CHAPTER 1 THE 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 Theory Austin: Law consists of commands originating from a sovereign and backed up by threats of sanction if disobeyed
International law is not law because it does not come from a command of a sovereign
Consensual Theory International law derives its binding force from the consent of states
Treaties—expression of consent
Custom—voluntary adherence to common practices, is seen as expression of consent
Natural Law Theory Law is derived by reason from the nature of man International law—application of natural reason to the nature of the state-person
Customary law—what are regarded as generally accepted principles of law are in fact an expression of what traditionally was call natural law
Some Dissenters International law—a combination of politics, morality and self-interest hidden under the smokescreen of legal language
Pragmatic Theory International law is law because it is seen as such by states and other subjects of international law Public International Law v. Private International Law
Public International Law Private International Law Referred to as International Law Referred to as Conflict of Laws Governs the relationship between and
among states and also their relations with international organizations and individual persons
Domestic law which deals with cases where foreign law intrudes in the domestic sphere where there are questions of the applicability of foreign law or the role of foreign courts
CHAPTER 2 SOURCES OF INTERNATIONAL LAW What Sources are
Domestic Laws—found in statute books and in collections of court decisions Classifications of Sources
1. Formal sources—various processes by which rules come into existence a. Legislation
b. Treaty making
c. Judicial decision making d. Practice of states
2. Material sources—identify what the obligations are a. State practice d. Judicial decisions b. UN Resolutions e. Writings of jurists c. Treaties
Art. 38(1) of the Statute of the International Court of Justice
1. International conventions—establishing rules expressly recognized by contesting states
2. International custom—evidence 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
Restatement of Foreign Relations Law of the US 1. Customary Law
2. International agreement
3. General principles common to the major legal system Sources of International Law
1. Custom 4. Generally recognized principles of law 2. Treaties 5. Judicial decisions
3. International agreements 6. Teachings of highly qualified publicists Custom or Customary Law
A general and consistent practice of states followed by them from a sense of legal obligation
Elements:
1. Material factor—how state behaves o Elements of Practice of sates or usus
a. Duration—may be either short or long; not the most important element
b. Consistency—continuity and repetition
c. Generality of the practice of states—uniformity and generality of practice need not be complete but it must be substantial
Opinio Juris—belief 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 factor—why 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
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 Court’s 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 legem—within the law; the law is adapted to the facts of the case 2. Praeter legem—beyond the law; used to fill the gaps within the law 3. Contra legem—against the law; refusal to apply the law which is seen
as unjust
Other Supplementary Evidence
1. UN Resolutions—generally considered merely recommendatory but if they are supported by all the states, they are an expression of opinio juris communis
2. Soft Law—―Non-treaty Agreements‖; international agreements not concluded as treaties and therefore not covered by the Vienna Convention on the Law of Treaties
o Administrative Rules—guide the practice of states in relation to international organizations
CHAPTER 3 THE LAW OF TREATIES Various names of Treaties
a. Conventions c. Covenants e. Protocols g. Modus vivendi b. Pacts d. Charters f. 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 Treaties Open to all states of the world; Create the norms which are the basis for a general rule of law
Can either be Codification Treaties or ―Law Making Treaties‖, or both
Treaties that create Collaborative
Mechanism
Operate through the organs of the different states 1. Universal scope
2. Regional
Bilateral Treaties In the nature of contractual agreements which create shared expectations such as trade agreements of various forms; ―Contract Treaties‖
The Making of Treaties
1. Negotiation—foreign ministries, diplomatic conferences 2. Power to negotiate
3. Authentication of text—signing of the document; so that states will know the contents & avoid misunderstanding
4. Consent to be bound:
a. Signature e. Approval b. Exchange of Instruments f. Accession
c. Ratification g. Other means if so agreed d. Acceptance
5. Accession to a treaty—states which did not participate in the initial negotiation may express their consent to be bound
6. Reservations—unilateral 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 treaties—date agreed or once consent given (but provisional application can also apply)
8. Application of treaties
o PACTA SUNT SERVANTA—every 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 approach—interpretation according to the ordinary meaning of the words
b. Teleological approach—interpretation according to the telos or purpose of the treaty
c. Subjective approach—honors special meaning given by the parties Invalidity of Treaties
1. Error—relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed
2. Fraud—State 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 cogens—treaty is void if, at the time of its conclusion, it conflicts with a preemptory norm of general international law Amendment and Modification of Treaties
Amendment—formal revision done with the participation, at least in its initial stage, by all the parties to the treaty
Modification—involves 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 4 INTERNATIONAL LAW AND MUNICIPAL LAW Dualism v. Monism
Municipal Law International Law Dualist or
Pluralist Theory *when
international and municipal law are in conflict, Municipal law must prevail As to source Product of local custom or of legislation
Treaties and custom grown among states As to relations they regulate Regulates relations between individual persons under the state Regulates relations between states As to their substance Law of sovereign over individuals Law between sovereign states Monism or Monistic Theory *International and Municipal laws belong to only one system of law
Two theories:
A. Municipal law subsumes and is superior to international law
B. International law is superior to Domestic Law (supported by Kelsen)
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
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 5 SUBJECTS OF INTERNATIONAL LAW STATES
Subjects of International Law—entities 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 Law—those who indirectly have rights under or are beneficiaries of international law through subjects of international law
States—predominant 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 population—PEOPLEa 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 territory—an 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. Government—that 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-determination—sovereignty 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 State—the claim by a group within an established state to break away and form an new entity
2. Does not involve Establishment of New State—simply involves claims a. To be free from external coercion
b. To overthrow effective rulers and establish a new government—the 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 States—the act of acknowledging the capacity of an entity to exercise rights belonging to statehood
Can an entity claim to be a state before it is recognized by other states?
Declaratory Theory Constitutive Theory
Recognition is merely ―declaratory‖ of
the existence of the state Recognition ―constitutes‖ a state Its being a state depends upon its
possession of the required elements and not upon recognition
It is what makes a state a state and confers legal personality on the entity States may decide to recognize an entity as a state even if it does not have all the elements of a state Recognition of Government—act 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 territory—when 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 property—this is subject to agreement between predecessor and successor states
3. Succession to contracts—this 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 Rule—when part of the territory of a state becomes territory of another state, the international agreements of the predecessor state cease to have effect in respect of the territory
o Relief from treaty obligation is rebus sic stantibus
b. When a state is absorbed by another state, international agreements of the absorbed states are terminated
c. Clean Slate Theory—when 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 Rule—pre-existing boundary and other territorial agreements continue to be binding notwithstanding
Fundamental Rights of States
1. Independence—capacity of a state to provide for its own well-being and development free from the domination of other states
o Right to exercise within its portion of the globe, to the exclusion of others, the functions of a state
o Restrictions upon a state’s 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. Equality—equality 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-Existence—mutual respect for each other’s territorial integrity and sovereignty, mutual non-aggression, non-interference in each other’s affairs and the principle of equality
Some Incomplete Subjects
1. Protectorates—dependent states which have control over their internal affairs but whose external affairs are controlled by another state; referred to as
a. Autonomous states b. Vassal states c. Semi-sovereign d. Dependent sates
2. Federal state—a 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 Territories—territories 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. Taiwan—a non-state territory which de jure is part of China
5. The Sovereign Order of Malta—the Italian Court of Cassation in 1935 recognized its international personality
6. The Holy See and Vatican City—recognized under Lateran Treaty; it has no permanent population
CHAPTER 6 OTHER 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 organizations—governed 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 organizations—normally 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.
Immunities—based 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 Clause—in 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 Assembly—it has plenary power in the sense that it may discuss any question or any matters within the scope of the Charter
o GA distinguishes between
a. Important questions—decided by 2/3 majority of the members voting and present
b. Other questions—decided by the majority
2. Security Council—has 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 matters—requires 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 members
o Abstention = veto
3. Economic and Social Council (ECOSOC)—has 54 members elected for 3 year terms
4. Trusteeship Council—supervises 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
6. Secretariat—comprises a Secretary General and such staff as the Organization may require
o Secretary General—elected 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 Organizations—they 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
ASEAN—established 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 II—first 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 3—for 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-determination—to free themselves from colonial domination, or a racist regime or foreign occupation
c. There is the ultimate goal of controlling a definite territory d. They must have an organization capable of coming into contract
with other international organizations INDIVIDUALS
Possess limited rights and obligations (deriving from customary international law) in international law
Obligations of individuals are those arising from the regulation of armed conflicts
When individual rights are violated, however, individuals still have to rely on the enforcement power of states; but some treaties have provided for the right of individuals to petition international bodies alleging that a contracting state has violated some of their human rights
CHAPTER 7 TERRITORY: LAND, AIR, OUTER SPACE
Territory in International Law—an 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 territory—acquisition of sovereignty over territory Includes land, maritime areas, airspace and outer space
Modes of Acquisition of Sovereignty over Territory 1. Discovery and Occupation
o Occupation—acquisition of terra nulliusterritory which prior to occupation belonged to no state or which may have been abandoned by a prior occupant
o There is abandonment when occupant leave the territory with the intention of not returning
o Discovery of terra nullius is not enough to establish sovereignty; it must be accompanied by effective control
WESTERN SAHARA CASE HELD:
Territories inhabited by tribes or peoples having a social and political organization were not regarded as terra nullius.
The information furnished to the Court shows that at the time of colonization, Western Sahara was inhabited by peoples which, if nomadic, were socially and politically organized into tribes and under chiefs competent to represent them.
THE ISLAND OF PALMAS HELD:
Contiguity—US 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 sovereignty—the 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. Prescription—requires 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. Cession—acquisition of territory through treaty
o A treaty of cession which is imposed by a conqueror is invalid 4. Conquest and Subjugation
o Conquest—taking possession of a territory through armed force o It is necessary that the war had ended either by treaty or by
indication that all resistance had been abandoned o Now, 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 Avulsion—sovereignty by operation of nature o Accretion—gradual increase of territory by the action of nature o Avulsion—sudden change resulting for instance from the action of a
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 Aircraft—aircraft 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
o The doctrine recognized as permissible the delineation of a maritime belt by littoral states as an indivisible part of its domain
o Maritime belt = territorial sea
Convention on the Law of the Sea of 1982 – prevailing law on maritime domain
Art. 2 of the 1982 Law of the Sea provides that
1. Sovereignty of a coastal State extends, beyond its land territory and internal waters and, in case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as territorial sea
2. Sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil
3. Sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law
Territorial Sea – belt of sea outwards from the baseline and up to 12 nautical miles beyond
o The width of this territorial belt of water is the 12-mile rule
o However, where the application of the 12-mile rule to neighboring littoral states would result in overlapping the rule is that the dividing line is the median line equidistant from the opposite baselines o Equidistance rule does not apply where historic title or other special
circumstances require a different measurement
Baselines – the low-water line along the coast as marked on large scale charts officially recognized by the coastal State
Two ways of drawing the Baseline:
1. Normal baseline – one drawn following the low-water line along the coast as marked on large scale charts officially recognized by the coastal State
o this line follows the curvatures of the coast and therefore would normally not consist of straight lines
2. Straight baseline – drawn connecting selected points on the coast without appreciable departure from the general shape of the coast
o Most archipelagic states use straight baselines
o Art. 47 of the Convention on the Law of the Sea – the length of such baseline shall not exceed 100 nautical miles, except that up to 3% of the total number of baselines enclosing any archipelago may exceed that length up to a maximum length of 125 nautical miles
Sovereignty over Territorial Sea – same as sovereignty over its land territory o The sea and the strait are subject to the right of innocent passage by
other states
Right of Innocent Passage – passage that is not prejudicial to the peace, good order or security of the coastal state
o Coastal states have the unilateral right to verify the innocent character of passage, and it may take the necessary steps to prevent passage that it determines to be not innocent
Internal Waters – all waters landwards from the baseline of the territory o Coastal states may regulate access to its ports (Nicaragua case) Archipelagic Waters
o An archipelagic state may designate sea lanes and air routes thereabove, suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea
o The concept of the archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines, and removes straits connecting these waters with the economic zone or high sea from the rights of foreign vessels to transit passage for international navigation
Bays – well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain land-locked waters and constitute more than a mere curvature of the coast
o Considered as internal waters of a coastal state
o Indentation shall not be regarded as bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation
Historic Bays – treated by the costal state as internal waters on the basis of historic rights acknowledge by other states
Contiguous Zone – an area of water not exceeding 24 nautical miles from the baseline
o It extends 12 nautical miles from the edge of the territorial sea
o Coastal state exercises authority over that area to the extent necessary to prevent infringement of its customs, fiscal, immigration or sanitation authority over its territorial waters or territory and to punish such infringement
o 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 tide
o Artificial islands or installations are not ―islands‖
o Important due to the possibility of exploiting oil and gas resources around them
o Islands can have their own territorial sea, exclusive economic zone and continental shelf
o Rocks which cannot sustain human habitation or economic life shall have no exclusive economic zone or continental shelf, but can have a territorial sea
The High Seas – all parts of the sea that are not included in the territorial sea or in the internal waters of a state
o The flag state has exclusive jurisdiction over its ships on the high seas to the extent not limited by agreement
Six Freedoms which High Seas are subject to: a. Navigation
b. Overflight – belongs to both civilian and military aircraft
c. Fishing – includes the duty to cooperate in taking measures to ensure the conservation and management of the living resources of the high seas
d. Lay submarine cables and pipelines e. Construct artificial islands and structures f. Scientific research
Hot Pursuit
o Art. 111 allows hot pursuit of a foreign vessel where there is good reason to believe that the ship has violated laws or regulations of a coastal state
o This must commence when the foreign vessel is within the internal waters, archipelagic waters, territorial waters, exclusive economic zone, continental shelf or the contiguous zone of the pursuing state o Hot pursuit must stop as soon as the ship pursued enters the territorial
waters of its own state or of a third state
o May be carried out only by warships or military aircraft, or any other ships or aircraft properly marked for that purpose
Settlement of Disputes
o Peaceful settlement is compulsory CHAPTER 9
JURISDICTION OF THE STATES Jurisdiction – authority to affect legal interests
o The scope of a state’s jurisdiction over a person, thing or event depends on the interest of the state in affecting the subject in question
o Corresponding to the powers of the government, jurisdiction can be: 1. Legislative jurisdiction – prescribe norms of conduct
2. Executive jurisdiction – enforce the norms prescribed 3. Judicial jurisdiction – adjudicate
o International law limits itself to criminal rather than civil jurisdiction o Civil jurisdiction is subject for private international law or conflicts of
law
o Jurisdiction may also be acquired by treaty
o However, there are 5 popular principles on jurisdiction TERRITORIALITY PRINCIPLE
o This is generally supported in customary law
o Fundamental source of jurisdiction is sovereignty over territory o It is necessary that boundaries be determined
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 PRINCIPLE
o This is generally supported in customary law
o Every state has jurisdiction over its nationals even when those nationals are outside the state
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 PRINCIPLE
o This is generally supported in customary law
o State may exercise jurisdiction over conduct outside its territory that threatens its security as long as that conduct is generally recognized as criminal by states in the international community o However, this is strictly construed to those offenses posing a direct,
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 PRINCIPLE
o This does not enjoy wide acceptance
o State may apply law, criminal law, to an act committed outside its territory by a person not its national where the victim of the act was its national
o Not accepted for ordinary torts or crimes but is increasingly accepted as applied to terrorist and other organized attacks on a state’s nationals by reason of their nationality, or to assassination of a state’s 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 state’s 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-à-vis those of other nations, to justify an assertion of extraordinary authority
2. International Comity – state will refrain from exercising its jurisdiction is it is unreasonable
o Factors to consider in determining unreasonableness:
a. Link or connection of the activity to the territory of the regulating state
b. Character of the activity to be regulated
c. Existence of justified expectations that might be protected or hurt by the regulation
d. Likelihood of conflict with regulation by another state
3. Forum non conveniens – application is discretionary with the court o If in the whole circumstances of the case it be discovered that there is
real unfairness to one of the suitors in permitting the choice of a forum which is not the natural or proper forum, either on the ground of convenience of trial or the residence or domicile of parties or of its being the locus contractus or locus solutionis
EXTRADITION – the surrender of an individual by the state within whose territory he is found to the state under whose laws he is alleged to have committed a crime or to have been convicted of a crime
o This is a process that is governed by a treaty
o Legal right to demand extradition and the correlative duty to surrender a fugitive exist only when created by treaty
o Procedure for extradition is normally through diplomatic channels Principles governing Extradition
1. No state is obliged to extradite unless there is a treaty
2. Differences in legal system can be an obstacle to interpretation of what the crime is
3. Religious and political offenses are not extraditable 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
CHAPTER 10:
IMMUNITY FROM JURISDICTION
* GR: Jurisdiction of a state within its territory is complete and absolute. * Exceptions:
1.) Sovereign immunity
2.) 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.
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 Vinzon’s 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
