this does not rule out thepossibility of an unconstitutionaldeclaration of secession leading to a defacto secession. The ultimate success ofsuch a secession would be dependent onrecognition by the internationalcommunity, which is likely to considerthe legality and legitimacy of secessionhaving regard to, amongst other facts,

the conduct of Quebec and Canada, indetermining whether to grant orwithhold recognition. Such recognition,even if granted, would not, however,provide any retroactive justification forthe act of secession, either under the

Constitution of Canada or atinternational law.

ACCORDANCE WITH

INTERNATIONAL LAW OF THEUNILATERAL DECLARATION OFINDEPENDENCE IN RESPECT OFKOSOVO

FACTS:Security Council Resolution 1244 (1999)was promulgated establishing aninternational civil and security presencein Kosovo with full civil and political

authority and sole responsibility for thegovernance of Kosovo.The interim administration in Kosovowas designed to suspend temporarilySerbias exercise of its authority flowingfrom its continuing sovereignty over theterritory of Kosovo. The purpose of thelegal regime established underresolution 1244 was to establish,organize and oversee the developmentof local institutions of self-governmentin Kosovo under the aegis of the interiminternational presence.When final negotiations with regard toKosovos independence failed, membersof the Assembly of Kosovo made adeclaration of independence (February17, 2008) which aimed at establishingKosovo as an independent andsovereign state.

ISSUE:Is the unilateral declaration ofindependence by the provisionalinstitutions of Self-Government ofKosovo in accordance with Internationallaw?


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HELD:YES. The Court arrived at theconclusion that the authors of thedeclaration are persons who acted

together in their capacity asrepresentatives of the people of Kosovooutside the framework of the interimadministration. Thus, exercise of self-determination. (note: if the declaration iswithin the framework of the interimadministration, it will violateinternational law since the adoption willbe contrary to the SC resolution 1244.)

GENERAL INTERNATIONAL LAWSelf-determination

- State practice today points clearlyto the conclusion that international lawcontained no prohibition of declarationsof independence. International law ofself-determination developed in such away as to create a right to independencefor the peoples of non-self-governingterritories and people subject to aliensubjugation, domination andexploitation.- There are however cases whenthe declaration of independence isoutside this context- BUT, there is no rule ininternational law prohibiting themaking of declaration of independencein such cases.

Principle of Territotial Integrity- The question is, is it violative ofthe principle of territorial integrity?- NO! The principle is that Statesmust refrain in their internationalrelations from the threat or use of force

against the territorial integrity orpolitical independence of any State.- Thus, the obligation to refrainfrom violating the territorial integrity ofStates is reposed on sovereign states

(obligasyon sa mga kapwa estado). It isconfined in the relations between states.So, if concerning only a single state atwithin that state a declaration ofindependence was made by i.e. provinceor anyone within its sovereignty andterritory, DI PA YUN AGAINST thePRINCIPLE of territorial integrity.- Rhetorical question from Sir: Soang Mindanao pwede daw bang

gumawa ng unilateral declaration? Dinaman daw kasi violative ng territorialintegrity kasi hindi State ang Mindanao.

The Province of North Cotabato v.Republic

Facts:

On August 5, 2008, the Government ofthe Republic of the Philippines (GRP)

and the MILF, through the Chairpersonsof their respective peace negotiatingpanels, were scheduled to sign aMemorandum of Agreement on theAncestral Domain (MOA-AD) Aspect ofthe GRP-MILF Tripoli Agreement onPeace of 2001 in Kuala Lumpur,Malaysia.The MILF is a rebel group which wasestablished in March 1984 when, under

the leadership of the late SalamatHashim, it splintered from the MoroNational Liberation Front (MNLF) thenheaded by Nur Misuari, on the ground,among others, of what Salamatperceived to be the manipulation of the


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MNLF away from an Islamic basistowards Marxist-Maoist orientations.1The signing of the MOA-AD betweenthe GRP and the MILF was not tomaterialize, however, for upon motion

of petitioners, specifically those whofiled their cases before the scheduledsigning of the MOA-AD, this Courtissued a Temporary Restraining Orderenjoining the GRP from signing thesame.

The MOA-AD was preceded by a long

process of negotiation and the

concluding of several prior agreements

between the two parties beginning in

1996, when the GRP-MILF peace

negotiations began. On July 18, 1997, the

GRP and MILF Peace Panels signed the

Agreement on General Cessation of

Hostilities. The following year, they

signed the General Framework of

Agreement of Intent on August 27, 1998.

In 2005, several exploratory talks were

held between the parties in Kuala

Lumpur, eventually leading to the

crafting of the draft MOA-AD in its final

form, which, as mentioned, was set to be

signed last August 5, 2008.

Relevant ruling as pointed out by Atty.

Velasco:

The President cannot delegate a power

that she herself does not possess. May

the President, in the course of peace

negotiations, agree to pursue reforms

that would require new legislation and

constitutional amendments, or should

the reforms be restricted only to those

solutions which the present laws allow?

The answer to this question requires a

discussion of

The extent of the Presidents power toconduct peace negotiations: ThePresidents power to conduct peacenegotiations is implicitly included in herpowers as Chief Executive andCommander-in-Chief. As ChiefExecutive, the President has the generalresponsibility to promote public peace,and as Commander-in-Chief, she hasthe more specific duty to prevent and

suppress rebellion and lawlessviolence.169

The President may not, of course,unilaterally implement the solutionsthat she considers viable, but she maynot be prevented from submitting themas recommendations to Congress, whichcould then, if it is minded, act uponthem pursuant to the legal procedures

for constitutional amendment andrevision. In particular, Congress wouldhave the option, pursuant to ArticleXVII, Sections 1 and 3 of theConstitution, to propose therecommended amendments or revisionto the people, call a constitutionalconvention, or submit to the electoratethe question of calling such aconvention. While the President does

not possess constituent powersasthose powers may be exercised only byCongress, a Constitutional Convention,or the people through initiative andreferendumshe may submit proposalsfor constitutional change to Congress in


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a manner that does not involve thearrogation of constituent powers.

From the foregoing discussion, the

principle may be inferred that thePresidentin the course of conducting

peace negotiationsmay validly

consider implementing even those

policies that require changes to the

Constitution, but she may not

unilaterally implement them without

the intervention of Congress, or act in

any way as if the assent of that body

were assumed as a certainty.

It will be observed that the President

has authority, as stated in her oath of

office,178 only to preserve and defend

the Constitution. Such presidential

power does not, however, extend to

allowing her to change the Constitution,

but simply to recommend proposed

amendments or revision. As long as shelimits herself to recommending these

changes and submits to the proper

procedure for constitutional

amendments and revision, her mere

recommendation need not be construed

as an unconstitutional act.

Given the limited nature of thePresidents authority to propose

constitutional amendments, she cannotguarantee to any third party that therequired amendments will eventually beput in place, nor even be submitted to aplebiscite. The most she could do issubmit these proposals as

recommendations either to Congress orthe people, in whom constituent powersare vested.Paragraph 7 on Governance of theMOA-AD states, however, that all

provisions thereof which cannot bereconciled with the present Constitutionand laws shall come into force uponsigning of a Comprehensive Compactand upon effecting the necessarychanges to the legal framework. Thisstipulation does not bear the marks of asuspensive conditiondefined in civillaw as a future and uncertain eventbut of a term. It is not a question of

whether the necessary changes to thelegal framework will be effected, butwhen. That there is no uncertainty beingcontemplated is plain from whatfollows, for the paragraph goes on tostate that the contemplated changesshall be with due regard to nonderogation of prior agreements andwithin the stipulated timeframe to becontained in the Comprehensive

Compact.Pursuant to this stipulation, therefore, itis mandatory for the GRP to effect thechanges to the legal frameworkcontemplated in the MOA-ADwhichchanges would include constitutionalamendments, as discussed earlier. Itbears noting that, By the time thesechanges are put in place, the MOA-ADitself would be counted among theprior agreements from which therecould be no derogation.

What remains for discussion in theComprehensive Compact would merelybe the implementing details for theseconsensus points and, notably, the


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deadline for effecting the contemplatedchanges to the legal framework.Plainly, stipulation-paragraph 7 onGOVERNANCE is inconsistent with thelimits of the Presidents authority to

propose constitutional amendments, itbeing a virtual guarantee that theConstitution and the laws of theRepublic of the Philippines willcertainly be adjusted to conform to allthe consensus points found in theMOA-AD. Hence, it must be struckdown as unconstitutional.

Framework Agreement on the

Bangsamoro

1. Autonomous Region in Muslim

Mindanao to be replaced by

Bangsamoro

a. Bangsamoro identity include:

i. those who at the time of

conquest and colonization

were considered natives or

original inhabitants ofMindanao and the Sulu

archipelago and its adjacent

islands including Palawan,

and their descendants

whether of mixed or full

blood who have identified

themselves as Bangsamoro by

ascription or self-ascription

ii. Spouses ad theirdescendants

2. The Bangsamoro shall be governed

by the Bangsamoro Basic Law which

is to be formulated by the

Bangsamoro people and ratified by

the qualified voters within its

territory.

a. Annexes to be used as a guide in

drafting the Bangsamoro Basic

Law:i. Power Sharing

ii. Wealth Sharing

iii. Territory

iv. Normalization

3. Power Sharing- there will be

concurrent powers shared by the

Central Government and the

Bangsamoro Government.

a. Non-exclusive list of Powers ofthe Central Government:

i. Defense and External Security

ii. Foreign Policy

iii. Common Market and Global

Trade provided that those

economic agreements already

allowed under RA 9054 shall

be transferred to the

Bangsamoroiv. Coinage and monetary policy

v. Citizenship and

naturalization

vi. Postal Service

b. Justice institutions in the

Bangsamoro

i. Shariah justice system

ii. Local civil courts

iii. Alternative disputeresolution systems-

traditions and customary

rights of indigenous

people


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4. Wealth Sharing- the Bangsamoro

will have the power to:

a. Create its own source of revenue

b. Receive grants, donations and

subsidies from domestic andforeign souces

c. Have just and equitable share in

the revenues through the

exploration, development or

utilization of resources in the

areas within its jurisdiction

d. Create its own auditing body and

procedures for accountability

without prejudice to theauthority of the COA

5. Territory- the core territory of the

Bangsamoro shall be composed of:

a. The present geographical area of

ARMM

b. Some municipalities in the

province of Lanao del Norte

c. Barangays that voted for

inclusion in ARMM during the2001 plebiscite

d. Cities of Cotabato and Isabela

e. All other contiguous areas where

there is a resolution of the LGU

or a petition of at least 10% of the

qualified voters in the area asking

for their inclusion at least 2

months prior to the ratification of

the Bangsamoro Basic Law

* Contiguous areas outside the

core territory where there are

substantial populations of the

Bangsamoro may opt anytime to

be part of the territory upon

petition of at leat 10% of the

residents and approved by

majority of qualified voters in a

plebiscite.6. Transition and Normalization

a. A Transition Commission shall

be created through an EO and

supported by Congressional

Resolutions.

i. Transition Commission

composed of 15 members

ALL OF WHOM ARE

BANGSAMOROS (7 to beselected by the Gov. of the

Phil and 8 members,

including the Chairman, to be

selected by the MILF)

ii. Functions of the Transition

Commission:

1. To work on the drafting of

the Bangsamoro Basic Law

2. To work on the proposalsto amend the Phil.

Constitution to

accommodate the

agreements of the Gov. of

the Phil. And the MILF

3. Coordinate whenever

necessary, development

programs in Bangsamoro

communitiesb. Upon the promulgation and

ratification of the Bangsamoro

Basic Law which provides for the

creation of the Bangsamoro


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Transition Authority, the ARMM is

deemed ABOLISHED.

i. All devolved authorities shall

be vested in the Bangsamoro

Transition Authority duringthe INTERIM PERIOD

ii. Ministerial form and Cabinet

System of Government shall

commence

c. In 2016, the Bangsamoro Transition

Authority will be immediately

replaced upon the election and

assumption of the members of the

Bangsamoro legislative authorityand the formation of the

Bangsamoro Gov.

d. Exit Document (officially

terminating the peace negotiations)

to be crafted and signed only when

all agreements have been fully

implemented.

e. It is through Normalization that

communities can return toconditions where they can achieve

their desired quality of life, which

includes the pursuit of sustainable

livelihoods and political

participation within a peaceful

deliberative society.

i. Policing Structure and

Arrangement must be

professional and free frompartisan political control

(Civilian in Character)

ii. Independent Commission to

recommend appropriate

policing within the area

iii. MILF to gradually

decommission its forces

iv. Law enforcement functions to

be transferred from the AFP

to the police force ofBangsamoro

v. Joint Normalization

Committee- to ensure

coordination between the

Gov. and the remaining MILF

forces until full

decommissioning

vi. Reduction and control of

firearms in the area and thedisbandment of private

armies and other armed

groups.

Burkina Faso v. Republic of Mali

A special agreement was made between

the Republic of Upper Volta (nowknown as Burkina Faso) and theRepublic of Mali wherein the two statesagreed to submit to a chamber of thecourt a dispute relating to thedelimitation of a part of their commonfrontier.Considerations:1. THE PRINCIPLE OFINTANGIBILITY OF FRONTIERSINHERITED FROM COLONIZATION:This means that frontiers existing at thetime of independence are respected.This was taken into considerationbecause Burkina Faso and Mali werepreviously colonized as a part of asingle state. The two states only became


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independent through a recent process ofdecolonization.

2. THE PRINCIPLE OF UTIPOSSIDETIS JURIS: This means respect

of the territorial status quo, theapplication of which gives rise to theprinciple of intangibility of frontiersinherited from colonization. It is aprinciple of general scope (generalprinciples of law do not representbinding normative circumstances in theway that explicit legal norms do, but canbe seen as rules of law which should befollowed as far as possible). This accordspre-eminence to legal title over effectivepossession as a basis of sovereignty.

3. EQUITY: Equity infra legem, thatform of equity which constitutes amethod of interpretation of the law inforce, and which is based on law isapplicable. Equity ex aequo et bono,meaning "in equity and in goodconscience" is not applicable because theparties have not requested for it.

4. FRENCH COLONIAL LAW: Thecourt must look into how theadministrative border, which is now theborder in dispute, was viewed undercolonial rule. This was very confusingbecause of the existence of several mapsshowing different delimitations. Therewas a discussion about which mapscould be relied upon by the court,taking into consideration the basis of the

representations made on them.5. PRELIMINARY QUESTION OFACQUIESCENCE BY MALI: BurkinaFaso argues that Mali accepted asbinding the solution to the disputeoutlined by the Mediation Commission

(1975). The claim was based on thefollowing statement made by thePresident of Mali to the media: "Maliextends over 1,240,000 squarekilometres, and we cannot justify

fighting for a scrap of territory 150kilometres long. Even if theOrganization of African UnityCommission decides objectively that thefrontier line passes through Bamako, myGovernment will comply with thedecision." The Court found that thereare no grounds to interpret thedeclaration in question as a unilateralact with legal implications in regard to

the dispute. It was but a witticism of thekind regularly uttered at pressconferences. It was different from thestatement made in the Nuclear Warscase because it was not a statementdirected to the whole world.Separate Opinion of Judge Georges Abi-Saab- French colonial law has been analyzedin excessive detail

- He disassociates himself from the roleattributed to a letter, which was reliedupon in determining the border,because the declaratory nature of whichit spoke of the territorial boundaries aremere possibilities, not hardened tocertainty by any evidence. Moreover, hefound that the letter was a simple verbalreflection of a map and maps, asdetermined by the court, are notsufficient in themselves to constitutetitle.- Equity should have been given abigger role. The area concerned was anomadic and afflicted by drought.Access to water is vital there. The


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delimitation made does not take this factinto consideration.

Great Britain/ Costa Rica (Tinoco Case)

The government of Costa Rica, underPresident Alfredo Gonzalez, was

overthrown by Frederico Tinoco, then

Secretary of War. Gonzalez fled. Tinoco

assumed power, called an election, and

established a new constitution. His

government continued until August

1919. His government fell in the

September following. After a

provisional government, the oldconstitution was restored. On 22

August 1922, the Constitutional

Congress passed a law known as Law of

Nullities No. 41 (LN). It invalidated all

contracts entered into during the Tinoco

government. The claim of Great Britain

is that the Royal bank of Canada and the

Central Costa Rica are the creditors of

the Government of Costa Rica (GCR) inthe sum of 998,000 colones. The GCR

denies its liabilities for the acts of the

Tinoco govt and alleged that the LN was

a legitimate exercise of its legislative

power.

WON GCRs contention is tenable.

Changes in the govt or the internal

policy of a state do not as a rule affect its

position in the international law.

Though the govt changes, the nation

remains, with rights and obligations

unimpaired. The State is bound by

engagements entered into by

governments that have ceased to exist,

the restored government is generally

liable for the acts of the usurper.

Moreover, the people seemed to have

accepted Tinocos govt as well as by theother States. The non-recognition by

other nations of a govt 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. But when recognition

vel non of a government is by such

nations determined by inquiry, not intoits de facto sovereignty and complete

governmental control, but into its

illegitimacy or irregularity of origin,

their non-recognition loses something of

evidential weight.

To hold that a government which

establishes itself and maintains a

peaceful administration with the

acquiescence of the people for a

substantial period of time, does not

become a de facto government unless it

conform to a previous constitution

would be to hold that within the rules of

international law a revolution contrary

to the fundamental law of the existing

government cannot establish a new

govt. This cannot be true.To speak of a

revolution creating a de facto

government, which conforms to the

limitations of the old constitution is to

use a contradiction in terms.


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The United Nations, MilitaryIntervention, and Regime Change inLibya

Mehrdad Payandeh

FACTSMoammar Gadhafi came to

power in Libya through a military coup

dtat in 1969, and ran an authoritarian

and repressive regime. Protests started

in January and February 2011 and were

met with immediate violent resistance

by the Gadhafi regime. At this early

stage, the media and several NGOsreported that the government used

tanks, machine guns, and snipers

against protesters.When the protests

escalated, so did the violence. In March,

the opposition forces consisting of

civilians and former members of the

Gadhafi regime and of the armed forces

that had defected began to organize.

They formed the National TransitionalCouncil, which soon claimed to be the

legitimate representative organ of the

Libyan people.

These recent developments

received an even harsher response from

the Gadhafi regime so the international

community such as the United Nations

(through its SecGen), UN High

Commissioner for Human Rights,

Council of the EU, Council of League of

Arabs States, etc condemned the

excessive use of lethal force. This also

triggered the adoption by the UN

Security Council of Resolution 1970

where it demanded an immediate end

to the violence and called upon Libya to

respect its obligations under human

rights law and internationalhumanitarian law.

But the abovementioned

resolution became futile in the light 0f

the continuing acts of violence in Libya

as the Gadhafi regime reacted with

increased counterattacks and recaptured

parts of the area under rebel control.

It was in this environment thatthe Security Council adopted Resolution

1973 on March 17, 2011. It explicitly

determined that the situation in Libya

continued to constitute a threat to

international peace and security and

that it acted under Chapter VII of the

UN Charter. The Security Council

demanded an immediate ceasefire as

well as an end to the attacks againstcivilians, and it authorized member states

to take all necessary measures in order to

protect civilians and civilian populated areas

under threat of attack in Libya while

excluding a foreign occupation force of any

form on any part of Libyan territory.

Furthermore, it established a no-fly

zone, banning all flights in Libyan

airspace in order to help protectcivilians, and authorized member states to

take all necessary measures to enforce

compliance.


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Thus, a coalition of Western

states began a military intervention in

Libya by launching missiles against

Libyan air defense systems and flying

air strikes against military units outsideof Benghazi. NATO took over the

command of the military operation in

Libya as NATO forces continued to

carry out attacks against military

targets.

Interpreting and Analyzing Security

Council Resolution 1973

The broad language of Resolution1973 is its most striking characteristic. In

the resolution, the Security Council

authorized member states to take all

necessary measures for the protection

of civilians andcivilian populated areas

With regard to the admissible measures,

the resolution explicitly excludes the

deployment of a foreign occupation

force of any form on any part of Libyanterritory. Resolution 1973 constitutes an

unexpectedly broad authorization for

the use of force in Libya. The mandate

does not allude to a time limit, nor is it

substantially restrained. With regard to

admissible measures, only occupation

forces are explicitly excluded, which

means that the deployment of ground

troops was generally allowed as long asthey did not seize effective control over

parts of the Libyan territory. And while

the authorization has a humanitarian

mandate and is not explicitly aimed at

regime change, the open-textured and

wide objective of the resolution the

protection of civilians and civilian

populated areas allowed for military

measures that facilitated and advanced

the overthrowing of the Gadhafi regimewhile protecting human rights.

The conflict in Libya revitalizes

the old discussion of whether human

rights violations constitute a threat to

international peace and security and

whether the Security Council may take

action under Chapter VII of the Charter.

In light of the constant practice of the

Security Council to determine human

rights violations as a threat to the peace,

the growing international awareness

that massive human rights violations

cannot be tolerated, and the incremental

recognition of a responsibility to protect

people from human rights violations, if

necessary with the use of military force,

the legality and legitimacy of Security

Council-mandated humanitarian

intervention in general can hardly be

disputed. From the perspective of

international law, the intervention in

Libya is interesting but not exactly

groundbreaking.It follows the well-

established practice of the Security

Council to authorize the use of force by

single states in order to prevent orcontain humanitarian catastrophes. The

authorization is, nevertheless,

remarkable for its focus on human

rights violations and the absence of

references to any transboundary, and


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thereby in the traditional sense

international elements of the conflict.

Moreover, the scope of the authorization

is unusually broad.

The Opinions of the BadinterArbitration CommitteeA Second Breath for the Self-Determination of Peoples

This group of two opinions invites areflection on three essential points:

1. the scope of the self determinationprinciple as it is applied in particular

contexts, with a special focus ondecolonialization;2. the relationship of this principle toanother of equally fundamental import,that of the stability of frontiers; and

The Future of Self-Determination

The United Nations Charter extends theright of self-determination to all peoples.

This shows that the notion of 'people' isno longer homogeneous and should notbe seen as encompassing the wholepopulation of any State. Instead of this,one must recognize that within oneState, various ethnic, religious orlinguistic communities might exist.These communities similarly wouldhave the right to see their identityrecognized and to benefit from 'all thehuman rights and fundamentalfreedoms recognized in internationallaw, including, where appropriate, theright to choose their national identity'.

More importantly, the Committeenoted that Article 1 of the two 1966International Covenants on human

rights establishes that 'the principle ofthe right to self-determination serves tosafeguard human rights'. This signifiesthat 'by virtue of this right, each humanentity might indicate his or her

belonging to the community (...) of hisor her choice*.

The ultimate objective would beto allow those persons who so wish to,to declare themselves as Serbs whileretaining certain civil and political rightsin the territories of Bosnia-Herzegovinaand Croatia - for example the right tovote in local elections - without therebyquestioning the sovereignty of the State.

Such arrangements would have theimmense merit of guaranteeing therights of peoples - and the individuals ofwhom they are composed -, whileavoiding the fragmentation andweakening of States.

The Question of Frontiers

Another source of merit in this type ofsolution is to be found in the

disassociation of the concept ofnationality from that of 'territory'.As they are given the right of

self-determination, individuals maydemand and obtain their recognition asbeing part of a group of persons of theirchoice. This would be done throughprecise mechanisms, bringing with themguarantees, which have to be negotiatedand settled at international level. Thiswould not, however, have any effect

upon the territories of those Statesconcerned. Frontiers would remainunchanged.

The Arbitration Committee laidgreat emphasis upon the fundamentalimportance which it attached to the


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principle of respect for frontiers existingat the moment of independence(utipossidetis juris).

For all that the principle is not asrigid as some might feel it ought to be.

Stability does not mean intangibility.Although States are prohibited fromacquiring a territory by force, theymight freely decide, to a modification oftheir frontiers 'by agreement'. However,such an agreement cannot be imposedby one of the parties as pre-requisite fora peace settlement: a rectification of thistype could only result from negotiationsbetween willing States.

Appendix: Opinions of the ArbitrationCommitteeOpinion No. 1

ISSUE:Serbia considers that those Republics

which have declared or would declarethemselves independent or sovereign haveseceded or would secede from the SFRYwhich would otherwise continue to exist.

Other Republics on the contraryconsider that there is no question ofsecession, but the question is one of adisintegration or breaking-up of the SDRYas the result of the concurring will of anumber of Republics. They consider that thesix Republics are to be considered equalsuccessors to the SFRY, without any of themor group of them being able to claim to bethe continuation thereof.

1) The Arbitration Committee notesthat:

a) - although the SFRY has untilnow retained its internationalpersonality, notably inside international

organizations, the Republics haveexpressed their desire for independence;

b) - The composition andworkings of the essential organsof the Federation, no longer meet

the criteria of participation andrepresentatives inherent in afederal state;c) - The recourse to force has led

to armed conflict between the differentelements of the Federation which hascaused the death of thousands of peopleand wrought considerable destructionwithin a few months.

2) - Consequently, the ArbitrationCommittee is of the opinion:

- that the Socialist FederalRepublic of Yugoslavia is in the processof dissolution;

- that it is incumbent upon theRepublics to settle such problems ofstate succession as may arise from thisprocess in keeping with the principles

and rules of international law, withparticular regard for human rights andthe rights of peoples and minorities;

- that it is up to those Republicsthat so wish, to work together to form anew association endowed with thedemocratic institutions of their choice.

Opinion No. 2

ISSUE:

Does the Serbian population inCroatia and Bosnia-Herzegovina, as one ofthe constituent peoples of Yugoslavia, havethe right to self-determination?

1. The Committee considers that,whatever the circumstances, the right to


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self-determination must not involvechanges to existing frontiers at the timeof independence (uti possidetis juris)except where the states concerned agreeotherwise.

2. Where there are one or more groupswithin a state constituting one or moreethnic, religious or languagecommunities, they have the right torecognition of their identity underinternational law.

3. Article 1 of the two 1986 InternationalCovenants on human rights establishes

that the principle of the right to self-determination serves to safeguardhuman rights. By virtue of that rightevery individual may choose to belongto whatever ethnic, religious orlanguage community he or she wishes.

4. The Arbitration Committee is

therefore of the opinion:

(i) that the Serbian population in Bosnia-Herzegovina and Croatia is entitled toall the rights concerned to minoritiesand ethnic groups under internationallaw and under the provisions of thedraft Convention of the Conference onYugoslavia of 4 November 1991; and(ii) that the Republics must afford themembers of those minorities and ethnicgroups all the human rights andfundamental freedoms recognized ininternational law, including, whereappropriate, the right to choose theirnationality.

Opinion No. 3

ISSUE:Can the internal boundaries betweenCroatia and Serbia and betweenBosnia-Herzegovina and Serbia beregarded as frontiers in terms of

public international law?

1. The Committee takes the view thatonce the process in the SFRY leads to thecreation of one or more independentstates, the issue of frontiers, must beresolved in accordance with thefollowing principles:

First-All external frontiers must be

respected in line with the principlesstated in the United Nations Charter, inthe Declaration on Principles ofInternational Law

Second - The boundaries betweenCroatia and Serbia, between Bosnia-Herzegovina and Serbia, and possiblyother adjacent independent states maynot be altered except by agreementfreely arrived at.

Third- Except where otherwise agreed,the former boundaries become frontiersprotected by international law. Thisconclusion follows from the principle ofrespect for the territorial status quo and,in particular, from the principle of uti

possidetis. Uti possidetis is a generalprinciple, which is logically connectedwith the phenomenon of the obtaining

of independence, wherever it occurs. Itsobvious purpose is to prevent theindependence and stability of new statesbeing endangered by fratricidalstruggles...


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Fourth - According to a well-establishedprinciple of international law thealteration of existing frontiers orboundaries by force is not capable ofproducing any legal effect.

Nationality

THE NATIONALITY DECREES IN

TUNIS AND MOROCCO

Advisory opinion of 7 February 1923

(series B, no. 4)

FACTS:

On November 8th, 1921, a Decree was

promulgated by the Bey of Tunis, the

first article of which enacts as follows:

With the exception of citizens, subjects

or nationals of the Protecting Power

(other than our own subjects), every

person born in the territory of our

Kingdom of parents one of whom was

also born there, is a Tunisian, subject to

the provisions of conventions or treaties

binding the Tunisian Government.

On the same date, the President of the

French Republic issued a Decree of

which the first article was as follows:

Every person born in the Regency of

Tunis of parents of whom one,

justiciable as a foreigner in the French

Courts of the Protectorate, was also born

there, is French.

Similar legislation was introduced at the

same time in morocco (French Zone).

The British Ambassador in Paris

protested to the French Government

against the application to British

subjects of the decrees promulgated in

Tunis, and also stated that his

Government was unable to recognize

that the decrees put into force in the

French Zone of morocco were applicable

to persons entitled to British nationality.

As it was not found possible to adjust

the divergence of views, the British

Government proposed to the French

that the matter should be referred to the

Court, invoking amongst other things,

the Franco-British Arbitration

Convention of October 14th, 1903. The

French Govern- ment refused to submit

the matter to arbitral or judicial

settlement, whereupon the British

Government stated, on July 14th, 1922,

that it had no alternative but to submit

the dispute to the Council of the League

of Nations, relying on Articles 13 and 15

of the Covenant1. The Quai dOrsay

replied that the question was not one for

consideration by the Council of the

League of Nations, having regard to the

reservation made in paragraph 8 of

Article 15 of the Covenant concerningquestions which by international law

are solely within the domestic

jurisdiction of one Party.

The Governments concerned then came

to an agreement, under the auspices of


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the Council, to the effect that the latter

should request the Court to give an

advisory opinion on this question of

jurisdiction.

ISSUE: whether the dispute is or is not,

by international law, solely a matter of

domestic jurisdiction.

HELD: NOT CONFINED TO

DOMESTIC JURISDICTION;

On February 7th, 1923, the Court

delivered its Opinion. At the outset, the

Court states that the question before it is

whether the dispute relates to a matter

which, by international law, is solely

within the domestic jurisdiction of

France, and goes on to observe that as it

has to give an opinion upon the nature

of the dispute and not upon the merits,

nothing in the opinion can be

interpreted as indicating a view as

regards the merits of the disputebetween the Parties

In the view of the Court, the exclusive

jurisdiction of States embraces matters

which are not in principle regulated by

international law. The extent of this

jurisdiction, which, in the opinion of the

Court, includes, in principle, questions

of nationality, varies with the

development of international relations;

it is therefore a purely relative question.

moreover, even as regards matters

falling within this domain, the right of a

State to use its discretion may be

restricted by the effect of international

obligations. Nevertheless, a dispute,

which, in principle, falls within the

domestic jurisdiction of a State, is not

removed from that domain simplybecause international engagements are

invoked. These engagements must be

of a nature to justify the provisional

conclusion that they are of juridical

importance for the purposes of the

dispute. Nor does the mere fact that one

of the Parties brings a dispute before the

League of Nations suffice to remove it

from this exclusive domain.

The Court then proceeds to apply this

doctrine to the question before it. For

this purpose, it takes the legal grounds

and arguments advanced by the Parties

one by one; nevertheless, the purpose of

this examination is only to enable the

Court to form an opinion as to the

nature of the dispute, and not as to its

merits. For to give an opinion on the

merits of the case, in order to reply to a

question regarding exclusive

jurisdiction, would hardly be in

conformity with the system established

by the Covenant. From this point of

view, the Court considers the contention

that France enjoys in Tunis and morocco

the same exclusive right to legislate onquestions of nationality as in France

itself, and that the local sovereignty of

the protected State in conjunction with

the public powers exercised by the

protecting State may be equivalent to


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full sovereignty. Similarly, the Court

alludes to the question whether the

Capitulary rights of Great Britain in

Tunis and morocco still exist, or

whether they have lapsed. It alsoconsiders the argument put forward by

Great Britain based on the most

favoured nation clause, and the French

contention that Great Britain had

formally recognized Frances right to

legislate as to the nationality of persons

in Tunis under the same conditions as in

France itself.

The Court, without going into the merits

of the dispute and confining itself to

consideration of the facts above referred

to, arrives at the conclusion that the

dispute in question does not relate to a

matter which, by international law, is

solely within the domestic jurisdiction

of France; the Council therefore is

competent to deal with the dispute laid

before it by Great Britain regarding the

nationality decrees in Tunis and

morocco.

Barcelona Traction, Light and Power

Company, Limited (Belgium v. Spain)

FACTS:

Barcelona Traction, Light and Power

Company, Limited (referred to herein as

the Company) is incorporated in

Toronto, Canada and is engaged in

creating and developing an electric

power production and distribution

system in Catalonia (Spain). It formed a

number of subsidiary companies, of

which some had their registered offices

in Canada and the others in Spain. TheCompanys share capital was mostly

held by Belgian nationals.

The Company then issued several series

of bonds, principally in sterling. The

sterling bonds were effected by the

subsidiary companies operating in

Spain. But in 1936, the servicing of

thesaid bonds was suspended on

account of the Spanish civil war. After

that war, the Spanish exchange control

authorities refused to authorize the

transfer of the foreign currency

necessary for the resumption of the

servicing of the sterling bonds.

Subsequently, when the Belgian

Government complained of this, the

Spanish Government stated that the

transfers could not be authorized unless

it were shown that the foreign currency

was to be used to repay debts arising

from the genuine importation of foreign

capital into Spain and that this had not

been established.

In 1948, when the Company failed to

pay interest on the bonds,three Spanish

holders of the bonds petitioned thecourt of Reus (Province of Tarragona)

for a declaration adjudging the

bankruptcy of the Company. The

Company was then declared bankrupt.

Its assets as well as the assets of two of


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its subsidiary companies were seized.

Later on, the principal management

personnel of the subsidiaries were also

dismissed and Spanish directors were

appointed; further, new shares of thesubsidiary companies were created, sold

to Fuerzas Electricas de Cataluna, S.A.

(Fecsa) which thereupon acquired

complete control of the undertaking in

Spain.

The Belgian Government then instituted

a case against the Spanish government

to seek reparation for damage alleged

by Belgium to have been sustained by

Belgian nationals, shareholders in the

company, as a result of acts said to be

contrary to international law committed

towards the company by organs of the

Spanish State.

ISSUE:

Whether or not Belgium lacked jusstandi to exercise diplomatic protection

of shareholders in a Canadian company

with respect to measures taken against

that company in Spain.

HELD:

Yes. In the field of diplomatic

protection, international law was in

continuous evolution and was calledupon to recognize institutions of

municipal law. In municipal law, the

concept of the company was founded on

a firm distinction between the rights of

the company and those of the

shareholder. Only the company, which

was endowed with legal personality,

could take action in respect of matters

that were of a corporate character. A

wrong done to the company frequentlycaused prejudice to its shareholders, but

this did not imply that both were

entitled to claim compensation.

Whenever a shareholder's interests were

harmed by an act done to the company,

it was to the latter that he had to look to

institute appropriate action. An act

infringing only the company's rights did

not involve responsibility towards theshareholders, even if their interests were

affected. In order for the situation to be

different, the act complained of must be

aimed at the direct rights of the

shareholder as such (which was not the

case here since the Belgian Government

had itself admitted that it had not based

its claim on an infringement of the

direct rights of the shareholders).

International law had to refer to those

rules generally accepted by municipal

legal systems. An injury to the

shareholder's interests resulting from an

injury to the rights of the company was

insufficient to found a claim. Where it

was a question of an unlawful act

committed against a companyrepresenting foreign capital, the general

rule of international law authorized the

national State of the company alone to

exercise diplomatic protection for the

purpose of seeking redress. No rule of


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international law expressly conferred

such a right on the shareholder's

national State.

The Court considered whether there

might not be, in the present case, special

circumstances for which the general rule

might not take effect. Two situations

needed to be studied: (a) the case of the

company having ceased to exist, and (b)

the case of the protecting State of the

company lacking capacity to take action.

As regards the first of these possibilities,

the Court observed that whilst

Barcelona Traction had lost all its assets

in Spain and been placed in receivership

in Canada, it could not be contended

that the corporate entity of the company

had ceased to exist or that it had lost its

capacity to take corporate action. So far

as the second possibility was concerned,

it was not disputed that the company

had been incorporated in Canada and

had its registered office in that country,

and its Canadian nationality had

received general recognition. The

Canadian Government had exercised

the protection of Barcelona Traction for

a number of years. If at a certain point

the Canadian Government ceased to act

on behalf of Barcelona Traction, it

nonetheless retained its capacity to doso, which the Spanish Government had

not questioned.Whatever the reasons for

the Canadian Government's change of

attitude, that fact could not constitute a

justification for the exercise of

diplomatic protection by another

government.

It had been maintained that a State

could make a claim when investments

by its nationals abroad, such

investments being part of a State's

national economic resources, were

prejudicially affected in violation of the

right of the State itself to have its

nationals enjoy a certain treatment. But,

in the present state of affairs, such a

right could only result from a treaty or

special agreement. And no instrument

of such a kind was in force between

Belgium and Spain.

It had also been maintained that, for

reasons of equity, a State should be able,

in certain cases, to take up the

protection of its nationals, shareholders

in a company which had been the victim

of a violation of international law. The

Court considered that the adoption ofthe theory of diplomatic protection of

shareholders as such would open the

door to competing claims on the part of

different States, which could create an

atmosphere of insecurity in

international economic relations. In the

particular circumstances of the present

case, where the company's national

State was able to act, the Court was notof the opinion that jusstandi was

conferred on the Belgian Government

by considerations of equity.


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Nottebohm Case (Liechtenstein v.

Guatemala), ICJ Judgment of Apr.

6,1955, Second Phase

Factsthe Govern-ment of Liechtenstein

instituted proceedings before the Court

in which it claimed restitution and

compensation on the ground that the

Government of Guatemala had "acted

towards the person and property of Mr.

Friedrich Nottebohm, a citizen of

Liechtenstein,in a manner contrary to

international law. the Government of

Guatemala contended that this claim

was inadmissible on a number of

grounds, and one of its objections to the

admissibility of the claim related to the

nationality of the person for whose

protection Liechtenstein had seised the

Court. Nottebohm, born at Hamburg,

was still a German national when, in

October 1939, he applied for

naturalization in Liechtenstein. In 1905

he went to Guatemala, which he made

the centre of his business activities. He

sometimes went to Germany on

business, and also paid a few visits to

Liechtenstein, where one of his brothers

had lived. He continued to have his

fixed abode in Guatemala until 1943,

until the events which constituted the

basis of the present dispute.

In 1939he left Guatemala at approximately the

end of March; he seems to have gone to

Hamburg and to have paid a few brief

visits to Liechtenstein, where he was at

the beginning of October 1939. It was

then, on 9th October, 1939, a little more

than a month after the opening of the

Second World War, marked by

Germany's attack on Poland, that he

applied for naturalization inLiechtenstein. In his application for

naturalization Nottebohm sought

dispensation from the condition of three

years' prior residence, without

indicating the special circumstances

warranting such a waiver. A Document

dated 15th October, 1939 certifies that

on that date the citizenship had been

conferred upon him. On 20th OctoberNottebohm took the oath of allegiance.

A Certificate of Nationality was also

produced to the effect that Nottebohm

had been naturalized by a Supreme

Resolution of the Prince of 13th October,

1939. Nottebohm then obtained a

Liechtenstein passport and had it visa-

ed by the Consul General of Guatemala

in Zurich on 1st December, 1939, andreturned to Guatemala at the beginning

of 1940.

When he tried to return to

Guatemala once again in 1943 he was

refused entry as an enemy alien since

the Guatemalan authorities did not

recognise his naturalization and

regarded him as still German. He was

later extradited to the U.S., where he

was held at an internment camp untilthe end of the war. All his possessions in

Guatemala were confiscated. After his

release, he lived out the rest of his life in

Liechtenstein. Issuewhether the

naturalization thus granted could be


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validly invoked against Guatemala,

whether it bestowed upon Liechtenstein

a sufficient title to exercise protection in

respect of Nottebohm as against

Guatemala.

whether Mr. Notte-bohm,having acquired the nationality of

Liechtenstein, that.acquisition of

nationality is one which must be

recognized by other

states HeldNationality is within the

domestic jurisdiction of the State, which

settles, by its own legislation, the rules

relating to the acquisition of its

nationality.

In order to resolve theconflict, they have sought to ascertain

whether nationality has been conferred

in circumstances such as to give rise to

an obligation on the part of the

respondent State to recognize the effect

of that nationality. In order to decide

this question, they have evolved certain

criteria. They have given their

preference to the real and effectivenationality, that which accorded with

the facts, that based on stronger factual

ties between the person concerned and

one of these States whose nationality is

involved. Different factors are taken into

consideration, and their importance will

vary from one case to the next: there is

the habitual residence of the individual

concerned but also the centre of hisinterests, his family ties, his

participation in public life, attachment

shown by him for a given country and

inculcated in his children, etc. The

character thus recognized on the

international level as pertaining to

nationality is in no way inconsistent

with the fact that international law

leaves it to each State to lay down the

rules governing the grant of its ownnationality. This is so failing any general

agreement on the rules relating to

nationality. It has been considered that

the best way of making such rules

accord with the varying demographic

conditions in different countries is to

leave the fixing of such rules to the

competence of each State. But, on the

other hand, a State cannot claim that therules it has laid down are entitled to

recognition by another State unless it

has acted in conformity with this

general aim of making the nationality

granted accord with an effective link

between the State and the

individual. At the time of his

naturalization, does Nottebohm appear

to have been more closely attached byhis tradition, his establishment, his

interests, his activities, his family ties,

his intentions for the near future, to

Liechtenstein than to any other

State? Nottebohm always retained his

family and business connections with

Germany and that there is nothing to

indicate that his application for

naturalization in Liechtenstein wasmotivated by any desire to dissociate

himself from the Government of his

country. On the other hand, he had been

settled for 34 years in Guatemala, which

was the centre of his interests and his


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business activities. He stayed there until

his removal as a result of war measures

in 1943, and complains of Guatemala's

refusal to readmit him. Members of

Nottebohm's family had, moreover,asserted his desire to spend his old age

in Guatemala. In contrast, his actual

connections with Liechtenstein were

extremely tenuous. There is thus the

absence of any bond of attachment with

Liechtenstein, but there is a long-

standing and close connection between

him and Guatemala, a link which his

naturalization in no way weakened. For these reasons the Court held the

claim of Liechtenstein to be

inadmissible.

Republic of Guinea v. Democratic

Republic of the Congo

Facts:

On December 28, 1998, Guinea

(plaintiff) filed a diplomatic protection

suit on behalf ofAhmadou Sadio Diallo,

a Guinea national, in the International

Court of Justice (ICJ) against the

Democratic Republic of the Congo

(DRC) (plaintiff). Guinea alleged that

Diallo had lawfully resided in DRC for

thirty-two years and was unlawfully

imprisoned in that State. Guinea also

claimed that Diallos investments,

businesses, and property were

unlawfully expropriated. AfterDiallo

unsuccessfully attempted to recover

sums owed to him by companies owned

by the DRC, Guinea claimed that Diallo

was expelled without judicial process

from DRC by that States authorities. As

Guinea sought to exercise its diplomaticprotection over Diallo, it was necessary

as a preliminary matter to determine

whether Diallo met the requir

pil reviewer final

Documents