1 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” I.
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In General International Law a body of legal principles, norms and processes 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: international law should be viewed as a normative system and not merely as a set of rules Why? The specialized social process to which the world “law” refers to does not refer to rules alone – it includes other factors such as power, social and humanitarian factors Rules are just accumulated past decisions formulated within a certain context; if IL be rule-based, once the context changes, these rules will be unable to apply There are still topics on which there are no specific rules of IL; by viewing IL as a process, we have available to us the tools for authoritative decision making on the problem, notwithstanding the absence of a precise rule which must be applied. When the set of rules no longer apply, there may be the emergence of a new rule or norm1 Law is not in a vacuum. Decision makers and policy makers, while considering rules, will also consider other factors, and that’s a fact. Basis of the Binding Nature of International Law 1. Natural law 2. Consent – based on the sovereignty of states, which in turn emphasizes their freedom to act unilaterally save to the extent they agreed upon to be constrained 3. Reciprocity – as notions of justice were replaced by consent, so consent has gradually been replaced by consensus which has come about because states perceive a reciprocal advantage in cautioning self-restraint Magallona Annotations: Has there been a judicial pronouncement on the general nature of international law? Lotus Case: “International law governs relations between states. The rules of law binding upon states therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between those co-existing independent communities or with a view to the achievement of common aims.” How is the concept of the “international community as a whole” manifested in contemporary IL? Through the codification of jus cogens or peremptory norms as part of positive international law; thus, Art. 53 of the Vienna Convention on the law of Treaties defines the same as, “a 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 be a subsequent norm of general international law having the same character.” Barcelona Traction Case – distinction between an obligation of a State with another State, and obligations of a State towards the international community as a whole LATTER: “By their very nature, … are the concern of all States. In view of the importance of the rights involved, all states can be held to have a legal interest in their protection; they are obligations ERGA OMNES.” Why do States take interest in the creation or recognizing norms of international law? IL is a means by which States pursue and develop mutual exchanges of economic, social, political, and other interests or advantages, or resolve disputes between them by peaceful means. Legal norms are established to maintain and stabilize inter-state relations Function of IL: to insure peace and security, so that this system of mutual relations is maintained in terms of equality, good faith, and balance of interests Why do States observe or comply with their obligations under IL? There prevails in the international community a “culture of compliance” [Louis Henkin] States recognize that stability, law and order, reliability … enlightened self-interest in compliance Generally, how do we view the relation between state sovereignty and international law? FALSE: International law only curtails or limits the sovereignty of States As a method of creating norms, treaties provide not only duties but rights as well; not only restrictions but also power or authority If state sovereignty is said to be “absolute,” how is it related to the independence of other States and to their equality on the international plane? From national legal order standpoint: state sovereignty is the supreme legal authority in relation to the subjects within its territorial domain >>> “ABSOLUTE” BUT, in international sphere: sovereignty realizes itself in the existence of a large number of sovereignties co-existence of sovereignties under conditions of independence and equality Sovereignty of one ends where another’s begins. How then is state sovereignty defined in international law? It refers to the right to exercise in a definite portion of the globe the functions of a State to the exclusion of any other state [Island of Las Palmas Case] Sources of International Law ICJ Statute, 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. This enumeration is not the only sources of IL. It is merely an enumeration of what the ICJ shall apply There is a hierarchy: [a-c] are primary means while [d] is subsidiary means. Don’t use [d] unless you have no other source A,B, and C can overlap. For example, genocide.
Sentences underscored = Sir Roque says
2 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” When treaty norm and customary norm overlap, even non-signatories to the convention will be bound by the norm Correct phrasing of 38, 1b “international custom, as evidenced by general practive accepted as law” Violations of law can lead to formation of a new law VCLoT, 53. Treaties conflicting with a peremptory norm of general international law (“jus cogens”). A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is 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. Magallona Annotations: In IL, how is the concept of source understood? A process or method of creating or forming norms of international law It is a norm-creating or norm-formation process Recognition that a rule or norm has a binding character as law rests on the recognition by States that it has been established through a definite method of norm-creation established or accepted by them PRINCIPAL SOURCES: TREATY AND CUSTOM Brownlie: “Source may refer to the source of the binding quality of international law as such and also to the literary sources of the law as sources of information.” What are the sources of international law? ICJ Statute, 38(1) Sources of Law refer to norms derived from international convention or treaties, custom, and general principles of law Treaty – legal instrument which constitute a material source of norms Treaty-making = a norm-creating process, a method of formalizing the consent of the States by which they intend to be bound by the treaty Distinction between formal sources from material sources of IL Formal: consist of the methods and procedures by which norms are created Material: substantive evidence of the existence odf norms Example: formal source = custom as a norm-creating process; material source = custom’s content in terms of state practice arising from a sense of legal duty Salmond: The material sources supply the substance of the rule to which the formal sources give the force and nature of law Brownlie: Formal = those legal procedures and methods for the creation of rules of general application which are legal binding on the addressees; material = provide evidence of the existence of rules which, when proved, have the status of legally-binding rules of general application. Difference between traits-lois [law-maming treaties] and traits contracts[contractual treaties]? No significant difference Oppenheim: “in principle, all treaties are law-making inasmuch as they lay down rules of conduct which the parties are bound to observe as law” Elements of international custom? (1) general practice, characterized by uniformity and consistency o North Sea Continental Shelf Cases: State practice as an element of customary law must be “both extensive and virtually uniform” o Anglo-Norwegian Fisheries Case: Some degree of uniformity is required o Asylum Case: general practice as “constant uniform usage practiced by the States in question o IN ANY EVENT, UNIVERSALITY OF PRACTICE NOT REQUIRED o Repetition of practice or action of states is necessary [Tunkin] “A customary norm of international law arises in consequence of the repeated actions of states. The element of repetition is basic to the formation of a rule of conduct. In the majority of instances the repetition of specific actions in analogous situations can lead to the consolidation of such practice as a rule of conduct (2) opinio juris sive necessitatis recognition of that practice as legally binding Judge Hudson, elements which must be present before a principle of international custom can be found to be established (a) Concordant practice by a number of States with reference to a type of situation falling within the domain of international relations; (b) Continuation or repetition of the practice over a considerable period of time; (c) Conception that the practice is required by or consistent with prevailing international law; and (d) General acquiescence in the practice by other States In what form may evidence of State practice take? Treaties, decisions of international and national tribunals May take the form of relevant legislation and diplomatic correspondence Generally, “any such act or declaration may, so far as it goes, be some evidence that a custom, and therefore that rule of international law, does or does not exist; but, of course, its value as evidence will altogether be determined be determined by the occasion and the circumstances” Military and Paramilitary Activities in and against Nicaragua: evidence of state practice may be in the from of document recording statements by “high-ranking official political figures, sometimes indeed of the highest rank,” in particular “when they acknowledge facts or conduct infavorable to the state represented by the person who made them.” By itself, does state practice, general it may be, establish international custom? NO. North Sea Continental Shelf Cases: “Not only must the acts amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it… The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency or even habitual character of the acts is not in itself enough.” Nicaragua v. US Case: “Not only must the acts concerned “amount to a settled practice,” but they must also be accompanied by the opinio juris sive necessitatis. Either the States taking such action or other States in a position to react to it must have behaved so that their conduct is evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e. the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis.” How is the element of opinion juris further understood?
3 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.”
Opinion juris means that when States create law by what they do in practice or by their conduct, they must believe that the practice or conduct is obligatory. They do so for the reason that the practice is required by law, not because of courtesy or political expediency Asylum Case: Such conduct is not only “a constant and uniform usage practiced by States in question,” but it must also be the expression of right appertaining to the State granting the asylum and a duty incumbent on the territorial State.” Lotus Case: “Only if such abstention were based on their being conscious of a duty to abstain would it be possible to speak of an international custom.“ As it is with respect to positive acts of States, so it is true with their abstentions OPINIO JURIS MEANS THAT GENERAL PRACTICE EMBODIED IN A RULE MUST HAVE BEEN DONE OUT OF A RECOGNITION THAT IT IS A LEGAL NORM AND THEREFORE OBLIGATORY. Is a particular length of time required for the formation of customary norms? No. Baxter: the time factor as a separate element…now seems irrelevant North Sea Continental Shelf Cases: “Although the passage of only a short passage of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law…, an indispensable requirement would be that within the period in question, short though it may be, State practice, including that of States whose interests are specially affected, should have been extensive and virtually uniform in the sense of the provision invoked – and should have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.” Principle of persistent objector When a State continues to object to a new customary norm at the time when it is yet in the process of formation, by such persistent objection the norm will not be applicable against that State Anglo-Norwegian Fisheries Case: “In any event, the ten-mile rule [in the delimitation of territorial waters across bays] would appear to be inapplicable as against Norway, inasmuch as she has always opposed any attempt to apply it to the Norwegian coast.” As to the number of States under the binding force of legal norms, how is treaty distinguished from custom? Treaty: its binding character is limited to States which are parties to it Custom/customary norm: binding on all States VCLoT, 34 “a treaty does not create either obligations or rights for a 3rd State without its consent.” Verdross: Customary law is “the oldest source of general IL.” Kelsen: “The custom by which a norm of general IL is created…is binding upon all states of the international community.” O’Connell: “Customary law is dependent, not upon unanimity, but only upon generality of will. The dissentient minority of State are as much bound by the formulated rule as those who actively participated in its creation, the source of their obligation residing in the moral necessity which underlies observance of law.” But may treaties create norms of general IL? Tunkin: “The existence of a large number of multilateral international treaties in which all or nearly all states participate, as well as important activity in the codification of international law, create a situation whereby international treaties are becoming a means of directly creating, modifying and developing norms of general IL.” Lauterpacht: “universal international law is created when all or practically all the members of the Family of Nations are parties to these treaties… many law-making treaties have been concluded which contain general IL because the majority of States, including the leading Powers, are parties to them.” Brownlie: law-creating effect of some treaties as analogous to that of general practice in customary norm lawmaking treaties (those which create legal obligations the observance of which does not dissolve the treaty obligations) create general norms for the future conduct of the parties in the terms of legal propositions, and the obligations are vasically the same for all parties “General principles of law” in Art 38 1(c) Brownlie: “The intention is to authorize the court to apply the general principles of municipal jurisprudence, in particular of private law, insofar as they are applicable to relations of States South West Africa case, Judge McNair: “The way in which international law borrows from this source is not by means of importing private law institutions ‘lock, stock and barrel,’ ready-made and fully equipped with a set of rules. It would be difficult to reconcile such a process with the application of the ‘general principles of law.’” Are judicial decisions and teachings of publicists sources of international law? They are subsidiary means for the determination of rules of law [A38, 1(d)] Means by which the rules of law may be verified They may be regarded as evidence of law Schwarzenberger: indirect and secondary evidence of rules created by treaty, custom, and general principles of laws May a norm be both a treaty rule and a customary norm at the same time? YES. Nicaragua Case: even if customary international norms have been codified or embodied in conventions, this does not mean that they cease to exist or apply as customary law, even with respect to States which are parties to those conventions “It will therefore be clear that customary international law continues to exist and to apply, separately from int’l treaty law, even where the 2 categories of law have an identical content. VCLoT, 38. Rules in a treaty becoming binding on third States through international custom. Nothing in articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third State as a customary rule of international law, recognized as such. What is a jus cogens norm? A norm which States cannot derogate or deviate from in their agreements. It is therefore a mandatory norm and stands on a higher category than a jus dispositivum norm which States can set aside or modify agreement What norms, for example, are considered as jus cogens in character? Nicaragua Case: prohibition against the use of force under the UN Charter Genocide Principle of self-determination Principle of racial non-discrimination Crimes against humanity
4 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” Prohibition against slavery and slave trade Piracy What is an obligation erga omnes? It is an obligation of every State “towards the international community as a whole” All states have a legal interst in its compliance, and thus all States are entitled to invoke responsibilitty for breach of such an obligation Barcelona Traction Case: By their nature…they are the concern of all States. In the view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.” Examples of obligations erga omnes Barcelona Traction Case:” Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.” Is there an order of precedence in the application of Art 38(1)? None explicitly stated. But in North Sea Continental Shelf Cases, treaty norm preceded over customary law: “The first question to be considered is whether the Geneva Convention on the Continental Shelf is binding for all Parties in this case…Clearly, if this be so, then the provisions of the Convention will prevail in the relation between the Parties, and would take precedence of any rules having a more general character, or derived from another source.” Brownlie: In practice the Court may be expected to observe the order… the priority of [a] is explicable by the fact that this refers to a source of mutual obligations of the parties Lauterpacht: it is mutual that the parties should invoke and that the adjudicating agency should, in the first instance, the provisions of the treaty, when a matter under controversy is regulated by that treaty Akehurst: treaties are easier to prove than custom and custom is easier to prove than than general principles of law May States, by a treaty, derogate from a customary norm of international law? YES in which case an international treaty had established a special juridical regime between the parties with respect to the domain in question such regime constitutes as jus speciale which is capale of derogating in principle from jus generali North Sea Continental Shelf Cases: “It is well understood that, in practice, rules of international law can, by agreement, be derogated from in particular cases, or as between particular parties.” BUT NOT JUS COGENS NORMS Are there principles which may determine the order of precedence in the application of rules of norms of international law? 1) Lex superior derogat inferiori: rules from one source of law prevail over those derived from another source 2) Lex posterior derogat priori: later rules prevail over the earlier 3) Lex spaciali derogat generali: particular or special rules prevail over the general VCLoT, 30. Application of successive treaties relating to the same subject matter. 1. Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States Parties to successive treaties relating to the same subject matter shall be determined in accordance with the following paragraphs. 2. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail. 3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty. 4. When the parties to the later treaty do not include all the parties to the earlier one: (a) as between States Parties to both treaties the same rule applies as in paragraph 3; (b) as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations. 5. Paragraph 4 is without prejudice to article 41, or to any question of the termination or suspension of the operation of a treaty under article 60 or to any question of responsibility which may arise for a State from the conclusion or application of a treaty the provisions of which are incompatible with its obligations towards another State under another treaty. “Hierarchy of obligations” in international law? YES jus cogens obligations are superior to jus dispositivum Barcelona Traction Case: Obligations erga omnes have a higher status than obligations inter se UN Charter, 103: “In the event of a conflict between the obligations of the Members of the United Nations under any other international agreements, their obligations under the present Charter shall prevail.” May a unilateral declaration or act of State result in legal obligations? YES Nuclear Tests Cases: When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. Conditions o Given publicly o With intent to be bound o even though not made within the context of international negotiations in these circumstances, nothing in the nature of quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction from other States, is required for the declaration to take effect Legal Status of Eastern Greenland Case: Norwegian Minister of Foreign Affairs declared that “the Norwegian government would not make any difficulties in the settlement of this question.” Thus, ICJ said, “Norway is under an obligation to refrain from contesting Danish sovereignty over Greenland as a whole, and a fortiori refrain from occupying a part of Greenland.” Kuroda v. Jalandoni. Military Commission has jurisdiction to try for the acts committed. It cannot be denied that the rules and regulations of the two convention form part of and are wholly based on the generally accepted principles of international law. These rules and principles were accepted by the two belligerent nations, United States and Japan, who were signatories of two conventions. Such rules and principles therefore, form part of the law of our nation even the Philippine was not a signatory to the conventions embodying them, for our Constitution has been deliberately general and extensive
5 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” in its scope and is not confined to the recognition of rules and principles of international law as contained in treaties to which our government may have been or shall be a signatory.2 General principles of law are mostly remedial principles It is possible for treaties and customary norm to overlap Effect if a treaty merely codifies a norm: follow the exception to the rule that non-signatories are not bound Customary norms bind everyone who follow that custom Yamashita v. Styer. [Concept of command responsibility] War is not ended simply because hostilities have ceased. After cessation of armed hostilities, incidents of was may remain pending which should be disposed of as in time of war. “An important incident to a conduct of war is the adoption of measures by the military command not only to repel and defeat the enemies but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede the military effort have violated the law of war. “ Indeed, the power to create a Military Commission for the trial and punishment of war criminals is an aspect of waging war. || The Military Commission thus duly constituted has jurisdiction both over the person of the petitioner and over the offenses with which he is charged. It has jurisdiction over the person of the petitioner by reason of his having fallen into the hands of the United States Army Forces. Under paragraph 347 of the Rules of Land Warfare, “the commanders ordering the commission of such acts, or under whose authority they are committed by their troops, may be punished by the belligerent into whose hands they may fall.” 3 PERFECTO, J., concurring and dissenting: International law (in particular IHL) evolved from custom & practice throughout history. Many of the basic ideas which prevail today in the customs and usages of nations and became part of the international law emerged from the human mind centuries before the Christian Era. Such is the idea that prisoners of war are entitled to humane treatment, that treasons of war should be discountenanced, and that belligerents must abstain from causing harm to non-combatants. RP is bound to comply with established rules in treating war criminals. Impelled by irrepressible endeavors aimed towards the ideal, by the unconquerable natural urge for improvement, by the unquenchable thirstiness of perfection in all orders of life, humanity has been struggling during the last two dozen centuries to develop an international law which could answer more and more faithfully the demands of right and justice as expressed in principles which, weakly enunciated at first in the rudimentary juristic sense of peoples of antiquity, by the inherent power of their universal appeal to human conscience, at last were accepted, recognized, and consecrated by all the civilized nations of the world. Under these principles, Yamashita is entitled to be accorded all the guarantees, protections, and defenses that all prisoners should have, according to the customs and usages, conventions and treaties, judicial decisions and executive pronouncements, and generally accepted opinions of thinkers, legal philosophers and other expounders of just rules and principles of international law. The seriousness or unfathomable gravity of the charges against him must not be taken into consideration in order that true justice may be administered in this case. Mankind in general has been covered by laws governing as far back as the ancient times Kookooritchkin v. SolGen. Kookooritchkin stated in his petition stated that he is a citizen of the Empire of Russia, which has ceased to exist since the Czars were overthrown. Knowing the history, nature and character of the Soviet Government, it would be technically fastidious to require further evidence of his claim that he is stateless than his testimony that he owes no allegiance to the Soviet govt. Nicaragua v. US. Customary law operates independently of treaty law. It rather demonstrates that in the field in question, customary international law continues to exist alongside treaty law. The areas governed by the two sources of law thus do not overlap exactly, and the rules do not have the same content. But even if the customary norm and the treaty norm were to have exactly the same content, this would not be a reason for the Court to hold that the incorporation of the customary norm into treaty-law must deprive the customary norm of its applicability as distinct from that of the treaty norm. There are a number of reasons for considering that, even if two norms belonging to two sources of international law appear identical in content, and even if the States in question are bound by these rules both on the level of treaty-law and on that of customary international law, these norms retain a separate existence. Opinio juris can be deduced from attitude of states toward certain GA resolutions. This opinio juris may, though with all due caution, be deduced from the attitude of the Parties and the attitude of States towards certain General Assembly resolutions, i.e. the "Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the UN". The effect of consent to the text of such resolutions cannot be understood as merely that of a "reiteration or elucidation" of the treaty commitment undertaken in the Charter. Recognition that a rule is fundamental or a jus cogens establishes CIL. A further confirmation of the validity as customary international law of the principle of the prohibition of the use of force expressed in Article 2 of the UN Charter of may be found in the fact that it is frequently referred to in statements by State representatives as being not only a principle of customary international law but also a fundamental or cardinal principle of such law. Nicaragua in its Memorial on the Merits states that the principle prohibiting the use of force embodied in Article 2 "has come to be recognized as jus cogens" - Armed attack4: In Nicaragua case ICJ says an armed attack is: (1) action by regular State armed forces across an international border; (2) armed groups, irregular forces and mercenaries when (a) they are “sent by or on behalf of a State” to carry out an armed attack against another State and (b) the attack is of such gravity so that it amounts to an armed attack if it was conducted by regular armed forces of a State (The Court referred to Article 3(g) of the GA Resolution on the Definition of Aggression and said this reflected CIL). Note that State “B” does not have a right of SD against State “A”: even if rebels carried out an armed attack against State “B”; unless, these rebels was sent by or on behalf of another State (State “A”). What is not an armed attack according to the ICJ in the Nicaragua case? 1. If State “A” supplies of weapons and logistical to a rebel group, which the rebel groups use to attack State “B” – can the supply of weapons and logistical support be considered as an armed attack by State “A” against the State “B”? In Nicaragua Case the court said NO. The Court said this may amount to a threat or use of force or intervention in the affairs of another State but it was not an armed attack. This means that State B does not have the right of SD against State “A” under Article 51 of the Charter because an armed attack has not occurred. The Court said that instead of relying on SD State B can take “proportional countermeasures” against State A in such a situation.
http://pilexecutiveclass.blogspot.com/2008/07/kuroda-vs-jalandoni.html http://mylifejayannephil.blogspot.com/2009/06/public-international-law.html 4 Discussion from http://ruwanthikagunaratne.wordpress.com/2011/04/12/lesson-5-4-second-exception-to-the-prohibition-on-the-use-of-force-right-of-self-defence/ 2 3
6 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” 2. Mere frontier incidents are not “armed attacks” if the necessary “scale and effects” are not there. When can a State use force in SD according to Article 51? 1. An armed attack has to have occurred against a member State (read the section before on armed attack and the situation in which a State can use SD). 2. SD is only available against the aggressor State (the one who carried out or on whose behalf an armed attack was carried out) by the victim State (subject of the attack). 3. The only way a third State will have a right of SD against the aggressor State is if the victim State asks for the help of the third State (we call this collective self defense). 4. Any use of force in SD must be necessary and proportionate to the armed attack. 5. As we discussed a State that uses force in SD must immediately inform the SC and this State can use force only until the SC steps in. 6. What we discussed so far is the treaty or UN Charter right to SD. In addition to the treaty right of SD, some argue that there is also a CIL right to SD. They argue that the Charter never intended to restrict the CIL right of SD (which is more wider than the right under A. 51) and that the reference to the “inherent right” of SD in Article 51 brings in the CIL right of SD into Article 51. The high threshold test from Nicaragua v. United States (1986), which limits the notion of “armed attack” to the “most grave forms of the use of force.” Thus, the court set a high threshold at which a state’s right to use force in self-defense is triggered.5 - Control test (when action of armed group is an act of state?”6 The ICJ established the doctrine of “effective control,” whereby the actions of a non-state armed group can be imputed to a state or state actor. Evidence of effective control includes: selecting leaders, creating an organizational structure, training, supplying arms or other equipment, planning operations, selecting targets, and providing operational support. - When self-defense can be invoked7 A State can use SD when it’ s (1) necessary: that is to say that the threat or use of force is instant, overwhelming, leaving no choice (no alternatives) and no moment of deliberation and (2) proportionate to the threat or use of force. (This position was formulated after the Caroline Incident that took place in 1837 when the British sank a ship with insurgents in American territory and after British citizen was charged for sinking the ship.) Under CIL a State use SD: 1. When an armed attack occurred: see our discussion on the Israel/ Lebanon/ Hezbollah conflict in 2006. 2. In anticipation of an armed attack or threat to State security: consider what we did on the recent US attack on Iraq based on the alleged existence of nuclear weapons (WMD). This was justified by US as “anticipatory SD” (this is also called “preemptory self defense”.) 3. In response to an attack or threat of attack against State interests (nationals and property of the State). See our discussion on the Entabbe incident, where Israel justified the use of force in Ugandan territory against the PLO as SD. US invasions in Panama and Grenada were also justified on the basis of protecting US nationals in those countries. 4. Where the “attack” doesn’t involve the use of force and involves, instead, economic aggression that is instant and overwhelming. - Duty of state when found in breach: (a) duty to cease in the breach; (b) duty to make reparations [restore status quo ante; if impossivle, pay compensation to extinguish consequences of illegal acts - Customary norm has separate applicability even if part of a treaty - Existence of the rule on opinio juris must be confirmed by practice North Sea Contintental Shelf Case. Quick facts. Delimitation of continental shelf of Germany, Denmark and the Netherlands Germany proposed that delimitation of the continental shelf between the parties is governed by the principle that each coastal State is entitled to a just and equitable share.” Germany contents that making use of the equidistance method of Article 6, paragraph 2, of the Continental Shelf Convention, had not become customary international law and was not under the circumstances the appropriate method. The equidistance method could not be used where it would not achieve a just and equitable apportionment of the shelf. As for Denmark and the Netherlands, delimitation should be governed by the principle of Art. 6, par. 2, and that where the parties were in disagreement as to the boundary and special circumstances did not justify another boundary, then “the boundary between them is to be determined by the application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured. Provision should be norm-creating. It would be necessary that the provision should, at all events potentially, be of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law. Considered in abstracto the equidistance principle might be said to fulfill this requirement. Yet in the particular form in which it is embodied in Art. 6, and having regard to the relationship of that Article to other provisions, this must be open to some doubt. In the first place, Art. 6 is so framed as to put 2ND the obligation to make use of the equidistance method, causing it to come after a primary obligation to effect delimitation by agreement. Such a primary obligation constitutes an unusual preface to what is claimed to be a potential general rule of law. Widespread & representative participation in the convention including specially affected states. Regarded necessary before a conventional rule can be considered to have become a general rule of international law might be that, even without the passage of any considerable period of time, a very widespread and representative participation in the convention might suffice of itself, provided it included that of States whose interests were specially affected. Passage of time immaterial in the formation of a new rule of CIL. Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked;-and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved. The ILC composed of experts is created by the UN GA to codify CIL. Since their work deals with customary norms, their drafts/works are subsidiary means of discovering CIL http://www.wcl.american.edu/nimj/international_hum_law.cfm ibid 7 http://ruwanthikagunaratne.wordpress.com/2011/04/12/lesson-5-5-what-is-this-cil-right-of-sd/ 5 6
7 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” -
4 situations contemplated: (1) Purely treaty norm/custom (2) If treaty is a norm, then binding on all even non-parties to the treaty (3) Custom is binding on all (4) Treaty custom is binding on all South West Africa case. – apartheid case Court can only rule on legal rights/obligations. It had been attempted to derive a legal right or interest in the conduct of the Mandate from the simple existence, or principle, of the "sacred trust". The sacred trust, it was said was a "sacred trust of civilization" and hence all civilized nations had an interest in seeing that it was carried out. But in order that this interest might take on a specifically legal character the sacred trust itself must be or become something more than a moral or humanitarian ideal. In order to generate legal rights and obligations, it must be given juridical expression and be clothed in legal form. The moral ideal must not be confused with the legal rules intended to give it effect. The principle of the "sacred trust" had no residual juridical content which could, so far as any particular mandate is concerned, operate per se to give rise to legal rights and obligations outside the system as a whole. This is a legal challenge brought by Ethiopia & Liberia against South Africa WRT the practice of apartheid (although never mentioned here!!) The action is based on the mandate given to South Africa to promote the material & moral well-being & social progress of inhabitants of the South West African territory. The Court did not decide on the merits because it did not consider the case as involving a legal issue because there was no law prohibiting apartheid. The Applicants tried to derive a legal right or interest in the conduct of the Mandate for South West Africa from the simple principle of the “sacred trust”. The principles set forth here have been obliterated in latter cases. Fundamental equality is now considered an erga omnes obligation since it is a fundamental human right. Asylum case. Custom = constant uniform usage. The Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other Party. The Colombian Government must prove that the rule invoked by it is in accordance with a constant and uniform usage practised by the States in question, and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial State. No uniform practice and opinio juris in this case; therefore, no customary norm Principles of IL do not recognize any rule if unilateral and definitive qualification by the State granting diplomatic asylum The party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other party. Applicant must prove that the rule invoked by it is in accordance with a constant and uniform usage practiced by the States in question Nuclear Test Cases see Magallona annotation on unilateral declarations New Zealand v. France. Australia v. France. In the present case, the Applicant, while recognizing the possibility of the dispute being resolved by a unilateral declaration on the part of France, has stated that, in its view, the possibility of further atmospheric tests has been left open, even after the French statements mentioned above. The Court must, however, form its own view of the meaning and scope intended to be given to these unilateral declarations. Having regard to their intention and to the circumstances in which they were made, they must be held to constitute an engagement of the French State. France has conveyed to the world at large, including the Applicant, its intention effectively to terminate its atmospheric tests. It was bound to assume that other States might take note of these statements and rely on their being effective. It is true that France has not recognized that it is bound by any rule of international law to terminate its tests, but this does not affect the legal consequences of the statements in question, the unilateral undertaking resulting from them cannot be interpreted as having been made in implicit reliance on an arbitrary power of reconsideration. Request for an examination of the situation in accordance with par. 63. Of the court’s judgment. Do the Requests submitted to the Court by the Government of New Zealand on 21 August 1995 fall within the provisions of paragraph 63 of the Judgment of the Court of 20 December 1974 in the case concerning Nuclear Tests (New Zealand v. France)?". In the Court's view that question has two elements. The first element concerns the courses of procedure envisaged by the Court in paragraph 63 of its 1974 Judgment, when it stated that "the Applicant could request an examination of the situation in accordance with the provisions of the Statute"; the other concerns the question whether the "basis" of that Judgment has been "affected" within the meaning of paragraph 63 thereof. In its examination of that question the Court found in the first place that by inserting in paragraph 63 the above-mentioned phrase, the Court did not exclude a special procedure for access to it (unlike those mentioned in the Court's Statute, like the filing of a new application, or a request for interpretation or revision, which would have been open to the Applicant in any event). Secondly, however, the Court found that that special procedure would only be available to the Applicant if circumstances were to arise which affected the basis of the 1974 Judgment. And that, it found, was not the case, as the basis of that Judgment was France's undertaking not to conduct any further atmospheric nuclear tests and only a resumption of nuclear tests in the atmosphere would therefore have affected it. Legality of the Use by a State of Nuclear Weapons. The ICJ declared that human rights law and the protection of the International Covenant on Civil and Political Rights do not cease in times of war except for allowable derogations specified in Article 4 of the Covenant. However, the test for what is an arbitrary deprivation of a right is determined by the applicable lex specialis, namely, international humanitarian law.8 It finds that the question put to the Court by the General Assembly is indeed a legal one, since the Court is asked to rule on the compatibility of the threat or use of nuclear weapons with the relevant principles and rules of international law. To do this, the Court must identify the existing principles and rules, interpret them and apply them to the threat or use of nuclear weapons, thus offering a reply to the question posed based on law. The fact that this question also has political aspects, as, in the nature of things, is the case with so many questions which arise in international life, does not suffice to deprive it of its character as a "legal question" and to "deprive the Court of a competence expressly conferred on it by its Statute". UN General Assembly, even if non-binding, may be used as evidence of state practice and opinio juris. It has probative value In CAB, no opinio juris. The non-use of nuclear weapon was susceptible to 2 explanations: it may said that the states don’t like nuclear weapons; however, nuclear states may say that there’s no need for them to use it because itr’s an effective deterrent to armed conflicts Marten’s clause: In default of specific treaty or legal basis, “mankind continue to be under the protection of public international law, public conscience and laws of humanity.”
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8 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” Paquete Habana Case. Quick Facts: Each vessel was a fishing smack, running in and out of Havana, and regularly engaged in fishing on the coast of Cuba; sailed under the Spanish flag; was owned by a Spanish subject of Cuban birth, living in the city of Havana; was commanded by a subject of Spain, also residing in Havana; and her master and crew had no interest in the vessel, but were entitled to shares, amounting in all to two thirds, of her catch, the other third belonging to her owner. Her cargo consisted of fresh fish, caught by her crew from the sea, put on board as they were caught, and kept and sold alive. Until stopped by the blockading squadron she had no knowledge of the existence of the war or of any blockade. She had no arms or ammunition on board, and made no attempt to run the blockade after she knew of its existence, nor any resistance at the time of the capture. The Court held that the capture of the fishing vessel was unlawful and without probable cause, on the ground that, as a rule of international law, fishing vessels are exempt from capture as a prize of war. The Court ordered that the decree of the District Court be reversed, and the proceeds of the sale of the vessel, together with the proceeds of any sale of her cargo, be restored to the claimant, with damages and costs. Ancient usage ripened to rule of international law. By an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law, coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from capture as prize of war. The Court discussed the history of the custom exempting coastal fishers from capture beginning with King Henry IV’s orders to his admirals in 1403 to the relevant practices of France, Holland, Prussia, and the US. The Court also noted cases in the past in different jurisdictions which decided the issue in the same light. Also, the Court noted, legal writings and treatieses of legal experts and luminaries which provide for the exemption of fishing/commercial vessels. - The treaties which established the exemption of fishing vessels, though bilateral, became source of customary norm because, during the period they were signed, there were only very few countries. Also, the signatories being maritime nations, can be considered as specially affected states. The technique used by the court to establish the norm is through customary law and subsidiary means as evidence of the norm. - International humanitarian law is jus cogens - Exempting of fishing vessels was founded on considerations of humanity to a poor and industrious order of men, and of the mutual convenience of belligerent states which rely on the livelihood of fishing Preah Vihear Temple Case. The Court held that the Temple of Preah Vihear was situated in territory under the sovereignty of Cambodia and, in consequence, that Thailand was under an obligation to withdraw any military or police forces, or other guards or keepers, stationed by her at the Temple, or in its vicinity on Cambodian territory. It also found that Thailand was under an obligation to restore to Cambodia any sculptures, stelae, fragments of monuments, sandstone model and ancient pottery which might, since the date of the occupation of the Temple by Thailand in 1954, have been removed from the Temple or the Temple area by the Thai authorities. Application of doctrines (general principles of law) of estoppel & acquiesence. The map was never formally approved by the Mixed Commission, which had ceased to function some months before its production. While there could be no reasonable doubt that it was based on the work of the surveying officers in the Dangrek sector, the Court nevertheless concluded that, in its inception, it had no binding character. It was clear from the record, however, that the maps were communicated to the Siamese Government as purporting to represent the outcome of the work of delimitation; since there was no reaction on the part of the Siamese authorities, either then or for many years, they must be held to have acquiesced. Portugal v. India (Case Concerning Right of Passage over Indian Territory). Existence of local custom between two states. The Court says that it is difficult to see why the number of States between which a local custom may be established on the basis of long practice must necessarily be larger than two. There is no reason why long continued practice between two States accepted by them as regulating their relations should not form the basis of mutual rights and obligations between the two States. The dispute arises at the time of the creation of the obstacles. The question was put to the Court in respect of the dispute, which has arisen between India and Portugal with regard to obstacles placed by India in the way of passage. It was in support of this contention that it invoked its right of passage and asked the Court to declare the existence of that right. This being so, it is the eve of the creation of these obstacles that must be selected as the starting point which to ascertain whether or not Portugal possessed such a right. Right of passage. With regard to private persons, civil officials and goods in general, there existed during the British and post-British, periods a constant and uniform practice allowing free passage between Daman and the enclaves. This practice having continued over a period extending beyond a century and a quarter unaffected by the change of regime in respect of the intervening territory which occurred when India became independent. Practice was accepted as law by the Parties and has given rise to a right and a correlative obligation. In 1954, a right of passage over intervening Indian territory between coastal Daman and the enclaves and between the enclaves, in respect of private persons, civil officials and goods in general, to the extent necessary, as claimed by Portugal, for the exercise of its sovereignty over the enclaves, and subject to the regulation and control of India. There was a clear distinction between the practice permitting free passage of private persons, civil officials and goods in general, and the practice requiring previous authorization, as in the case of armed forces, armed police, and arms and ammunition. There was no right of passage in favour of Portugal involving a correlative obligation on India has been established in respect of armed forces, armed police, and arms and ammunition. The course of dealings established between the Portuguese and the British authorities with respect to the passage of these categories excludes the existence of any such right. The practice that was established shows that, with regard to these categories, it was well understood that passage could take place only by permission of the British authorities. This situation continued during the post-British period. No breach of international obligation when custom was subject to regulation of the other party. In view of the tension then prevailing in intervening Indian territory, the Court is unable to hold that India’s refusal of passage to the proposed delegation and its refusal of visas to Portuguese nationals of European origin and to native Indian Portuguese in the employ of the Portuguese Government was action contrary to its obligation resulting from Portugal’s right of passage. Portugal’s claim of a right of passage is subject to full recognition and exercise of Indian sovereignty over the intervening territory and without any immunity in favour of Portugal. India’s refusal of passage in those cases was, in the circumstances, covered by its power of regulation and control of the right of passage of Portugal. Corfu Channel Case. Allowance for admission of circumstantial evidence, a general principle of law. The exclusive control exercised by a State within its frontiers may make it impossible to furnish direct proof of facts which would involve its responsibility in case of a violation of international law. The State which is the victim must, in that ease, be allowed a more liberal recourse to inferences of fact and circumstantial evidence; such indirect evidence must be regarded as of especial weight when based on a series of facts, linked together and leading logically to a single conclusion.
9 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” Chorzow Factory Case. State’s espousal of claims on behalf of its nationals. International law does not prevent one State from granting to another the right to have recourse to international arbitral tribunals in order to obtain the direct award to nationals of the latter State of compensation for damage suffered by them as a result of infractions of international law by the first State. Reparation = indemnity for damages caused. It is a principle of international law that the reparation of a wrong may consist in an indemnity corresponding to the damage which the nationals of the injured State have suffered as a result of the act which is contrary to international law. In estimating the damage caused by an unlawful act, only the value of property, rights and interests which have been affected and the owner of which is the person on whose behalf compensation is claimed, or the damage done to whom is to serve as a means of gauging the reparation claimed, must be taken into account. The damage suffered is equivalent to the total value - but to that total only - of the property, rights and interests of this Company in that undertaking, without deducting liabilities. The reparation due by one State to another does not however change its character by reason of the fact that it takes the form of an indemnity for the calculation of which the damage suffered by a private person is taken as the measure. The rules of law governing the reparation are the rules of international law in force between the two States concerned, and not the law governing relations between the State which has committed a wrongful act and the individual who has suffered damage. The damage suffered by an individual is never therefore identical in kind with that which will be suffered by a State; it can only afford a convenient scale for the calculation of the reparation due to the State. Reparation, defined. The essential principle contained in the actual notion of an illegal act - a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals - is that reparation must, as far as possible, wipe-out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed. When restitution not possible, then reparation. Restitution in kind, or if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it - such are the principles which should serve to determine the amount of compensation due for an act contrary to international law. What is the general principle of law in the case? Reparation for the taking of property requires compensation. Reparation is due when there is a breach of an obligation. When an expropriation is legal, the amount of the reparation is the logistical value of the property taken at the time of the expropriation. However, when there is an unlawful taking, the amount of reparation includes the intangible assets (loss of profits) Barcelona Traction Company Case. General Rule: State of the company can seek redress. International law had to refer to those rules generally accepted by municipal legal systems. An injury to the shareholder's interests resulting from an injury to the rights of the company was insufficient to found a claim. Where it was a question of an unlawful act committed against a company representing foreign capital, the general rule of international law authorized the national State of the company alone to exercise diplomatic protection for the purpose of seeking redress. No rule of international law expressly conferred such a right on the shareholder's national State. Exceptional circumstances. The Court considered whether there might not be, in the present case, special circumstances for which the general rule might not take effect. Two situations needed to be studied: (a) the case of the company having ceased to exist, and (b) the case of the protecting State of the company lacking capacity to take action. - That a corporation has a juridical personality distinct from its shareholders is a general principle of law. - Where one of the parties involved is a municipal entity, such as a corporation, reference may be made to relevant principles of municipal law. Texaco v. Libya. Legal value of resolutions to be determined on the basis of the circumstances under which they were adopted & analysis of the principles they state. The legal value of the resolutions which are relevant to the present case can be determined on the basis of circumstances under which they were adopted (ex. voting pattern) and by analysis of the principles which they state. Resolutions in order to be binding must be accepted by the members escpecially those specially affected. With respect to the first point, the absence of any binding force of the resolutions of the General Assembly of the United Nations implies that such resolutions must be accepted by the members of the United Nations in order to be legally binding. In this respect, the Tribunal notes that only Resolution 1803 (XVII) of 14 December 1962 was supported by a majority of Member States representing all of the various groups. By contrast, the other Resolutions mentioned, and in particular those referred to in the Libyan Memorandum, were supported by a majority of States but not by any of the developed countries with market economies which carry on the largest part of international trade. In determining the binding nature of GA resolutions, the court looked into the voting patters of the participant states. It is generally recommendatory but may serve as an indicia of norm Doctrine of specially affected states BP v. Libya. Applicable law in the case. Clause 28 of the concession agreement provides that should dispute arise, the applicable law shall be the principles of the law of Libya common to the principles of international law, and only if such common principles do not exist with respect to a particular matter, will resort be made to general principles of law. In the event that international law and Libyan law conflict on the issue, general principles of law should apply to resolve the question. || The governing system of law is what the clause expressly provides, that in the absence of principles common to the Libyan and International law, general principles of law, including those that may have been applied by international tribunals, should apply Restitutio in integrum not applicable again. As to restitutio in integrum, while it has been claimed, especially in the form of physical restoration, no tribunal has ever prescribed the remedy with regard to such property or parties as in these proceedings. The concept has rather been employed at times as a principle for assessing the amount of damages due for breach of an international obligation. The impossibility of restitution and specific performance. The claim would not even be realistic; such an action, which has the effect of turning back the clock would upset the current situation too profoundly and would have unforeseeable practical consequences. Furthermore, if awarded now and the contract would still be allowed to exist indefinitely, the amount would be so great it would be absurd. A rule of reason therefore dictates a result which conforms to international law, evidenced by state practice and the law of treaties, and to governing principles of English and American contract law. The conclusion is thus: when by exercise of sovereign power a State committed a fundamental breach of a concession agreement by repudiating it through a nationalization of the enterprise and its assets in a manner which implies finality, the concessionaire is not entitled to call for specific performance by the Government of the agreement and reinstatement of his contractual rights, but his sole remedy is an action for damages.
10 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.”
III.
- Take note, this is the only decision that the restituto in integrum is impossible. Although as a matter of law, it is possible, but in this case, it is impractical to order specific performance necause cannot compel a state because there is no coercive apparatus in international law. - General principles of law: The General principles of a contract such as autonomy, mutuality, consensuality and obligatory are observed. An obligation must be performed. The law between the parties must be complied with in good faith. - Here, it was not the LEGAL IMPOSSIBILITY but IMPRACTICABILITY that restitution cannot be ordered. Saudi Arabia v. ARAMCO. Prosecutor v. Tadic. The ICTY found the armed conflict was of an international nature where a party (Bosnian Serbs) to a non-international conflict was under overall control—rather than the effective control standard established by the ICJ in Nicaragua v. United States (1986)—of an outside state (FRY). To determine whether Bosnian Serbs were “protected persons” under IHL, the Tribunal used the dual factors of “allegiance to” and “effective protection,” rather than the traditional approach of simply looking at nationality. Also, the Tribunal applied the “common purpose” doctrine to crimes against humanity, where the risk of death was a predictable consequence of the common plan of a group. Finally, the Tribunal rejected the notion that crimes against humanity required a discriminatory intent when they were committed in the context of widespread or systematic crimes. 9 Actors in International Law Magallona annotations: What is a subject of international law? A subject of international law is an entity with capacity possessing international rights and duties and of bringing international claims An international person or one having an international personality on the basis of either customary or conventional international law General or objective international personality v. particular or special international personality former: rights and oblig are conferred by general IL and such is binding erga omnes; latter: personality binds only those which give consent Reparation for injuries Case: “50 States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality and not merely personality recognized by them alone, together with capacity to vring international claims How is the State regarded as a subject of international law? Scwarzenberger: State has the capacity to be bearer of rights and duties under IL. This status is conferred by customary or general IL Possesses objective or erga omnes personality, note merely by virtue of recognition on the part of particular states Primacy of States as subjects of IL, explained Wolfgang Friedmann: basic reason: the world today is organized on the basis of co-existence of States, and that fundamental changes will take place only through State action, whether affirmative or negative. States are the repositories of legitimated authority over peoples and territories Are international organizations subjects of IL? YES, IF their legal personality is established by their Charter. Brownlie: criteria of legal personality (1) A permanent association of states, with lawful objects, equipped with organs; (2) A distinction, in terms of legal powers and purposes, between the organization and its member-states; (3) The existence of legal powers exercisable on the international plane and not solely within the national system of one or more states May individuals become subjects of IL? Examples? YES, but on the basis of agreement by states and in specific context, not in accordance with general or customary IL Art 187(c), (d), (e) of UNCLOS jurisdiction of the Sea-Bed Disputes Chamber of the ITLOS extends to disputes between parties to contracts (natural or juridical persons) relating to the exploitation of the Area Nuremberg Trials: in crimes against peace, war crimes and crimes against humanity, IL imposes duties and liabilities upon individuals as well as upon states. crimes against IL are committed by men, not by abstract entities and only by punishing individuals who commit such crimes can the provisions of IL be enforced Montevideo Convention on Rights and duties of States, Art. 1. The state as a person of international law should possess the following qualifications: a. A permanent population; b. A defined territory; c. Government; and d. Capacity to enter into relations with the other states UN Charter, 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. UN Charter, 32. Any Member of the United Nations which is not a member of the Security Council or any state which is not a Member of the United Nations, if it is a party to a dispute under consideration by the Security Council, shall be invited to participate, without vote, in the discussion relating to the dispute. The Security Council shall lay down such conditions as it deems just for the participation, of a state which is not a Member of the United Nations. UN Charter, 35(2). A state which is not a Member of the United Nations may bring to the attention of the Security Council or of the General Assembly any dispute to which it is a party if it accepts in advance, for the purposes of the dispute, the obligations of pacific settlement provided in the present Charter. UN Charter, 93(2). 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. ICJ Statute, 34.
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http://www.wcl.american.edu/nimj/international_hum_law.cfm
11 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” 1. 2.
Only states may be parties in cases before the Court. The Court, subject to and in conformity with its Rules, may request of public international organizations information relevant to cases before it, and shall receive such information presented by such organizations on their own initiative. 3. Whenever the construction of the constituent instrument of a public international organization or of an international convention adopted thereunder is in question in a case before the Court, the Registrar shall so notify the public international organization concerned and shall communicate to it copies of all the written proceedings. Barcelona Traction Case, supra. Reparations for Injuries Suffered in the Service of the UN. UN Capacity to bring claims for damage caused to a victim. The Charter does not expressly confer upon the UN the capacity to include, in its claim for reparation, damage caused to the victim or to persons entitled through him. But under international law, the UN must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties. Organization has a capacity to exercise functional protection of its agents. In order that the agent may perform his duties satisfactorily, he must feel that this protection is assured to him by the UN, and that he may count on it. To ensure the independence of the agent, and, consequently, the independent action of the UN itself, it is essential that in performing his duties he need not have to rely on any other protection than that of the UN (save of course for the more direct and immediate protection due from the State in whose territory he may be). In particular, he should not have to rely on the protection of his own State. If he had to rely on that State, his independence might well be compromised, contrary to the principle applied by Article 100 of the Charter. And lastly, it is essential that whether the agent belongs to a powerful or to a weak State; to one more affected or less affected by the complications of international life; to one in sympathy or not in sympathy with the mission of the agent-he should know that in the performance of his duties he is under the protection of the UN. This assurance is even more necessary when the agent is stateless.|| The capacity of the UN to exercise a measure of functional protection of its agents arises by necessary intendment out of the Charter. || When it claims redress for a breach of these obligations, the UN is invoking its own right, the right that the obligations due to it should be respected. Mavrommatis case. Capacity of a state to bring claims from acts contrary to international law committed by another state. A state can take up the case of its subjects when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels. So WON a dispute originates in a personal injury is irrelevant. Greece, in the eyes of Britain, is the sole claimant. || Greece has the right to ensure respect for rules of international law. It is not substituting itself with the citizen, but is actually asserting its own rights. Certain expenses of the UN. Acts of the UN. When the Organization takes action which warrants the assertion that it was appropriate for the fulfillment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organization. If it is agreed that the action in question is within the scope of the functions of the Organization but it is alleged that it has been initiated or carried out in a manner not in conformity with the division of functions among the several organs which the Charter prescribes, one moves to the internal plane, to the internal structure of the Organization. If the action was taken by the wrong organ, it was irregular as a matter of that internal structure, but this would not necessarily mean that the expense incurred was not an expense of the Organization. Both national and international law contemplate cases in which the body corporate or politic may be bound, as to third parties, by an ultra vires act of an agent. As the United Nations Charter included no procedure for determining the validity of the acts of the organs of the United Nations, each organ must, in the first place at least, determine its own jurisdiction. If the Security Council adopted a resolution purportedly for the maintenance of international peace and security and if, in accordance with such resolution, the Secretary-General incurred financial obligations, those amounts must be presumed to constitute "expenses of the Organization". A. States Magallona annotations: What are the capacities associated with the legal personality of States? Include capacity to make int’l agreements, to engage in privileges and immunities with respect to nat’l jurisdictions and capacity to bring int’l claims in cases giving rise to State responsibility or breach of int’l law Basic criteria for statehood? Montevideo Convention Art. 1. How is status of an entity as a State accepted by other States? Through recognition, which is considered as “the act by which another State acknowledges that the political entity recognized possesses the attributes of statehood.” “Territory” in international law, explained Oppenheim: that defined portion of the surface of the glove which is subjected to the sovereignty of the State Geographic base in the exercise of state sovereignty Modes of acquiring territorial sovereignty? Explain. (1) Occupation of a territory no subject to the sovereignty of another state - Not mere discovery but effective exercise of sovereignty over a territory which is terra nullius or not under the sovereignty of another state - Eastern Greenland Case: Effective occupation “continued display of authority which involves 2 elements each of which must be shown to exist: (1) intention and will to act as sovereign; (2) some actual exercise or display of such authority - Animus occupandi – must be demonstrated and evidence by some administrative or political acts in relation to the territory in question and such acts must be under titre de souverain (title of sovereignty) - Exercise of sovereignty must be peaceful, actual, continuous, and sufficient to confer valid title to sovereignty (2) Cession – transfer of territory by treaty - Mode of transfer of title to territory from one state to another by a treaty whereby the ceding state renounces its title to such territory - A bilateral mode of acquisition (3) Prescription – title is acquired by effective occupation over a period of time - Oppenheim: the acquisition of sovereignty over a territory through continuous and undisturbed exercise of sovereignty over it during such period as is necessary to create under the influence of historical development the general conviction that the present condition of things is in conformity with international law
12 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.”
1.
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- Requisites: (1) possession that must be exercised titre de souverain; (2) which must be peaceful and uninterrupted; (3) must be public; and (4) must endure for a certain length of time (4) Accession or accretion – the natural process of land formation resulting in the increase of territory Widely accepted elements of principle of sovereign equality of States? YES. UN Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States: (1) States are juridically equal (2) Each state shall enjoy the rights inherent in full sovereignty (3) Each state has the duty to respect the personality of other States (4) The territorial integrity and political independence of the State are inviolable (5) Each State has the right freely to choose and develop its political, social, economic and cultural systems; and (6) Each State has the duty to comply fully and in good faith with its int’l oblig and to live in peace with other States Territorial Sovereignty Island of Las Palmas Case (US v. Netherlands). Territorial sovereignty, defined. It appears to follow that sovereignty in relation to a portion of the surface of the globe is a legal condition necessary for the inclusion of such portion in the territory of a particular State. Sovereignty in relation to territory is called “territorial sovereignty.” || Sovereignty in the relations between States signifies independence. Independence, in regard to a portion of the globe, is the right to exercise therein, to the exclusion of any other State, the functions of a State. The development of the national organization of States during the last few centuries and, corollarily, the development of international law, have established this principle of the exclusive competence of the State in regard to its own territory in such a way as to make it the point of departure in settling most questions that concern international relations. Disputes with regards territorial sovereignty, how resolved. If a dispute arises as to the sovereignty over a portion of territory, it is customary to examine which of the claiming States possesses a title—cession, conquest, occupation, etc.—superior to that advanced by the other State. However, if the contestation is based on the fact that the other Party has actually displayed sovereignty, it cannt be sufficient to establish the title by which TS was validly acquired at a certain moment; it must also be shown that the TS has continued to exist and did exist at the moment which, for the decision of the dispute, must be considered critical. This demonstration consists in the actual display of State activities, such as belongs only to the territorial sovereign. Correlative duty with regards territorial sovereignty. Territorial Sovereignty, as has already been said, involves the exclusive right to display the activities of a State. This right has as corollary a duty: the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and in war, together with the rights which each State may claim for its nationals in foreign territory. Without manifesting its territorial sovereignty in a manner corresponding to circumstances, the State cannot fulfill this duty. Continuous and peaceful display of sovereignty. Although municipal law, with its complete judicial system, is able to recognize abstract rights of property as existing apart from any material display of them, it has nonetheless limited their effect by the principles of prescription and the protection of possession. International law, the structure of which is not based on any super-State organization, cannot be presumed to reduce a right such as TS, with which almost all international relations are bound up, to the category of an abstract right, without concrete manifestations. Intertemporal law. As regards the question which of different legal systems prevailing at successive periods is to be applied (the so-called intertemporal law), a distinction must be made between the creation of rights and the existence of rights. The same principle which subjects the act creative of a right to the law in force at the time the right arises, demands that the existence of the right, i.e. its continued manifestation, shall follow the conditions required by the evolution of law. Discovery is not enough, only an inchoate title. If, on the other hand, the view is adopted that discovery does not create a definitive title of sovereignty but only an “inchoate” title, such a title exists, it is true, without external manifestation. However, according to the view that has prevailed since the 19th century, an inchoate title of discovery must be completed within a reasonable period by effective occupation. An inchoate title could not prevail over the continuous and peaceful display of authority by another State; for such display may prevail even over a prior, definitive title put forward by another State. Principle of contiguity. Although States have in certain circumstances maintained that islands relatively close to their shores belonged to them in virtue of their geographical situation, it is impossible to show the existence of a rule of positive international law to the effect that islands situated outside territorial waters should belong to a State from the mere fact that its territory forms the terra firma (nearest continent or island of considerable size). Not only would it seem that there are no precedents sufficiently frequent and sufficiently precise in their bearing to establish such a rule, but the alleged principle itself is by its very nature so uncertain and contested that even Govts of the same State have on different occasions maintained contradictory opinions as to its soundness.
Sir Roque says: US: Discovery “Inchoate title”
Netherlands: Treaty
Huber: Discovery is not enough, international law prescribed that not only discovery but also effective occupation
Agreement of the Dutch with the natives allowed the Dutch to exercise sovereignty over the islands through: 1. 2. 3.
taxation provision of defense Spain never protested the exercise of territorial rights by Netherlands
13 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” -
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Critical Date (definition) – regardless of what parties will do (subsequent events, etc.) – the court will freeze the period of the controversy to the date when the controversy became ripe for adjudication. And all the events after such date will be ignored. Critical date in this case – treaty of paris (1898) United States could have won the case if they had shown that at the time there was no separation of church and state. By showing that there were priests, civil registrar, collection of tribunes, etc., they would have shown Spanish occupation of the islands. Principle of Continguity – presumption of sovereignty in favor of a particular state wherein islands relatively close to the shores of a state belonged to them by virtue of their geographical proximity to each other. In this case, the tribunal disregarded this because: no precedent, so uncertain and uncontested, contradictory opinions, lacking in precision, and arbitrary results The Critical Period is a juridical technique in the use or exclusion of evidence consisting of self- serving acts of parties at a stage when it was evident that a dispute existed. The court held that there was indeed cession through the treaty of Paris. However, Spain could not transfer to US more rights than she herself possessed; and Spain did not have the island based on discovery. The island was only reported to have been seen but there was no sign of possession or administration by Spain or any mention of a contract with the natives. Although under international law in the 16th century, “seeing” without occupation amounted to discovery. However, IL underwent modifications. Based on the INTERTEMPORAL LAW, the act which creates a right is subjected to the law in force at the time the right arises. But the existence if a right must follow the conditions required by the evolution of law – the 19th century IL which requires effective occupation to constitute territorial sovereignty. Las Palmas Arbitration Revisited. See Karichi notes Eastern Greenland Case. Constructive Possession. A claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involves two elements each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority. || Another circumstance which must be taken into account by any tribunal which has to adjudicate upon a claim to sovereignty over a particular territory is the extent to which the sovereignty is also claimed by some other Power. In most of the cases involving claims to territorial sovereignty which have come before an international tribunal, there have been two competing claims to the sovereignty, and the tribunal has had to decide which of the two is the stronger. 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 over Greenland. Indeed, up till 1931, no Power disputed the Danish claim to sovereignty. Loss of sovereignty by conquest. Conquest only operates as a cause of loss of sovereignty when there is war between two States and by reason of the defeat of one of them sovereignty over territory passes from the loser to the victorious State. The principle does not apply in a case where a settlement has been established in a distant country and its inhabitants are massacred by the aboriginal population. Nor is the fact of "conquest" established. It is known now that the settlements must have disappeared at an early date, but at the time there seems to have been a belief that despite the loss of contact and the loss of knowledge of the whereabouts of the settlements one or both of them would again be discovered and found to contain the descendants of the early settlers. Loss of sovereignty by voluntary abandonment. There is nothing to show any definite renunciation on the part of the Kings of Norway or Denmark. Also, despite having no intercourse with Greenland, the tradition of the King’s rights lived on, and in the early part of the 17th Century, a revival of interest in Greenland on the part of both the King and of his people took place. That period was an era of adventure and exploration. The example set by the navigators of foreign countries was inspiring, and a desire arose in Norway and Denmark to recover the territory which had been subject to the sovereignty of the King's ancestors in the past. Norway: Denmark only possessed West Coast of Greenland. Court: Naaah!. The burden of proof lies on Norway to prove that Denmark used the word “Greenland” only to mean the colonies on the West Coast. The geographical meaning of the word "Greenland", i.e. the name which is habitually used in the maps to denominate the whole island, must be regarded as the ordinary meaning of the word. In the opinion of the Court, Norway has not succeeded in establishing her contention. It is not sufficient for her to show that in many of these legislative and administrative acts action was only to be taken in the colonies. The fact that most of these acts were concerned with what happened in the colonies and that the colonies were all situated on the West coast is not by itself sufficient ground for holding that the authority in virtue of which the act was taken – whether legislative or administrative – was also restricted to the colonized area. Unless it was so restricted, it affords no ground for interpreting the word “Greenland” in this restricted sense. Estoppel and acquiescence by Norway. the Minister of Foreign Affairs of Norway and Sweden (Sweden had control over Norway during this time), wrote to the British Minister in Stockholm that the King of Sweden and Norway agreed to renounce in favor of the Kingdom of Denmark their claims over Iceland, Greenland, and the Faroe Islands. The letter was written because Norway-Sweden was asking for the intervention of the British Prince Regent in settling its differences with Denmark, especially with its financial obligations under the Treaty of Kiel. || A second series of undertakings by Norway, recognizing Danish sovereignty over Greenland, is afforded by various bilateral agreements concluded by Norway with Denmark, and by various multilateral agreements to which both Denmark and Norway were contracting Parties, in which Greenland has been described as a Danish colony or as forming part of Denmark or in which Denmark has been allowed to exclude Greenland from the operation of the agreement. || Also, Denmark maintained that the promise by in 1919 by M. Ihlen, the Norwegian Minister for Foreign affairs, speaking on behalf of his Government debarred Norway from proceeding to any occupation of territory in Greenland even if she had not by other acts recognized an existing Danish sovereignty there. Although both sides were able to present evidence establishing their sovereignty over the area, such as expeditions, granting of concessions, legislation, etc., what won it for Denmark was estoppel or acquiescence because of the Ihlen Declaration. Although acquiescence is not a means of acquiring title, it is a proof of a better claim. There is equal preponderance of evidence presented by both states as to their occupation of a certain portion of Greenland. However, Norway’s possession was not in the concept of a title, i.e. there was no animus possidendi, which is one of the 2 requirements of sovereignty. It did not have the intent to possess in behalf of a sovereign. Remember that it is not only physical possession that is important. There must also be intent. If the area is thinly populated, little actual exercise of sovereign rights is sufficient SS Lotus Case. [already overturned by UNCLOS]
14 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” Territioriality of criminal law is not absolute in international law. Though it is true that in all systems of law the principle of the territorial character of criminal law is fundamental, it is equally true that all or nearly all these systems of law extend their action to offences committed outside the territory of the State which adopts them, and they do so in ways which vary from State to State. The territoriality of criminal law is not an absolute principle of international law and does not coincide with territorial sovereignty. Vessels are covered under the jurisdiction of the state whose flag they fly. Vessels on the high seas are subject to no authority except that of the State whose flag they fly. In virtue of the principle of the freedom of the seas (absence of any territorial sovereignty upon the high seas), no State may exercise any kind of jurisdiction over foreign vessels upon them. Thus, if a war vessel, happening to be at the spot where a collision occurs between a vessel flying its flag and a foreign vessel were to send on board the latter an officer to make investigations or to take evidence, such an act would undoubtedly be contrary to international law. Thematic lighthouses: Minquiers & Ecrehos Case. Proof of territorial sovereignty: exercise of jurisdiction, local administration and legislation. Both UK and France seek to establish sovereignty over the Minquiers Group and Ecrehos Group of islets and rocks by citing ancient title and treaties. UK won because of “ordinary local administration,” specifically referring to: [1] Jersey courts exercising criminal jurisdiction for nearly 100 years; [2] Jersey law requires the holding of inquests on corpses found in the area; [3] houses built in the area were assessed for the levying of taxes; [4] licensing of fishing boats; [5] real estate contracts relating to property in the area were registered in the public registry of deeds; [7] Jersey customs authorities established a custom house for the purpose of a census. Case Concerning Pulau Ligatan and Pulau Sipadan. Indonesia and Malaysia lay claim over the islands of Ligitan and Sipadan. Both countries cite treaties, colonial effectivites, and title by succession as proof of ownership. || Effective occupation. ICJ rule in favor of Malaysia because effective occupation was proved by its “effective acts of administration,” specifically: [1] its regulation on gathering of turtle eggs; [2] its building of lighthouses; [3] its declaration of a bird sanctuary. Eritrea-Yemen Arbitration. The dispute relates to ownership over the red sea islands between Eritrea which claims title by succession, and Yemen which claims title by reversion and historic title. No title by succession. Italy, Eritrea’s predecessor, did not obtain title to the territory under the Treaty of Lausanne because it was provided that the allied powers have yet to agree on who can claim sovereignty over the territory. Therefore, Eritrea did not gain title by succession. No historic title. Medieval Yemen had no concept of territorial sovereignty. Therefore, Yemen cannot claim title by automatic reversion. Primary question in territorial disputes. Splitting of award. The court will determine who has a better claim. The group of islands need not be awarded to one claimant. Effective occupation. Effective occupation, such as petroleum concessions, is prima facie evidence of title. Portico doctrine. This is a method by which off-shore islands can be attributed to a State’s sovereignty. Islands near coastal states must pertain to such states. The Mohabbakahs islands, located within the territorial sea of Eritrea, properly belongs to it. Map cases: Eritrea-Yemen, supra. Preah Vihear, supra. Burkina Faso v. Mali. Uti Possidetis Juris principle. This principle proves administrative boundaries or colonial heritage during the colonial period, and imposes the obligation to respect pre-existing international frontiers in the event of State succession. It aims to secure respect for the territorial boundaries at the moment when independence is achieved. The rationale for this principle is that the maintenance of the territorial status quo is seen as the wisest course in order to preserve what has been achieved by people who have struggled for their independence and to avoid a disruption. || Effectivies; colonial effectivites; defined. State succession is a mode of acquiring title which seeks to prove administrative boundaries. This concept deals with acts of administration. Libya v. Chad. A boundary established by a treaty achieves permanence which the treaty itself does not necessarily enjoy A treaty between the colonial powers France and Libya was entered into delimiting its frontiers. Later, Chad and Italy became independent of France and Libya, respectively. The dispute relates to the expiration of the treaty with Chad citing the uti possidetis juris principle and Italy arguing that there is no longer a boundary since the treaty has expired. Theory of auto-imitatation. Notwithstanding the fact that the treaty provides for a mere 20-year effectivity, the theory of auto-imitation provide that boundaries have a life of their own separate from the treaty itself because a boundary established by treaty achieves permanence. This is in line with the need to prevent conflict and instability. Anglo-Norwegian Fisheries Case. Circumstances affecting delimitation. UK argues that the baseline should be the low-water mark on permanently dry land and that the trace parallele method should be used. However, ICJ allowed Norway’s method of delimiting the fisheries zone through the straight baseline method reckoned from the outer line of the skjaergaard because [1] this is in consonance with “geographic realities,” “diversity of facts” and “special circumstances;” [2] this gives a simpler form to the belt; [3] general toleration of the international community; [4] the 10-mile-maximium rule on the maximum length of the baseline does not apply because it has always been opposed by Norway. Skjaergaard; defined. A skjaergaard is made up of around 120,000 insular formations, lying along the coast of the mainland. The clearest dividing line between land and sea is the skjaergaard, not the coast of the mainland. Straight baselines method; defined. This method consists in selecting appropriate points on the low water mark and drawing straight lines between them. Method applies to well-defined bays and cases of minor curvature of the coastline. The goal is to provide a simpler form to the belt of the territorial waters. Trace parallele method; defined. This method consists in drawing the outer limit of the belt of territorial waters by following the coast in all its sinuosities. Method applies to ordinary coasts. Criteria provide courts with basis for their decisions. The following are fundamental considerations inherent in the nature of the territorial sea. First, the drawing of baselines must not depart to any appreciable extent from the general direction of the coast. Ratio for this is because it is the land which confers upon the coastal state the right to the waters off its coast. Second, the sea areas lying within the baseline must be closely linked to the land domain to be subject to the regime of internal waters. Third, the economic interest peculiar to the region, as evidenced by long usage, should be considered. Western Sahara Case.
15 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.”
2.
Area was not terra nullius at the time of Spain’s colonialization. Terra nullius means a territory belonging to no one, over which sovereignty can be acquired by occupation. This is because: [1] state practice indicates that a territory inhabited by tribes having a sociopolitical organization is not terrae nullius; [2] Spain never treated its case as occupation, but merely “protection.” There are no legal ties so there can be no reversion to either Morocco or Mauritiana. Both Morocco and Mauritiana claim to have legal ties with Western Sahara prior to its colonization by Spain through. Morocco claims to have “immemorial possession,” and public display of sovereignty, uninterrupted and uncontested for centuries, as evidenced by the Arab conquest in 7th Century AD. The court rejected this contention because there was no display of control, but merely of allegiance of some of the nomadic people. || Mauritiana bases its claim on the Mauritian entity, which denotes the cultural, geographical and social entity existing in the tribes of Western Sahara. The court rejected this contention because there was no common institution recognized by the tribes. In addition, the ICJ took note of the following facts: [1] the practice of taxation was done by the people of Western Sahara for themselves; [2] the nomadic nature of the tribes is contrary to the concept of sovereignty; [3] there was no evidence the people recognized any further allegiance outside their local leaders. El Salvador v. Honduras. El Salvador and Honduras became independent states after the disintegration of the Spanish empire in Central America. Even before their independence, Spanish Central America had overlapping administrative boundaries. Parties seek to have the boundaries determined. Uti Possidetis Juris principle. The principle will be used where the colonial boundaries are not clear as is in this case where lack of sophisticated means of surveying led to cases of overlapping administrative boundaries. Effective occupation. The ICJ did not look into effective occupation because the territories were subject to only 1 colonial power. Colonial effectivites. In order to determine the colonial boundaries, the ICJ looked into the colonial effectivites or contemporaneous acts, which refer to the belief of one that he belongs to one or the other unit. Clipperton Island Arbitration (France v. Mexico). Clipperton island is terra nullius considering the territory was uninhabited and without administration. Sovereignty over the island was declared by France from the moment its navy members landed on the island in 1858 and was published in a Honolulu journal, The Polynesian in the same year. Physical occupation; not necessary. France successfully acquired title by occupation. Physical occupation is not required where: [1] territory is terra nullius; [2] at the time the occupying state makes its appearance there; and [3] taking of possession and intent to possess is shown by a public declaration of sovereignty. UNCLOS Roque, Spratly’s Article. When oil was discovered, many countries lay claim over it. China bases its claim on discovery, effective occupation, and recognition. The Philippines bases its claim on effective occupation after Japan renounced its title over the islands. The article discusses the modes of acquiring territory. Modes of Acquiring Territory: Effective occupation. Effective occupation is the official exercise of exclusive authority by an occupying state or any authorized person, with or without physical occupation depending on whether or not the island is uninhabited (Clipperton Island Arbitration). Note that territory must be terra nullius. Acquisitive prescription. Acquisition of territory results where there is long and continued possession. Other Principles Insufficient for the Acquisition of Territory: Estoppel. Estoppel is a general principle of international law which precludes another claimant from acquiring title. Discovery; inchoate title. Discovery alone gives the claimant merely an inchoate title. This must concur with effective occupation for there to be acquisition of property (Island of Palmas Case). Note that territory must be terra nullius. Possession. Possession is a strong evidence of title when coupled with effective occupation, but is not enough on its own for the acquisition of title. Note that possession requires animus possedendi. Constructive possession. There is constructive possession of the whole island or archipelago where a coast of the island, or an island/islet/rock of the archipelago have been actually occupied by another state. There can be no constructive possession where the occupied island is so far distant from the others in the group. Contiguity. Contiguity merely raises a presumption of occupation. Conquest. Conquest is a means by which territory can be acquired by an enemy through the complete and final subjugation of the territory, coupled with the enemy’s declaration of its intention to conquer. Conquest was once an accepted norm, but is now illegal. International Convention on the Law of the Sea. Agreement Relating to the Implementation of Part XI of the UNCLOS. Agreement for the Implementation of the Provisions of the UNCLOS Relating to the conservation & management of straddling fish stocks & highly migratory Fish Stocks. Magallona annotations: How is the International Law of the Sea generally defined? It is a body of treaty rules and customary norms governing the uses of the sea, the exploitation of its resources, and the exercise of jurisdiction over maritime regimes. It is the branch of public international law which regulates the relations of states with respect to the uses of the oceans Baselines, defined A line from which the breadth of the territorial sea and other maritime zones (like the contiguous zone and the EEZ) is measured. Object and purpose in making the delimitation is to determine the maritime boundary of the coastal state Either normal or straight Normal baseline, how determined UNCLOS, 5. Except where otherwise provided in this Convention, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State. Low-water line: lowest ebb tide or lowest astronomic tide Anglo-Norwegian Fisheries Case: normal baseline as “the low-water mark as opposed to the high-water mark, or the mean between the two tides, which has generally been adopted in the practice of States.” Where the coastal state’s internal waters border its territorial sea, the baseline is the demarcation line between the internal waters and the territorial sea, from which the breadth of the maritime zones is measured
16 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” Straight baselines, how applied? Anglo-Norwegian Fisheries Case: Art. 7 of UNCLOS provides that “where the coastline is deeply indented and cut into, or if there id a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining the appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured.” Straight baselines, limitations [UNCLOS, 7] (1) The drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast (2) The sea areas lying within the straight baselines must be sufficiently close to the land domain to be subject to the regime of internal waters (3) straight baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them and unless the baselines to and from low-tide elevations have received general international recognition; and (4) the straight baseline method may not be applied by a state in such manner as to cut off the territorial sea of another state from the high seas or an EEZ Anglo-Norwegian Fisheries Case: drawing of straight baselines may take into account “certain economic interests peculiar to the region, the reality and importance of which are clearly evidence by long usage. UNCLOS, 7(5). Is there a limit to the length of a single straight baseline? In ANF Case, ICJ said that IL does not limit the allowable length of a straight baseline; UNCLOS provides no limit How is baseline drawn on rivers? In case the river flows into the sea, it is drawn as a straight line across the river’s mouth between points on the low-water line of its banks What about in the case of bays? Bay – a well-marked indentation in the coast the area of which at least is as large as, or larger than, that of a semi-cicle whose diameter is a line drawn across its mark. Semi-circle test “juridical bay” The closing line across the mouth of the bay, i.e. between the natural entrance points, may not exceed 24 nautical miles enclosed water considered internal Where closing line exceeds 24nm, a straight baseline shall be drawn within the bay such that it encloses the maximum area of water When a bay has more than one mouth because of islands, semi-circle shall be drawn on a line as long as the sum total of the lengths of the lines across the different mouths effect: the islands are discounted in determining the width of the bay opening; islands ignored and regarded as water in determining its area in order to produce a ratio more favorable to the coastal state May a low-tide elevation be used as a baseline for measuring the breadth of the territorial sea? UNCLOS, 13(1). A low-tide elevation is a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide. Where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, the low-water line on that elevation may be used as the baseline for measuring the breadth of the territorial sea. May be used if it is situated wholly or partly at a distance not exceeding 12nm from the mainland or an island If the low-tide elevation is situated farther than that distance, it has no territorial sea of its own a. Internal Waters Magallona annotations: Internal waters, defined They are waters of lakes, rivers, and bays landward of the baseline of the territorial sea Also, waters on the landward side of the baseline of the territorial sea But, if archipelagic state waters landward other than rivers, bays and lakes are ARCHIPELAGIC WATERS Coastal states sovereignty over internal waters as if part of its land territory No right of innocent passage through internal waters May there be areas of internal waters subject to right of innocent passage? YES Coastal state may extend its internal waters by applying the straight baseline method in such a way as to enclose as its internal wayers areas previously part of the territorial sea In which case, right of innocent passage continues to exist in such ‘extended’ IW Likewise, rt. Of IP in areas of straits used for int’l navigation which a coastal state has converted into internal waters by applying the straight baselines method Nicaragua v. US. Internal waters. Coastal State’s Sovereignty extends to internal waters and airspace. Coastal State’s Laws apply in Internal Waters. The laying of mines within the ports of another State is governed by the law relating to internal waters, which are subject to the sovereignty of the coastal State. The position is similar as regards mines placed in the territorial sea. It is therefore the sovereignty of the coastal State which is affected in such cases. It is also by virtue of its sovereignty that the coastal State may regulate access to its ports. On the other hand, it is true that in order to enjoy access to ports, foreign vessels possess a customary right of innocent passage in territorial waters for the purposes of entering or leaving internal waters. Freedom of Navigation hampered. Such is guaranteed, first in the exclusive economic zones and beyond territorial waters and on the high seas, it follows that any State which enjoys a right of access to ports for its ships also enjoys all the freedom necessary for maritime navigation. If this right of access to the port is hindered by the laying of mines by another State, what is infringed is the freedom of communications and of maritime commerce. At all events, it is certain that interference with navigation in these areas prejudices both the sovereignty of the coastal State over its internal waters, and the right of free access enjoyed by foreign ships Saudi v. ARAMCO. Arbitrator said that according to international law ports of every state must be open to foreign vessels and can only be closed when vital interests of the state so requires. b. Territorial sea This is the belt of sea outwards from the baseline and up to 12 nautical miles beyond. Regarding its width, the original rule was the “cannon shot” rule, where the width was measured in terms of the range of shore-based artillery. This later became the 3-
17 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” mile rule. Under the UNCLOS, the rule is now 12 miles. Take note, however, that where the application of the 12-mile rule to neighboring littoral states would result in overlapping, the dividing line is instead a median line equidistant from the opposite baselines. But this equidistant rule does not apply where historic title or other special circumstances require a different measurement. Magallona annotations: Coastal state has sovereignty over the territorial sea, extending to the air space over the territorial sea and to its seabed and subsoil Sovereignty is the same as that which is exercised over the land territory, except that it is subject to the right of innocent passage on the part of the ships of all States Breadth of the territorial sea States have the right to determine the breadth of their territorial sea up to a limit not exceeding 12 nm from baselines established in accordance with the UNCLOS “Passage” in right of innocent passage It means navigation through the territorial sea for the purpose of traversing that sea without entering internal waters, or of proceeding to or from internal waters Required: passage be continuous and expeditious, although a ship is allowed to stop and anchor if this is incidental to ordinary navigation, or is necessary on account of force majeure, or is required in order to assist persons, ships, or aircraft in danger or distress. What conditions characterize a passage as innocent? Passage is innocent if it inot prejudicial to the peace, good order or security of the coastal state Not innocent if foreign ship, without coastal state’s consent, engage in any of the ff. while passing through territorial sea: (1) Any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal state, or in any other manner in violation of the principles of international law embodied in the UN Charter; (2) Any exercise or practice with weapons of any kind; (3) Any act aimed at collecting information to the prejudice of the defense or security of the coastal state; (4) Any act of propaganda aimed at affecting the defense or security of the coastal state; (5) The launching, landing or taking on board of any aircraft; (6) The launching, landing, or taking on board of any military devise (7) The loading or unloading of any commodity, currency, or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal state; (8) Any act of willful and serious pollution contrary to the UNCLOS (9) Any fishing activities (10) The carrying out of research or survey activities (11) Any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal state; or (12) Any other activity not having a direct bearing on passage Rights of the coastal state relating to innocent passage through the TS (1) Take the necessary steps in the territorial sea to prevent passage not innocent (2) Take measures to prevent any breach of the conditions for the admission of ships to internal waters, with respect to ships proceeding to internal waters or ports or to ships calling at a port facility outside internal waters (3) Suspend temporarily, without discrimination, in specified areas of the TS the innocent passage of ships if suspension is essential for the protection of its security, including weapons exercises, provided that suspension may take effect only after due publication May coastal state adopt laws and regulations relating to innocent passage through the TS? YES; UNCLOS, 21(1). (a) (b) (c) (d) (e) (f) (g) (h)
the safety of navigation and the regulation of maritime traffic; the protection of navigational aids and facilities and other facilities or installations; the protection of cables and pipelines; the conservation of the living resources of the sea; the prevention of infringement of the fisheries laws and regulations of the coastal State; the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof; marine scientific research and hydrographic surveys; the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State.
Doesn’t apply to design, construction, manning o equipment of foreign ships unless in implementation of generally accepted int’l rules and standards Due publicity is required
For purposes of innocent passage, may a coastal state establish sea lanes and traffic separation schemes? YES. UNCLOS, 22. Sea lanes and traffic separation schemes in the territorial sea 1. The coastal State may, where necessary having regard to the safety of navigation, require foreign ships exercising the right of innocent passage through its territorial sea to use such sea lanes and traffic separation schemes as it may designate or prescribe for the regulation of the passage of ships. 2. In particular, tankers, nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances or materials may be required to confine their passage to such sea lanes.
18 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” 3.
In the designation of sea lanes and the prescription of traffic separation schemes under this article, the coastal State shall take into account:
(a) (b) (c) (d) 4.
the recommendations of the competent international organization; any channels customarily used for international navigation; the special characteristics of particular ships and channels; and the density of traffic.
The coastal State shall clearly indicate such sea lanes and traffic separation schemes on charts to which due publicity shall be given.
Duties of coastal state relating to innocent passage through the TS (UNCLOS, 24) Shall not hamper the innocent passage except in accordance with UNCLOS In particular, it shall not: (1) Impose requirement on foreign ships, which have the effect of denying or impairing the right of innocent passage; or (2) Discriminate against the ships of any state, or against ships carrying cargoes to and from or on behalf of the state To give appropriate publicity to any danger to navigation in its TS, within its knowledge Coastal state may NOT levy charges for passage through TS by reason only of such passage. Charges may be levied if in payment of specific services rendered to the ship General rule: coastal state may not exercise criminal jurisdiction on board a foreign ship passing through TS to arrest a person or to conduct an investigation in connection with any crime committed on board the ship during its passage Coastal state may not also take any steps on board a foreign ship passing through the TS, if the ship proceeding from the foreign port is only passing through that sea without entering internal waters. Exceptions: UNCLOS, 27(1), (2) Coastal state may not exercise civil jurisdiction over foreign ships passing through the territorial sea with respect to a person on board. UNCLOS, 28. Submarines allowed innocent passage through TS, if navigating through the surface and showing their flag (UNCLOS, 20) Nuclear-powered ships or those carrying nuclear or other inherently dangerous or noxious substances? YES; required: documents and observe precautionary measures established by int’l agreements Warships also allowed innocent passage though TS UNCLOS, 29-32 UNCLOS, 27. Criminal jurisdiction on board a foreign ship 1. The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the following cases: (a) if the consequences of the crime extend to the coastal State; (b) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; (c) if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or (d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.
2. 3. 4. 5.
The above provisions do not affect the right of the coastal State to take any steps authorized by its laws for the purpose of an arrest or investigation on board a foreign ship passing through the territorial sea after leaving internal waters. In the cases provided for in paragraphs 1 and 2, the coastal State shall, if the master so requests, notify a diplomatic agent or consular officer of the flag State before taking any steps, and shall facilitate contact between such agent or officer and the ship's crew. In cases of emergency this notification may be communicated while the measures are being taken. In considering whether or in what manner an arrest should be made, the local authorities shall have due regard to the interests of navigation. Except as provided in Part XII or with respect to violations of laws and regulations adopted in accordance with Part V, the coastal State may not take any steps on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed before the ship entered the territorial sea, if the ship, proceeding from a foreign port, is only passing through the territorial sea without entering internal waters.
UNCLOS, 28. Civil jurisdiction in relation to foreign ships 1. The coastal State should not stop or divert a foreign ship passing through the territorial sea for the purpose of exercising civil jurisdiction in relation to a person on board the ship. 2. The coastal State may not levy execution against or arrest the ship for the purpose of any civil proceedings, save only in respect of obligations or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage through the waters of the coastal State. 3. Paragraph 2 is without prejudice to the right of the coastal State, in accordance with its laws, to levy execution against or to arrest, for the purpose of any civil proceedings, a foreign ship lying in the territorial sea, or passing through the territorial sea after leaving internal waters. UNCLOS, 29. Definition of warships. For the purposes of this Convention, "warship" means a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.
19 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” UNCLOS, 30. Non-compliance by warships with the laws and regulations of the coastal State.If any warship does not comply with the laws and regulations of the coastal State concerning passage through the territorial sea and disregards any request for compliance therewith which is made to it, the coastal State may require it to leave the territorial sea immediately. UNCLOS, 31. Responsibility of the flag State for damage caused by a warship or other government ship operated for non-commercial purposes. The flag State shall bear international responsibility for any loss or damage to the coastal State resulting from the noncompliance by a warship or other government ship operated for non-commercial purposes with the laws and regulations of the coastal State concerning passage through the territorial sea or with the provisions of this Convention or other rules of international law. UNCLOS, 32. Immunities of warships and other government ships operated for non-commercial purposes. With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this Convention affects the immunities of warships and other government ships operated for non-commercial purposes. The Gulf of Sidra Incidents. Anglo-Norwegian Fisheries Case. Use the low-water mark. For the purpose of measuring the breadth of the territorial sea, it is the low-water mark as opposed to the high-water mark, or the mean between the two tides, which has generally been adopted in the practice of States. This criterion is the most favourable to the coastal State and clearly shows the character of territorial waters as appurtenant to the land territory. Straight baselines method. This method consists of selecting appropriate points on the low-water mark and drawing straight lines between them. This has been validly done, not only in the case of well-defined bays, but also in cases of minor curvatures of the coast line where it was solely a question of giving a simpler form to the belt of territorial waters. Norway’s baselines were valid. But the Norwegian delimitation is still subject to certain principles which make it possible to judge the delimitation’s validity under international law. The delimitation of sea areas has always an international aspect; it cannot be dependent merely upon the will of the coastal State as expressed in its municipal law. Although it is true that the act of delimitation is necessarily a unilateral act, because only the coastal State is competent to undertake it, the validity of the delimitation with regard to other States depends upon international law. Certain basic considerations inherent in the nature of the territorial sea bring to light certain criteria which, though not entirely precise, can provide courts with an adequate basis for their decisions, which can be adapted to the diverse facts in question. El Salvador v. Honduras. Islands of the Gulf of Fonseca. None of the islands had been terra nullius in 1821, the date of independence. Thus, sovereignty over the islands had been achieved according to the uti possidetis juris principle (colonial boundaries are continually adopted). However, the application of this principle suffered from the lack of documents that might have testified clearly the appertainance of the islands to one administrative district or the other. Thus the Court was forced to concentrate more on the behaviour of the parties with regard to the islands after 1821. On this basis the Court found that El Tigre appertained to Honduras and Meanguera and Meanguerita to El Salvador. Gulf of Fonseca = Juridical Bay under UNCLOS and Historical Bay under Customary International Law. Considering the dimensions and proportions, the Gulf would today be regarded as a juridical bay in accordance with UNCLOS. However, the Gulf was not a single State bay but constituted a so called historical bay, which is neither defined in the 1958 Convention nor in the Convention of 1982. From this fact the Court concluded that its decision had to be taken on the basis of customary international law. Court looked at the Central American Court of Justice of 1917 conclusion that the Gulf of Fonseca effectively constituted a "closed sea" belonging to all three coastal States communally, with the exception of a three mile zone established unilaterally by each coastal State. Thus, the Central American Court viewed the Gulf of Fonseca as a condominium resulting from the succession of the three States from Spain in 1821. Until then, the Gulf had been a single State bay belonging to Spain alone. According to the Court, the decision of the Central American Court underlined the fact that at the time of independence, no boundaries were delimited in the Gulf and thus the waters had remained undivided. Court held that Gulf of Fonseca was a case of "historic waters", whereby the three coastal States had succeeded to communal sovereignty. In contrast to the frontier delimited on land, the waters of the Gulf had never been divided or otherwise delimited after the independence of the three coastal States. Thus, the communal succession for the three States was a logical consequence of the uti possidetis juris principle with regard to the sovereignty of the Gulf US v. California. Case involves the interpretation of some terms used in the Submerged Lands Act. State of California and the Federal government are trying to determine who owns and has jurisdiction over the subsoil, seabed of the continental shelf and the resources located therein along the California. To resolve such, the Court discusses the definition of relevant maritime terms. || Jurisdiction. Federal government owns and has exclusive jurisdiction over such beyond 3 miles seaward from the coastline. California owns and has exclusive jurisdiction over such within 3 miles or the tidelands along its coast (defined as the shore of the mainland and of islands, between the line of mean high water and the line of mean lower low water). || Definitions. Court adopts the definitions in the International Convention on the Territorial Sea and the Contiguous Zone US v. Louisiana. The issue is about the correct definition of “Inland Waters”. U.S. argues that the definitions of inland waters contained in the International Convention on the Territorial Sea (ICTS) should prevail over Louisiana’s contention that it should be the “Inland Water Line” (IWL) fixed by the Commandant of the Coast Guard in 1895. Sustained the California case. Court sustains the adoption of the ICTS definitions in the U.S. v. California case. The ICTS definition prevails and it is as follows - "the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters." Baseline. The line marking the seaward limit of inland waters, is also to be drawn in accordance with the definitions of the Convention on the Territorial Sea and the Contiguous Zone.” Historic title. Whether particular waters are inland has depended on historical as well as geographical factors but as we said in United States v. California, it is generally agreed that historic title can be claimed only when the "coastal nation has traditionally asserted and maintained dominion with the acquiescence of foreign nations." 3 Zones of Navigable Seas under General Principles of IL
20 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” Inland, or internal waters
Marginal, or territorial, sea
High seas
Nearest to the nation's shores are its. These are subject to the complete sovereignty of the nation, as much as if they were a part of its land territory, and the coastal nation has the privilege even to exclude foreign vessels altogether.
Beyond the inland waters, and measured from their seaward edge, is a belt known as the. Within it the coastal nation may exercise extensive control but cannot deny the right of innocent passage to foreign nations
Outside the territorial sea, which are international waters not subject to the dominion of any single nation.
c.
Stable Coastline Policy – not convincing enough. The policy in favor of a certain and stable coastline, strong as it is, would necessarily outweigh countervailing policy considerations under the Submerged Lands Act. We recognized in California the desirability of "a single coastline for both the administration of the Submerged Lands Act and the conduct of our future international relations." Straits - Straits used for international navigation (to navigate between one part of the high seas or an EEZ and another part of the high seas or an EEZ) are under the purview of UNCLOS, but the legal regime in such straits in which passage is regulated in whole or in part by long-standing international conventions in force specifically relating to such straits is not affected. Through these waters, ships and aircraft of all countries are allowed “transit passage,” as long as they proceeded without delay and without threatening the bordering states. Magallona annotation: What is transit passage Right to exercise freedom of navigation and overflight solely for the purpose of continuous and expeditious transit through the straits used for int’l navigation, i.e. between 2 areas of the high seas or between 2 EEZs. All ships and aircraft enjoy int’l navigation Duties of states bordering straits used for international navigation shall not impede or hamper transit passage shall give appropriate publicity to any danger to navigation or overflight within or over the strait of which they have knowledge NO suspension of transit passage [UNCLOS, 44] Principal duties of ships and aircraft in the exercise of the right of transit passage: They shall: (1) Proceed without delay through or over the strait (2) Refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of states bordering the strait, or in any other manner in violation of the principles of IL embodied in the UN Charter; and (3) Refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress. Foreign ships NOT allowed to conduct any research or survey without prior authorization of the states bordering the straits – also applies to marine scientific research and hydographic survey ships Designation of sea lanes and prescription of traffic separation schemes ALLOWED, where necessary to promote safe passage of ships But, sea lanes and traffic separation schemes must conform to generally accepted int’l regulations States may also substitute other sea lanes and traffic separation schemes for those previously designated or prescribed Ships in transit passage must respect appleicable sea lanes and traffic sep. schemes thus established Matters relating to transit passage that may be regulated by states: UNCLOS 42.1-. Laws and regulations of States bordering straits relating to transit passage 1. Subject to the provisions of this section, States bordering straits may adopt laws and regulations relating to transit passage through straits, in respect of all or any of the following: (a) the safety of navigation and the regulation of maritime traffic, as provided in article 41; (b) the prevention, reduction and control of pollution, by giving effect to applicable international regulations regarding the discharge of oil, oily wastes and other noxious substances in the strait; (c) with respect to fishing vessels, the prevention of fishing, including the stowage of fishing gear; (d) the loading or unloading of any commodity, currency or person in contravention of the customs, fiscal, immigration or sanitary laws and regulations of States bordering straits. 2. Such laws and regulations shall not discriminate in form or in fact among foreign ships or in their application have the practical effect of denying, hampering or impairing the right of transit passage as defined in this section. 3. States bordering straits shall give due publicity to all such laws and regulations. Foreign ships are under duty to comply with such laws and regulations UNCLOS, 42.4-5 4. Foreign ships exercising the right of transit passage shall comply with such laws and regulations. 5. The flag State of a ship or the State of registry of an aircraft entitled to sovereign immunity which acts in a manner contrary to such laws and regulations or other provisions of this Part shall bear international responsibility for any loss or damage which results to States bordering straits. Transit passage vs. innocent passage Transit passage Innocent passage Includes right to overflight Pertains only to navigation of ships No requirement specially applicable to submarines; assumed Requires submarines and other underwater vehicles to navigate that “all ships have the freedom of navigation…for the purpose on the surface and to show their flag
21 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” of continuous and expeditious transit of the strait” in their normal mode, which in cases of submarines means underwater Cannot be suspended Designation of sea lanes/prescription of TSS is subject to adoption by competent int’l org upon proposal by states bordering the straits
May be suspended under certain condition in UNCLOS, 25(3) Designation of sea lanes/prescription of TSS, coastal state shall only take account of the ‘recommendations of the competent int’l org.’
Corfu Channel Case. A squadron of British warships, the cruisers Mauritius and Leander, and the destroyers Saumarez and Volage, left the port of Corfu and proceeded northward through a channel previously swept for mines in the North Corfu Strait. Several ships struck a mine and were damaged. UK sues People's Republic of Albania
Albania’s failed its Duty – it is liable. Obligation incumbent upon Albanian authorities consisted in notifying for the benefit of the shipping in general, the existence of a minefield in Albanian territorial waters and in warning the British warships of the imminent danger to which the minefield exposed them. BASIS of such an obligation: (1.) elementary considerations of humanity, even more exacting in peace than in war; (2) the principle of freedom of maritime communication; (3) every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States. Albania was aware of the minelaying since the geography of the strait easily allowed Albanian lighthouse watchers to view such activities. Innocent passage through straits is a right recognized by international law. The decisive criterion is its geographical situation as connecting two parts of the high seas and the fact of its being used for international navigation. The nature of the Channel satisfies this criterion. It has been a useful route for international maritime traffic. A total number of 2, 884 ships have passed through the Channel in a period of 1 year and 9 months. Passage through it therefore cannot be prohibited by a coastal State in time of peace. Combat formation determines if a passage is innocent. d.
Archipelagos UNCLOS, 49. Legal status of archipelagic waters, of the air spaceover archipelagic waters and of their bed and subsoil 1. The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic baselines drawn in accordance with article 47, described as archipelagic waters, regardless of their depth or distance from the coast. 2. This sovereignty extends to the air space over the archipelagic waters, as well as to their bed and subsoil, and the resources contained therein. 3. This sovereignty is exercised subject to this Part. 4. The regime of archipelagic sea lanes passage established in this Part shall not in other respects affect the status of the archipelagic waters, including the sea lanes, or the exercise by the archipelagic State of its sovereignty over such waters and their air space, bed and subsoil, and the resources contained therein. UNCLOS, 52. Right of innocent passage 1. Subject to article 53 and without prejudice to article 50, ships of all States enjoy the right of innocent passage through archipelagic waters, in accordance with Part II, section 3. 2. The archipelagic State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its archipelagic waters the innocent passage of foreign ships if such suspension is essential for the protection of its security. Such suspension shall take effect only after having been duly published. UNCLOS, 53. Right of archipelagic sea lanes passage 1. 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. 2. All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air routes. 3. Archipelagic sea lanes passage means the exercise in accordance with this Convention of the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. 4. Such sea lanes and air routes shall traverse the archipelagic waters and the adjacent territorial sea and shall include all normal passage routes used as routes for international navigation or overflight through or over archipelagic waters and, within such routes, so far as ships are concerned, all normal navigational channels, provided that duplication of routes of similar convenience between the same entry and exit points shall not be necessary. 5. Such sea lanes and air routes shall be defined by a series of continuous axis lines from the entry points of passage routes to the exit points. Ships and aircraft in archipelagic sea lanes passage shall not deviate more than 25 nautical miles to either side of such axis lines during passage, provided that such ships and aircraft shall not navigate closer to the coasts than 10 per cent of the distance between the nearest points on islands bordering the sea lane. 6. An archipelagic State which designates sea lanes under this article may also prescribe traffic separation schemes for the safe passage of ships through narrow channels in such sea lanes. 7. An archipelagic State may, when circumstances require, after giving due publicity thereto, substitute other sea lanes or traffic separation schemes for any sea lanes or traffic separation schemes previously designated or prescribed by it. 8. Such sea lanes and traffic separation schemes shall conform to generally accepted international regulations. 9. In designating or substituting sea lanes or prescribing or substituting traffic separation schemes, an archipelagic State shall refer proposals to the competent international organization with a view to their adoption. The organization may adopt only such sea lanes and traffic separation schemes as may be agreed with the archipelagic State, after which the archipelagic State may designate, prescribe or substitute them.
22 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.”
e.
10. The archipelagic State shall clearly indicate the axis of the sea lanes and the traffic separation schemes designated or prescribed by it on charts to which due publicity shall be given. 11. Ships in archipelagic sea lanes passage shall respect applicable sea lanes and traffic separation schemes established in accordance with this article. 12. If an archipelagic State does not designate sea lanes or air routes, the right of archipelagic sea lanes passage may be exercised through the routes normally used for international navigation. Corfu Channel Case, supra. Magallona annotations: Archipelagic state – state made up wholly of one or more archipelagos; may include other islands Archipelago, defined It is a group of islands, including parts of islands, interconnecting water 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 May an archipelagic state draw straight baselines? YES These straight baselines join the outermost posts of the outermost island and drying reefs of the archipelago, provided that within such baselines are included the main island and an area in which the ratio of the are of the water to the area of the land, including atolls is between 1:1 and 9:1 But, baselines shall not exceed 100 nm Exception: archipelagic state is allowed to have 3% of its total number of baselines in excess of that length, but only up to 125nm. How are straight archipelagic baselines related to the territorial sea and other maritime zones? Breadth of territorial sea, the contiguous zone, and the EEZ is measured from here. Also true with respect to breadth of continental shelf Does breadth of territorial sea under UNCLOS present a discrepancy vis-à-vis Phil. Territorial sea under its own internal law? YES. As a zone of sovereignty, UNCLOS territorial sea extends to not more than 12nm from baseline Under RA 3046: “all waters within the limits set forth in the Treaty of Paris, have always been regarded as part of the territory of the Phil. Islands. Archipelagic waters: waters enclosed by the archipelagic baselines, regardless of their depth or distance from the coast Sovereignty of archipelagic state extend to archipelagic waters, subject to the right of innocent passage (same as rt. of IP in territorial seas); also extends to the superjacent air space of the archipelagic waters, subjacent seabed and subsoil and “the resources contained therein.” Other rights of archipelagic waters UNCLOS 51 Existing agreements, traditional fishing rights and existing submarine cables 1. Without prejudice to article 49, an archipelagic State shall respect existing agreements with other States and shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighbouring States in certain areas falling within archipelagic waters. The terms and conditions for the exercise of such rights and activities, including the nature, the extent and the areas to which they apply, shall, at the request of any of the States concerned, be regulated by bilateral agreements between them. Such rights shall not be transferred to or shared with third States or their nationals. 2. An archipelagic State shall respect existing submarine cables laid by other States and passing through its waters without making a landfall. An archipelagic State shall permit the maintenance and replacement of such cables upon receiving due notice of their location and the intention to repair or replace them. Right of archipelagic sea lanes passage Right of foreign ships and aircraft to have continuous, expeditious and unobstructed passage in sea lanes and air routes through or over the archipelagic waters and the adjacent territorial sea of the archipelagic state, ‘in transit between one part of the high seas or an EEZ and other part of the high seas or an EEZ” All ships and aircraft entitled to this right Sea lanes and air routes include ‘all normal passage routes used…for int’l navigation or overflight through or over archipelagic waters Sea lanes, how designated or adopted Proposed to the competent int’l org (Int’l Maritime Org) IMO adopts them in the manner provided in UNCLOS, 53(9) If no sea lanes and air routes UNCLOS 53.12 May right of archipelagic sea lanes passage be suspended? YES. But only temporarily and subject to the ff. conditions: (1) may be done only with respect to specified areas of archipelagic waters; (2) if essential for the protection of the security of the archipelagic state; (3) without discrimination among foreign ships Warships, including submarines, entitled to this right. as to submarines, not required to surface in the course of passage; navigation in the “normal mode” Is archipelagic sea lanes passage similar to transit passage? YES The contiguous zone Magallona annotation: Contiguous zone – maritime zone adjacent to the territorial sea where coastal state may exercise certain protective jurisdiction UNCLOS, 33. Contiguous zone 5. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to: (e) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; (f) punish infringement of the above laws and regulations committed within its territory or territorial sea.
23 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” 6.
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The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. Contiguous zone is a zone of jurisdiction for a particular purpose, not of sovereignty This was added as a response to ships which would linger in areas beyond the State’s jurisdiction, thus beyond the State’s criminal jurisdiction, but would do acts inimical to the coastal State. Remember that the jurisdiction is limited; beyond the 4 areas, follow the regime of the EEZ. Take note that this is the only optional regime. f.
The continental shelf Magallona annotations: Continental shelf, defined It is the seabed and the subsoil of the submarine areas extending beyond the territorial sea of the coastal state throughout the natural prolongation of its land territory up to (1) the outer edge of the continental margin, or (2) a distance of 200nm from the baselines of the territorial sea where the outer edge of continental margin does not extend up to that distance Continental margin submerged prolongation of the land mass of the coastal state, consisting of the continental shelf proper, the continental slope and the continental rise Continental shelf may extend farther than the continental margin wherever the continental margin does not extend beyond 200nm from the baselines outer edge of continental margin may extend beyond the 200nm limit UNCLOS, 76(4)(a) how will the outer limit of the continental shelf be determined? Or how will the outer edge of continental margin be established? Outer limit of continental shelf shall not exceed 350nm from the baselines of the territorial sea, 100nm from the 2500meter isobath (or the point where the waters are 2500meters deep) UNCLOS, 76(5) In establishing the outer edge of the continental margin as the outer limit of the continental shelf, coastal state shall either (1) use a line drawn by reference to points no more than 60nm from the foot of the continental slope; or (2) a line drawn by reference to points at which the thickness of sediments is less than 1% of the distance to the base of the continental slope How is continental shelf related to the EEZ, where their breadths of 200nm from the baselines is co-extensive? Difference with respect to specific rights and duties may still exist EEZ Continental shelf A56.1(a) and A61 coastal state is obliged to manage and Fisheries regime does not require coastal state to conserve or conserve living resources in the EEZ to prevent over- share the resources exploitation and to grant to other states to such resources As to living resources, do not pertain to sedentary species Apply only to sedentary species of such living resources Rights have to do with natural resources of both the waters Rights relate to mineral and other non-living resources of the superjacent to the seabed and those of the seabed and its seabed and subsoil subsoil Where the continental shelf extends beyond the 200nm limit, are there differences in rights and duties? YES Exploitation of non-living resources beyond the 200nm zone carries the duty to make annual payments or contributions in kind after the first 5 years of production; 6th year, payment = 1% of value or volume of production; annual increase until 7% exception: developing state which is a net importer of mineral resources produced from its continental shelf Marine scientific research beyond 200nm zone, coastal state cannot withhold consent to allow research on the ground that the proposed research project has direct significance to exploration or exploitation of natural resources Continental shelf does NOT form part of the territory of the coastal state. Rights of coastal state over continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources (recognized as CIL) What natural resources are covered by these rights? UNCLOS, 77(4) consist pf ‘mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to the sedentary species [organisms, which, at the harvestable state, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil What is the legal nature of these rights? UNCLOS, 77(2) – exclusive rights in the sense that “if the coastal state does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without express consent of coastal state Moreover, rights do not depend on occupation, effective or notional, or on any express proclamation North Sea Continental Shelf Case. The rights of the coastal state in respect of the area of continental shelf that constitutes a natural prolongation of its land territory and under the sea exist ipso fact and ab initio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resource. In short there is here an inherent right. Delimitation is a process which involves establishing the boundaries of an area already, in principle, appertaining to the coastal State and not the determination de novo of such an area. Delimitation in an equitable manner is one thing, but not the same thing as awarding a just and equitable share of a previously undelimited area, even though in a number of cases the results may be comparable, or even identical. Inherent right to territory. The rights of the coastal State in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources. In short, there is here an inherent right. In order to exercise it, no special legal process has to be gone through, nor have any special legal acts to be performed. Its existence can be declared but does not need to be constituted. Furthermore, the right does not depend on its being exercised. It follows that the notion of apportioning an as yet undelimited area, is quite foreign to, and inconsistent with, the basic concept of continental shelf entitlement.
24 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” Equidistance method not obligatory. It has never been doubted that the equidistance method of delimitation is a very convenient one. Yet this does not suffice to convert what is a method into a rule of law, making the acceptance of the results of using that method obligatory in all cases in which the parties do not agree otherwise, or in which 'special circumstances' cannot be shown to exist. Appurtenance (of the continental shelf) to a State ≠ Proximity. Thus the question of which parts of the continental shelf 'adjacent to' a coastline bordering more than one State fall within the appurtenance of which of them, remains to this extent an open one, not to be determined on a basis exclusively of proximity. Even if proximity may afford one of the tests to be applied and an important one in the right conditions, it may not necessarily be the only, nor in all circumstances, the most appropriate one. More fundamental: natural prolongation or continuation of land territory or domain or land sovereignty of the coastal state, into & under the high seas, via the bed of its territorial sea which is under full sovereignty. Submarine areas do not really appertain to the coastal State because they are near it. What confers the ipso jure title which international law attributes to the coastal State in respect of its continental shelf is the fact that the submarine areas concerned may be deemed to be actually part of the territory over which the coastal State already has dominion, in the sense that, although covered with water, they are a prolongation or continuation of that territory, an extension of it under the sea. Thus whenever a given submarine area does not constitute a natural extension of the land territory of a coastal State, even though that area may be closer to it than it is to the territory of any other State, it cannot be regarded as appertaining to that State; or at least it cannot be so regarded in the face of a competing claim by a State of whose land territory the submarine area concerned is to be regarded as a natural extension, even if it is less close to it. Opposite v. Adjacent. For opposite States the natural prolongations may meet and overlap, and can only be delimited by a median line; and, ignoring the presence of islets, rocks and minor coastal projections, the disproportionally distorting effect of which can be eliminated by other means, such a line must effect an equal division of the particular area involved. This type of case is different from that of laterally adjacent States on the same coast with no immediately opposite coast in front of it. Whereas a median line divides equally between 2 opposite countries areas that can be regarded as being the natural prolongation of the territory of each of them, a lateral equidistance line often leaves to 1 of the States concerned areas that are a natural prolongation of the territory of the other. The distorting effects of lateral equidistance lines under certain conditions of coastal configuration are nevertheless comparatively small within the limits of territorial waters, but produce their maximum effect in the localities where the main continental shelf areas lie further out. There is also a direct correlation between the notion of closest proximity to the coast and the sovereign jurisdiction which the coastal State is entitled to exercise and must exercise, not only over the seabed underneath the territorial waters but over the waters themselves, which does not exist in respect of continental shelf areas where there is no jurisdiction over the superjacent waters, and over the seabed only for purposes of exploration and exploitation. Delimitation must be by agreement, arrived at in accordance with equitable principles: (a) the parties are under an obligation to enter into negotiations with a view to arriving at an agreement, and not merely to go through a formal process of negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement; they are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it; (b) the parties are under an obligation to act in such a way that, in the particular case, and taking all the circumstances into account, equitable principles are applied; for this purpose the equidistance method can be used, but other methods exist and may be employed, alone or in combination, according to the areas involved; (c) the continental shelf of any State must be the natural prolongation of its land territory and must not encroach upon what is the natural prolongation of the territory of another State. Inequity of the equidistance method, in certain geographical circumstances: (a) The slightest irregularity in a coastline is automatically magnified by the equidistance line as regards the consequences for the delimitation of the continental shelf. Thus it has been seen in the case of concave or convex coastlines that if the equidistance method is employed, then the greater the irregularity and the further from the coastline the area to be delimited, the more unreasonable are the results produced. So great an exaggeration of the consequences of a natural geographical feature must be remedied or compensated for as far as possible, being of itself creative of inequity. (b) Where there is no outer boundary to the continental shelf, it happens that the claims of several States converge, meet and intercross in localities where, despite their distance from the coast, the bed of the sea still unquestionably consists of continental shelf. A study of these convergences shows how inequitable would be the apparent simplification brought about by a delimitation which, ignoring such geographical circumstances, was based solely on the equidistance method. Can use different methods. No objection need be felt to the idea of effecting a delimitation of adjoining continental shelf areas by the concurrent use of various methods. Equity does not necessarily imply equality. There can never be any question of completely refashioning nature, and equity does not require that a State without access to the sea should be allotted an area of continental shelf, any more than there could be a question of rendering the situation of a State with an extensive coastline similar to that of a State with a restricted coastline. But here, there are 3 States whose North Sea coastlines are in fact comparable in length and which, have been given broadly equal treatment by nature except that the configuration of one of the coastlines would, if the equidistance method is used, deny to one of these States treatment equal or comparable to that given the other two. An inequity is created merely because one coastline is roughly convex and the other concave. It is not a question of totally refashioning geography whatever the facts of the situation but, given a geographical situation of quasi-equality as between a number of States, of abating the effects of an incidental special feature from which an unjustifiable difference of treatment could result. Criteria to consider: 1. Geology. The continental shelf is an area physically extending the territory of most coastal States into a species of platform. The appurtenance of the shelf to the countries in front of whose coastlines it lies is a fact, and it can be useful to consider the geology of that shelf in order to find out whether the direction taken by certain configurational features should influence delimitation. 2. Geography. The principle is that the land dominates the sea; it is consequently necessary to examine closely the geographical configuration of the coastlines of the countries whose continental shelves are to be delimited. Since the land is the legal source
25 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” of the power which a State may exercise over territorial extensions to seaward, it must first be clearly established what features do in fact constitute such extensions. 3. Unity of any deposits. The natural resources of the subsoil of the sea in those parts which consist of continental shelf are the very object of this legal regime. Yet it frequently occurs that the same deposit lies on both sides of the line dividing a continental shelf between two States, and since it is possible to exploit such a deposit from either side, a problem immediately arises on account of the risk of prejudicial or wasteful exploitation by one or other of the States concerned. All that is needed is to refer to the undertakings entered into by the coastal States of that sea with a view to ensuring the most efficient exploitation or the apportionment of the products extracted. 4. Reasonable degree of proportionality which a delimitation effected according to equitable principles ought to bring about between the extent of the continental shelf appertaining to the States concerned and the lengths of their respective coastlines, these being measured according to their general direction in order to establish the necessary balance between States with straight, and those with markedly concave or convex coasts, or to reduce very irregular coastlines to their truer proportions. The choice and application of the appropriate technical methods would be a matter for the parties. Libya v. Malta. RE: UNCLOS, which provided that the delimitation of the continental shelf be effected by agreement on the basis of international law, in order to achieve an equitable solution. The Convention sets a goal to be achieved, but is silent as to the method to be followed to achieve it. It restricts itself to setting a standard, and it is left to States themselves, or to the courts, to endow this standard with specific content. Relation to EEZ & legal basis of continental shelf rights. The two institutions - continental shelf and EEZ – are linked together in modern law. Since the rights enjoyed by a State over its continental shelf would also be possessed by it over the sea-bed and subsoil of any EEZ which it might proclaim, one of the relevant circumstances to be considered for the delimitation of the continental shelf of a State is the legally permissible extent of the EEZ appertaining to that same State. This does not mean that the concept of the continental shelf has been absorbed by that of the EEZ; it does however signify that greater importance must be attributed to elements, such as distance from the Coast, which are common to both concepts. Although the institutions of the continental shelf and the EEZ are different and distinct, the rights which the EEZ entails over the sea-bed of the zone are defined by reference to the regime laid down for the continental shelf. Although there can be a continental shelf where there is no EEZ, there cannot be an EEZ without a corresponding continental shelf. It follows that the distance criterion must now apply to the continental shelf as well as to the EEZ. What this means is that where the continental margin does not extend as far as 200 miles from the shore, natural prolongation, which in spite of its physical origins has throughout its history become more and more a complex and juridical concept, is in part defined by distance from the shore, irrespective of the physical nature of the intervening sea-bed and subsoil. The concepts of natural prolongation and distance are therefore not opposed but complementary. Equitableness of result is primary. The delimitation of a continental shelf boundary must be effected by the application of equitable principles in all the relevant circumstances in order to achieve an equitable result. Some equitable principles: the principle that there is to be no question of refashioning geography, or compensating for the inequalities of nature; the related principle of non-encroachment by one party on the natural prolongation of the other (the coastal State enjoys sovereign rights over the continental shelf off its coasts to the full extent authorized by international law in the relevant circumstances); the principle of respect due to all such relevant circumstances; the principle that although all States are equal before the law and are entitled to equal treatment, "equity does not necessarily imply equality", nor does it seek to make equal what nature has made unequal; and the principle that there can be no question of distributive justice. Factors which weren’t considered in this case: landmass, relative economic positions of the Parties, security considerations, and the principle of equality. Proportionality is considered. What the Court intended was proportionality was to be used as a means of identifying and then correcting the kind of distortion that could arise from the use of a method inapt to take adequate account of some kinds of coastal configuration. Delimitation process: 1. Make a provisional delimitation by using a criterion and a method both of which are clearly destined to play an important role in producing the final result. The law applicable to claims relating to continental shelves located less than 200 miles from the coasts of the States on a criterion of distance from the Coast or on the principle of adjacency as measured by distance. Thus the choice of the criterion and the method to be used to arrive at a provisional result should be made in a manner consistent with the concepts underlying the attribution of legal title. In this delimitation between opposite coasts, the tracing of a median line between those coasts, by way of a provisional step, is the most judicious manner of proceeding with a view to the eventual achievement of an equitable result. Take note that the median line drawn is only provisional. Were the Court to treat it as final, it would be conferring on the equidistance method the status of being the only method the use of which is compulsory in the case of opposite coasts. Under existing law, it must be demonstrated that the equidistance method leads to an equitable result in the case in question. To achieve this purpose, the result to which the distance criterion leads must be examined in the context of applying equitable principles to the relevant circumstances. Also remember that, to achieve an equitable result in a situation in which the equidistance line is prima facie the appropriate method, all relevant circumstances must be examined, since they may have a weight in the assessment of the equities of the case which it would be proper to take into account and to reflect in an adjustment of the equidistance line. 2. Examination of the provisional solution in light of the requirements derived from other criteria, which may call for a correction of the initial results. Due to the great difference in length of the coasts and the general geographical context (the Maltese islands appear as a relatively small feature in a semi-enclosed sea), in order to ensure the achievement of an equitable solution, the delimitation line must be adjusted so as to lie closer to the coasts of Malta. Within the area with which the Court is concerned, the coasts of the Parties are opposite to each other, and the equidistance line between them lies broadly west to east, so that
26 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” its adjustment can be satisfactorily and simply achieved by transposing it in an exactly northward direction. This line meets the requirements of the test of proportionality, and is equitable, given all relevant circumstances. Tunisia v. Libya. The Method of Half-effect. The delimitation is to be effected in accordance with equitable principles considering all relevant circumstances. The area to be delimited constitutes a single continental shelf as the natural prolongation of both States, so principle of natural prolongation cannot be used. The area is delimited by two lines. In defining the angulation of the initial line, the Court took note of the existence of the line employed de facto by each Party dividing their petroleum concessions. As for the second line, the change in direction of the coast is a fact which must be taken into account. Note that in this case the land territory of the two States is adjacent but because of the change in direction of the coast of Tunisia it seems opposite at some point. The initial delimitation line indicated by the ICJ will therefore extend from the outer limit of the territorial sea until its intersection with the parallel of latitude of the point on the coast of the Gulf of Gabes. In determining the angulation of the second like the existence of the Kerkennah Islands (Tunisia) should be considered. The Kerkennah Islands is surrounded by islets and low-tide elevations. Some effect must be attributed to it. The Court has to take into account not only the islands, but also the low-tide elevations which, while they do not, as do islands, have any continental shelf of their own, do enjoy some recognition in international law for certain purposes. However, if the ICJ lets the line run parallel to the island coastline that would be giving the islands too much weight. Hence, half-effect must be used. The technique involves drawing two delimitation lines, one giving to the island the full effect attributed to it by the delimitation method in use, and the other disregarding the island totally, as though it did not exist. The delimitation line actually adopted is then drawn between the first two lines, either in such a way as to divide equally the area between them, or as bisector of the angle which they make with each other, or possibly by treating the island as displaced toward the mainland by half its actual distance therefrom. Guinea v. Guinea-Bissau. The case regarding the marine delimitation was removed from the list of cases of the ICJ because both parties mutually dropped the case. Their main reason was that both parties agreed on establishing an international agency for the join exploitation of the maritime zone in question. Aegean Sea Continental Shelf Case. It is solely by virtue of the coastal State’s sovereignty over the land that rights of exploration and exploitation in the continental shelf can attach to it, ipso jure, under IL. In short, continental shelf rights are legally both an emanation from and an automatic adjunct of the territorial sovereignty of the coastal state Anglo-French case. The Equidistance-Special Circumstances method. Under Article 6 the equidistance principle ultimately possesses an obligatory force which it does not have in the same measure under the rules of customary law. But the equidistance-special circumstances rule means that the obligation to apply the equidistance principle is always one qualified by the condition "unless another boundary line is justified by special circumstances". The role of the "special circumstances" condition is to ensure an equitable delimitation and the combined "equidistance-special circumstances rule", in effect, gives particular expression to a general norm that, failing agreement, the boundary between States abutting on the same continental shelf is to be determined on equitable principles. Consequently, the question whether the use of the equidistance principle or some other method is appropriate for achieving an equitable delimitation is very much a matter of appreciation in the light of the geographical and other circumstances. Opposite states. Throughout the English Channel where the coasts of France & the UK are opposite each other the boundary should, in principle, be the median line equidistant from the respective coasts. The relationship of "opposite" or "adjacent" States is nothing but a reflection of the geographical facts. The distinction drawn between the two geographical situations is one derived not from any legal theory but from the very substance of the difference between the two situations. Whereas in "opposite" States a median line will normally effect a broadly equitable delimitation, a lateral equidistance line extending outwards from the coasts of adjacent States for long distances may result in an inequitable delimitation by reason of the distorting effect of individual geographical features. It is the combined effect of the side-by-side relationship of the two States and the prolongation of the lateral boundary for great distances to seawards which may be productive of inequity and is the essence of the distinction between "adjacent" and "opposite" coasts situations. First step: the legal frame to be used is that of delimitation between “opposite” States. The first step should be to determine the course of the median line within the Channel. Take note that the Hurd Deep-Hurd Deep Fault Zone, a geographical feature, wasn’t considered by the Court given the essential geological continuity of the area (the Hurd Deep were just discontinuities in the seabed and subsoil which didn’t disrupt the essential unity of the continental shelf). Features of the Channel considered in this case. The Channel Islands (not constitutionally part of the UK, but direct dependencies of the British Crown which were treated as part of the UK, since the UK was the responsible authority wrt the continental shelf) are situated on the French side and within the arms of a gulf on the French coast. The presence of these islands in that particular situation disturbs the balance or the geographical circumstances which would otherwise exist between the Parties in this region as a result of the broad equality of the coastlines of their mainlands. The legal framework is that of two opposite States one or which possesses island territories close to the coast of the other State. Factors not considered: navigational defence and security interests in the region. Principle of natural prolongation, not absolute. The question is what areas of continental shelf are to be considered as legally the natural prolongation of the Channel Islands rather than of France. In international law, the concept of the continental shelf is a juridical concept which connotes the natural prolongation under the sea not of a continent or geographical land mass but of the land territory of each State. This means that the scope and the conditions for its application are not determined exclusively by the physical facts of geography but also by legal rules. Moreover, it is clear (given the special circumstances provision & emphasis on equitable principles) that the force of the cardinal principle of natural prolongation of territory is not absolute, but may be subject to qualification. The principle of natural prolongation of territory cannot be said to require that the continental shelf to the north and northwest of the Channel Islands should be considered as automatically and necessarily appurtenant to them rather than to France. Yet, if the force of the principle of natural prolongation of territory were absolute, a small island would block the natural prolongation of the territory of the nearby mainland in the same way, if not always to the same extent, as a larger island. The question of the appurtenance to the Channel Islands of the areas of continental shelf extending to their north and north-west is not therefore resolved merely by referring to the principle of natural prolongation. The principle of natural prolongation of territory is neither to be set aside nor treated as absolute in a case where islands belonging to one State are situated on continental shelf which
27 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” would otherwise constitute a natural prolongation of the territory of another State. The application of that principle in such a case has to be appreciated in the light of all the relevant geographical and other circumstances, as well as on any relevant considerations of law and equity. Principles of equity. Under customary law, the method adopted for delimiting the boundary must ensure that the delimitation accords with equitable principles. The question is whether the Channel Islands should be given the full benefit or the application of the principle of natural prolongation in the areas to their north and northwest or whether their situation close to the mainland of France requires, on equitable grounds, some modification of the application of the principle in those areas. The doctrine of the equality of States cannot be considered as constituting such an equitable ground (as this would have the effect of refashioning geography). Any ground of equity is to be looked for in the particular circumstances of the case and in the particular equality of the two States in their geographical relation to the continental shelf of the Channel. Characteristics of the area: approximate equality of the mainland coastlines, resulting in equality of their geographical relation to the continental shelf of the Channel, if the Channel Islands are left out of account. If the Channel Islands are given full effect, this will result in a substantial diminution of the area of continental shelf which would accrue to France. This fact appears to be, prima facie, a circumstance creative of inequity and calling for a method of delimitation that in some measure redresses the inequity. If this conclusion is tested by applying the equidistance-special circumstances rule, the presence of the Channel Islands must be considered, prima facie, as a "special circumstance" justifying a delimitation other than the median line. The two-fold solution wrt Channel Islands: First, to maintain the appropriate balance between the two States in relation to the continental shelf as riparian States of the Channel with approximately equal coastlines, the primary boundary between them shall be a median line. In delimiting its course in the Channel Islands region the Channel Islands themselves are to be disregarded, since their continental shelf must be the subject of a second and separate delimitation. Second step: to delimit a second boundary establishing, vis-à-vis the Channel Islands, the southern limit of the continental shelf held by the Court to be appurtenant to the French Republic in this region to the south of the mid-Channel median line. Features considered. The essential continuity or the continental shelf of the English Channel and Atlantic region has been emphasized. It is also common ground that, geologically the slight southwesterly trend of the continental shelf of the Channel extends westwards into the Atlantic region along the line of the Hurd Deep Fault Zone. The continental shelf of the Atlantic region is not confined within the arms of a comparatively narrow channel but one extending seawards front the coasts of the two countries into the open spaces of the Atlantic Ocean. In consequence, the areas of continental shelf to be delimited lie off, rather than between, the coasts or the two countries. A further consequence is that the continental shelf extends to seawards of the coasts of the two countries for great distances. The actual coastlines of the two countries abutting on the continental shelf to be delimited are comparatively short, and that their geographical relation to each other vis-à-vis the continental shelf to be delimited is one of lateral rather than opposite coasts. Another is that the UK’s coastal frontage project further into the Atlantic than that of France. This has the tendency to make the UK coast obtrude upon the continental shelf situated to seawards of the more westerly facing coast of the French Republic in that region. Another is France and the UK aren’t the only States which abut on the Atlantic continental shelf. Legal framework used. Under Art. 6, in the absence of agreement and unless another boundary is justified by special circumstances, the boundary is to be the line which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured. There is nothing in the language of Art. 6 to imply that in situations failing under paragraph 1 the virtues of the equidistance principle as a method of effecting an equitable delimitation are in any way superior to those which it possesses in situations falling under paragraph 2. The appropriateness of the equidistance or any other method for the purpose of effecting an equitable delimitation in any given case is always a function or reflection of the geographical and other relevant circumstances of the particular case. In short, the equitable character of the delimitation results not from the legal designation of the situation as one of "opposite" States but from its actual geographical character as such. Similarly, in the case of "adjacent" States it is the lateral geographical relation of the two coasts, when combined with a large extension of the continental shelf seawards from those coasts, which makes individual geographical features on either coast more prone to render the geometrical effects of applying the equidistance principle inequitable than in the case of "opposite" States. The greater risk in these cases that the equidistance method may produce an inequitable delimitation thus also results not from the legal designation of the situation as one of "adjacent" States but from its actual geographical character as one involving laterally related coasts. In this case, due to the separation of the 2 coasts by a wide expanse of sea, the area (Atlantic region) is considered as a case of opposite States. A special circumstance: the prolongation of the Scilly Isles (UK) some distance further westwards than the Ushant island (France), which justifies a boundary other than the strict median line. However this doesn’t authorize the use of any method in order to effect an equitable delimitation. Modified equidistance method. In a large proportion of delimitations, where a particular geographical feature has influenced the course of a continental shelf boundary, the method of delimitation adopted has been some modification or variant of the equidistance principle rather than its total rejection. Here the problem also arises precisely from the distorting effect of a geographical feature in circumstances in which the line equidistant from the coasts of the two States would otherwise constitute the appropriate boundary. The appropriate method is to take account of the Scilly Isles as part of the coastline of the UK but to give them less than their full effect in applying the equidistance method. Just as it is not the function of equity in the delimitation of the continental shelf completely to refashion geography, so it is also not the function of equity to create a situation of complete equity where nature and geography have established an inequity. Half-effect. In one instance, the method employed was to give half, instead of full, effect to the offshore island in delimiting the equidistance line. This method consists in delimiting the line equidistant between the two coasts, first, without the use of the offshore island as a base-point, and, secondly, with its use as a base-point; a boundary giving half-effect to the island is then the line drawn midway between those two equidistance lines. This method appears to be an appropriate and practical method of abating the disproportion and inequity which otherwise results from giving full effect to the Scilly Isles as a basepoint for determining the course of the boundary. Denmark v. Norway [Case concerning maritime delimitation in the area between Greenland and Jan Mayen]. Doctrine of “Sovereignty Actually Exercised”. Two elements each of which must be shown to exist: (a) the intention and will to act as sovereign; (b)
28 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.”
g.
some actual exercise or display of such authority, examples: Tax collection, monopoly activity/grants, law making and enforcement authority, recognition in conventions/treaties, public utilities concessions, hunting/fishing expeditions, maritime permits authority, lighthouses!!! WON “Greenland” as used in the documents of this period intended to include the East Coast because at that time, the East Coast was yet unknown – Yes! An examination of the maps of the 17th and 18th centuries shows that the general features and configuration of the East coast of Greenland were known to the cartographers. Even if no evidence of any landings on the coast have been produced, the ships which hunted whales in the waters to the East of Greenland sighted the land at intervals and gave names to the prominent features which were observed. Indeed, "Greenland" as a geographical term was even more used in connection with the East coast than with the West coast, as the term "Straat Davis" was often used to describe the West coast, or colonized area, of Greenland. Canada & France, St. Pierre. The Exclusive Economic Zone Magallona annotations: EEZ, defined An area beyond and adjacent to the territorial sea, not extending beyond 200nm from the baselines from which the territorial sea is measured, in which the coastal state has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resourcfes, as well as with regard to other activities for economic exploitation and exploration of the zone, and in which it has jurisdiction with regard to artificial islands, environmental protection and marine scientific research Resources covered by the sovereign rights of coastal states in the EEZ living and non-living resources in the superadjacent waters of the seabed, and the resources of the seabed and its subsoil Primary responsibilities of the coastal state in the utilization, mgt, and conservation of the living resources within EEZ (1) Duty to ensure through proper conservation and mgt measures that the living resources of the EEZ are not endangered by over exploitation (2) Duty to promote the objective of optimum utilization of the living resources and, to this end, to determine the allowable catch of such resources in relation to its capacity to harvest the allowable catch Objectives of conservation of living resources in the EEZ: (1) Determination of the allowable catch of the living resources (2) Maintenance of the living resources in such a way that they are not endangered by over-exploitation (3) The maintenance or restoration of population of harvested species at levels which can produce the maximum sustainable yield (4) Maintenance of associated or dependent species above levels at which heir reproduction may become seriously threatened Coastal state IS obliged to determine the allowable catch of the living resources within the EEZ “allowable catch” catch in any one year which will best achive the objectives of the coastal state’s fisheries mgt, w/o endangering by over-exploitation “maximum sustainable yield” level of harvesting a species of fish which can be taken at a maximum from year to year without depletion of stock Matters that may be regulated by coastal state in regard to fishing by aliens in the EEZ (UNCLOS, 62.4) (a) licensing of fishermen, fishing vessels and equipment, including payment of fees and other forms of remuneration, which, in the case of developing coastal States, may consist of adequate compensation in the field of financing, equipment and technology relating to the fishing industry; (b) determining the species which may be caught, and fixing quotas of catch, whether in relation to particular stocks or groups of stocks or catch per vessel over a period of time or to the catch by nationals of any State during a specified period; (c) regulating seasons and areas of fishing, the types, sizes and amount of gear, and the types, sizes and number of fishing vessels that may be used; (d) fixing the age and size of fish and other species that may be caught; (e) specifying information required of fishing vessels, including catch and effort statistics and vessel position reports; (f) requiring, under the authorization and control of the coastal State, the conduct of specified fisheries research programmes and regulating the conduct of such research, including the sampling of catches, disposition of samples and reporting of associated scientific data; (g) the placing of observers or trainees on board such vessels by the coastal State; (h) the landing of all or any part of the catch by such vessels in the ports of the coastal State; (i) terms and conditions relating to joint ventures or other cooperative arrangements; (j) requirements for the training of personnel and the transfer of fisheries technology, including enhancement of the coastal State's capability of undertaking fisheries research; (k) enforcement procedures. Land-locked states – states which do not border the seas and therefore have no EEZs Geographically-disadvantaged states (1) Coastal states which can claim no EEZ of their own (2) Coastal states, including states bordering closed or semi-closed states, whose geographical situations make them dependent on the exploitation of the living resources of the EEZ of other coastal states in the region Basic right of LLS and GDS in the EEZ of coastal states? right to participate, on equitable basis, in the exploitation of the surplus of the living resources in the EEZ, taking into account the relevant economic and geographic circumstances of all states concerned Right applies on subregional or regional basis, i.e., right to participate pertains only the EEZ of coastal states of the same subregion/region Participation, how: UNCLOS 69.2 & 70.2. Right of participation of LLS and GDS doesn’t always apply doesn’t apply in cases of coastal states whose economy is overwhelmingly dependent on the exploitation of the living resources of its EEZ Right NOT transferable shall not be transferred directly or indirectly to 3rd states or their nationals by lease, license, JV or in another other manner which has the effect of transfer; EXCEPTION: unless otherwise agreed by states concerned
29 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” Right dependent on the existence of the surplus in the allowable catch Species of living resources in EEZ subject to special rules UNCLOS, 63. S tocks occurring within the exclusive economic zones of two or more coastal States or both within the exclusive economic zone and in an area beyond and adjacent to it 1. Where the same stock or stocks of associated species occur within the exclusive economic zones of two or more coastal States, these States shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary to coordinate and ensure the conservation and development of such stocks without prejudice to the other provisions of this Part. 2. Where the same stock or stocks of associated species occur both within the exclusive economic zone and in an area beyond and adjacent to the zone, the coastal State and the States fishing for such stocks in the adjacent area shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary for the conservation of these stocks in the adjacent area. UNCLOS, 64. Highly migratory species. 1. The coastal State and other States whose nationals fish in the region for the highly migratory species listed in Annex I shall cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond the exclusive economic zone. In regions for which no appropriate international organization exists, the coastal State and other States whose nationals harvest these species in the region shall cooperate to establish such an organization and participate in its work. UNCLOS, 65. Marine mammals. Nothing in this Part restricts the right of a coastal State or the competence of an international organization, as appropriate, to prohibit, limit or regulate the exploitation of marine mammals more strictly than provided for in this Part. States shall cooperate with a view to the conservation of marine mammals and in the case of cetaceans shall in particular work through the appropriate international organizations for their conservation, management and study. UNCLOS, 66. Anadromous stocks 1. States in whose rivers anadromous stocks originate shall have the primary interest in and responsibility for such stocks. 2. The State of origin of anadromous stocks shall ensure their conservation by the establishment of appropriate regulatory measures for fishing in all waters landward of the outer limits of its exclusive economic zone and for fishing provided for in paragraph 3(b). The State of origin may, after consultations with the other States referred to in paragraphs 3 and 4 fishing these stocks, establish total allowable catches for stocks originating in its rivers. 3. (a) Fisheries for anadromous stocks shall be conducted only in waters landward of the outer limits of exclusive economic zones, except in cases where this provision would result in economic dislocation for a State other than the State of origin. With respect to such fishing beyond the outer limits of the exclusive economic zone, States concerned shall maintain consultations with a view to achieving agreement on terms and conditions of such fishing giving due regard to the conservation requirements and the needs of the State of origin in respect of these stocks. (b) The State of origin shall cooperate in minimizing economic dislocation in such other States fishing these stocks, taking into account the normal catch and the mode of operations of such States, and all the areas in which such fishing has occurred. (c) States referred to in subparagraph (b), participating by agreement with the State of origin in measures to renew anadromous stocks, particularly by expenditures for that purpose, shall be given special consideration by the State of origin in the harvesting of stocks originating in its rivers. (d) Enforcement of regulations regarding anadromous stocks beyond the exclusive economic zone shall be by agreement between the State of origin and the other States concerned. 4. In cases where anadromous stocks migrate into or through the waters landward of the outer limits of the exclusive economic zone of a State other than the State of origin, such State shall cooperate with the State of origin with regard to the conservation and management of such stocks. 5. The State of origin of anadromous stocks and other States fishing these stocks shall make arrangements for the implementation of the provisions of this article, where appropriate, through regional organizations. Enforcement measures allowed in the exercise of its sovereign rights UNCLOS 73.1 Imposition of penalty UNCLOS, 73.2 Marine scientific research Search conducted with consent of coastal state Conducted exclusively for peaceful purposes Shall not justifiably interfere with activities of the coastal states in the exercise of their rights and jurisdiction under UNCLOS UNCLOS, 55. Specific legal regime of the exclusive economic zone. The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention. UNCLOS, 56. Rights, jurisdiction and duties of the coastal State in the exclusive economic zone 1. In the exclusive economic zone, the coastal State has: (a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds; (b) jurisdiction as provided for in the relevant provisions of this Convention with regard to: (i) the establishment and use of artificial islands, installations and structures; (ii) marine scientific research; (iii) the protection and preservation of the marine environment; (c) other rights and duties provided for in this Convention. 2. In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention. 3. The rights set out in this article with respect to the seabed and subsoil shall be exercised in accordance with Part VI.
30 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” UNCLOS, 57. Breadth of the exclusive economic zone. The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. UNCLOS, 58. Rights and duties of other States in the exclusive economic zone 1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention. 2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part. 3. In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part. UNCLOS, 70. Right of geographically disadvantaged States 1. Geographically disadvantaged States shall have the right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus of the living resources of the exclusive economic zones of coastal States of the same subregion or region, taking into account the relevant economic and geographical circumstances of all the States concerned and in conformity with the provisions of this article and of articles 61 and 62. 2. For the purposes of this Part, "geographically disadvantaged States" means coastal States, including States bordering enclosed or semi-enclosed seas, whose geographical situation makes them dependent upon the exploitation of the living resources of the exclusive economic zones of other States in the subregion or region for adequate supplies of fish for the nutritional purposes of their populations or parts thereof, and coastal States which can claim no exclusive economic zones of their own. 3. The terms and modalities of such participation shall be established by the States concerned through bilateral, subregional or regional agreements taking into account, inter alia: (a) the need to avoid effects detrimental to fishing communities or fishing industries of the coastal State; (b) the extent to which the geographically disadvantaged State, in accordance with the provisions of this article, is participating or is entitled to participate under existing bilateral, subregional or regional agreements in the exploitation of living resources of the exclusive economic zones of other coastal States; (c) the extent to which other geographically disadvantaged States and land-locked States are participating in the exploitation of the living resources of the exclusive economic zone of the coastal State and the consequent need to avoid a particular burden for any single coastal State or a part of it; (d) the nutritional needs of the populations of the respective States. 4. When the harvesting capacity of a coastal State approaches a point which would enable it to harvest the entire allowable catch of the living resources in its exclusive economic zone, the coastal State and other States concerned shall cooperate in the establishment of equitable arrangements on a bilateral, subregional or regional basis to allow for participation of developing geographically disadvantaged States of the same subregion or region in the exploitation of the living resources of the exclusive economic zones of coastal States of the subregion or region, as may be appropriate in the circumstances and on terms satisfactory to all parties. In the implementation of this provision the factors mentioned in paragraph 3 shall also be taken into account. 5. Developed geographically disadvantaged States shall, under the provisions of this article, be entitled to participate in the exploitation of living resources only in the exclusive economic zones of developed coastal States of the same subregion or region having regard to the extent to which the coastal State, in giving access to other States to the living resources of its exclusive economic zone, has taken into account the need to minimize detrimental effects on fishing communities and economic dislocation in States whose nationals have habitually fished in the zone 6. The above provisions are without prejudice to arrangements agreed upon in subregions or regions where the coastal States may grant to geographically disadvantaged States of the same subregion or region equal or preferential rights for the exploitation of the living resources in the exclusive economic zones. UNCLOS, 71. Non-applicability of articles 69 and 70. The provisions of articles 69 and 70 do not apply in the case of a coastal State whose economy is overwhelmingly dependent on the exploitation of the living resources of its exclusive economic zone. UNCLOS, 72. Restrictions on transfer of rights 1. Rights provided under articles 69 and 70 to exploit living resources shall not be directly or indirectly transferred to third States or their nationals by lease or licence, by establishing joint ventures or in any other manner which has the effect of such transfer unless otherwise agreed by the States concerned. 2. The foregoing provision does not preclude the States concerned from obtaining technical or financial assistance from third States or international organizations in order to facilitate the exercise of the rights pursuant to articles 69 and 70, provided that it does not have the effect referred to in paragraph 1. UNCLOS, 73. Enforcement of laws and regulations of the coastal State 1. The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention. 2. Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security. 3. Coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment. 4. In cases of arrest or detention of foreign vessels the coastal State shall promptly notify the flag State, through appropriate channels, of the action taken and of any penalties subsequently imposed. Spain v. Canada. This is a dispute relating to Canada’s amendment of the Canadian Coastal Fisheries Protection Act, by virtue of which Canada pursued, boarded and seized a fishing vessel the Estai; flying the Spanish flag) on the high seas in order to put a stop to the overfishing of Greenland halibut by Spanish fishermen.
31 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” Arguments: European Community’s position - “the arrest of a vessel in international waters by a State other than the State of which the vessel is flying the flag and under whose jurisdiction it falls, is an illegal act under both the NAFO Convention and customary international law, and cannot be justified by any means.” Canada’s Position - dispute concerns the adoption of measures for the conservation and management of fisheries stocks with respect to vessels fishing in the NAFO Regulatory Area and their enforcement Spain’s Position - Spain argues that the term “conservation and management measures" must be interpreted in accordance with international law, so it must exclude any unilateral measure by a State which adversely affected the rights of other States outside that State's own area of jurisdiction. Doctrine: In international law only 2 types of measures taken by a coastal State could, in practice, be regarded as "conservation and management measures": [1] those relating to the State's exclusive economic zone; and [2] those relating to areas outside that zone, in so far as these came within the framework of an international agreement or were directed at stateless vessels. Measures not satisfying these conditions were not conservation and management measures but unlawful acts pure and simple. M/V Saiga Case [St. Vincent & Grenadines v. Guinea). Saiga’s Nationality – UNCLOS GENUINE LINK TEST. Article 91, paragraph 1, of the Convention provides: "There must exist a genuine link between the State and the ship." Two questions need to be addressed in this connection. (a) The first is whether the absence of a genuine link between a flag State and a ship entitles another State to refuse to recognize the nationality of the ship. (b) The second question is whether or not a genuine link existed between the Saiga and Saint Vincent and the Grenadines at the time of the incident. EEZ – Guinea could only apply its customs laws with regard to artificial islands, installations and structures. (article 60, paragraph 2). The Tribunal notes that, under the Convention, a coastal State is entitled to apply customs laws and regulations in its territorial sea (articles 2 and 21). In the contiguous zone, a coastal State may exercise the control necessary to: (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; (b) punish infringement of the above laws and regulations committed within its territory of territorial sea. However, in the exclusive economic zone, the coastal State has jurisdiction to apply customs laws and regulations in respect of artificial islands, installations and structures (article 60, paragraph 2). The Convention does not empower a coastal State to apply its customs laws in respect of any other parts of the exclusive economic zone not mentioned above. Exception – State of Necessity (ART 58 - “OTHER RULES OF INTERNATIONAL LAW” phrase). 2 CONDITIONS FOR STATE OF NECESSITY TO APPLY– NOT MET. As set out in article 33, paragraph 1, of the International Law Commission's Draft Articles on State Responsibility, are: (a) the act was the only means of safeguarding an essential interest of the State against a grave and imminent peril; and (b) the act did not seriously impair an essential interest of the State towards which the obligation existed. || In endorsing these conditions, the Court stated that they "must be cumulatively satisfied" and that they "reflect customary international law". Hot Pursuit – defense denied (Article 111 UNCLOS) All the requirements must be cumulatively complied with. Guinea did not comply with several. No visual or auditory signals to stop could have been given to the Saiga. and the alleged pursuit was interrupted when the patrol boats were recalled before they resumed the chase. Camouco Case [Panama v. France]. Local remedies need not be exhausted in order to file an application. Article 292 provides for an independent remedy and not an appeal against a decision of a national court. No limitation should be read into article 292 that would have the effect of defeating its very object and purpose. Indeed, article 292 permits the making of an application within a short period from the date of detention and it is not normally the case that local remedies could Municipal authorities are allowed to attach provisional liberty with the posting of a bond provided the amount is reasonable. Article 292 of the Convention is designed to free a ship and its crew from prolonged detention on account of the imposition of unreasonable bonds in municipal jurisdictions, or the failure of local law to provide for release on posting of a reasonable bond, inflicting thereby avoidable loss on a ship owner or other persons affected by such detention. Equally, it safeguards the interests of the coastal State by providing for release only upon the posting of a reasonable bond or other financial security determined by a court or tribunal referred to in article 292, without prejudice to the merits of the case in the domestic forum against the vessel, its owner or its crew. Reasonableness of Bond Amount. The basis is the value of the detained vessel and of the cargo seized, the amount of the bond imposed by the detaining State and its form but the value of the vessel alone may not be the controlling factor in the determination of the amount of the bond or other financial security if there is no evidence to support the assessment h.
Delimitation of Maritime Boundaries Magallona annotations: Maritime delimitation North Sea Continental Shelf Cases: “Delimitation is the process which involves establishing the boundaries of an area already, in principle, appertaininf to the coastal state and not the determination de novo of such area…the process of delimitation is essentially one of drawing a boundary line between areas which already appertain to one or other of the States affected ANF Case: The delimitation of the sea areas has always an international aspect; it cannot be dependent merely upon the will of the coastal State as expressed in its municipal laws. although it is true that the act of delimitation is necessarily a unilateral act, because only the coastal State is competent to undertake it, the validity o the delimitation with regard to other States depends upon international law Rules re: determination of territorial sea between states with opposite/adjacent coasts Left to agreement between them
32 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” In the absence of agreement, neither state is entitled to extend its territory beyond the media line, every point of which is equidistance from the nearest points on the baseline from which the breadth of the territorial sea is measured Equidistance rule does not apply where for any reason of historic title or other special circumstances a different delimitation is required What about delimitation of EEZ and continental shelf bet. Opposite/adjacent states? General Rule: delimitation shall be effect by agreement on basis of IL in order to achieve an equitable solution UNCLOS, 298. When signing, ratifying or acceding to this Convention or at any time thereafter, a State may, without prejudice to the obligations arising under section 1, declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes: (a) (i) disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles, provided that a State having made such a declaration shall, when such a dispute arises subsequent to the entry into force of this Convention and where no agreement within a reasonable period of time is reached in negotiations between the parties, at the request of any party to the dispute, accept submission of the matter to conciliation under Annex V, section 2; and provided further that any dispute that necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory shall be excluded from such submission; (ii) after the conciliation commission has presented its report, which shall state the reasons on which it is based, the parties shall negotiate an agreement on the basis of that report; if these negotiations do not result in an agreement, the parties shall, by mutual consent, submit the question to one of the procedures provided for in section 2, unless the parties otherwise agree; (iii) this subparagraph does not apply to any sea boundary dispute finally settled by an arrangement between the parties, or to any such dispute which is to be settled in accordance with a bilateral or multilateral agreement binding upon those parties; (b) disputes concerning military activities, including military activities by government vessels and aircraft engaged in noncommercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3; (c) disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations, unless the Security Council decides to remove the matter from its agenda or calls upon the parties to settle it by the means provided for in this Convention. 2. A State Party which has made a declaration under paragraph 1 may at any time withdraw it, or agree to submit a dispute excluded by such declaration to any procedure specified in this Convention. 3. A State Party which has made a declaration under paragraph 1 shall not be entitled to submit any dispute falling within the excepted category of disputes to any procedure in this Convention as against another State Party, without the consent of that party. 4. If one of the States Parties has made a declaration under paragraph 1(a), any other State Party may submit any dispute falling within an excepted category against the declarant party to the procedure specified in such declaration. 5. A new declaration, or the withdrawal of a declaration, does not in any way affect proceedings pending before a court or tribunal in accordance with this article, unless the parties otherwise agree. 6. Declarations and notices of withdrawal of declarations under this article shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the States Parties. Gulf of Maine Case (Canada v. US). In this case, Canada & the US asked the Court to delimit both the continental shelf and the exclusive fishing zone in the Gulf of Maine area, using only a single boundary. The Gulf of Maine area is a broad oceanic indentation, which is shaped like a rectangle, bordered on the 3 sides by land, and on the fourth by the Atlantic Ocean. 1. Determine the starting point of the line. In this case, the starting point was chosen by the Parties (point A). While the Court may use another starting point, it won’t for in the delimitation of a maritime boundary, both conventional and customary international law give priority to the criterion that delimitation must be sought through agreement between the Parties. 2. Some factors. Geological factors are insignificant, given the essentially continuous geological structure of the strata underlying the whole of the continental shelf. There is unity and uniformity in the whole sea-bed, as the continental shelf of the area is just an undifferentiated part of the continental shelf of the American eastern seaboard; thus geomorphological factors are insignificant. The same goes for the water column. It isn’t possible to discern any genuine, sure and stable “natural boundaries” in so fluctuating an environment such as the waters of the ocean. It would be futile to seek any element which could be a stable natural boundary. Thus, the great mass of water in the delimitation area, just like the sea-bed, also possesses that character of unity and uniformity which makes it impossible to discern any natural boundary capable of serving as a basis for carrying out a delimitation. 3. The applicable principles and rules of international law. (What are the rules, methods applicable?) Principles under Art. 6. Any delimitation of the continental shelf effected unilaterally by one State, regardless of the views of the other/s concerned, is in international law not opposable to those States. States have a duty to negotiate with a view to reaching an agreement and to do so in good faith with a genuine intention to achieve a positive result. Any delimitation must be effected by agreement between the States concerned either by the conclusion of a direct agreement or by some alternative method which must be based on consent. And any agreement or other equivalent solution should involve the application of equitable criteria - those derived from equity which are not in themselves principles and rules of international law. Fundamental norm in delimitation: the boundary be “determined according to the applicable law, in conformity with equitable principles, having regard to all relevant circumstances, in order to achieve an equitable result.” A more complete, precise reformulation of the fundamental norm, prescribed by general international law for all maritime delimitations between neighbour states: (1) No maritime delimitation between States with opposite or adjacent coasts may be effected unilaterally by one of those States. Such delimitation must be sought and effected by means of an agreement, following negotiations conducted in
33 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.”
4.
good faith and with the genuine intention of achieving a positive result. Where, however, such agreement cannot be achieved, delimitation should be effected by recourse to a third party possessing the necessary competence. (2) In either case, delimitation is to be effected by the application of equitable criteria and by the use of practical methods capable of ensuring, with regard to the geographic configuration of the area and other relevant circumstances, an equitable result. Continental Shelf Convention inapplicable. If the goal is only a delimitation of the continental shelf, then the mandatory application of Art. 6 is undisputed. However, the goal of this proceeding is to draw a single delimitation line for both the continental shelf and the superjacent fishery zone. It is doubtful whether a treaty obligation which is in terms confined to the delimitation of the continental shelf can be extended to a field which is evidently greater and fundamentally different. To do so would make the maritime water mass over the shelf a mere accessory of the latter, and this is unacceptable. Equitable criteria. There has been no systematic definition of the equitable criteria for use in international maritime delimitation. Examples of criteria used: (classic formula) that the land dominates the sea; the equal division of the areas of overlap of the maritime and submarine zones appertaining to the respective coasts of neighboring States, in cases where there are no special circumstances; whenever possible, the seaward extension of a State's coast shouldn’t encroach on areas that are too close to the coast of another State; the prevention, as far as possible, of any cut-off of the seaward projection of the coast or of part of the coast of either of the States concerned; and in certain circumstances, the appropriate consequences may be drawn from any inequalities in the extent of the coasts of two States into the same area of delimitation. The essential fact to remember is that the criteria are not rules of law and therefore mandatory in the different situations, but "equitable", or even "reasonable", criteria, and that what international law requires is that recourse be had in each case to the criterion, or the balance of different criteria, appearing to be most appropriate to the concrete situation. Proposed methods by the Parties. The US proposed the method of the perpendicular (a vertical line, perpendicular to the general of the coast). Canada relied on the equidistance method. Regarding the method to be used. None of the potential methods for delimitation has intrinsic merits which would make it preferable to another in the abstract. There is no single method which intrinsically brings greater justice or is of greater practical usefulness. The greater or lesser appropriateness of one method or another can only be assessed with reference to the actual situations in which they are used, and the assessment made in one situation may be entirely reversed in another. Nor is there any method of which must be preferred, a method with whose application every delimitation operation could begin, albeit subject to its effects being subsequently corrected or it being even discarded in favor of another, if those effects turned out to be clearly unsatisfactory. There must be willingness to adopt a combination of different methods whenever that seems to be called for by differences in the circumstances that may be relevant in the different phases of the operation and with reference to different segments of the line. Thus the Court decided this independently of the proposals. Adjacent v. Opposite. Art. 6 contemplate 2 distinct hypothetical situations, but this doesn’t mean that the basic criterion (equal division) behind these provisions are different, or that the method doesn’t use the same technique. The distinction is only due to the different geographical situations referred to (lateral equidistance line for adjacent coasts, median line for opposite coasts). In appreciating the appropriateness of the equidistance method as a means of achieving an equitable solution, regard must be had to the difference between a 'lateral' boundary between adjacent States and a 'median' boundary between 'opposite' States." The coasts of two States may be adjacent at certain places and opposite at others (as in this case). On this latter hypothesis, difficulties might arise of a practical nature in particular since every effort should be made to prevent the partial relationship of adjacency from ultimately predominating over the partial relationship of oppositeness, or vice-versa. It might become apparent that adjustments were necessary for this purpose, or even recourse to a different method. Applicable equitable criteria in this case: geography + auxiliary criteria. Remember that this involves a delimitation of 2 distinct elements by means of a single line. This precludes the use of any criteria which are inappropriate for the delimitation of either element. The Court will apply criteria derived from geography, mainly the geography of coasts, which has (primarily) a physical aspect and (secondarily) a political aspect. Some corrections must be made to certain effects of its application that might be unreasonable, so that the concurrent use of auxiliary criteria may appear indispensable, such as length of coastlines, the equitableness of correcting the result when a coastline is cut off, and the presence of geographical features (islands, groups of small islands). Applicable practical methods. The practical methods can only be methods appropriate for use against a background of geography. Moreover, the methods used must be just as suitable for the delimitation of the sea-bed and its subsoil as for the delimitation of the superjacent waters and their fishery resources. Thus, only geometrical methods will serve. Given the configuration of the Gulf of Maine coastline, the delimitation line isn’t a unidirectional line. Take note that at the northeastern sector the coasts are laterally adjacent, while at the closing sector the coasts are opposite. Thus in the first sector, the boundary is a lateral delimitation line. In the second, the line is a median line. The Delimitation a. First Segment. The practical method to be applied must be a geometrical one based on respect for the geographical situation of the coasts between which the delimitation is to be effected, and at the same time suitable for producing a result satisfying the criterion for the division of disputed areas. Thus the equidistance method isn’t used, but the method of drawing perpendiculars. Accordingly, one may justifiably draw from point A two lines respectively perpendicular to the two basic coastal lines. These perpendiculars form, at point A, on one side an acute angle of about 82' and on the other a reflex angle of about 278'. It is the bisector of this second angle which should be adopted for the course of the first segment. b. Second Segment. Stage one. This involves the determination of the median line. Remember, the choice of method is essentially dependent on geography. In this case (given the rectangular shape of the area and the quasi-parallelism between the lines used in the delimitation, and the fact that the coasts are opposite), the application of any method of geometrical origin can in practice only result in the drawing of a median delimitation line. Such a line can only be one approximately parallel to the approximately parallel lines of the two opposite coasts.
34 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.”
5.
i.
Stage two. The back of the Gulf is entirely occupied by the continuous coast of Maine, a component state of the US, and the terminal point of the international boundary with Canada is situated much farther to the northeast in the Grand Manan Channel, at a corner of the rectangle which geometrically represents the shape of the Gulf proper. Thus it is impossible to disregard the difference in length between the respective coastlines of the two States which border on the delimitation area. A correction is thus needed. The total length of the US coastline in the Gulf is approximately 284 nautical miles. The overall length of the Canadian coastline is approximately 206 nautical miles. The ratio between the coastal fronts of the Parties on the Gulf of Maine as is thus 1.38 to 1. This ratio should be reflected in the location of the second segment of the delimitation line. The appropriate method should be to apply the ratio selected to a line drawn across the Gulf where the coasts of Nova Scotia and Massachusetts are nearest to each other. It would then be proper to shift the median line drawn in such a way as to reflect this ratio along the line Cape Cod-Chebogue Point. The presence of some islands and isles must also be considered, i.e. Seal Island. It is some two and-a-half miles long. However it would be excessive to treat the coastline of Nova Scotia as transferred south-westwards by the whole of the distance between Seal Island and that coast, and it is appropriate to give the island half effect, so that the ratio to be applied for determining the location of the corrected median line will be approximately 1.32 to 1 in place of 1.38 to 1. Since it is only a question of adjusting the proportion by reference to which the corrected median line is to be located, the island’s effect is a small transverse displacement of that line, not an angular displacement, with limited practical impact. The central segment of the delimitation line will correspond, over its entire length, with the corrected median line as so established. It will begin where this line intersects, within the Gulf, the bisector drawn from point A and constituting the first segment, and end on reaching the closing line of the Gulf. c. Third Segment. This is the longest portion. This is the segment which lies outside and over against the Gulf of Maine. In principle, the determination of the path of this segment must depend on that of the two previous segments. The portion of the line now to be determined will inevitably be situated in the open ocean. From the geographical point of view, there is no point of reference, outside the actual shores of the Gulf that can serve as a basis for carrying out the final operation required. It is obvious that the only kind of practical method which can be considered for this purpose is a geometrical method - the drawing of a perpendicular to the closing line of the Gulf. In conclusion, taking point A as a fixed point and assigning letter B to the meeting-point between the first two segments as above defined, letter C to the meeting-point between the second and third segments on the closing line of the Gulf, and letter D to the point where the first segment reaches, to seaward, the last place on its path where the claims of the two Parties overlap, the delimitation line fixed between the maritime jurisdictions of Canada and the US will be the line successively connecting points A, B, C and D. Verification of the equitable character of the result. This is necessary only for the third segment, which is the real subject of the dispute due to the potential resources of the subsoil and the fisheries. Some enquiry whether, in addition to the factors provided by the geography of the Gulf itself, there are no others that should be taken into account, is an understandable step. It might well appear that other circumstances ought properly to be considered in assessing the equitable character of the result produced by this portion of the delimitation line. These other circumstances may be summed up by the data provided by human and economic geography, and are thus ineligible for consideration as criteria to be applied in the delimitation process itself, may be relevant in assessing the equitable character of a delimitation first established on the basis of criteria borrowed from physical and political geography (ex. Historical presence in the area, activities pursued like fishing and conservation of resources, & socioeconomic aspects) . In this case, the Court concluded that there are absolutely no conditions of an exceptional kind which might justify any correction of the delimitation line that was drawn. The delimitation was effected in compliance with the governing principles and rules of law, applying equitable criteria and appropriate methods accordingly, thus producing an equitable overall result.
The High Seas UNCLOS, 86. Application of the provisions of this PartThe provisions of this Part apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. This article does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone in accordance with article 58. UNCLOS, 87. Freedom of the high seas 1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States: (a) freedom of navigation; (b) freedom of overflight; (c) freedom to lay submarine cables and pipelines, subject to Part VI; (d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI; (e) freedom of fishing, subject to the conditions laid down in section 2; (f) freedom of scientific research, subject to Parts VI and XIII. 2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area. UNCLOS, 88. Reservation of the high seas for peaceful purposes. The high seas shall be reserved for peaceful purposes. UNCLOS, 89. Invalidity of claims of sovereignty over the high seas. No State may validly purport to subject any part of the high seas to its sovereignty. UNCLOS, 90. Right of navigation. Every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas. UNCLOS, 91. Nationality of ships 1. Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship. 2. Every State shall issue to ships to which it has granted the right to fly its flag documents to that effect. UNCLOS, 92. Status of ships
35 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.”
1.
Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.
2.
A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality. UNCLOS, 93. Ships flying the flag of the United Nations, its specialized agencies and the International Atomic Energy Agency. The preceding articles do not prejudice the question of ships employed on the official service of the United Nations, its specialized agencies or the International Atomic Energy Agency, flying the flag of the organization. UNCLOS, 94. Duties of the flag State
1.
Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.
2.
In particular every State shall: (a) maintain a register of ships containing the names and particulars of ships flying its flag, except those which are excluded from generally accepted international regulations on account of their small size; and (b) assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship. Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea with regard, inter alia, to: (a) the construction, equipment and seaworthiness of ships; (b) the manning of ships, labour conditions and the training of crews, taking into account the applicable international instruments; (c) the use of signals, the maintenance of communications and the prevention of collisions. Such measures shall include those necessary to ensure: (a) that each ship, before registration and thereafter at appropriate intervals, is surveyed by a qualified surveyor of ships, and has on board such charts, nautical publications and navigational equipment and instruments as are appropriate for the safe navigation of the ship; (b) that each ship is in the charge of a master and officers who possess appropriate qualifications, in particular in seamanship, navigation, communications and marine engineering, and that the crew is appropriate in qualification and numbers for the type, size, machinery and equipment of the ship; (c) that the master, officers and, to the extent appropriate, the crew are fully conversant with and required to observe the applicable international regulations concerning the safety of life at sea, the prevention of collisions, the prevention, reduction and control of marine pollution, and the maintenance of communications by radio. In taking the measures called for in paragraphs 3 and 4 each State is required to conform to generally accepted international regulations, procedures and practices and to take any steps which may be necessary to secure their observance. A State which has clear grounds to believe that proper jurisdiction and control with respect to a ship have not been exercised may report the facts to the flag State. Upon receiving such a report, the flag State shall investigate the matter and, if appropriate, take any action necessary to remedy the situation. Each State shall cause an inquiry to be held by or before a suitably qualified person or persons into every marine casualty or incident of navigation on the high seas involving a ship flying its flag and causing loss of life or serious injury to nationals of another State or serious damage to ships or installations of another State or to the marine environment. The flag State and the other State shall cooperate in the conduct of any inquiry held by that other State into any such marine casualty or incident of navigation.
3.
4.
5. 6. 7.
UNCLOS, 95. Immunity of warships on the high seas. Warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State. UNCLOS, 96. Immunity of ships used only on government non-commercial service. Ships owned or operated by a State and used only on government non-commercial service shall, on the high seas, have complete immunity from the jurisdiction of any State other than the flag State. UNCLOS, 97. Penal jurisdiction in matters of collision or any other incident of navigation 1. In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national. 2. In disciplinary matters, the State which has issued a master's certificate or a certificate of competence or licence shall alone be competent, after due legal process, to pronounce the withdrawal of such certificates, even if the holder is not a national of the State which issued them. 3. No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State. UNCLOS, 105. Seizure of a pirate ship or aircraft. On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith. UNCLOS, 106. Liability for seizure without adequate grounds. Where the seizure of a ship or aircraft on suspicion of piracy has been effected without adequate grounds, the State making the seizure shall be liable to the State the nationality of which is possessed by the ship or aircraft for any loss or damage caused by the seizure. UNCLOS, 107. Ships and aircraft which are entitled to seize on account of piracy. A seizure on account of piracy may be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect.
36 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” UNCLOS, 108. Illicit traffic in narcotic drugs or psychotropic substances 1. All States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions. 2. Any State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other States to suppress such traffic. UNCLOS, 109. Unauthorized broadcasting from the high seas 1. All States shall cooperate in the suppression of unauthorized broadcasting from the high seas. 2. For the purposes of this Convention, "unauthorized broadcasting" means the transmission of sound radio or television broadcasts from a ship or installation on the high seas intended for reception by the general public contrary to international regulations, but excluding the transmission of distress calls. 3. Any person engaged in unauthorized broadcasting may be prosecuted before the court of: (a) the flag State of the ship; (b) the State of registry of the installation; (c) the State of which the person is a national; (d) any State where the transmissions can be received; or (e) any State where authorized radio communication is suffering interference. 4. On the high seas, a State having jurisdiction in accordance with paragraph 3 may, in conformity with article 110, arrest any person or ship engaged in unauthorized broadcasting and seize the broadcasting apparatus. UNCLOS, 110. Right of visit 1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that: (a) the ship is engaged in piracy; (b) the ship is engaged in the slave trade; (c) the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109; (d) the ship is without nationality; or (e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship. 2. In the cases provided for in paragraph 1, the warship may proceed to verify the ship's right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration. 3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained. 4. These provisions apply mutatis mutandis to military aircraft. 5. These provisions also apply to any other duly authorized ships or aircraft clearly marked and identifiable as being on government service. UNCLOS, 111. Right of hot pursuit 1. The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. Such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursuing State, and may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted. It is not necessary that, at the time when the foreign ship within the territorial sea or the contiguous zone receives the order to stop, the ship giving the order should likewise be within the territorial sea or the contiguous zone. If the foreign ship is within a contiguous zone, as defined in article 33, the pursuit may only be undertaken if there has been a violation of the rights for the protection of which the zone was established. 2. The right of hot pursuit shall apply mutatis mutandis to violations in the exclusive economic zone or on the continental shelf, including safety zones around continental shelf installations, of the laws and regulations of the coastal State applicable in accordance with this Convention to the exclusive economic zone or the continental shelf, including such safety zones. 3. The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own State or of a third State. 4. Hot pursuit is not deemed to have begun unless the pursuing ship has satisfied itself by such practicable means as may be available that the ship pursued or one of its boats or other craft working as a team and using the ship pursued as a mother ship is within the limits of the territorial sea, or, as the case may be, within the contiguous zone or the exclusive economic zone or above the continental shelf. The pursuit may only be commenced after a visual or auditory signal to stop has been given at a distance which enables it to be seen or heard by the foreign ship. 5. The right of hot pursuit may be exercised only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect. 6. Where hot pursuit is effected by an aircraft: (a) the provisions of paragraphs 1 to 4 shall apply mutatis mutandis; (b) the aircraft giving the order to stop must itself actively pursue the ship until a ship or another aircraft of the coastal State, summoned by the aircraft, arrives to take over the pursuit, unless the aircraft is itself able to arrest the ship. It does not suffice to justify an arrest outside the territorial sea that the ship was merely sighted by the aircraft as an offender or suspected offender, if it was not both ordered to stop and pursued by the aircraft itself or other aircraft or ships which continue the pursuit without interruption. 7. The release of a ship arrested within the jurisdiction of a State and escorted to a port of that State for the purposes of an inquiry before the competent authorities may not be claimed solely on the ground that the ship, in the course of its voyage, was escorted across a portion of the exclusive economic zone or the high seas, if the circumstances rendered this necessary. 8. Where a ship has been stopped or arrested outside the territorial sea in circumstances which do not justify the exercise of the right of hot pursuit, it shall be compensated for any loss or damage that may have been thereby sustained.
37 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” j.
3.
Conservation and Management of Living Resources of the High Seas Southern Blue Fin Tuna Cases. Highly Migratory Species must be protected! Under art 64, read together with arts 116 to 119, of the Convention, States Parties to the Convention have the duty to cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of highly migratory species. || SOUTHERN BLUE FIN TUNA, A HIGHLY MIGRATORY SPECIES OF FISH! The list of highly migratory species contained in Annex I to the Convention includes southern bluefin tuna: thunnus maccoyii; Provisional Remedies granted – catch limit set (Japan made a clear commitment that the 1999 experimental fishing programme will end by 31 August anyway). PROVISIONAL MEASURES AIMS TO PRESERVE RIGHTS AND HARM TO ENVIRONMENT. In accordance with art 290 of the Convention, the Tribunal may prescribe provisional measures to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment. MEASURES SHOULD BE TAKEN TO PRESERVE RIGHTS AND AVERT MORE DETERIORATION. Although the Tribunal cannot conclusively assess the scientific evidence presented by the parties, it finds that measures should be taken as a matter of urgency to preserve the rights of the parties and to avert further deterioration of the southern blue fin tuna stock. k. Right of Land-Locked States to & from the Sea – sea Magallona annotations on EEZ l. International Seabed Area These are areas of the seabed and the ocean floor, and their subsoil, which lie beyond any national jurisdiction. These are the common heritage of mankind and may not be appropriated by any state or person. All rights in the resources of the Area are vested in mankind as a whole, on whose behalf the Authority (the International Sea-Bed Authority) shall act. These resources are not subject to alienation. The minerals recovered from the Area, however, may only be alienated in accordance with the relevant provisions of UNCLOS. The Enterprise is the organ of the Authority which shall carry out activities in the Area directly as well as the transporting, processing, and marketing of minerals recovered from the Area, and shall have its principal place of business at the seat of the Authority m. Navigation – see UNCLOS Art. 90-111 Every State has the right to sail ships flying its flag on the high seas. It is the State’s right to decide the conditions by which it will accord the right to fly its flag. No ship may change its flag during its voyage except in case of transfer of ownership or on the basis of change of registry. If a ship sails under the flag of 2 states, it is considered as having no nationality and may not claim any of the nationalities represented by these flags with respect to any other State. Only the flag state may exercise criminal jurisdiction over the master or any person in the service of the ship. This is a departure from the SS Lotus case. Also the flag state shall have the duty to require the ship’s master, without danger to the crew or passengers, to render assistance to any person at sea in danger of being lost, or to rescue persons in distress. n. Marine Pollution Marine pollution prevention and control arising from land-based sources, sea-bed-activities subject to national jurisdiction, activities in the Area, vessels and others are covered quite extensively under UNCLOS. States are bound to prevent and control marine pollution from any source and are liable for damage caused by violation of their international obligations to combat such pollution. - Sir: marine pollution cases are different from quasi-delicts, for the latter requires proof of negligence in order to recover damages. Under the TOVALOP and CRISTOL, there is no need to prove fault for there is an immediate duty to pay for the clean-up. However, shipping and oil companies are required to pay only up to a certain amount (based on an oil fund). This arose as a response to the Exxon incident. Take note that the US doesn’t recognize a ceiling. Also, in cases of gross negligence, the companies will lose the benefit of limited liability and will become liable for the amount needed for the clean-up. Civil Liability Convention of 1969. International Fund Convention of 1971. TOVALOP. CRISTAL. 1984 Protocols to CLC & FC Conventions 1992 CLC & FC. TOVALOP Supplement of 1994. Crystal 1992. o. Settlement of Disputes Peaceful settlement of disputes is compulsory. If a bilateral settlement fails, UNCLOS requires submission of the dispute for compulsory settlement in one of the tribunals clothed with jurisdiction. The alternatives are the International Tribunal for the Law of the Sea, the ICJ, or an arbitral tribunal constituted under the Convention. p. Peaceful Use of the Oceans In exercising their rights and performing their duties under UNCLOS, states shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the UN Charter q. Archaeological & Historical Objects States have the duty to protect objects of an archaeological and historical nature found at sea Jurisdiction & Immunities. Jurisdiction Magallona annotations: State jurisdiction, in general Competence of a state to prescribe rules of conduct, to enforce its legal processes, and to adjudicate controversies or claims As an aspect of the State’s authority to govern, it thus comprehends legislative, executive and judicial competence within its territory This authority is exclusive over all persons, events, and transactions, except as may be limited by the State’s consent Duty of State under general IL to refrain from intervention in the exclusive jurisdiction of other states Brownlie: “The duty of non-intervention is a master principle…matters within the competence of States under gIL are said to be within the reserve domain, the domestic jurisdiction, of states
38 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” What principles may be the bases of the State’s exercise of crim jurisdiction? (1) Territoriality principle – a State takes jurisdiction over persons or events within its territory 2 states may claim to have jurisdiction when an offense may have been commenced in one case and continued on/ended in another. (2) Nationality principle – state may exercise jurisdiction over an offender by virtue of his being its national, without regard as to where he was at the time the offense was committed and without respect to the nature of the offense (3) Protective or security principle – state may exercise jurisdiction over an offense committed outside its territory by its national or non-national, by reason of protecting its security or vital interests (4) Universality principle – state may exercise jurisdiction over crimes committed without respect to offender’s nationality, on ground that such crimes are declared as international crimes by the int’l community as a whole and thus are prohibited by IL Passive personality principle – state may exercise jurisdiction against foreign nationals who commit acts to the injury if its nationals within the territory of another state May imply that a national of a state carries with him the authority of its law for his protection outside its territorial jurisdiction, thereby adversely affecting the territorial sovereignty of other states thus affected Recognized in Art.4(b) of Tokyo Convention on Offenses Aboard Aircrafy; Art5(1)(c) of Convention Against Torture Extradition An act or process by which a State, in compliance with a formal demand or request, surrenders to another State an alleged offender or a fugitive criminal who has sought refuge in the territory of the first State, in order to stand trial or to complete his prison term Requested State thereby renounces its jurisdiction over the alleged offender for the benefit of the requesting State How executed (1) Through diplomatic negotiation based on comity of friendly relations bet. 2 states concerned (2) By means of extradition treaty Duty to extradite exists only by reason of an extradition treaty; hence, not CIL Under CIL, no limitations re: freedom of state to extradite, except as may be imposed by fundamental HR State succession – occurs when one state replaces another in sovereignty with respect to a particular territory and thus involves a permanent displacement of the sovereignty of one State by the sovereign power of the successor state Brownwell v. Sunlife. The jurisdiction of the nation within its territory is necessarily exclusive and absolute. It is susceptivle of no limitation not imposed by itself. A foreign law may have extraterritorial effect in a country other than the country of origin provided the former in which it sought to be made operative gives its consent. The consent need not be express; it is enough to be implied from its conduct or from that of its authorized officers. In this case, the said act was conformed by President Roxas in a joint statement signed by him and by Commissioner McNutt. Ambassador Romulo also formally expressed the conformity of the Government of the Philippines to the approval of said act to the American Senate. It is well settled in the US that its laws have no extraterritorial effect. The application of said law in the Philippines is based concurrently on Philippines Property Act of 1946 and on the tacit consent and conduct of the Government of the Philippines in receiving the benefits of its provisions.10 People v. Lol-lo & Saraw. CFI has jurisdiction over the crime of piracy. Pirates are in law hostes humani generis. Piracy is a crime against all mankind. Even without domestic executing law does not make the act any more legal Tubb v. Greiss. It is a settled principle of International Law that a foreign army allowed to march through a friendly country or to be stationed in it, by permission of its government or sovereign, is exempt from the civil and criminal jurisdiction of the place. In applying this rule in the case of Raquiza vs. Bradford (75 Phil., 50), this Court held that "if a foreign army permitted to be stationed in a friendly country, "by permission of its government or sovereign," is exempt from the civil and criminal jurisdiction of the place, with much more reason should the Army of the United States which is not only permitted by the Commonwealth Government to be stationed here but has come to the islands and stayed in them for the express purpose of liberating them, and further prosecuting the war to a successful conclusion, be exempt from the civil and criminal jurisdiction of this place, at least for the time covered by said agreement of the two Governments. By analogy, an attempt of our civil courts to exercise jurisdiction over the United States Army before such period expires, would be considered as a violation of this country's faith, which this Court should not be the last to keep and uphold. By exercising it, paraphrasing the foregoing quotation, the purpose for which the stationing of the army in the islands was requested or agreed upon may be hampered or prejudiced, and a portion of said military force would be withdrawn from the control of the sovereign to whom they belong. And, again, by analogy, the agreement for the stationing of the United States Army or a part of its forces in the Philippines implies a waiver of all jurisdiction over their troops during the time covered by such agreement, and permits the allied general or commander-in-chief to retain that exclusive control and discipline which the government of his army may require." Haw Pia v. China Banking. [Acts of a belligerent military occupant is valid at the time of its occupation if it not political. Confiscation is not allowed; in CAB, there is only a sequestration, which is a valid measure of prevention.] Japanese military authorities had power, under the international law, to order the liquidation of the China Banking Corporation and to appoint and authorize the Bank of Taiwan as liquidator to accept the payment in question, because such liquidation is not confiscation of the properties of the bank appellee, but a mere sequestration of its assets which required the liquidation or winding up of the business of said bank. All the arguments to the contrary in support of the decision appealed from the predicated upon the erroneous assumption that the liquidation or winding up of the affairs of the China Banking Corporation, in order to determine its liabilities and net assets to be sequestrated or controlled, was an act of confiscation or appropriation of private property contrary to Article 46, section III of the Hague Regulations of 1907. || The provisions of the Hague Regulations, section III, on Military Authority over Hostile Territory, which is a part of the Hague Convention respecting the laws and customs of war on land, are intended to serve as general rule of conduct for the belligerents in their relations with each other and with the inhabitants, but as it had not been found possible then to concert regulations covering all the circumstances which occur in practice, and on the other hand it could not have been intended by the High Contracting Parties that the unforeseen cases should, in the absence of a written undertaking, be left to the arbitrary judgment of military commanders, it was agreed that "Until a complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain
10
http://www.scribd.com/doc/51355364/Brownell-vs
39 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” under the protection and the rule of the principles of international law, as they result for the usages established among civilized peoples, from the laws of humanity, and the dictates of public conscience." Sovereign Immunities Magallona annotation: Principle of sovereign immunity? A State on account of its status requiring sovereign equality is not subject to the judicial process of another state without its consent 2 doctrinal lines: (a) absolute immunity – immunity over all acts of state (b) restrictive immunity – distinction between acta jure imperii (public or governmental acts) and acta jure gestionis (private, commercial, or proprietary acts), and recognizes immunity only as to the former Hilao v. Estate of Marcos cases. A leader can be held liable for the human rights violations of his subordinates under the principle of “command responsibility.” Proof of damages for 9,541 human rights claimants was properly conducted by use of statistical sampling and a special claims master who reviewed the claims and then presented his evaluations to the jury. The claims involved torture, summary execution, and “disappearance.” || Case 2: The Foreign Sovereign Immunities Act (FSIA) (28 USC §1330) does not shield individual conduct by a former dictator if his acts violated the law of his country. The individual is the head of the state, not the state itself. A dictator’s illegal acts are not “official acts.” Actionable international torts under the Alien Tort Statute (ATS) (28 USC §1350) must violate a norm that is specific, universal, and obligatory. In a suit seeking damages, a trial court may issue a preliminary injunction to prevent a defendant from secreting assets pending litigation.11 JUSMAG Phils. v. NLRC. In this jurisdiction, we recognize and adopt the generally accepted principles of international law as part of the law of the land.[15] Immunity of State from suit is one of these universally recognized principles. In international law, “immunity” is commonly understood as an exemption of the state and its organs from the judicial jurisdiction of another state.[16] This is anchored on the principle of the sovereign equality of states under which one state cannot assert jurisdiction over another in violation of the maxim par in parem non habet imperium (an equal has no power over an equal).[17] Under the traditional rule of State immunity, a state cannot be sued in the courts of another State, without its consent or waiver. However, in Santos, et al., vs. Santos, et al.,[18] we recognized an exception to the doctrine of immunity from suit by a state, thus: “Nevertheless, if, where and when the state or its government enters into a contract, through its officers or agents, in furtherance of a legitimate aim and purpose and pursuant to constitutional legislative authority, whereby mutual and reciprocal benefits accrue and rights and obligations arise therefrom, and if the law granting the authority to enter into such contract does not provide for or name the officer against whom action may be brought in the event of the breach thereof, the state itself may be sued, even without its consent, because by entering into a contract, the sovereign state has descended to the level of the citizen and its consent to be sued is implied from the very act of entering into such contract.” USA v. Reyes. Doctrine of state immunity is expressed in Art. XVI, Sec. 3 of the 1987 Constitution. This immunity also applies to complaints filed against officials of the state for acts allegedly performed by them in discharge of their duties since it will require the state to perform an affirmative act such as appropriation of amount to pay damages. This will be regarded as a case against the state even if it has not be formally impleaded. But this is not all encompassing. It’s a different matter where the public official is made to account in his capacity as such for acts contrary to law & injurious to rights of plaintiff. State authorizes only legal acts by its officers. Action against officials by one whose rights have been violated by such acts is not a suit against the State w/in the rule of immunity of the State from suit. The doctrine of state immunity cannot be used as an instrument for perpetrating an injustice. It will not apply & may not be invoked where the public official is being sued in his private & personal capacity as an ordinary citizen. This usually arises where the public official acts w/o authority or in excess of the powers vested in him. A public official is liable if he acted w/malice & in bad faith or beyond the scope of his authority or jurisdiction. (Shauf vs. CA) Also, USA vs. Guinto declared that USA is not conferred with blanket immunity for all acts done by it or its agents in the Philippines merely because they have acted as agents of the US in the discharge of their official functions. In this case, Bradford was sued in her private/personal capacity for acts done beyond the scope & place of her official function, thus, it falls w/in the exception to the doctrine of state immunity.12 Wylie v. Rarang. Act in official capacity because of the nature of the publication or because of function/capacity in which you acted. NO FUNCTIONAL IMMUNITY WITH REGARD TO TORTUOUS ACTS || The rule that a state may not be sued without its consent, now expressed in Article XVI, Section 3, of the 1987 Constitution, is one of the generally accepted principles of international law that we have adopted as part of the law of our land under Article II, Section 2…Even without such affirmation, we would still be bound by the generally accepted principles of international law under the doctrine of incorporation … As applied to the local state, the doctrine of state immunity is based on the justification given by Justice Holmes that ‘there can be no legal right against the authority which makes the law on which the right depends! (Kawanakoa v. Polybank) There are other practical reasons for the enforcement of the doctrine. In the case of the foreign state sought to be impleaded in the local jurisdiction, the added inhibition is expressed in the maxim par in parem, non habet imperium . All states are sovereign equals and cannot assert jurisdiction over one another. A contrary disposition would, in the language of a celebrated case, ‘unduly vex the peace of nations.’ (Da Haber v. Queen of Portugal) - While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties. The rule is that if the judgment against such officials will require the state itself to perform an affirmative act to satisfy the same, such as the appropriation of the amount needed to pay the damages awarded against them, the suit must be regarded as against the state itself although it has not been formally impleaded (Garcia v. Chief of Staff). In such a situation, the state may move to dismiss the complaint on the ground that it has been filed without its consent - The doctrine is sometimes derisively called ‘the royal prerogative of dishonesty’ because of the privilege it grants the state to defeat any legitimate claim against it by simply invoking its non-suability. That is hardly fair, at least in democratic societies, for the state is not an unfeeling tyrant unmoved by the valid claims of its citizens. In fact, the doctrine is not absolute and does not say the state may not be sued under any circumstance. On the contrary, the rule says that the state may not be sued without its consent, which clearly imports that it may be sued if it consents. The consent of the state to be sued may be manifested expressly or impliedly. Express consent may be
11 12
http://www.internationaljustice.ws/landmarkcases.html http://dcomfortroom.blogspot.com/2009/12/us-v-reyes-219-scra-192-1993.html
40 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” embodied in a general law or a special law. Consent is implied when the state enters into a contract it itself commences litigation…The above rules are subject to qualification. Express consent is effected only by the will of the legislature through the medium of a duly enacted statute. (Rep. v. Purisima)… not all contracts entered into by the government will operate as a waiver of its non-suability; distinction must be made between its sovereign and proprietary acts (US v. Ruiz). As for the filing of a complaint by the government, suability will result only where the government is claiming affirmative relief from the defendant. USA v. Ruiz. As it stands now, the application of the doctrine of immunity from suit has been restricted to sovereign or governmental activities (jure imperii).[22] The mantle of state immunity cannot be extended to commercial, private and proprietary acts (jure gestionis). As aptly stated by this Court (En banc) in US vs. Ruiz, supra: “The restrictive application of State immunity is proper when the proceedings arise out of commercial transactions of the foreign sovereign, its commercial activities or economic affairs. Stated differently, a State may be said to have descended to the level of an individual and thus can be deemed to have tacitly given its consent to be used only when it enters into business contracts. It does not apply where the contract relates to the exercise of its sovereign functions.” We held further, that the application of the doctrine of state immunity depends on the legal nature of the act. Ergo, since a governmental function was involved — the transaction dealt with the improvement of the wharves in the naval installation at Subic Bay — it was held that the United States was not deemed to have waived its immunity from suit. WHO v. Aquino. The executive branch of the Phils has expressly recognized that Verstuyft is entitled to diplomatic immunity, pursuant to the provisions of the Host Agreement. The DFA formally advised respondent judge of the Philippine Government's official position. The Solicitor General, as principal law officer of the gorvernment, likewise expressly affirmed said petitioner's right to diplomatic immunity and asked for the quashal of the search warrant. || It recognized principle of international law and under our system of separation of powers that diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch of government, and where the plea of diplomatic immunity is recognized by the executive branch of the government as in the case at bar, it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law officer of the government, the Solicitor General in this case, or other officer acting under his discretion. Courts may not so exercise their jurisdiction by seizure and detention of property, as to embarass the executive arm of the government in conducting foreign relations. || The Court, therefore, holds the respondent judge acted without jurisdiction and with grave abuse of discretion in not ordering the quashal of the search warrant issued by him in disregard of the diplomatic immunity of petitioner Verstuyft.13 Lyons Inc v. USA. the petitioner entered into a contract with the United States Government for stevedoring services at the U.S. Naval Base, Subic Bay, Philippines. It then sought to collect from the US government sums of money arising from the contract. One of the issues posed in the case was whether or not the defunct Court of First Instance had jurisdiction over the defendant United States, a sovereign state which cannot be sued without its consent. This Court upheld the contention of Harry Lyons, Inc., that “when a sovereign state enters into a contract with a private person, the state can be sued upon the theory that it has descended to the level of an individual from which it can be implied that it has given its consent to be sued under the contract.” || The doctrine of state immunity from suit has undergone further metamorphosis. The view evolved that the existence of a contract does not, per se, mean that sovereign states may, at all times, be sued in local courts. The complexity of relationships between sovereign states, brought about by their increasing commercial activities, mothered a more restrictive application of the doctrine. Liang v. People. He is not covered by immunity because the commission of a crime is part of the performance of official duty. Courts cannot blindly adhere and take on its face the communication from the DFA that a certain person is covered by immunity. That a person is covered by immunity is preliminary. Due process is right of the accused as much as the prosecution. || Slandering a person is not covered by the agreement because our laws do not allow the commission of a crime such as defamation in the name of official duty. Under Vienna convention on Diplomatic Relations, commission of a crime is not part of official duty.14 Minucher v. CA. the doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his private and personal capacity as an ordinary citizen. The cloak of protection afforded the officers and agents of the government is removed the moment they are sued in their individual capacity. This situation usually arises where the public official acts without authority or in excess of the powers vested in him. It is a well-settled principle of law that a public official may be liable in his personal private capacity for whatever damage he may haw mused by his act done with malice and in bad faith, or beyond the scope of his authority or jurisdiction (Dumlao vs. Court of Appeals, et al., 114 SCRA 247 [1982]).” || 11. ARTICLE 31 OF THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS admits of exceptions. It reads: “I. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction except in the case of an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State, outside his official functions. || 12. NO EVIDENCE TO PROVE HE ACTED IN HIS OFFICIAL CAPACITY. There is of course the claim of private respondent that the act imputed to him were done in his official capacity. Nothing supports this selfserving claim other than the so-called Diplomatic Note. In short, insofar as the records are concerned, Calzo did not come forward with evidence to prove that indeed, he had acted in his official capacity. It does not appear that an actual hearing on the motion to dismiss was conducted and that Calzo offered evidence in support thereof.15 Holy See v. Rosario. The Republic of the Philippines has accorded the Holy See the status if a foreign sovereign, the Holy See, through its Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine Government since 1957. The privilege of sovereign immunity in this case was sufficiently established by the memorandum and certification of the Department of Foreign Affairs. The DFA has formally intervened in this case and officially certified that the Embassy of the Holy See is a duly accredited diplomatic mission to the Republic of the Philippines exempt from local jurisdiction and entitled to all the rights, privileges and immunities of a diplomatic mission or embassy in this country. The determination of the executive arm of government that a state or instrumentality is entitled to sovereign or diplomatic immunity is a political question that is conclusive upon the courts. Where the plea of immunity is recognized and affirmed by the executive branch, it is the duty of the courts to accept this claim so as not to embarrass the executive arm of the government in conducting the country’s foreign relations.16
http://dcomfortroom.blogspot.com/2009/12/world-health-organization-v-aquino-48.html http://pinaylawyer.com/2010/11/10/case-digest-on-liang-v-people-323-scra-652-2000/ 15 http://dcomfortroom.blogspot.com/2010/01/minucher-v-ca-214-scra-242-1992.html 16 http://xyckriz.blogspot.com/2010/11/holy-see-vs-rosario-jr.html 13 14
41 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” SEAFDEC v. Acosta. It is beyond question that petitioner SEAFDEC is an international agency enjoying diplomatic immunity. Being an intergovernmental organization, SEAFDEC including its Departments (AQD), enjoys functional independence and freedom from control of the state in whose territory its office is located. ICMC v. Calleja. It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch of the government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government as in the case at bar, it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law officer of the government . . . or other officer acting under his direction. Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction . . . as to embarrass the executive arm of the government in conducting foreign relations, it is accepted doctrine that in such cases the judicial department of (this) government follows the action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction. || The grant of immunity from local jurisdiction to ICMC is clearly necessitated by its international character and respective purposes. The objective is to avoid the danger of partiality and interference by the host country in their internal workings. The exercise of jurisdiction by the Department of Labor in these instances would defeat the very purpose of immunity, which is to shield the affairs of international organizations, in accordance with international practice, from political pressure or control by the host country to the prejudice of member States of the organization, and to ensure the unhampered performance of their functions. 17 Ex Parte Pinochet. Without abandoning the customary norms on immunities, the Lords ruled that immunity extends only to sovereign acts; international crime-duty to prosecute, acting on behalf of the international order. Pinochet as a former head of state enjoys immunity ratione materiae, but torture as defined cannot be a public function, so he does not enjoy immunity with regard to torturous acts
17
http://nadzameril.blogspot.com/2008/08/case-digest_01.html
42 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” Israel v. Eichmann. From the point of view of international law, the power of the State of Israel to enact the Law in question or Israel's "right to punish" is based, with respect to the offences in question, on a dual foundation: the universal character of the crimes in question and their specific character as intended to exterminate the Jewish people. || The abhorrent crimes defined in this Law are not crimes under Israel law alone. These crimes, which struck at the whole of mankind and shocked the conscience of nations, are grave offenses against the law of nations itself (delicta jurit gentium). Therefore, so far from international law negating or limiting the jurisdiction of countries with respect to such crimes, international law is, in the absence of an International Court, in need of the judicial and legislative organs of every country to give effect to its criminal interdictions and to bring the criminals to trial. The jurisdiction to try crimes under international law is universal. 18 Ker v. Illinois. A plea to an indictment in a state court that the defendant has been brought from a foreign country to this country by proceedings which are a violation of a treaty between that country and the United states, and which are forbidden by that treaty, raises a question, if the right asserted by the plea is denied, on which this Court can review, by writ of error, the judgment of the state court. But where the prisoner has been kidnapped in the foreign country and brought by force against his will within the jurisdiction of the state whose law he has violated, with no reference to an extradition treaty, though one existed, and no proceeding or attempt to proceed under the treaty, this Court can give no relief, for these facts do not establish any right under the Constitution or laws or treaties of the United States. || The treaties of extradition to which the United States are parties do not guarantee a fugitive from the justice of one of the countries an asylum in the other. They do not give such person any greater or more sacred right of asylum than he had before. They only make provision that for certain crimes, he shall be deprived of that asylum and surrendered to justice, and they prescribe the mode in which this shall be done. The trespass of a kidnapper, unauthorized by either of the governments and not professing to act under authority of either, is not a case provided for in the treaty, and the remedy is by a proceeding against him by the government whose law he violates or by the party injured. How far such forcible transfer of the defendant so as to bring him within the jurisdiction of the state where the offense was committed may be set up against the right to try him is the province of the state court to decide, and presents no question in which this Court can review its decision. Alvarez-Machain v. Sosa(District Court). Valid extradition under IL treaty and offense must satisfy the rule of double criminality [both at time of happening or commission AND at the time of request, offense must be defined in both territories Sosa v. Machain (Supreme Court). On the Alien Tort Statute claim, the Court unanimously ruled that the ATS did not create a separate ground of suit for violations of the law of nations. Instead, it was intended only to give courts jurisdiction over traditional law of nations cases those involving ambassadors, for example, or piracy. Because Alvarez-Machain's claim did not fall into one of these traditional categories, it was not permitted by the ATS. On the FTCA claim, the Court ruled that the arrest had taken place outside the United States and therefore was exempted from the Act. It rejected Alvarez-Machain's argument that the exemption should not apply because the arrest had been planned in the United States.19 Ebrahim case. UNOCAL Case. Although he found that Unocal knew of the human rights violations, he reasoned that the corporation was not legally responsible. Unocal knew that the military had a record of committing human rights abuses; that the Project hired the military to provide security for the Project, a military that forced to work and entire villages to relocate for the benefit of the Project; that the military, while forcing villagers to work and relocate, committednumerous acts of violence; and that Unocal knew or should have known that the military did commit, was committing, and would continue to commit these tortious acts. Unocal and SLORC shared the goal of a profitable project. However, . . . this shared goal does not establish joint action. Plaintiffs present no evidence that Unocal "participated in or influenced" the military's unlawful conduct; nor do Plaintiffs present evidence that Unocal "conspired" with the military to commit the challenged conduct.20 Congo v. Belgium. Diplomatic and consular agents, certain high-ranking officials, in a State, enjoy immunities from jurisdiction in other states, both civil and criminal. Immunities accorded to ministers of foreign affairs in CIL are accorded to ensure the effective performance of their functions on behalf of their states and not for their personal benefit US v. Purganan. Bailable in view of recent developments, in international law. The following trends in international law cannot be ignored, such as: (1) the growing importance of the individual person in public international law who, in the 20 th century, has gradually attained global recognition; (2) the higher value now being given to human rights in the international sphere; (3) the corresponding duty of countries to observe these universal human rights in fulfilling their treaty obligations; and (4) the duty of the Court to balance the rights of the individual under our fundamental law, on one hand, and the law on extradition, on the other. The modern trend in public international law is the primacy placed on the worth of the individual person and the sanctity of human rights. Slowly, the recognition that the individual person may properly be a subject of international law is now taking root. The vulnerable doctrine that the subjects of international law are limited only to states was dramatically eroded towards the second half of the past century. The Philippines, along with the other members of the family of nations, committed to uphold the fundamental human rights as well as value the worth and dignity of every person. This commitment is enshrined in Section II, Article II of our Constitution which provides: “The State values the dignity of every human person and guarantees full respect for human rights.” The Philippines, therefore, has the responsibility of protecting and promoting the right of every person to liberty and due process, ensuring that those detained or arrested can participate in the proceedings before a court, to enable it to decide without delay on the legality of the detention and order their release if justified. In other words, Philippine authorities are under obligation to make available to every person under detention such remedies which safeguard their fundamental right to liberty. These remedies include the right to be admitted to bail. (Gov’t. of Hongkong Special Administrative Region v. Hon. Felixberto Olalia, et al., G.R. No. 153675, April 19, 2007). On a more positive note, also after World War II, both international organizations and states gave recognition and importance to human rights. Thus, on December 10, 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights in which the right to life, liberty, and all the other fundamental rights of every person were proclaimed. While not a treaty, the principles contained in the said Declaration are now recognized as customarily binding upon the members of the international community. Thus, in Mejoff v. Director of Prisons, 90 Phil. 70 (1951) the Court, in granting bail to a prospective deportee, held that under the Constitution, the principles set forth in that Declaration are part of the law of the land. In 1966, the UN General Assembly also adopted the International
http://www.enotes.com/genocide-encyclopedia/eichmann-2 http://www.oyez.org/cases/2000-2009/2003/2003_03_339 20 http://homepages.uc.edu/thro/doe/judgment.html 18 19
43 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.”
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21
Covenant on Civil and Political Rights which the Philippines signed and ratified. Fundamental among the rights enshrined therein are the rights of every person to life, liberty, and due process.21 Flowers v. Clinton. Teotico v. GovGen. International Responsibility Magallona annotations: A state may commit, and be held responsible for, a wrongful act It is a norm of GIL that ‘every internationally wrongful act of a State entails the international responsibility of that State Responsibility arises as a consequence of illegal acts or for failure to observe obligations under international law Chorzow Factory Case: “It is a principle of international law that a breach of an engagement involves an obligation to make reparation in an adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself When does an internationally wrongful act of a state arise under international law? Elements: (a) an act or omission is attributable to the State under international law; and (b) that conduct or act is a breach of an international obligation on the part of that State. A breach may relate to an obligation under customary norm or a conventional rule Principle of attribution the act of the organs or officials of a state is attributed to that state as its own act in determining its responsibility for an internationally wrongful act Examples of rules wrt attribution: UN Int’l Law Commission (1) The act of any State organ (or official) is attributable to the State as its own act under IL, without regard as to whether it is in the exercise of legislative, executive, judicial or any other function, whatever position it holds in the internal organization of the State and whatever its character as an organ of the central Government or of a territorial unit of the State (2) The act of a State organ or of a person or entity empowered to exercise elements of governmental authority is an act attributable to that State under IL if it or he acts in that capacity, even if such act is in excess of authority or contravenes instructions (3) The conduct of a person or group of persons is considered an act of a State under IL if the person or group is in fact acting on the instructions of, or under the direction or control of, that State in carrying out that conduct (4) The conduct of a person or group of persons is attributable to the State under IL if the person or group is in fact exercising elements of governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority (5) The conduct of an insurrectionary or rebel movement which becomes the new Government of a State shall be considered an act of that state under IL What conduct on the part of the organs of a State may be considered as an act of that State from the standpoint of State responsibility? Art. 4(1) of ILC Draft Articles on State Responsibility: The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State. Legal consequence of an internationally wrongful act? REPARATION that must, as far as possible, wipe out all the consequences of the illegal act and re-establish status quo ante[Chorzow Factory Case] Objective responsibility means one arising from breach of duty by reason of the result alone of the act or omission as the cause, without regard as to whether there is fault or culpa State is responsible for the ultra vires acts or acts, contrary to its internal law, of its officials Brownlie: “The state also bears international responsibility by its officials or its organs which are delictual according to IL, regardless of whether the official organ has acted within the limits of his competencey or has exceeded those limits” Art. 7, ILC DASR. Excess of authority or contravention of instructions The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions Also holds true with respect to the conduct of national courts or judicial organs What are the other legal consequences of an internationally wrongful act, in addition to full reparation? (1) In the 1st place, the obligation breached continues to exist and the responsible State is still under duty to perform it (2) It is obliged to cease the wrongful act, if it is still continuing, and to offer assurances and guarantees not to repeat the act, if the circumstances so require Scope of the obligations arising from an internationally wrongful act these oblig may be incurred in relation to another State, to several States, or to the int’l community as a whole, depending on the character and content of the int’l oblig and on the circumstances of the breach Forms of reparation a. Restitution – responsible State is under duty to re-establish the situation which existed before it committed the wrongful act, provided that restitution is not materially impossible and is proportionate to the benefit deriving from restitution instead of compensation b. Compensation – with respect to the damage caused by the wrongful act insofar as the damage is not made good by restitution; includes financially assessable damage like profits c. Satisfaction – may consist in an acknowledgment of the breach, an expression of regret, a formal apology; responsible State is under duty to give satisfaction insofar as the damage or injury cannot be made good by R or C; should be proportionate to the injury & not humiliating to responsible state May injured state take countermeasures (self-help) against a State responsible for a wrongful act? Art, 49, ILC DASR. Object and limits of countermeasures
http://www.batasnatin.com/law-library/political-and-public-international-law/constitutional-law/739-extradition.html
44 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” 1. An injured State may only take countermeasures against a State which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations under part two. 2. Countermeasures are limited to the non-performance for the time being of international obligations of the State taking the measures towards the responsible State. 3. Countermeasures shall, as far as possible, be taken in such a way as to permit the resumption of performance of the obligations in question. Moreover, countermeasures must be proportionate to the injury suffered, in relation to the gravity of the wrongful act and rights involved May the right to invoke state responsibility be lost? YES, when: [Art. 45, ILC DASR] (a) The injured state validly waived the claim; or (b) Injured State is to be considered as having, by reason of its conduct, validly acquiesced in the lapse of the claim Aggression, defined use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the UN Charter A2: The first use of armed force by a State in contravention of the Charter = prima facie evidence of aggression A3: what qualifies as an act of aggression: (a) Invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; (b) Bombardment by the armed forces of a state against the territory of another state or the use of any weapons by State against territory of another (c) Blockade of ports or coasts of a State by the armed forces of another (d) An attack by the armed force of a State on the land, sea or air forces or maritime and air fleets of another (e) Use of armed forces in contravention of an agreement (f) Action of State allowing its territory, placed at the disposal of another State, to be used by the other State for perpetrating an act of aggression against a 3rd state (g) Sending by or on behalf of a state armed bands, groups, irregulars, or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, to its substantial involvement therein Reprisal v. Retortion ILC Draft Articles on State Responsibility, see full text Corfu Channel Case. ICJ held Albania responsible for the consequences of mine-laying within its territorial waters, on account of its failure to give warning to the danger. Rainbow Warrior Arbitration. French agents destroyed a Greenpeace international vessel while in harbor in NZ. A communiqué from French PM confirmed that agents acted under its instructions, and promise reparation US v. Iran. The initial take-over was not attributable to the state. Attribution would be present only when it is established that the acts were carried out in response to specific instructions from a competent organ of the State UNOCAL, supra. Chorzow Factory Case. Poland has a positive duty to respect and afford protection to the property rights of aliens living in its territory. In IL, any breach of an engagement involves an oblig to make reparation Prosecutor v. Tadic. Palestinian Wall Advisory Opinion. The ICJ said that some rights may be exclusively matters of international humanitarian law, others exclusively matters of human rights law, and other may be matters of both branches of international law. The ICJ also concluded that international human rights instruments are applicable in respect to State exercise of jurisdiction outside its own territory, particularly in occupied territory.22 Bosnia Case. This decision applied the Convention on the Prevention and Punishment of the Crime of Genocide. The ICJ found Bosnia violated the Genocide Convention when it failed to prevent genocide. However, the ICJ found that Bosnia was not directly responsible for the genocide, using the “effective control” standard the ICJ created in Nicaragua v. United States (1986).23 Union Bridge Company Claim. Union Bridge claims damages arising out of the removal of the material from Port Elizabeth to the Imperial Military Railways by Harrison, the storekeeper, an agent of Britain, without UBC’s consent. LIABILITYNOT AFFECTED BY THE FACT THAT IT WAS DONE UNDER MISTAKE Youmans Claim. Mexico liable for acts of soldier, whether outside scope of authority or done in private capacity not intended by the rule to say the no wrongful act of an official acting in the discharge of duties entrusted to him can impose responsibility on a government under IL because it was ultra vires Arts. 4 & 7 Zafiro Claim. US liable for the whole damage as the Chinese crew of Zafiro are shown to have participated; no effective control of the Chinese crew at the time when real damage took place applicable article: 4 Bolivar Railway Company Claim. Art. 10 Neer Claim. The proprietary of governmental acts should be put to the test of international standards, and that the treatment of an alien, in order to constitute an international delinquency, should amount to an outrage, to bad faith, to willful neglect of duty, or to an insufficiency of governmental action, so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency. Whether the insufficiency proceeds from deficient execution of an intelligent law or from the fact that the laws of the country do not empower the authorities to measure up to int’l standards is immaterial Starrett Housing Corp v. Iran. Assumption of control over property by a government does not automatically and immediately justify a conclusion that the property has been taken by the government, thus requiring compensation under IL
22 23
http://www.wcl.american.edu/nimj/international_hum_law.cfm ibid
45 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” 5.
Vienna Convention on the Law of Treaties Definitions: VCLoT, 2(1) (a) “treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation; (b) “ratification”, “acceptance”, “approval” and “accession” mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty; (c) “full powers” means a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty; (d) “reservation” means a 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 that State; (e) “negotiating State” means a State which took part in the drawing up and adoption of the text of the treaty; (f) “contracting State” means a State which has consented to be bound by the treaty, whether or not the treaty has entered into force; (g) “party” means a State which has consented to be bound by the treaty and for which the treaty is in force; (h) “third State” means a State not a party to the treaty; (i) “international organization” means an intergovernmental organization. Definition of “treaties” Magallona annotation: convention covers only (1) agreements between States; (2) those in writing; (3) those governed by IL excluded: (those concluded between states and other subject of IL; (2) agreements not in written form; (3) those governed by the national law of one of the parties or by any other national law system chosen by the parties for the purpose of adopting or authenticating the text of a treaty, or for expressing the consent of the State to be bound, a person may be so considered if: (1) he produces an instrument called full powers; or (2) if it appears from the intention of States concerned to consider him so and to dispense with the production of full powers exceptions to strict requirement of full powers: VCLoT, 7(2). In virtue of their functions and without having to produce full powers, the following are considered as representing their State: (a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty; (b) heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited; (c) representatives accredited by States to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ “adoption” of the text of a treaty its form and content have been settled by the negotiating States; this is preparatory to the authentication of the text of a treaty and to its signature VCLoT, 9. Adoption of the text 1. The adoption of the text of a treaty takes place by the consent of all the States participating in its drawing up except as provided in paragraph 2. 2. The adoption of the text of a treaty at an international conference takes place by the vote of two thirds of the States present and voting, unless by the same majority they shall decide to apply a different rule. Nature and rationale of authentication of the text of a treaty distinct part of the treaty-making process by which the definitive text of a treaty is established as the correct and authentic one By what means may a state express its consent to be bound by a treaty? (1) Signature (2) Exchange of instruments constituting a treaty (3) Ratification (4) Acceptance (5) Approval (6) Accession – method by which a State, under certain conditions, becomes party to a treaty of which it is not a signatory and in the negotiation of which it did not take part When does a treaty require ratification? VCLoT, 14(1). (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) the representative of the State has signed the treaty subject to ratification; or (d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative or was expressed during the negotiation. When by accession VCLoT, 15. (a) the treaty provides that such consent may be expressed by that State by means of accession; (b) it is otherwise established that the negotiating States were agreed that such consent may be expressed by that State by means of accession; or (c) all the parties have subsequently agreed that such consent may be expressed by that State by means of accession. Consent of a State to be bound only to a part of a theory VCLoT, 17. 1. Without prejudice to articles 19 to 23, the consent of a State to be bound by part of a treaty is effective only if the treaty so permits or the other contracting States so agree.
46 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” 2.
The consent of a State to be bound by a treaty which permits a choice between differing provisions is effective only if it is made clear to which of the provisions the consent relates. State’s obligation not to defeat the object and purpose of a treaty prior to its entry into force, when VCLoT, 18 (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed. “entry into force” of a treaty means the beginning of the binding force of a treaty as law between the parties; how determined VCloT, 24.1: A treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree Treaty provisions which are necessarily operative before the entry into force of the treaty VCLoT, 24.4 The provisions of a treaty regulating the authentication of its text the establishment of the consent of States to be bound by the treaty the manner or date of its entry into force reservations the functions of the depositary and other matters arising necessarily before the entry into force of the treaty apply from the time of the adoption of its text. Provisional application of a treaty or part of it before its entry to force, when: VCLoT, 25.1. (a) the treaty itself so provides; or (b) the negotiating States have in some other manner so agreed. RESERVATION – see definition [2.1(d)] VCLoT, 23.1. A reservation, an express acceptance of a reservation and an objection to a reservation must be formulated in writing and communicated to the contracting States and other States entitled to become parties to the treaty. General rule: reservations permitted; Exceptions [VCLoT, 19] (a) the reservation is prohibited by the treaty; (b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or (c) in cases not failing under subparagraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty. Acceptance by other contracting States of reservation not required: VCLoT, 20(1). A reservation expressly authorized by a treaty does not require any subsequent acceptance by the other contracting States unless the treaty so provides. Acceptance, when required: VCLoT, 20(2). When it appears from the limited number of the negotiating States and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties. In a multilateral treaty, if only one state accepts reservation: VCLoT, 20.4(a) acceptance by another contracting State of a reservation constitutes the reserving State a party to the treaty in relation to that other State if or when the treaty is in force for those States Pacta sund servanta: VCLoT, 26. Every treaty in force is binding upon the parties to it and must be performed by them in good faith. State may NOT invoke its internal law to evade the performance of treaty oblig VCLoT, 27. A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46. Generally, no retroactive application of treaty: VCloT, 28. Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party. Interpretation of treaties, VCLoT, 31. 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended. 3rd state: treaty may NOT create rights and oblig for 3rd states w/o its consent VCLoT, 34. How may an oblig arise from a treaty for a 3rd State: VCLoT, 35. if the parties to the treaty intend the provision to be the means of establishing the obligation; and, the third State expressly accepts that obligation in writing. Abaya v. Ebdane. An “exchange of notes” is a record of a routine agreement that has many similarities with the private law contract. The agreement consists of the exchange of two documents, each of the parties being in the possession of the one signed by the representative of the other. || …treaties, agreements, conventions, charters, protocols, declarations, memoranda of understanding, modus vivendi and exchange of notes all are refer to international instruments binding at international law. || Although these instruments differ from each other by title, they all have common features and international law has applied basically the same rules to all these instruments. These rules are the result of long practice among the States, which have accepted them as binding norms in their mutual relations. Therefore, they are regarded as international customary law.24
24
http://luckyluchie.blogspot.com/2009/07/abaya-vs-ebdane.html
47 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.”
B.
DBM v. Kolonwel. Under the fundamental international principle of pacta sunt servanda, the RP, as borrower bound itself to perform in good faith the duties and obligations under Loan No. 7118-PH. Applying this postulate, the DBM IABAC, was legally obliged to comply with, or accord primacy to the WB guidelines on the conduct and implementation of the bidding/procurement process in question. 25 Definition of “ratification” Lim v. Exec. Sec. The Vienna Convention on the Law of Treaties, Articles 31 and 32 contains provisos governing interpretations of international agreements. It clearly provides that the cardinal rule of interpretation must involve an examination of the text, which is presumed to verbalize the parties’ intentions. The Convention likewise dictates what may be used as aids to deduce the meaning of terms, which it refers to as the context of the treaty, as well as other elements may be taken into account alongside the aforesaid context. || It appeared farfetched that the ambiguity surrounding the meaning of the word .’activities” arose from accident. It was deliberately made that way to give both parties a certain leeway in negotiation. In this manner, visiting US forces may sojourn in Philippine territory for purposes other than military. As conceived, the joint exercises may include training on new techniques of patrol and surveillance to protect the nation’s marine resources, sea search-and-rescue operations to assist vessels in distress, disaster relief operations, civic action projects such as the building of school houses, medical and humanitarian missions, and the like.26 Bayan v. Zamora. Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops or facilities should apply in the instant case. To a certain extent and in a limited sense, however, the provisions of section 21, Article VII will find applicability with regard to the issue and for the sole purpose of determining the number of votes required to obtain the valid concurrence of the senate. || The Constitution, makes no distinction between “transient” and “permanent.” We find nothing in section 25, Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in the Philippines. || It is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty. 27 Pimentel v. Exec. Sec. The Supreme Court ruled that the the President, being the head of state, is regarded as the sole organ and authority in external relations and is the country’s sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the country’s mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations. In the realm of treaty-making, the President has the sole authority to negotiate with other states. || Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987 Constitution provides that “no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.”28 Salonga Petition on the VFA. Reservations to the Convention on the Prevention and Punishment o the Crime of Genocide. Nicaragua v. US. Vinuya case. 6. Vienna Convention on Diplomatic Relations; Vienna Convention on Consular Relations and Optional Protocols see Karichi table US v. Iran. Case Concerning Avena & other Mexican Nationals. International Organizations 1. The UN Charter & The Use of Force29 In this lesson we discussed the provisions in the UN Charter relating to the prohibition on the use of force by States in their relations with each other. One of the primary goals of the UN, according to Article 1(1) of the UN Charter, is to maintain international peace and security. In order to achieve this aim, Article 2(4) contains a prohibition on the use of force. A system of collective sanctions against any offending State that resorts to the use of force protects this prohibition. These sanctions are found in Articles 39-51 of the UN Charter. PROVISIONS RELATING TO THE USE OF FORCE: THE PROHIBITION AND THE EXCEPTIONS Article 1(1) of the UN Charter says that one of the purposes of the Charter is to: To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of (1) threats to the peace, and for the (2) suppression of acts of aggression or (3) other breaches of the peace, and to bring about by peaceful means… adjustment or settlement of international disputes or situations which might lead to a breach of the peace In order to maintain international peace and security and to prevent future wars: (1) Article 2(3) places an obligation on member States to settle their disputes peacefully. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. (2) Article 2(4) prohibits member States from using force in their international relations. 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.
http://angelcapacio.wordpress.com/2009/07/25/dbm-vs-kolonwel-g-r-no-175608-june-82007/ http://candicepelarion08.wordpress.com/2009/07/11/lim-vs-executive-secretary/ 27 http://arielsag-execlass.blogspot.com/2008/09/bayan-vs-zamora.html 28 http://pil-rizalyn.blogspot.com/2008/08/pimentel-vs-executive-secretary-gr.html 29 http://ruwanthikagunaratne.wordpress.com/2011/04/11/lesson-5-1-prohibition-on-the-use-of-force-and-the-un-charter/ 25 26
48 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.”
o o
In Nicaragua v USA, ICJ held that the prohibition on the use of force is covered by treaty law (that is the UN Charter), by customary international law and the prohibition was a Jus Cogens norm. In the 1970 Declaration on Principles of International Law concerning Friendly Relations there is: (1) a general prohibition on the threat or use of force, (2) duty to refrain from “organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory” when these acts involve the threat or use of force against another State.
(3) The prohibition is safeguarded by a system of collective sanctions against any offending State that uses force. This is found in Articles 3951 of the UN Charter. 3.1. Articles 39, 40 and 41 operate to offer sanctions against a member State that has threaten or used force in a way that it amounts to a threat to or breach of peace or an act of aggression. Article 39 says: The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. Article 41 allows the Security Council to impose sanctions (trade and economic sanctions, arms embargoes): The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations. 3.2. Article 42 gives the Security Council the power to authorize the use necessary force to maintain international peace and security. Because the Security Council does not have a military force of its own, the Security Council authorizes member States to use force. The Security Council] may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. 3.3. Article 51 provides for a member State to use force in self defense when there is an armed attack against that State Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security… As discussed, the only exceptions to the prohibition on the use of force in the UN Charter are found in Articles 42 and 51 of the UN Charter (provisions in Article 53(1) and 107 are not relevant and we will not discuss them). In addition to this, States have invoked customary international law of self defense and humanitarian intervention (for example in the 11 day NATO bombing of Kosovo) and implicit authorization under SC Resolutions (for example, NATO bombing of Kosovo and US invasion of Iraq) as a justification to use force against another State. We will not discuss these aspects in class. UN Charter, 2(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. UN Charter, 2(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. UN Charter, 24(1). In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. UN Charter, 25. The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. UN Charter, 23(1). The Security Council shall consist of fifteen Members of the United Nations. The Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America shall be permanent members of the Security Council. The General Assembly shall elect ten other Members of the United Nations to be non-permanent members of the Security Council, due regard being specially paid, in the first instance to the contribution of Members of the United Nations to the maintenance of international peace and security and to the other purposes of the Organization, and also to equitable geographical distribution. UN Charter, 27(3). Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting. Nicaragua v. US. The armed attack, necessity, and proportionality requirements. The general rule prohibiting force allows for certain exceptions. First, the inherent right which any state possesses in the event of an armed attack, covers both collective and individual self defense. The parties agree that whether the response to the attack is lawful depends on observance of the criteria of the necessity and the proportionality of the measures taken in self defense. In the case of individual self defense, the exercise of this right is subject to the state concerned having been a victim of an armed attack. Reliance on collective self defense of course does not remove the need for this. There is no rule in customary international law permitting another states to exercise the right of collective self defense on the basis of its own assessment of the situation. Request for exercise of collective self defense also needed. Thus, in customary international law, there is no rule permitting the exercise of collective self defense in the absence of a request by the State which regards itself as the victim of an armed attack. The requirement of a request is additional to the requirement that such a State should have declared itself to have been attacked. Principle of non-intervention. The principle of non-intervention involves the right of every sovereign State to conduct its affairs without outside interference. A prohibited interference must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. The element of coercion, which defines, and indeed forms the very essence of prohibited
49 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” intervention, is particularly obvious in the case of an intervention which uses force, either in the direct from of military action, or in the indirect form of support to subversive or terrorist armed activities within another State. These are therefore wrongful in the light of both the principle of non-use of force, and that of intervention. Collective counter-measure in response to conduct not amounting to an armed attack. While an armed attack would give rise to an entitlement to collective self defense, a use of force of a lesser degree of gravity cannot produce any entitlement to take collective counter-measures involving the use of force. The acts of which Nicaragua is accused, even assuming them to have been established and imputable to that State, could only have justified proportionate counter-measures on the part of the victim States (El Salvador, Honduras, Costa Rica). They could not justify counter-measures taken by a third State (the US) and particularly could not justify intervention involving the use of force. Legality of the Use by a State of Nuclear Weapons. Prohibition is subject to exceptions. This prohibition of the use of force (Art. 2, para 4, UN Charter) is to be considered in the light of other relevant provisions of the Charter (Art. 51, on the inherent right of individual or collective self defense if an armed attack occurs; Art. 42, whereby the Security Council may take military enforcement measures in conformity with Chapter VII). Resort to self defense under Art. 51 is subject to certain restraints (the conditions of necessity and proportionality, submission to which is a rule in customary international law). The proportionality principle may thus not in itself exclude the use of nuclear weapons in self defense in all circumstances. UN Charter does not refer to a specific weapon. These provisions do not refer to specific weapons. They apply to any use of force, regardless of the weapons employed. The Charter neither expressly prohibits, nor permits, the use of any specific weapon, including nuclear weapons. Additional considerations. It suffices for the Court to note that the very nature of all nuclear weapons and the profound risks associated therewith are further considerations to be borne in mind by States believing they can exercise a nuclear response in self defense in accordance with the requirements of proportionality. “Signaled” intention to use force. Whether a signaled intention to use force if certain events occur is or is not a “threat” within Art. 2, para 4 of the Charter depends upon various factors. If the envisaged use of force is in itself unlawful, the stated readiness to use it would be a threat prohibited under Art. 2, para 4. If its is to be lawful, the declared readiness to use force must be a use of force that is in conformity with the Charter. Possession of nuclear weapons may indeed justify an inference of preparedness to use them. Whether this is a “threat” depends upon whether the particular use of force envisaged would be directed against the territorial integrity or political independence of a State, or against the Purposes of the UN or whether it would necessarily violate the principles of necessity and proportionality. Legality of the Use of Force (Yugoslavia v. US). ICJ has no jurisdiction because US did not consent to the submission of the dispute. Genocide Convention does not prohibit reservations. Yugoslavia did not object to the US reservations to Art. IX. Said reservation had the effect of excluding that Article from the provisions of the Convention in force between the parties. In consequence, Art IX cannot found the jurisdiction of the Court to entertain a dispute between Yugoslavia and the US alleged to fall within its provisions. It cannot therefore indicate any provisional measure whatsoever in order to protect the rights invoked therein. The Case of NATO’s air campaign in the Kosovo Crisis of 1999, Shinya Murase. The Caroline Case. Anticipatory self defense. US Secretary of State Daniel Webster wrote to Lord Ashburton: “[I]t will be for Her Majesty’s Government to show, upon what state of facts, and what rules of national law, the destruction of the “Caroline” is to be defended. It will be for that Government to show a 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.”
2.
MW Reisman, “Assessing Claims to Revise the Laws of War” Case Concerning Oil Platfirms (Iran v. US). The Court points out that the US has not claimed to have been exercising collective self-defense on behalf of the neutral States engaged in shipping in the Persian Gulf. Therefore, in order to establish that it was legally justified in attacking the Iranian platforms in exercise of the right of individual self-defense, the United States has to show that attacks had been made upon it for which Iran was responsible; and that those attacks were of such a nature as to be qualified as "armed attacks" within the meaning of that expression in Article 51 of the UN Charter, and as understood in customary law on the use of force. The United States must also show that its actions were necessary and proportional to the armed attack made on it, and that the platforms were a legitimate military target open to attack in the exercise of self-defense. Evidence failed to support the contentions of the US. International Court of Justice UN Charter, 92. The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter. UN Charter, 93. 1. 2.
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, 94. 1.
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.
50 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” 2.
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, 96. 1. 2.
The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question. 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.
ICJ Statute, 1. The International Court of Justice established by the Charter of the United Nations as the principal judicial organ of the United Nations shall be constituted and shall function in accordance with the provisions of the present Statute. ICJ Statute, 34(1). Only states may be parties in cases before the Court. ICJ Statute, 35(1). The Court shall be open to the states parties to the present Statute. 5. Applicable Law ICJ Statute, 38, supra. ICJ Statute, 59. The decision of the Court has no binding force except between the parties and in respect of that particular case. Roque, The Security Council Under Ch. VII of the UN Charter: Problems under the rule of law 6. Jurisdiction ICJ Statute, 36(1-3). 1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. 2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a. the interpretation of a treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of an international obligation; d. the nature or extent of the reparation to be made for the breach of an international obligation. 3. The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time. Nicaragua v. US, supra. Lockerbie Case. A dispute is defined as a disagreement on a point of law or fact, a conflict of legal views or of interest between two persons. In this case, the parties differed on the question of whether the destruction of the aircraft was governed by the Montreal Convention. Moreover, the UN SC Resolutions were adopted after Libya filed its application. Since admissibility had to be determined as at the date on which the application was filed, subsequent cognizance of the SC and the issuance of said resolutions could not remove any jurisdiction which the Court possessed at the date of filing of the application. ELSI Case. The Court held that it had jurisdiction, its jurisdiction being based upon the Statute of the Court and the FCN Treaty. The Court stated the doctrine of exhaustion of local remedies was a fundamental rule of customary international law and was not rendered inapplicable simply because of the absence of words making it specifically applicable to a certain type of action. However, since Italy failed to establish that a remedy existed under municipal law which was available to the US corporations, the claim is admissible. (Notes: The doctrine of exhaustion of local remedies is available when a state brings a case in the exercise of its diplomatic protection of its nationals/ espouses a claim of its national. It is not required when the state brings a case as the injured party (i.e. the injury is caused to the state itself such as in the US Diplomatic and Consular Staff case). South West Africa Cases, supra Case Concerning East Timor. ICJ had no jurisdiction. The Court refrained from exercising jurisdiction, as it could not rule upon the dispute between Australia and Portugal without having to rule upon whether Indonesia’s entry into East Timor was lawful. The very subject matter of the decision would necessarily be a determination of whether Indonesia acquired power to conclude treaties on behalf of East Timor, which determination could not be made without the consent of Indonesia. (Notes: doctrine applies both to advisory opinion and contentious cases; case is authority for the definition of erga omnes obligation) 7.
Advisory opinions Legality of the Uses by a State of Nuclear Weapons in Armed Conflict. The ICJ refused to give an advisory opinion. The question in this case relates not to the effects of the use of nuclear weapons on health, but to the legality of the use of such weapons in view of their health and environmental effects. Whatever those effects might be, the WHO’s competence to deal with them is not dependent on the legality of the acts that caused them. None of the WHO’s functions has a sufficient connection with the question before it for that question to be capable of being considered as arising “within the scope of [the] activities” of the WHO. || International organizations are governed by the “principle of speciality” – they 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. To ascribe to the WHO the competence to address the legality of the use of nuclear weapons – even in view of their health and environment effects – would be tantamount to disregarding the principle of speciality. Monetary Gold Case. The Court cannot decide such a dispute (WON Albania committed a wrong against Italy and must compensate) without the consent of Albania. Here, Albania’s legal interest would not only be affected by a decision, but would form the very subjectmatter of the decision.
51 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” Certain Expenses of the UN, supra. Western Sahara Case. The ICJ finds no compelling reason to deny the request. Art. 65, para 1 is permissive and, under it, that power is of a discretionary character. In exercising this discretion, the ICJ, like the PCIJ, has always been guided by the principle that, as a judicial body, it is bound to remain faithful to the requirements of its judicial character even in giving advisory opinions. It has been said in previous opinions that the reply of the Court represents its participation in the activities of the UN and, in principle, should not be refused. The Court has further said that only “compelling reasons” should lead it to refuse to give an advisory opinion. In general, an opinion given by the Court will furnish the GA with elements of a legal character relevant to the future treatment of the decolonization of Western Sahara. In any event, to what extent or degree its opinion will have an impact on the action of the GA is not for the Court to decide. The function of the Court is to give an opinion based on law, once it has come to the conclusion that the questions put to it are relevant and have a practical and contemporary effect and, consequently are not devoid of object or purpose. As to lack of consent, the Court said that it recognized that lack of consent might constitute a ground for declining to give the opinion requested if, in the circumstances of a given case, considerations of judicial propriety should oblige the Court to refuse an opinion. I short, the consent of an interested State continues to be relevant, not for the Court’s competence, but for the appreciation of the propriety of giving an opinion. Botswana v. Namibia. The ICJ was requested to determine, on the basis of the Anglo-German Treaty of 1890 and the rules and principles of international law, the boundary between Namibia and Botswana around Kasikili/Sedudu Island and the legal status of the island. The request was made through a Special Agreement between the 2 states to submit the dispute to the ICJ. Neither Botswana nor Namibia is a party to the Vienna Convention on the Law of Treaties, both of them consider Art. 31 of the Convention as applicable in interpreting the Anglo-German Treaty inasmuch as Art. 31 reflects customary international law. *The ICJ acquired jurisdiction because the parties consented to the ICJ’s jurisdiction and acknowledged that the Anglo-German Treaty is binding on them. Status of Eastern Carelia. As Russia is not a member of the League of Nations, the case is one under Art. 17 of the Covenant (in the event of dispute between an member and non-member, the latter shall be invited to accept the obligations of membership for the purpose of such dispute, and if accepted, Art. 12 to 16 shall be applied with modifications). Such consent, however, had never been given by Russia. On the contrary, it has on several occasions clearly declared that it accepts no intervention by the League of Nations. It appears to the Court that that there are other cogent reasons which render it very inexpedient that the Court should attempt to deal with the present question. As Russia, refused to take part, it is doubtful if sufficient materials would be available to allow any judicial conclusion on whether Finland and Russia contracted on the terms of the Declaration as to the nature of Eastern Carelia’s autonomy. The question put to the Court is not one of abstract law, but concerns directly the main point of the controversy and can only be decided by an investigation into the facts underlying the case. Answering the question would be substantially equivalent to deciding the dispute between the parties. Palestinian Wall Case Cases on Provisional Measures: Bosnia Case. The Court granted the request for provisional measures. It stated that it should not indicate such measures unless the provisions invoked by the applicant or found in the ICJ Statute appeared, prima facie, to afford a basis on which the jurisdiction of the Court might be established. The object of the power to indicate provisional measures of protection was to ensure that irreparable prejudice should not be caused to rights which might subsequently be adjudged to belong to one of the parties. Moreover, the Court could only indicate provisional measures to be taken by the parties but not by 3rd States who would not be bound by the eventual judgment. Lockerbie Case. The Court denied the request for provisional measures. It reasoned that since Libya and the US are UN members, they are obliged to accept and carry out the decisions of the Security Council. Such obligation prevails over the duty of the parties under the Montreal Convention. An indication of the measures requested by Libya would be likely to impair the rights, which appear prima facie to be enjoyed by the United States by virtue of the Security Council Resolution.
C.
Cases on Dispute: Admissions Case. Art. 4 of UN Charter set sufficient conditions for UN membership. Dealing with the preliminary objection, the Court ruled that the question was a purely legal one. Interpretation of a treaty provision is an essentially judicial task. Given its legal nature, the Court is not concerned with the political motives, which may have inspired the request at hand. Dealing with the question, the Court answered in the negative. It said that the conditions stated in Art. 4 are exhaustive, namely: a candidate must be 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. These are not merely the necessary but also the sufficient conditions for membership. Free Zones Case. A series of treaties between France and Switzerland established customs-free zones. France claims that by virtue of the Peace Treaty of Versailles, the regime of free zones had been abrogated. The Court took cognizance of the case despite the fact the matters addressed to it were of great economic importance, as the matters arose in the context of legal questions to be answered. The legal dispute here is essentially France’s right to withdraw unilaterally from a treaty. Deciding on the merits, the court said that there was no abrogation because the text itself of the Special Arbitration Agreement states that the countries are to settle between themselves the status of the free zones because of an inconsistency. An inconsistency does not automatically operate to involve the abolition of the free zones. Mavrommatis Case. The Court defined a dispute as a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons. At first, the dispute was between a private person and a State. Subsequently, however, Greece took up the case. Once a State has taken up a case on behalf of one of its subject, which it is entitled to protect under international law, before an international tribunal, in the eyes of the latter, the State is the sole claimant. Also, it is the function of the Court to determine if there is a dispute based on the facts of the case and not on the assertions of the parties. UN Headquarters Advisory Opinion. Dispute defined. Whether there exists an international dispute is a matter for objective determination. PCIJ defined a dispute as a “disagreement on a point of law or fact, a conflict of legal views or of interest between 2 persons. Opposing attitudes of the parties clearly establish the existence of a dispute The Individual 1. Human Rights [Magallona annotation] No clear consensus has been settled on the definition of human rights
52 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.” -
Henkin: thise liberties, immunities and benefits which, by accepted contemporary values, all human beings should be able to claim as of right of the society in which they live Classification: (a) 1st generation – civil and political (b) 2nd gen – economic, social and cultural (c) 3rd gen – rights to development, peace, environment Derogation clause – a provision in a human rights treaty which permits a State party to contract out of its obligation under the treaty in time of war or other public emergency threatening the life of the nation Derogation clause does NOT cover all rights embodied in it no derogation from Articles 6 (right to life),7(against torture), 8 (against slavery), 11 (non-imprisonment merely on inability to fulfill contractual oblig), 15 (no crime where there is no law criminalizing the act [nullum crimen sine lege, nullum poena sine lege]),16 (right to recognition as a person),18 (right to freedom of thought, conscience and religion) may be made International Humanitarian Law the branch of PIL which governs armed conflicts to the end that the use of violence is limited and that human suffering is mitigated or reduced by regulating or limiting the means of military operations and by protecting persons who do not or no longer participate in hostilities Fundamental principles of IHL Parties to armed conflict, together with their armed forces, fo not have unlimited choice of methods or means of warfare; prohibited: unnecessary damage or excessive suffering Parties to an armed conflict, shall, at all times distinguish between the civilian population and combatants civilians spared from military attacks which shall be directed only against mil. Obj. Persons hors de combat & those who do not take part directly in hostilities shall be protected and treated humanely without any adverse distinction right to life and physical & moral integrity respected Prohibited to kill or injure an enemy who surrenders or who is hors de combat [out of combat] Wounded and the sick shall be protected and cared for by the party to the conflict which has them in its power; protection also applies to medical personnel, establishment, transports and material Combatants and civilians who are captured by authority of the party to a dispute entitled to respect for right to life, dignity, conviction, and other personal rights; protected against acts of violence and reprisals “armed conflict” in IHL Common Art. 2 the present convention shall apply in all cases of declared war or any other armed conflict which may arise between 2 or more of the Highest Contracting Parties, even if the state of war is not recognized by one of them Immaterial: formal declaration of war Common Article 3: “armed conflict” pertains to non-international armed conflicts in that it deals with armed confrontation between the government and a rebel or insurgent movement, but not between states MARTENS CLAUSE: In cases not covered by this Protocol [I] or by any other international agreements, civilians and combatants remain under the protection and authority of the principles of IL derived from established custom, from the principles of humanity and from the dictates of public conscience categories of armed conflicts: international, non-international, internationalized combatants members of the armed forces of a party to a conflict; excluded: medical personnel and chaplains have the right to participate directly in hostilities only combatants are allowed to thus engage in hostilities allowed to use force, even to kill, and will not be held personally responsible for his acts as he would be were he to do the same as a normal citizen protected persons (1) wounded, sick, shipwrecked (2) prisoners of war shall be quartered under conditions as favorable as those for the forces of the Detaining Power who are billeted in the same area; rt. to visitation [important to avoid torture (3) civilians (a) civilians who are victims of conflict in countries involved (b) civilians in territories of the enemy (c) civilians in oocupied territories (d) civilian internees Women, children under 15, elderly Limits on means of warfare or hostilities (a) Prohibited: weapons causing superfluous injury or unnecessary suffering (b) Prohibited: to order that there be no survivors Non-international Armed Conflicts – Common article 3, obligations: (1) Persons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and those placed hors de combat, “shall in all circumstances be treated humanely, without any adverse distinction re: race, color, religion/faith, sex, birth, wealth, etc.” (2) With respect to the above-mentioned person, the ff. acts shall remain prohibited at any time and in any place a. Violence to life and person b. Taking of hostages c. Outrages upon personal dignity d. Passing of sentences without trial (3) Wounded and sick shall be collected and cared for
53 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012 st
Janz Hanna Ria N. Serrano Unless otherwise provided Case annotations from 2009B PIL reviewer; “Sir Roque says” from Karichi notes; Annotations from Dean Magallona’s “Fundamentals of Public International Law.”
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(4) Application of foregoing provisions shall not affect the legal status of the parties to the conflict insurgent or a rebel group does not assume belligerent status Elements, dissident armed forces or other organized groups: (1) under responsible command; (2) exercise such control over a part of its territory as to enable them to carry out sustained and concerted military ops Hors de combat if: (a) he is in the power of an adverse party; (b) he clearly expresses an intention to surrender; or (c) he has been rendered unconscious or is otherwise incapacitated, unable to defend himself Protecting Power a state or an organization not taking part in the hostilities, which may be a Neutral State, designated by 1 party to an armed conflict with the consent of the other to safeguard/protect its humanitarian interests in the conflict If peoples fighting against colonial domination and alien occupation and against racist regimes in the exercise of right to selfdetermination INTERNATIONAL ARMED CONFLICT STATUS OF NEUTRALITY – neutrality is a legal status of a state in times of WAR International Criminal Law – the branch of PIL which proscribes specified acts as int’l crimes, provides for their prosecution and punishment, and governs the relations of States with respect to individual criminal liability and its enforcement Jurisdiction: genocide, crimes against humanity (widespread and systematic), war crimes, crime of aggression Principle of complementarity: the ICC shall be complementary to national criminal jurisdictions primacy to national jurisdiction Factors which may servfe to limit in practice the principle of primacy of national jurisdiction: primarily, the State which has jurisdiction over is unwilling to carry out or unable genuinely to carry out the prosecution Jurisdictional rules (1) As to subject matter [rationale materiae] (2) Rationale temporis crimes committed after the entry into force of its Statute (after July 1, 2002) (3) Territorial jurisdiction [ratione locus] – crimes committed in territory of contracting parties without respect to nationality of offender (4) Personal jurisdiction [ratione personae] – over nationals of a state party as to crimes within the court’s jurisdiction they are accused of Actual exercise, how brought about? 1. A state party refers to the prosecutor a situation in which a crime appears to have been committed 2. The UN Security Council, acting by its authority under Chap. VII of UN Charter, refers to the Prosec a situation in which a crime appears to have been copmmitted 3. Prosecutor motu proprio a. Nuremberg Tribunals b. Tokyo War Crimes Tribunal c. 1949 Geneva Conventions d. 1978 additional protocol to the Geneva Convention e. SC Resolution 827 f. SC Resolution 955. g. 1998 Rome Convention on the International Criminal Court Legality of the Uses by a State of Nuclear Weapons in Armed Conflict Yugoslavia War Crimes Tribunal Decision on Tadic. Yamashita v. Styer. Dizon v. Commanding General Foreign Investments & Natural Resources [SKIPPED] Texaco v. Libya BP v. Libya Saudi Arabiav. ARAMCO Chorzow Factory Case LIAMCO v. Libyan Arab Republic Starrett Housing Case Kuwait v Aminoil Sapphire Case a. When lawful Starrett housing case AMOCO case Phillips Petroleum Co v. Iran. b. WTO
