Professional Documents
Culture Documents
REFER TO
SUPPLEMENT #1
FOR SOME
CORRECTIONS
AND ADDITIONS
- ED.
PUBLIC
INTERNATIONAL
LAW
UP LAW A2015 reviewer for the class of
IN GENERAL .........................................................1
SOURCES OF INTERNATIONAL LAW ...............2
E.
F.
B.
UNCLOS ................................................ 35
BASELINES ................................................ 35
A.
B.
ARCHIPELAGOS ......................................... 48
B.
C.
NAVIGATION............................................. 65
THE AREA.................................................. 64
C.
D.
IN GENERAL
International Law, Defined
It is a body of legal principles, norms, and processess,
which regulates the relations of States and other
international persons, and governs their conduct affecting
the interests of the international community as a whole.
(Higgins, Chapter 1)
Shortcomings of Traditional Rules-Based Definition
Traditionally, it was defined as rules applicable to states
with their relationship with one another. There are two
limitations to this definition:
1) When there are no existing rules; and
2) Who sets the rules.
The Southwest Africa Cases (infra.) is an example of
the limitation of defining international law as a rulesbased system. In that case, the International Criminal
Court (ICJ) refused to exercise jurisdiction over the
question of whether or not the system of apartheid
was in accord with international law. The Court ruled
that,
(Despite) the various considerations of a
non-judicial character, social, humanitarian
and otherthese are matters for the
political rather than for the legal arena.
By referring strictly to international law as a corpus of
rules, it effectively deemed the moral and ethical
issues surrounding systematic racial segregation as
non-legal matters that the Court could not take
cognizance of.
This development rendered the ICJ (then) a useless
body, and has led to a push for the creation of other
tribunals (e.g. International Tribunal on the Law of
the Sea [ITLOS].)
CLASS NOTES
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SOURCES OF
INTERNATIONAL LAW
ICJ Statute, Article 38.
1. The Court, whose function is to decide in
accordance with international law such disputes as
are submitted to it, shall apply:
a. international conventions, whether
general or particular, establishing rules
expressly recognized by the contesting
states;
b. international custom, as evidence of a
general practice accepted as law;
c. the general principles of law recognized
by civilized nations;
d. subject to the provisions of Article 59,
judicial decisions and the teachings of
the most highly qualified publicists of the
various nations, as subsidiary means for
the determination of rules of law.
2. This provision shall not prejudice the power of
the Court to decide a case ex aequo et bono, if the
parties agree thereto.
The ICJ statute provides an enumeration of sources that
the Court shall apply with respect to controversies.
*Note that this is not an enumeration of sources of
international law; it is only a list of things that the court
can consider in arriving at decisions.
A. International conventions
B. International custom
C. General principles of law
D. Judicial decisions and
teachings of publicists
Primary Sources
Secondary Source
number of parties;
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KURODA v. JALANDONI
YAMASHITA v. STYER
Shigenori Kuroda was formerly a Lieutenant-General of the
Japanese Imperial Army and Commanding General of the
Japanese Imperial Forces in the Philippines (1943-1944). He
was charged before a Military Commission convened by
the Chief of Staff of the Armed Forces of the Philippines for
the atrocities committed by Japanese Forces against
civilians and other conduct during the war.
Kuroda:
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States:
We are civilized people now so we dont do harsh
things to each other. (Karichi Notes, citing Prof.
Roque, 2010)
This case was not taken up during class.
CLASS NOTES
United
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Germany:
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South
Africa:
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The Court held that it could only rule on legal rights, not
on moral or ethical issues.
The ICJ is a court of law, and can take account of moral
principles only in so far as these are given legal form.
While humanitarian considerations may constitute the
inspirational basis for rules of law, they themselves do not
amount to law.
The sacred trust interest invoked has no residual
juridical content which could operate per se to give rise to
legal rights and obligations outside the system as a whole.
It must be something more than a moral or humanitarian
ideal in order to take on a legal character. In order to
generate legal rights and obligations, it must be given
juridical expression and be clothed in legal form.
This is an example of the limitation of defining
international law as a rules-based system. (see
comments, supra. p. 1)
The principles set forth in this case have been
obliterated by later cases. Fundamental equality is
now considered an erga omnes obligation since it is a
fundamental human right. (Karichi Notes, citing Prof.
Roque, 2010)
CLASS NOTES
Peru:
France:
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France:
The Request does not fall within the 1974 decision, which
applies only to atmospheric tests; it does not pertain to
other forms of nuclear testing (i.e. underground testing).
Since the basis of the 1974 Judgment pertains to nuclear
tests in the atmosphere, only upon resumption of
atmospheric tests will the basis of the Judgment be
deemed affected. Thus, the Court held that it cannot
take into consideration questions relating to underground
nuclear tests.
The Court pointed out, however, that this Order is without
prejudice to the obligations of States to respect and
protect the natural environment, obligations to which
both New Zealand and France have in the present instance
reaffirmed their commitment.
Judge Weeramantry, dissenting:
Through Par. 63, the ICJ in the 1974 judgment created a
procedure sui generis allowing New Zealand to reopen the
case, in the event that France fails to fulfill its unilateral
undertaking to cease the atmospheric nuclear tests. The
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India:
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Albania:
Albania was liable for damages for the First and Second
incidents. UKs mine-clearing operation (third incident)
was illegal.
The laying of the minefield which caused the explosions
could not have been accomplished without the knowledge
of Albania.
However, since Albania has exclusive control over its
waters, UK as the victim of breach, would be unable to
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Belgium:
Spain:
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NATIONALIZATION CASES
TEXACO v. LIBYA
53 ILR 389 (1978)
PROSECUTOR v. TADI
ICTY Judgment of 2 October 1995 (1995)
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INTERNATIONAL TREATIES
SALONGA v. EXECUTIVE SECRETARY
GR No. 176051 (2009)
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MEDELLIN v. TEXAS
552 US 491 (2008)
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ACTORS IN
INTERNATIONAL LAW
An actor of international law is an entity of a type
recognized by customary law as:
1. capable of possessing rights and duties;
2. capable of bringing international claims; and
3. Having these capacities conferred upon it.
(Brownlie, Chapter 3)
If an entity is not a subject of international law, it may still
have legal personality of a very restricted kind depending
on the agreement or acquiescence of recognized legal
persons. (Magallona, 2005)
There are now many subjects because recognition and
acquiescence may sustain an entity which is anomalous,
and yet has a web of legal relations on the international
plane.
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Spain:
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The Greek Republic filed a case before the ICJ alleging the
refusal of the Government of Palestine and the British
Government who holds the mandate over Palestine, to
recognize the rights acquired by Mavrommatis (a Greek
subject). Prior to the controversy, Mavrommatis concluded
contracts and agreements with the Ottoman authorities in
regard to concessions for certain public works to be
constructed in Palestine. The dispute was in the beginning
between a private person (Mavrommatis) and a State
(Britain).
Britain:
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States
A State is regarded as a subject of international law in that
it has the capacity to be a bearer of rights and duties
under international law.
It possesses objective or erga omnes personality, or that
which exists wherever rights and obligations of an entity
are established by general international law. (Magallona,
2005)
Primacy of States as Subjects of International Law
There is a position that states are the primary actors in
international law. This view holds that the world is today
organized on the co-existence of States, and that
fundamental changes will take place only through State
action. (Magallona, citing Friedmann, 2005)
Basic Criteria for Statehood
1933 Montevideo Convention on the Rights and
Duties of States, Article 1.
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RECOGNITION
Recognition
It is the act by which another State acknowledges that the
political entity recognized possesses the attributes of
statehood.
Effect; Not an Element of Statehood
There are two theories on the nature and effect of
recognition:
1. Constructive School maintains that it is the act
of recognition which constitutes or creates the
status of a State as a subject of law and thus
gives it legal personality. The international
status of any entity is to be determined by the
will and consent of already existing States.
2. Declaratory Theory - asserts that the recognition
merely confirms the acceptance by States of the
status of an entity as a State.
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3.
4.
A. Territorial Sovereignty
Territory
It is that defined portion of the surface of the globe which
is subjected to the sovereignty of the state. (Magallona,
citing Oppenheim)
There are four types of regimes of territory in law:
1. Territorial Sovereignty
This extends over land territory, territorial sea,
the seabed and subsoil of the territorial sea.
Territory includes islands, islets, rocks and reeds.
2. Territory not subject to the sovereignty of any
state and has a status of its own.
3. Res nullius
Covers the same subject matter legally
susceptible to acquisition by states but not yet
placed under territorial sovereignty.
4. Res communis
Consist of high seas and the outer space which
are not capable of being placed under state
sovereignty. (Brownlie, Chapter 4)
Requisites:
a) Possession that must be exercised under
the title of sovereign.
b) Peaceful and uninterrupted possession.
c) Possession must also be public.
d) It must endure for a certain length of time.
The Vienna Convention and UN Charter now prohibit the
use of force or conquest as a mode of acquiring territorial
sovereignty. (Magallona, 2005)
Relation of State Sovereignty to the International
Independence and Equality of States
From the standpoint of the national legal order, state
sovereignty is the supreme legal authority in relation to
subjects within its territorial domain. This is the traditional
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Netherlands:
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CONTEXT
This is in context of the continued dispute between the
Philippines and Indonesia as to which territory Las Palmas
should belong to. In 2002, amidst negotiations between
the two states, Indonesia enacted a new Baselines Law
wherein it used Las Palmas as a basepoint in drawing its
archipelagic baselines. If the this new law was to be
followed, the Philippines will not only lose Las Palmas but
also around 15,000 square miles of archipelagic and
territorial waters which are currently defined as Philippine
territory under the Treaty of Paris. Said law is contrary to
Indonesias former commitment to delimit the area in
dispute only after negotiations with the Philippines have
concluded. Accordingly, the Baselines Law was equivalent
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Norway:
Imposition of taxes;
Settlements;
Granting of concessions;
Promulgation
of
laws
of
administration;
Expeditions;
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Construction of cabins.
Turkey:
29
THEMATIC LIGHTHOUSES
Lighthouses are important with regard to claims of
sovereignty because their construction and
maintenance is a discharge of a state obligation to
ensure safety in the seas.
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France:
United
Kingdom:
Prohibition of fishing;
Restriction of visits to Ecrehos;
Diplomatic exchanges;
Granting of concessions;
Building of lighthouses and buoying;
Official visits by French officials;
Erection of a house.
Jersey
courts
exercising
criminal
jurisdiction for nearly 100 years;
Jersey law requiring holding of inquests on
corpses found in the area;
Houses built in the area were assessed for
the levying of taxes;
Licensing of fishing boats;
Real estate contracts relating to property
in the area were registered in the public
registry of deeds;
Jersey customs authorities established a
custom house for the purpose of a census.
30
Indonesia:
Malaysia:
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Yemen:
ERITREA-YEMEN ARBITRATION
(1996)
MAP CASES
ERITREA-YEMEN ARBITRATION
(1996), supra.
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Libya:
Chad:
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Spain:
Morocco:
Mauritania:
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B. UNCLOS
Mexico:
Internal Waters
Territorial Sea
Contiguous Zone
High Seas
BASELINES
Baseline
It is a line from which the breadth of the territorial sea and
other maritime zones is measured. It is essential for the
determination of the maritime boundary of the coastal
state.
There are two types:
1. Normal Baseline
2. Straight Baseline
UNCLOS, Art. 5.
Normal baseline
Except
where
otherwise
provided
in
this
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UNCLOS, Art. 7.
Straight baselines
1. In localities where the coastline is deeply
indented and cut into, or if there is a fringe of
islands along the coast in its immediate vicinity,
the method of straight baselines joining
appropriate points may be employed in drawing
the baseline from which the breadth of the
territorial sea is measured.
2. Where because of the presence of a delta and
other natural conditions the coastline is highly
unstable, the appropriate points may be selected
along the furthest seaward extent of the lowwater line and, notwithstanding subsequent
regression of the low-water line, the straight
baselines shall remain effective until changed by
the coastal State in accordance with this
Convention.
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Baseline:
o A closing line drawn across the natural
entrance of the bay
o May not exceed 24 nautical miles.
Arc:
o Drawn from the endpoints of the
baseline
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Fig.
Fig. (Magallona, 2005)
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TERRITORIAL SEA
UNCLOS, Art. 3.
Breadth of the territorial sea
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xxxx
UNCLOS, Art. 4
Outer limit of the territorial sea
The outer limit of the territorial sea is the line
every point of which is at a distance from the
nearest point of the baseline equal to the breadth
of the territorial sea.
Territorial Sea, Defined
It is a belt of sea adjacent to internal waters or archipelagic
waters, as the case may be, whose breadth extends up to
a limit not exceeding 12 nautical miles from a coastal
states baselines.
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42
ENTERING internal
waters:
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43
US:
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Island
It is a naturally formed area of land surrounded by water,
which is above the level of mean high water
Low Tide Elevation
A naturally formed area of land surrounded by water at
mean lower low water:
above the level of mean lower low water; but
not above the level of mean high water
Mean Lower Low Water
The average elevation of all daily lower low tides
Mean High Water
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Historic
Bays:
Louisiana:
Mediterranean
Sea
Atlantic
Ocean
Fig.
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Illustrations.
Passage through the strait is regulated by a longstanding international convention; (Art. 35 [c])
Fig.
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basically
non-suspendible
CLASS NOTES
47
Transit Passage
Navigation, overflight
Submarines in normal
mode
Cannot be suspended
Sea lanes/traffic separation
schemes subject to IO
adoption and agreement
among bordering states
Innocent Passage
Navigation only
Submarines surfaced and
showing flag
Can
be
temporarily
suspended
Sea lanes/traffic separation
only need to take into
account
IO
recommendations
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ARCHIPELAGOS
Archipelago, Defined
It is a group of islands, including parts of islands
interconnecting waters and other natural features which
are so closely interrelated that such islands, waters and
natural features form an intrinsic geographical, economic
and political entity, or which historically have been
regarded as such. (Art. 46 [b])
Archipelagic State
It is a state made up wholly of one or more archipelagos. It
may include other islands. (Art. 46 [a])
Straight Archipelagic Baselines; How Drawn
An archipelagic state may draw straight baselines by
joining the outermost points of the outermost islands and
drying reefs of the archipelago. (Art. 47 [1])
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1)
2)
3)
Territorial sea
Contiguous zone
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All ships and aircraft are entitled to this right. (Art. 53.2)
These include warships and submarines. Navigation of
such ships is meant to be in normal mode; as such,
submarines need not surface (unlike in innocent passage.)
No suspension of archipelagic sea lanes passage. Like in
transit passage (supra, p. 47), archipelagic sea lanes
passage cannot be suspended unilaterally. (Art. 54,
applying 44)
Archipelagic sea lanes passage may not suspended by
the archipelagic state. This differs from the right of
temporary suspension granted to archipelagic states
with respect to right of innocent passage over
archipelagic waters.
CLASS NOTES
Archipelagic Waters
This refers to the waters enclosed by the archipelagic
baselines, regardless of their depth or distance from the
coast. (Art. 49 [1])
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CONTIGUOUS ZONE
CONTINENTAL SHELF
UNCLOS, Art. 76.
Definition of the continental shelf
1. The continental shelf of a coastal State
comprises the seabed and subsoil of the
submarine areas that extend beyond its territorial
sea throughout the natural prolongation of its land
territory to the outer edge of the continental
margin, or to a distance of 200 nautical miles from
the baselines from which the breadth of the
territorial sea is measured where the outer edge of
the continental margin does not extend up to that
distance.
Continental Slope
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Continental margin
extends less than 200
nautical miles
Fig..
Re: 2)
Continental margin
extends more than 200
nautical miles:
Fig..
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resources;
Prevention, reduction and
control of pollution from
pipelines
(For
pipelines)
Give/withhold
consent with regard to the route of
such pipelines.
c.
2)
Continental Shelf
Rights over living and nonliving resources, excluding
sedentary species
Rights to resources of the
superadjacent
waters,
seabed and subsoil
EEZ
Rights over mineral and
non-living resources, and
sedentary species
Rights to resources of the
seabed and subsoil only.
Duty of the coastal state to
conserve
or
share
resources
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Germany:
Denmark,
Netherlands:
Points to remember:
There is no rule of customary international law requiring
the use of the equidistance principle.
Malta:
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53
Greece:
Turkey:
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The Court does not have jurisdiction over the case; hence.
it declined to rule on the continental shelf issue.
While the Court refused to rule on the substantive
issues of the case, the controversy nonetheless
presents an interesting case of continental shelf
delimitation. This issue remains unresolved to this
day.
Siding with Greece would significantly diminish
Turkeys rights to the Aegean given their geographical
proximity. Siding with Turkey would deprive Greek
islands of its waters.
Sirs proposed solution: Give Turkey its continental
shelf, but leave small pockets of water as Greek
territorial seas.
The Portico Doctrine in the Eritrea-Yemen Arbitration
Case (supra., p. 31) can find application here. (Karichi
Notes, citing Prof. Roque, 2010)
CLASS NOTES
UK
B
A
UK:
France:
France
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Denmark
is
entitled
to
Norway:
Greenland
Jan
Mayen
fisheries
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Saint Pierre & Miquelon are two French islands close to the
Canadian coast. The trigger of this case is the issuing by
the two parties of hydrocarbon exploration permits in the
area, with both contending that the other did not have the
right to do so.
Its territorial maritime boundary with Canada was first
delimited by virtue of a 1972 treaty signed by both Canada
and France. Towards the 20th century, each country began
to extend their claimed territorial limit, first to 12 nautical
miles, then to 200 nautical miles; to the end that the
parties claims began to overlap. Also, the maritime
boundaries beyond the territorial sea the extent of the
EEZ (which is determinative of the Parties exclusive right
to fish) remained in dispute.
France:
Canada:
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d)
e)
f)
g)
h)
i)
j)
k)
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Customs;
Fiscal;
Health;
Safety; and
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The Spanish fishing vessel The Estai was boarded and its
master arrested around 245 miles from the Canadian coast
by Canadian Government vessels for violating Canadas
Coastal Fisheries Protection Act. This law prohibited fishing
by foreign vessels (e.g. Spanish vessels) within the North
Atlantic Fisheries Organization [NAFO] Regulatory Area
an area in the high seas defined by the Convention on
Future Multilateral Cooperation in the Northwest Atlantic
Fisheries, 1978.
Spain:
Canada:
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St. Vincent
and the
Grenadines:
Guinea:
France:
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DELIMITATION OF MARITIME
BOUNDARIES
Delimitation, Defined
Delimitation is a process which involves establishing the
boundaries of an area already, in principle, appertaining to
the coastal state. It is not the determination de novo of
such an area (i.e. not created out of nothing); rather, it is a
process of drawing a boundary line between areas which
already appertain to one or other of the states affected.
(North Sea Continental Shelf Case, supra., p. 7)
It always has an international aspect; it cannot be
dependent merely upon the will of the coastal state as
expressed in its municipal law. Its validity is hinged on
international law. (Anglo-Norwegian Fisheries Case, supra.,
p. 8)
Rules on Delimitation of the Territorial Sea
between States with Opposite or Adjacent Coasts
General Rule: Left to the agreement between opposite
or adjacent coasts;
In the absence of agreement, the
equidistance rule applies: neither state is
Historic title;
HIGH SEAS
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THE AREA
The Area, Defined
It is the seabed and ocean floor and subsoil thereof
beyond the limits of national jurisdiction.
No State has Sovereignty
No state shall claim or exercise sovereignty or sovereign
rights over any part of the Area or its resources, nor shall
any state or juridical person appropriate any part thereof.
(Art. 137 [1])
Fig.. A map of landlocked states (in green).
Exception:
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Directly; or
NAVIGATION
Right of Navigation
Every State, whether coastal or land-locked, has the right
to sail ships flying its flag on the high seas. (Art. 90)
Nationality of Ships is that of Flag State
Ships carry the nationality of the state whose flag they are
entitled to fly (i.e. flag state). (Art. 91 [1])
There must be a genuine link between the state and the
ship. (ibid.)
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Such state shall have its own conditions for the grant of its
nationality to ships, their registration within its territory,
and for the right to fly its flag. (Art. 91 [1])
A ship shall sail under the flag of one State only. A ship
with two or more states has no nationality, and may not
claim any of the nationalities represented by these flags.
(Art. 92 [2])
A ship cannot change its flag during voyage or while in a
port of call, except in case of transfer of ownership or on
the basis of change of registry. (Art. 92 [1])
Flag of Convenience
The flag of a state which requires a nominal or no link at all
with a ship which is allowed to fly its flag. It is also called
open registry state
Duties of a Flag State with respect to Ships Flying
its Flag
1. Maintain a registry of ships authorized to fly its flag;
2. Take jurisdiction over the internal affairs of the ship;
3. Ensure safety at sea of the ship;
4. Ensure ship is surveyed by a qualified surveyor of
ships and is well-equipped;
5. Ensure ship is manned by qualified master, officers
and crew; and
6. Ensure the officers and crew are conversant with
and are required to observe international
regulations. (Art. 94)
Duty to Render Assistance in Distress
It is the duty of the flag state to require the master of the
ship, without serious danger to the ship, to:
a) To render assistance to any person found at sea in
danger of being lost;
b) To proceed with all possible speed to the rescue of
persons in distress, if informed of their need of
assistance, in so far as such action may reasonably
be expected of him; and
c) After a collision, to render assistance to the other
ship, its crew and its passengers. (Art. 98)
Duty with regard to Transport of Slaves
It is the duty of the flag state to take effective measures to
prevent and punish the transport of slaves in ships
authorized to fly its flag, as well as to prevent the unlawful
use of its flag for that purpose. (Art. 99)
Flag State Jurisdiction in the High Seas
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Exceptions:
1.
2.
3.
4.
5.
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Flag state; or
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b)
c)
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Unauthorized Broadcasting
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SETTLEMENT OF DISPUTES
Duty to Settle Disputes by Peaceful Means
It is the right of the parties to resort to peaceful means of
their own choice on which they can agree ay time
UNCLOS vs. Peaceful Settlement of Parties
UNCLOS will only be applicable when the agreement of the
parties prove unsuccessful and their agreement does not
exclude any further procedure
UNCLOS not applicable if party requests submission of
dispute to a procedure pursuant to any other general,
regional, bilateral agreement
Principle of Compulsory Settlement
This is applicable when no successful settlement can be
achieved or if the parties are unable to agree on the
means of settlement
Choices for the compulsory means of settlement of
disputes.
1. International Tribunal for the Law of the Sea
2. International court of Justice
3. Arbitral tribunal
4. Special arbitral tribunal
Jurisdiction of the court or tribunal.
1. Interpretation or application of UNCLOS
2. Interpretation or application of an international
agreement
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JURISDICTION
Jurisdiction, Defined
It is the competence of a State to prescribe rules of
conduct, to enforce its legal processes, and to adjudicate
controversies or claims.
3.
Aspects of jurisdiction.
1. Jurisdiction to prescribe norms of conduct
(legislative jurisdiction)
2. Jurisdiction to enforce the norms prescribed
(executive jurisdiction)
3. Jurisdiction to adjudicate (juridical jurisdiction)
This authority us exclusive over all persons, events and
transactions, except as may be limited by:
Nationality Principle
Jurisdiction is based on the nationality of the
offender. Every state has jurisdiction over its
nationals even when those nationals are outside
the state. Each state has the right to decide who
are its nationals, using either jus sanguinis or jus
soli or naturalization laws. As to corporations, a
state has jurisdiction over corporations whose
principal place of business or registered office is
located in their territories.
Effective nationality link doctrine determines
which of two states of which a person is a
national will be recognized as having the right to
give diplomatic protection to holder of dual
nationality.
Protective Principle
Jurisdiction is based on whether the national
interest is injured. A state may exercise
jurisdiction over conduct outside its territory, if it
threatens its security, as long as that conduct is
generally recognized as criminal by states in the
international community.
Example: Art. 2, RPC laws on crimes
onboard Philippine vessels, forgery of
Philippine currency, offenses committed by
public officers, and crimes against national
security and the law of nations, may be
enforced outside of Philippine territorial
jurisdiction.
4.
Universality Principle
Jurisdiction is conferred in any forum that
obtains physical custody of the perpetuator of
certain offenses considered particularly heinous
and harmful to humanity. The principle
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.
Example: Crimes hostes humani generis (e.g.
piracy)
5.
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Sunlife
Assurance:
TUBB v. GREISS
G.R. No. L-1325 (1947)
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Tubb and
Tedrow:
SOVEREIGN IMMUNITIES
Immunity, Generally
The general rule is that jurisdiction of a state within its
territory is complete and absolute. However, there are two
categories of exceptions to this rule:
1. Sovereign immunity, which covers both head of
state and the state itself
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or
Sovereign Immunity
It is the principle by which a state, its agents and property
are immune from the judicial process of another state.
It is premised on the principle of equality of states,
according to which a state may not impose its authority or
extend its jurisdiction on another state without the
consent of the latter through a waiver of immunity.
(Magallona, 2005)
It consists of:
1. Immunity of head of state;
2. State immunity
The principle, found in the Constitution,
that the state may not be sued without its
consent, is both municipal and international
law.
Diplomatic and Consular Immunities
Much of the law governing diplomatic relations is
customary law. Official representatives of a state are given
immunities and privileges when they are within the
territory of another state. The immunities are personal, in
that they benefit the person. But the purpose is functional,
that is, to enable them to perform their functions properly.
On the part of the receiving state there lie certain
obligations to protect the representative and his property
and office.
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JUSMAG v. NLRC
G.R. No. 108813 (1994)
JUSMAG:
NLRC:
Bradford:
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WYLIE v. RARANG
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LIANG v. PEOPLE
G.R. No. 125865 (2001)
Harry Lyons, Inc. and the USA entered into a contract for
stevedoring service at the US Naval Base in Subic Bay. The
said contract is valid until June 30, 1956, and was entered
into pursuant to the provisions of Sec. 2 (c) (1) of the
Armed Services Procurement Act of 1947 of the USA. Harry
Lyons Inc. brought an action to collect several sums of
money arising from the contract.
United
States:
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Israelis courts;
He is immune from suit since he acted in
behalf of his state;
He cannot be punished under a
retroactive
criminal
law
(Nazi
Collaborators Act) since Israel was not
yet a state when the alleged offences
were committed.
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KER v. ILLINOIS
119 U.S. 436 (1886)
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AlvarezMachain:
SOSA v. ALVAREZ
542 US 692 (2004)
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STATE v. EBRAHIM
1991 (2) SALR 553
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The DOJ received from the DFA NOTE VERBALE NO. 0522
containing a request for the extradition of Mark Jimenez to
the US. Attached to the note were the warrant of arrest
issued by the US district court and other supporting
documents. Secretary of Justice Drilon issued DO 249
designating and authorizing a panel of attorneys to handle
the case. Pending evaluation, Jimenez requested copies of
the official extradition request form the US Government, as
well as the documents attached thereto. Drilon denied the
requests saying that it is premature to furnish Jimenez with
a copies pending he evaluation, that the evaluation is not a
preliminary investigation since it is merely a procedure to
determine the requirements under the relevant law and
treaty have been complied with by the requesting
government (US); thus, the constitutionally guaranteed
rights of the accused in all criminal prosecutions are not
available to Jimenez.
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2.
3.
4.
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CLINTON v. JONES
520 U.S. 681 (1997)
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DAVID v. MACAPAGAL-ARROYO
G.R. No. 171396 (2004)
Italy:
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Senegal:
Belgium:
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D. International Responsibility
ILC Draft Articles on Responsibility of States for
Internationally Wrongful Acts (ILCDA), Art. 1.
Responsibility of a State for its
internationally wrongful acts
Every internationally wrongful act of a State entails
the international responsibility of that State.
International Responsibility, Generally
International responsibility arises as a consequence of
illegal acts or for failure of a state to observe obligations
under international law. (Magallona, 2005)
Attribution to state.
Owing to a states lack of physical being, it can
only act by and through its agents and
representatives. (Higgins, Chapter 9) As such, a
state can be subject to international
responsibility by attribution, that is, by
considering the acts or omissions committed by
a person or state organ which can be attributed
to the state.
The rules on attribution to a state are discussed,
infra.
2.
Breach.
There is a breach when a State violates a rule
contained in any source of international law. This
includes treaty provisions, customary norms as
well as general principles of international law.
The breach may relate to an obligation under a
customary norm or a conventional rule.
(Magallona, 2005)
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2.
State organ.
ILCDA, Art. 4.
Conduct of organs of a State
ILCDA, Art. 5.
Conduct of persons or entities exercising elements
of governmental authority
The conduct of a person or entity which is not an
organ of the State under article 4 but which is
empowered by the law of that State to
exercise elements of the governmental authority
shall be considered an act of the State under
international law, provided the person or entity is
acting in that capacity in the particular instance.
This is intended to take account of the increasingly
common phenomenon of parastatal entities, which
exercise elements of governmental authority in place of
state organs, as well as situations where former State
corporations have been privatized but retain certain public
or regulatory functions.
Example: private security firms contracted to act as
prison guards.
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2.
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Rules on Breach
There is a breach of an international obligation when an
act or omission of a state is not in conformity with what is
required of it by that obligation, regardless of its origin or
character. (ILCDA, Art. 12) It can arise from breaches of
bilateral obligations, obligations owed to some states or to
the international community as a whole. (ILC, Comments
on the Draft Articles, 2001)
In the context of state responsibility, there is no distinction
between contractual and tortious responsibility. (Rainbow
Warrior Arbitration, infra.)
In considering the breach, the following rules must be
considered:
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The act was taken as a lawful measure of selfdefense in conformity with the UN Charter;
(ILCDA, Art. 21)
Necessity
o The act was the only means of the
State to safeguard an essential interest
against a grave and imminent peril;
and
o The act does not seriously impair an
essential interest of the State/s
towards which the obligation exists, or
of the international community as a
whole; (ILCDA, Art. 25)
Legal Consequences of an Internationally Wrongful
Act
The state responsible for the internationally wrongful act
is under an obligation:
a)
b)
c)
d)
Compensation
Insofar as the damage is not made good by
restitution, the responsible state is under an
obligation to compensate for any financially
assessable damage, including loss of profits
insofar as it is established. (ILCDA, Art. 36)
It is the payment of a sum corresponding to
the value which restitution in kind would bear.
(Factory at Chorzow, supra.)
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Satisfaction
The responsible state is under a duty to give
satisfaction for the injury caused insofar as it
cannot be made good by restitution or
compensation. (ILCDA, Art. 37 [1])
It consists in the following:
an expression of regret;
a formal apology; or
Countermeasures
Countermeasures are those self-help remedies undertaken
by states affected by internationally wrongful acts. These
are not associated with armed conflict, and are not
inconsistent with other international obligations. They are
temporary measures justified as necessary and
proportionate responses to an internationally wrongful act
which terminated once the end is achieved.
Example: suspension of flights to and from the
responsible state, tightening of trade, etc.
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crew at the time when the real damage took place. The
nature of the crew, the absence of civil or military control
ashore, and the situation of the neutral property, were
circumstances calling for diligence on the part of those in
charge of the Chinese crew to see to it that they were
under control when they went ashore in a body.
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Covered
Agreements between
states
Those in writing
Those governed by
international law
Not Covered
Agreements between
states and other
actors
of
international law
Those not in written
form
Those governed by
the national law of
one of the parties or
any other national
law system
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3.
Ratification
Ratification shall be used by a state to express its
consent to be bound in the following instances:
a) the treaty provides for such consent to be
expressed by means of ratification;
b) it is otherwise established that the
negotiating States were agreed that
ratification should be required;
c)
d)
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2.
3.
4.
5.
6.
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b)
8.
Invalidity:
o Violation of provisions of internal law
regarding competence to conclude
treaties;
o Representatives lack of authority;
o Error;
o Fraud;
o Corruption of Representative.
Termination:
o Material breach;
o Impossibility;
o Fundamental
change
in
circumstances.(Brownlie, Chapter 26)
Void treaties. The following grounds render a treaty void:
Coercion of a state
DEFINITION OF TREATY
ABAYA v. EBDANE, JR.
G.R. No. 167919 (2007)
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The trial court held that it lacked jurisdiction to try the case
because there was a failure to comply with the protest
mechanism under RA 9184, namely that the protest must
be: 1) in writing, in the form of a verified position paper 2)
submitted to the head of the procuring entity; and 3)
payment of a non-refundable protest fee. The trial court
also held that the World Bank Guidelines on Procurement
under IBRD Loans are not in any way superior over the
local laws.
Foreign loan agreements with international financial
institutions such as the IBRD Loan Agreement partake of
an executive or international agreement within the
purview of Section 4, RA 9184 as held in the Abaya case.
All interested bidders were notified by DepEd that the
procurement of the project was to be funded from the
proceeds of the RP-IBRD Loan Agreement which stipulates
that the goods shall be procured in accordance with the
World Bank guidelines.
Doctrine: Even if there is a conflict between the
World Bank procurement guidelines and municipal
procurement law (RA 9184), the WB guideline
prevails.
Prof. Roque commented that the ruling was stupid
for the following reasons:
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DEFINITION OF RATIFICATION
LIM v. EXECUTIVE SECRETARY
G.R. No. 151445 (2002)
BAYAN v. ZAMORA
G.R. No. 138570 (2000)
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2.
3.
4.
5.
6.
7.
If it codifies CIL
No full powers
Coercion
Corruption
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AKBAYAN v. AQUINO
G.R. No. 170516 (2008)
AKBAYAN et. al requested for the full text of the JapanPhilippines Economic Partnership Agreement (JPEPA)
including the offers made by both parties during the
negotiation process and all pertinent attachments and
annexes. Undersecretary Aquino did not grant this request.
Aquino said that they shall be provided with a copy once
the negotiations are completed and as soon as thorough
legal review of the proposed agreement has been
conducted. AKBAYAN et. al argues that the President
cannot exclude the Congress since whatever power and the
authority the President has now pertaining to negotiations
is only delegated by the Congress through the Constitution.
The treaty making power of is exclusive to the President,
subject only to the concurrence of at least 2/3 of all
Members of the Senate for the validity of the treaty. As
head of the State it is constitutionally vested in the office
as well as inherent that the President is the sole organ and
authority in the external affairs of the country.
F. Vienna
Conventions
Diplomatic
Relations
Consular
Relations,
Optional Protocols
VIENNA
CONVENTION
DIPLOMATIC RELATIONS
on
and
and
ON
Diplomatic Mission
Establishment. Diplomatic missions are established by
mutual consent. (Vienna Convention on Diplomatic
Relations [DC], Art. 2)
Not same as establishing diplomatic relations. A state
may establish diplomatic relations with another without
agreeing to establish a diplomatic mission therein. It may
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without
3.
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Administrative
and Technical
Staff:
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This covers:
1. His private residence
2. Papers and correspondence;
3. Property, except for measures of execution due
to cases not covered by the agents immunity
from criminal and civil jurisdiction of the
receiving state. (infra.) (DC, Art. 30)
Exceptions:
i. A real action relating to private
immovable property situated in the
territory of the receiving State, unless
he holds it on behalf of the sending
State for the purposes of the mission;
ii. An action relating to succession in which
the diplomatic agent is involved as
executor, administrator, heir or legatee
as a private person and not on behalf of
the sending State;
iii. An action relating to any professional or
commercial activity exercised by the
diplomatic agent in the receiving State
outside his official functions. (DC, Art.
31 [1])
sexual
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Consular Relations
Establishment. Consular relations are established by
mutual consent. (Vienna Convention on Consular Relations
[CC], Art. 2 [1])
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2.
3.
Consular Post.
It is a consulate-general, consulate, vice-consulate, or
consular agency which exercises consular functions over a
particular consular district. (CC, Art. 3)
3.
4.
5.
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International Organizations
A. The UN Charter and the Use
of Force
UN Charter, Art. 2
The Organization and its Members, in pursuit of
the Purposes stated in Article 1, shall act in
accordance with the following Principles.
xxx
(3) All
Members
shall
settle their
international disputes by peaceful means
in such a manner that international peace
and security, and justice, are not
endangered.
(4) All Members shall refrain in their
international relations from the threat or
use of force against the territorial
integrity or political independence of any
state, or in any other manner
inconsistent with the Purposes of the
United Nations.
Membership
UN Charter, Art. 4
1. Membership in the United Nations is open to
all other peace-loving states which accept the
obligations contained in the present Charter
and, in the judgment of the Organization, are
able and willing to carry out these obligations.
2. The admission of any such state to
membership in the United Nations will be
effected by a decision of the General Assembly
upon the recommendation of the Security
Council.
Requisites for Admission as UN Member:
1) a State;
2) peace-loving;
3) must accept the obligations of the Charter;
4) must be able to carry out these obligations;
5) must be willing to do so.
This list is exclusive. No additional requirements may be
required by any state. (Competence of the General
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Article 1, UN Charter
States the purposes of the United Nations
Purposes:
o Maintenance of peace
o Settlement of disputes
o Promotion
of
social,
economic,
and
humanitarian welfare
Full recognition that if disputes are not settled, the
peace may not be maintained
Injustice and economic and social deprivation provide
the ground for instability and international terrorism
UN as the key institution to avoid, contain, and
resolve disputes
UN shall act on the basis of certain prescriptions in
the Charter:
1. Promotion
and
development
of
international law
2. Role in the settlement of disputes
3. Intended to play a certain role in the
provision of collective security
The Formal Consideration of International Law
within the United Nations
The study of legal issues within the UN: Different
from the immediate disputes before the General
assembly or Security Council
Legal issues being considered by the Sixth committee
of the General Assembly
1. Strengthening the role of the organization
2. Status of national liberation movements
3. Status of the Protocols and the Geneva
Conventions relating to the protection of
victims of armed conflict
4. Consideration of how the security of
diplomatic and consular missions and
representatives could be better protected
5. General problem if peaceful settlement of
disputes
6. Question of an additional Protocol to the
Vienna Convention on Consular Relations
Tasks of the Sixth Committee
1. Make a report on all the above mentioned
topics
2. Examine reports on legal matters that other
bodies present to the UN (ex: when
International Law Commission reports on its
work to the General Assembly)
Article 13, UN Charter
The ILC was set up in fulfillment of the task of the
General Assembly to initiate studies and make
recommendations
Subject matter of the studies and recommendations:
promoting international co-operation in the political
field and encouraging the progressive development of
international law and its codification
For a long time already, ILC focused on the
codification of state responsibility. Related to this
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On Third-Party Methods
The Security Council may ask the Security-General to
provide conciliators and mediators
Art. 33 does not insist that only the UN provides the
personnel who will participate in third-party methods
Art. 33 focuses on pacific settlement
o Emphasizes the important role of regional
organizations
in
the
maintenance
of
international peace and security
o some are of the opinion that the creation of
dispute-settlement mechanisms by regional
organizations are expression of a regional desire
for local resolution of the dispute, to the
exclusion of any interference by the Security
Council
o Sometimes it is also the UN that wishes to avoid
dealing with an issue. The Western Sahara and
the Chad vs. Libya case may be used as examples
to prove the point.
On the relationship of regional agencies to the UN in
matters of peaceful settlement.
o No indicia to serve as guide when it is more
appropriate to go for regional, rather than the
global
Disadvantage of regional bodies: the desire for
regional stability will often cause regional bodies to
seek to accommodate the more powerful of the two
protagonists, at the expense of the other
Peace and Collective Security: Intention and
Innovation
The UN, by virtue of Chapter VII, has an important
role in the containment of disputes
The provision of collective security by the Big Powers
o The keystone of international peace
o Big Powers: the Soviet Union, US, China, France,
and the UK
o Through the collective security, it would be
unnecessary for states to act in self-help and
their unilateral use of force would be restricted
to self-defense and such would be monitored by
the Security Council
o However, when the Cold War happened, the
intentions of the collective security came into
nothing
o Until now, no real machinery for collective
security through enforcement measures is in
place
Veto power of the Big Powers
o The power to defeat a decision of the Security
Council by a single negative vote
o Mirrors the intention that the collective military
action cannot be used against the Big Powers
o Intention during the drafting of the Charter: veto
power to be used only if the passage of a
resolution could otherwise culminate in military
action against one of the Big Powers
o The practice in using the veto power: to stop the
possibility of any sanction directed against an
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History
o Grotius insisted that the law of nations limited
the use of force to three justifiable causes:
defense, recovery of property, and punishment
o Covenant of the League of Nations sought
further to control and contain the use of force,
without prohibiting it
o After World War II, the UN Charter limited
permitted uses of force to self-defense or the
collective enforcement action
The UN was given powers which were intended to
allow states to avoid unilateral reliance on the
military instrument to guarantee their own security
Problem: the Charter was formulated to address the
problem of military hostilities between states and
before the development of the atomic bomb. Its
provisions were not only predicated upon a
collective security system that was never a reality,
they did not envisage the new types of violence, and
the social conditions that were their origin and their
consequence.
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Anticipatory Self-Defense
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A
claim
on
humanitarian
intervention based on selfdefense could only be advanced
in respect of nationals, because it
is predicated on the argument
that the state is being harmed
through injury to its nationals,
and can therefore respond in selfdefense
Given our decentralized legal order, claims may
either be made in good faith or abusively. Norms will
never be able to remove the possibility of abusive
claims; they (norms) are only for the achievement of
values for the common good.
To determine the validity of claims, contextual
analysis by appropriate decision makers is always
required. Claims determined to be valid should not a
priori be allowed or disallowed because they may be
unjustly invoked.
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Legal Framework
124
Implementation
Formation by the UN General Assembly of peacekeeping forces, while analogous to the provisions of
Chapter 7, were in fact different and distinct from it
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Sanctions
125
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Prospects
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Whereas an armed attack would make collective selfdefense valid, such validity cannot arise in cases of use of
force of a lesser degree of gravity. In said cases (use of
force of lesser degree), the determining factor for the
validity of counter-measures is proportionality.
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United
States:
Context
Legitimacy
The measure must conform to the general
interest of the international community in a
manner that outweighs the special interest or
interests of a particular State or a group of
States.
3.
Good faith
The principle of good faith is very important as
the subjective standard in evaluating whether
the measures in question can be considered
opposable under an imminent situation in which
there are no available alternatives.
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Principle of Self-Defense
The terms "anticipatory self-defense", "preemptive selfdefense" and "preemption" traditionally refers to a state's
right to strike first in self-defense when faced with
imminent attack.
The Caroline Test
necessity
of
self-defense,
instant,
overwhelming, leaving no choice of means, and
no moment for deliberation. It will be for it to
show, also, that the local authorities of
Canada,- even supposing the necessity of the
moment authorized them to enter the
territories of the United States at all,- did nothing
unreasonable or excessive; since the act justified
by the necessity of self-defense, must be
limited by that necessity, and kept clearly
within it.
1.
Necessity
Instant, overwhelming, leaving no choice of
means, and no moment for deliberation.
Proportionality
The response must be proportionate to the
threat
Until now, the Caroline Test is the one being used to
determine the legality of acts of self-defense.
CLASS NOTES
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CLASS NOTES
UN Charter, Art. 93
All Members of the United Nations are ipso
facto parties to the Statute of the International
Court of Justice.
A state which is not a Member of the United
Nations may become a party to the Statute of the
International Court of Justice on conditions to be
determined in each case by the General Assembly
upon the recommendation of the Security Council.
UN Charter, Art. 94
Each Member of the United Nations undertakes to
comply with the decision of the International Court
of Justice in any case to which it is a party.
If any party to a case fails to perform the
obligations incumbent upon it under a judgment
rendered by the Court, the other party may have
recourse to the Security Council, which may, if it
deems necessary, make recommendations or
decide upon measures to be taken to give effect to
the judgment.
UN Charter, Art. 96
1. The General Assembly or the Security Council
may request the International Court of Justice to
give an advisory opinion on any legal question.
2. Other organs of the United Nations and
specialized agencies, which may at any time be
so authorized by the General Assembly, may
also request advisory opinions of the Court on
legal questions arising within the scope of their
activities.
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APPLICABLE LAW
ICJ Statute, Art. 38, supra.
1. The Court, whose function is to decide in
accordance with international law such
disputes as are submitted to it, shall apply:
a. International conventions, whether
general or particular, establishing rules
expressly recognized by the contesting
states;
b. International custom, as evidence of a
general practice accepted as law;
c. The general principles of law
recognized by civilized nations;
d. Subject to the provisions of Article 59,
judicial decisions and the teachings of
the most highly qualified publicists of
the various nations, as subsidiary
means for the determination of rules
of law.
2. This provision shall not prejudice the power of
the Court to decide a case ex aequo et bono, if
the parties agree thereto.
ICJ Statute, Art. 59
The decision of the Court has no binding force
except between the parties and in respect of that
particular case.
JURISDICTION
ICJ Statute, Art. 36
1. The jurisdiction of the Court comprises all cases
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ADVISORY OPINIONS
HIGGINS, CHAPTER 11:
DISPUTE SETTLEMENT AND THE
INTERNATIONAL COURT OF JUSTICE
When the parties to a legal controversy believe that the
preferred solution is to have the issue resolved
authoritatively by a third party, there arises the possibility
for an international tribunal to act. Three kinds of data
that are worth looking at are: (1) the potential for the
International Court of Justice taking jurisdiction over
various states, (2) the actual use of the Court by various
states, and (3) the subject-matter upon which cases have
been brought before the Court.
The Potential for Jurisdiction
The competence of international tribunals is founded on
consent. Consent of principle rather than a consent in
relation to a particular dispute with a particular opponent
is increasingly being tolerated. Standing international
courts such as the International Court of Justice are
established by international treaty. It is the founding
treaty itself (e.g. UN Charter) which elaborates how it is
that a court may have jurisdiction in a particular dispute.
The Inter-American and European Courts on Human Rights,
and the Court of the European Community, are construed
and their restricted by their founding treaties as to
subject-matter and states who may bring claims. But the
ICJ is viewed as the senior of all the International Courts
because any state that is a party to the Statute (including
any other state that has made special application to be a
party to the Statute) can potentially come before it. And
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the stage of the merits. As to the last issue, the Court has
found an application at the jurisdictional stage 'premature'.
In several cases such as Certain Expenses of the UN and
the Western Sahara Case, the Court, despite the claims of
a State-party that giving an advisory opinion would be
equivalent to settling a dispute, gave an opinion
nonetheless. In the Western Sahara Case, the Court agreed
that there was a legal dispute between Morocco and Spain
at the time of the request for advisory opinion, but it still
proceeded with the opinion but allowed Morocco an ad
hoc judge on the Bench, as there was already a Spanish
judge. The Court also distinguished the Eastern Carelia
Case, noting that in that case one of the key states was
neither a party to the Statute, nor a member of the League,
while in the case of Spain and Morocco they were both
members of the UN.
The issue of third-party rights has arisen not bilaterally but
in the context of the work of the requesting organ. The ICJ
has shown that it will rather robustly preserve its right to
provide advice to authorized requesting organs.
Dispute Settlement and Law Development
The determination of specific disputes and the provision of
specific advice by the ICJ develop international law. It is
hard to point to a case where the Court has just applied
rules to facts. Although decisions of the Court are said to
be a subsidiary source of international law (Article 38 (1) (c)
of the Statute) and any judicial determination is only
binding upon the parties before it (Article 59), in reality,
the judgments and opinions of the Court are treaty as
authoritative pronouncements upon the current state of
international law.
Even advisory opinions have a role of great importance.
Very often, the organ requesting an advisory opinion will
then pass a resolution 'appreciating' or 'accepting' that
opinion. This was done in the Reservations Case an in Legal
Expenses of the United Nations. It does not give rise to a
legal obligation, but it is a public affirmation of the advice's
authoritative quality. Many resolutions of disputes have
been assisted by advisory opinions (e.g. Admissions Cases).
Higgins opines that the Court, even though it is necessarily
choosing, explaining, and refining rules, should still do so
in respect of the particular issue it is required to decide or
upon which it is asked to advise.
CASES ON JURISDICTION
CASE CONERNING MILITARY AND
PARAMILITARY ACTIVITIES IN AND AGAINST
NICARAGUA (NICARAGUA v. UNITED STATES)
ICJ Reports 1986, p.14 (1986), supra.
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States:
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United
States:
Such
dispute, if
any,
concerns the interpretation
or application of the
Montreal Convention.
Even if a dispute existed, the UN Security
Council (UN SC) Resolutions which
required Libya to surrender the two
accused prevailed over the provisions of
the Montreal Convention.
United
States:
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Australia:
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CASE CONCERNING APPLICATION OF THE
CONVENTION ON THE PREVENTION AND
PUNISHMENT OF THE CRIME OF GENOCIDE
(BOSNIA AND HERZEGOVINA v. SERBIA AND
MONTENEGRO)
ICJ Reports 2007, p. 43 (2007), supra.
136
6)
7)
8)
9)
10)
a State;
peace-loving;
must accept the obligations of the Charter;
must be able to carry out these obligations;
must be willing to do so.
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The Court held that Italys first submission (that the gold
must be delivered to her) required the determination of
whether Albania has committed any international wrong
against Italy and whether Albania is under an obligation to
pay compensation. Going into the merits of the case
without Albanias consent would violate the wellestablished principle of international law that the Court
could not exercise its jurisdiction over a State without the
latters consent. In the present case, Albanias legal
interests would not merely be affected but would form the
very subject matter of the decision. Hence, any decision of
the Court would not be binding upon any party (even upon
States which submitted to its jurisdiction i.e., France, UK,
USA, Italy). Likewise, Italys second submission (that
priority should be given to her over the UK) cannot be
resolved by the Court as it is predicated on the
determination that as between Albania and Italy, the gold
should go to Italy.
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The Individual
International Law is a system that provides normative
indications for states in their relations with each other.
Although there is no reason to exclude individuals from its
reach, the main participants are sovereign states. However,
how can it be guaranteed that the needs of individuals
who comprise the states are not ignored? The classical
international law has relatively little to offer in this regard.
The individual is left with no direct access to a forum, no
legal right that he can call his own, no redress against his
own state. (Higgins, Chapter 6)
A. Human Rights
HIGGINS, CHAPTER 6:
RESPONDING TO INDIVIDUAL NEEDS: HUMAN
RIGHTS
Human Rights Law stipulates that obligations are owed
directly to individuals, and not to the national government
of an individual. It provides for individuals to have access
to tribunals and for the effective guarantee of those
obligations. Once it is recognized that obligations are owed
to individuals, there is no reason why the obligation should
be owed only to foreign individuals and not to nationals. It
is unsustainable to regard the treatment of nationals as
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Rights, has stated that these are present rights, not longterm aspirations. States are under immediate obligation to
do what they can to provide these rights.
Sources of Rights
Existence of treaties may not be the only test as to
whether a right exists. Rights may exist in customary
international law. The claim that a right exists in
customary law will need to be established by reference to
the normal criteria of that source, including state practice,
which may be expected to be evidenced in resolutions and
declarations of international bodies.
Collective Rights
There is no reason why an entitlement held by a group
cannot be termed a human right. However, not all
collective or third-generation rights are in fact rights. The
right of peoples to peace seems indeterminate. The
holders of the rights are identifiable, but it is not clear
upon whom the obligation lies and what duties are owed.
Human Rights
The line between what human rights are and what are not
is more than academic. However the answer depends
upon ones perception of what constitutes a human right.
For some it is all civil and political rights. For others, the
economic and social rights could be included on a basic
needs basis.
Identification and Articulation of the Right
Customary international law has had a role to play in this.
There is an interplay between the standard-setting UN
Declaration on HR and its acceptance in many national
constitutions and before may courts. The greatest push in
the formulation of human rights has been through the
treaty process. The international covenants on Civil and
Political Rights and on Economic, Social, and Cultural
Rights provide instruments that deal with comprehensive
range of rights on a universal basis. The idea is that rights
may be formulated on a basis that will allow command
confidence in the region, and that in turn will allow
effective enforcement measures. The universal and
regional instruments have been supplemented by
universal instruments directed towards the elaboration of
single rights.
UN Commission on Human Rights
The Commission is a body specifically mandated to deal
with human rights questions. It is political, in that those
who serve on it are representatives of states, but together
with the Subcommittee on Non-Discrimination and
Minorities, it has laid down some important methods and
procedures. It has also made significant contributions to
fact finding through the establishment of special
rapporteurs.
Human Rights Committee
The HRC has considerable experience of state reporting
and of hearing cases. States are required to submit reports.
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HAMDI v. RUMSFELD
542 U.S. 507 (2004)
RASUL v. BUSH
542 U.S. 466 (2004)
HAMDAN v. RUMSFELD
The presumption, that legislation is presumed not to have
extraterritorial application, is not applicable to habeas
statute with respect to persons detained within the US
territorial jurisdiction. By the express terms of its
agreements with Cuba, the United States exercises
complete jurisdiction and control over the Guantanamo
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BOUMEDIENE v. BUSH
553 U.S. 723 (2008)
C. Foreign
Investments
Natural Resources
and
HIGGINS, CHAPTER 8:
NATURAL RESOURCES AND INTERNATIONAL
NORMS
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TEXACO v. LIBYA
53 ILR 389 (1978), supra.
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KUWAIT v. AMINOIL
66 ILR 518.
Kuwait:
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However,
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WHEN LAWFUL
STARETT HOUSING CORPORATION v. IRAN
4 Iran-US Claims Report (1983), supra.
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Legal
and
classification)
Social
Property
(Ackermans
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Types of Concessions
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INVESTMENTS
By Eli Lauterpacht (1990)
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Postwar cases:
Constitutional Framework
The Philippines is the only World Trade Organization (WTO)
member whose Supreme Court has pronounced on the
constitutionality of the countrys entry into the WTO.
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TANADA v. ANGARA
G.R. No. 118295 (1997)
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