CHAPTER 1
THE NATURE OF INTERNATIONAL LAW
What is International Law? A body of rules and principles of action which are binding upon civilized states in their relation to one another A law which deals with the conduct of the states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical Scope of International Law a. Regulation of space expeditions b. Division of the ocean floor c. Protection of human rights d. Management of international financial system e. Regulation of the environment f. Preservation of peace
Some Theories about International Law
Consensual Theory
Austin: Law consists of commands originating from a sovereign and backed up by threats of sanction if disobeyed International law is not law because it does not come from a command of a sovereign International law derives its binding force from the consent of states Treaties—expression of consent
Natural Law Theory
Custom—voluntary adherence to common practices, is seen as expression of consent Law is derived by reason from the nature of man International law—application of natural reason to the nature of the state-person
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Pragmatic Theory
Public International Law v. Private International Law
Is International Law a Law? Henkin: It is probably the case that almost all nations observe all principles of international law and almost all of their obligations almost all of the time Brierly: The ultimate explanation of the binding force of all law is that man, whether he is a single individual or whether he is associated with other men in a state, is constrained, in so far as he is reasonable being, to believe that order and not chaos is the governing principle of the world in which he lives
Command Theory
Some Dissenters
Customary law—what are regarded as generally accepted principles of law are in fact an expression of what traditionally was call natural law International law—a combination of politics, morality and self-interest hidden under the smokescreen of legal language International law is law because it is seen as such by states and other subjects of international law
Public International Law Referred to as International Law Governs the relationship between and among states and also their relations with international organizations and individual persons
CHAPTER 2
Private International Law Referred to as Conflict of Laws Domestic law which deals with cases where foreign law intrudes in the domestic sphere where there are questions of the applicability of foreign law or the role of foreign courts
SOURCES OF INTERNATIONAL LAW
What Sources are Domestic Laws—found in statute books and in collections of court decisions Classifications of Sources 1. Formal sources—various processes by which rules come into existence a. Legislation b. Treaty making c. Judicial decision making d. Practice of states 2. Material sources—identify what the obligations are a. State practice d. Judicial decisions b. UN Resolutions e. Writings of jurists c. Treaties Art. 38(1) of the Statute of the International Court of Justice 1. International conventions—establishing rules expressly recognized by contesting states 2. International custom—evidence of a general practice accepted as law 3. General principles of law recognized by civilized nations 4. Subsidiary means for determination of rules of law a. Judicial decisions b. Teachings of the most highly qualified publicists
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Restatement of Foreign Relations Law of the US 1. Customary Law 2. International agreement 3. General principles common to the major legal system
the law of nations as they result from: usages of civilized people, laws of humanity & public conscience 2.
Sources of International Law 1. Custom 4. Generally recognized principles of law 2. Treaties 5. Judicial decisions 3. International agreements 6. Teachings of highly qualified publicists Custom or Customary Law A general and consistent practice of states followed by them from a sense of legal obligation Elements: 1. Material factor—how state behaves o Elements of Practice of sates or usus a. Duration—may be either short or long; not the most important element b. Consistency—continuity and repetition c.
Generality of the practice of states—uniformity and generality of practice need not be complete but it must be substantial
Opinio Juris—belief that a certain form of behavior is obligatory Dissenting states: subsequent contrary practice o Dissenting states are bound by custom unless they had consistently objected to it while the custom was merely in the process of formation o It is also possible that after a practice has been accepted as law, contrary practice might arise
Treaties Determine the rights and duties of states just as individual rights are determined by contracts Binding force comes from the voluntary decision of sovereign states to obligate themselves to a mode of behavior Treaties and Custom If the treaty is intended to be declaratory of customary law, it may be seen as evidence of customary law Adherence to treaties can be indicative also of adherence to practice as opinio juris If treaty comes later than a particular custom, treaty should prevail If a later treaty is contrary to a customary rile that has the status of jus cogens, custom will prevail The later custom, being the expression of a later will, should prevail A treaty is void if, at the time of its conclusion, it conflicts with a preemptory norm of general international law Preemptory norm of general international law = a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character General Principles of Law Recognized by Civilized Nations This has reference to principles of municipal law common to the legal systems of the world Judicial Decisions Decisions of the court have no binding force except between the parties and in respect of that particular case Decisions do not constitute stare decisis Decisions of the ICJ are not only regarded as highly persuasive in international circles but they have also contributed to the formulation of principles that have become international law
Evidence of state practice and opinio juris a. Treaties b. Diplomatic correspondence c. Statements of national leaders and political advisers d. Conduct of states Instant Custom o A spontaneous activity of a great number of states supporting a specific line of action The Martens Clause Until a complete code of laws of war has been issued, inhabitants & belligerents are protected under the rule on the principles of
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Psychological or subjective factor—why they behave the way they do
Teachings of Highly Qualified Writers and “Publicists” Publicists = institutions which write on international law a. The International Commission b. The Institut de Droit International c. International Law Association d. Restatement of Foreign Relations Law of the US e. Annual publication of the Hague Academy of International Law
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Equity When accepted, is an instrument whereby conventional or customary law may be supplemented or modified in order to achieve justice Where 2 parties have assumed an identical or a reciprocal obligation, one party which is engaged in a continuing non-performance of that obligation should not be permitted to take advantage of a similar nonperformance of that obligation by the other party The Court’s recognition of equity as part of international law is in no way restricted by the special power conferred upon it to decide a case ex aequo et bono, if the parties agree thereto Kinds of Equity: 1. Intra legem—within the law; the law is adapted to the facts of the case 2. Praeter legem—beyond the law; used to fill the gaps within the law 3. Contra legem—against the law; refusal to apply the law which is seen as unjust Other Supplementary Evidence 1. UN Resolutions—generally considered merely recommendatory but if they are supported by all the states, they are an expression of opinio juris communis 2. Soft Law—―Non-treaty Agreements‖; international agreements not concluded as treaties and therefore not covered by the Vienna Convention on the Law of Treaties o Administrative Rules—guide the practice of states in relation to international organizations CHAPTER 3
THE LAW OF TREATIES
Various names of Treaties a. Conventions c. Covenants b. Pacts d. Charters
e. Protocols f. Concordat
g. Modus vivendi
1969 Vienna Convention on the Law of Treaties Governs treaties between states Entered into force in January 1980 Definition of Treaties An international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in 2 or more related instruments and whatever its particular designation Even oral agreement can be binding, however, only written agreements that are new, come under the provisions of the Vienna Convention Characteristics to make it binding: 1. Commitment was very specific 2. There was a clear intent to be bound 叶清蓮 & DSP
Functions of Treaties a. Sources of international law b. Charter of international organizations c. Used to transfer territory, regulate commercial relations, settle disputes, protect human rights, guarantee investments Different Kinds of Treaties Multilateral Treaties
Treaties that create Collaborative Mechanism Bilateral Treaties
Open to all states of the world; Create the norms which are the basis for a general rule of law Can either be Codification Treaties or ―Law Making Treaties‖, or both Operate through the organs of the different states 1. Universal scope 2. Regional In the nature of contractual agreements which create shared expectations such as trade agreements of various forms; ―Contract Treaties‖
The Making of Treaties 1. Negotiation—foreign ministries, diplomatic conferences 2. Power to negotiate 3. Authentication of text—signing of the document; so that states will know the contents & avoid misunderstanding 4. Consent to be bound: a. Signature e. Approval b. Exchange of Instruments f. Accession c. Ratification g. Other means if so agreed d. Acceptance 5. Accession to a treaty—states which did not participate in the initial negotiation may express their consent to be bound 6. Reservations—unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to the State 7. Entry into force of treaties—date agreed or once consent given (but provisional application can also apply) 8. Application of treaties o PACTA SUNT SERVANTA—every treaty in force is BINDING upon the parties and must be PERFORMED by them in GOOD FAITH o A party may NOT INVOKE INTERNAL LAW as justification for its failure to perform a treaty o It is binding upon each party in respect of its entire territory unless a different intention appears in the treaty or is otherwise established 9. Interpretation of Treaties a. Objective approach—interpretation according to the ordinary meaning of the words
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b. Teleological approach—interpretation according to the telos or purpose of the treaty c. Subjective approach—honors special meaning given by the parties Invalidity of Treaties 1. Error—relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed 2. Fraud—State has been induced to conclude a treaty 3. Corruption of a Representative of a State 4. Coercion of a Representative of a State 5. Coercion of a State by the threat or use of force 6. Violation of jus cogens—treaty is void if, at the time of its conclusion, it conflicts with a preemptory norm of general international law Amendment and Modification of Treaties Amendment—formal revision done with the participation, at least in its initial stage, by all the parties to the treaty Modification—involves only some parties Termination of Treaties Terminated or suspended according to the terms of the treaty or with the consent of the parties 1. Material Breach a. Repudiation of the treaty not sanctioned by the present Convention b. Violation of a provision essential to the accomplishment of the object or purpose of the treaty 2. Supervening Impossibility of Performance o Results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty 3. Rebus sic stantibus o Resulted in a radical transformation of the extent of the obligations imposed by it, may, under certain conditions, afford the party affected a ground for invoking the termination or suspension of the treaty Procedure for the Termination of Treaties 1. Notify other parties of ground and measure proposed 2. If no objection, carry out the measure proposed 3. If there is an objection, follow Art. 33 Authority to Terminate Belongs to the one who has authority to enter into the treaty In the Philippines, authority to conclude treaties is shared between the Senate and the President
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Succession to Treaties Clean Slate Rule: newly independent state is not bound to maintain in force or to become a party to any treaty by reason only of the fact that at the date of the succession of states, the treaty was in force in respect of the territory to which the succession of state relates CHAPTER 4
INTERNATIONAL LAW AND MUNICIPAL LAW
Dualism v. Monism Dualist or Pluralist Theory *when international and municipal law are in conflict, Municipal law must prevail Monism or Monistic Theory *International and Municipal laws belong to only one system of law
Municipal Law International Law Product of local Treaties and custom custom or of grown among states legislation As to Regulates relations Regulates relations relations between individual between states they persons under the regulate state As to their Law of sovereign Law between substance over individuals sovereign states Two theories: A. Municipal law subsumes and is superior to international law B. International law is superior to Domestic Law (supported by Kelsen) As to source
Municipal Law in International Law Follows the dualist tradition and blocks domestic law from entry into the international arena A state which has violated a provision of international law cannot justify itself by recourse to its domestic law A state which has entered into an international agreement must modify its law to make it conform to the agreement International Law in Domestic Law How does international law become part of domestic law for dualists? 1. Doctrine of Transformation o It must be expressly and specifically transformed into domestic law through the appropriate constitutional machinery such as an act of Congress or Parliament o Treaties do not become part of the law of a state unless it is consented to by the state 2. Doctrine of Incorporation o They become part of the law of the land
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Philippines adheres to the dualist theory and at the same time adopts the incorporation theory and thereby makes international law part of domestic law International law can be used by Philippine courts to settle domestic disputes Art. 2, Sec. 2 of the Constitution: only customary law and treaties which have become part of customary law become part of Philippine law by incorporation
Commencement of their Existence State, as a person of international law, should possess the following qualifications: (Montevideo Convention of 1933 on Rights and Duties of States) 1. Permanent population—PEOPLEa community of persons sufficient in number and capable of maintain the permanent existence of the community and held together by a common bond of law
Conflict between International Law and Domestic Law: International Rule Before an international tribunal, a state may not plead its own law as an excuse for failure to comply with international law Exception: Art. 46 of Vienna Convention = in cases where the constitutional violation was manifest and concerned a rule of its internal law of fundamental importance Manifest = objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith
2. Defined territory—an entity may satisfy this requirement even if its boundaries have not been finally settled, if one or more of its boundaries are disputed, or if some of its territory is claimed by another state An entity does not necessarily cease to be a state even if all its territory has been occupied by a foreign power or if it has otherwise lost control of its territory temporarily 3. Government—that institution or aggregate of institutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state It is the National Government that has legal personality and it is such that is internationally responsible for the actions of other agencies and instrumentalities of the state Temporary absence of government does not terminate the existence of a state
Conflict between International Law and Domestic Law: Municipal Rule Domestic courts are bound to apply the local law Should a conflict arise between an international agreement and the Constitution, the treaty would not be valid and operative as domestic law Art. 8, Sec. 5 of the Constitution explicitly recognizes the power of the Supreme Court to declare a treaty unconstitutional; however, even if declared unconstitutional, the treaty will not lose its character as an international law CHAPTER 5
SUBJECTS OF INTERNATIONAL LAW STATES
Subjects of International Law—entities endowed with rights and obligations in the international order and possessing the capacity to take certain kinds of action on the international plane Those with international personality Objects of International Law—those who indirectly have rights under or are beneficiaries of international law through subjects of international law States—predominant actors; a community of persons more or less numerous, permanently occupying a definite portion of territory, independent of external control, and possession an organized government to which the great body of inhabitants render habitual obedience
4. Capacity to enter into relations with other SOVEREIGNTYindependence from outside control
States—
Principle of Self-determination—sovereignty as an element of a state is related but not identical to this principleby virtue of this, people freely determine their political status and freely pursue their economic, social and cultural development Levels of claim to Self-determination 1. Establishment of New State—the claim by a group within an established state to break away and form an new entity 2. Does not involve Establishment of New State—simply involves claims a. To be free from external coercion b. To overthrow effective rulers and establish a new government—the assertion of the right of revolution c. Of people within an entity to be given autonomy International law has not recognized a right of secession from a legitimately existing state Recognition of States—the act of acknowledging the capacity of an entity to exercise rights belonging to statehood
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Can an entity claim to be a state before it is recognized by other states? Declaratory Theory Constitutive Theory Recognition is merely ―declaratory‖ of Recognition ―constitutes‖ a state the existence of the state Its being a state depends upon its It is what makes a state a state and possession of the required elements confers legal personality on the entity and not upon recognition States may decide to recognize an entity as a state even if it does not have all the elements of a state
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Succession of States Views on Succession A. The new state succeeds to no rights or obligations of the predecessor state but begins with a tabula rasa B. Successor state assumes all obligations and enjoys all the rights of the predecessor Issues on Succession of States 1. Succession to territory—when a state succeeds another state with particular territory, the capacities, rights and duties of the predecessor state with respect to that territory terminate and are assumed by the successor state 2. Succession to state property—this is subject to agreement between predecessor and successor states 3. Succession to contracts—this is subject to agreement between the states concerned
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Succession to treaties Moving Treaty Rule / Moving Boundaries Rule—when part of the territory of a state becomes territory of another state, the international agreements of the predecessor state cease to have effect in respect of the territory o Relief from treaty obligation is rebus sic stantibus b. When a state is absorbed by another state, international agreements of the absorbed states are terminated c. Clean Slate Theory—when part of a state becomes a new state, the new state does not succeed to the international agreements to which the predecessor state was a party unless, expressly or impliedly, it accepts such agreements d. Uti possidetis Rule—pre-existing boundary and other territorial agreements continue to be binding notwithstanding a.
Recognition of Government—act of acknowledging the capacity of an entity to exercise powers of government of a state If a change in government in an existing state comes about through ordinary constitutional procedure = recognition by others comes as a matter of course Consequence of Recognition or Non-Recognition A government, once recognized, gains increased prestige and stability a. Doors of funding agencies are opened b. Loans are facilitated c. Access to foreign courts and immunity from suit are gained d. Military and financial assistance also come within reach Absence of formal recognition bars an entity from all these benefits or, at least, access to them may be suspended Admission of a government to the UN does not mean recognition by all members but only to the extent of the activities of the organization Recognition of a regime is terminated when another regime is recognized
Responsibility for the public debt of the predecessor, and rights and obligations under its contracts remain with the predecessor state but is subject to certain exceptions
Fundamental Rights of States 1. Independence—capacity of a state to provide for its own well-being and development free from the domination of other states o Right to exercise within its portion of the globe, to the exclusion of others, the functions of a state o Restrictions upon a state’s liberty either from customary law or from treaties do not deprive a state of independence o There is duty not to interfere in the internal affairs of other states o Rights flowing from independence: a. Jurisdiction over its territory and permanent population b. Right to self-defense c. Right of legation 2. Equality—equality of legal rights irrespective of size or power of the state o Within the General Assembly, the doctrine means one state, one vote 3.
Peaceful Co-Existence—mutual respect for each other’s territorial integrity and sovereignty, mutual non-aggression, non-interference in each other’s affairs and the principle of equality
Some Incomplete Subjects 1. Protectorates—dependent states which have control over their internal affairs but whose external affairs are controlled by another state; referred to as a. Autonomous states b. Vassal states c. Semi-sovereign d. Dependent sates
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2.
Federal state—a union of previously autonomous entities o The central organ will have personality in international law but the extent of international personality of the component entities can be a problem
3.
Mandated and Trust Territories—territories placed by the League of nations under one or other of the victorious allies of WWI o After WWII, this was replaced by trusteeship system
4.
Taiwan—a non-state territory which de jure is part of China
5.
The Sovereign Order of Malta—the Italian Court of Cassation in 1935 recognized its international personality
6.
The Holy See and Vatican City—recognized under Lateran Treaty; it has no permanent population CHAPTER 6
OTHER SUBJECTS OF INTERNATIONAL LAW
INTERNATIONAL ORGANIZATIONS An organization that is set up by treaty among 2 or more states which have international personality Constituent instruments of international organizations are multilateral treaties, to which the well-established rules of treaty interpretation apply Non-governmental organizations (NGO)—set up by private persons Although international organizations have personality in international law, their powers and privileges are by no means like those of states since it is limited by the constitutional instrument that created them
The United Nations: Structure and Powers Came into being on Oct. 24, 1945 A universal organization charged with peacekeeping responsibilities, development of friendly relations among nations, achievement of international cooperation in solving international problems of an economic, social, cultural and humanitarian character, and the promotion of human rights and fundamental freedoms for all human beings without discrimination UN is enjoined against intervening in matters which are essentially within the domestic jurisdiction of any state International Constitutional Supremacy Clause—in the hierarchy of international organizations, the UN occupies a position of preeminence so if there is a conflict with other international agreement, obligations under the UN Charter shall prevail Principal organs of UN: 1. General Assembly—it has plenary power in the sense that it may discuss any question or any matters within the scope of the Charter o GA distinguishes between a. Important questions—decided by 2/3 majority of the members voting and present b. Other questions—decided by the majority
Advisory Opinion on the Use of Nuclear Weapons International organizations—governed by the Principle of Specialtythey are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them. Powers conferred on international organizations—normally the subject of an express statement in their constituent instruments but in order to achieve their objectives, they possess subsidiary powers which are not expressly provided for in the basic instruments which govern their activities. Immunities—based on the need for the effective exercise of their functions and not from sovereignty These immunities come from the conventional instrument creating them
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2. o o
o o 3.
Economic and Social Council (ECOSOC)—has 54 members elected for 3 year terms
4. o 5.
Security Council—has primary responsibility for the maintenance of international peace and security There are 15 member states, 5 permanent and the others are elected for 2 year terms in accordance with equitable geographic representation Distinguishes between a. Procedural matters b. All other matters—requires 9 affirmative votes, including the concurring votes of the permanent members The Charter does not specify what matters are procedural, hence, decision on whether a matter is procedural or not requires the concurrence of the permanent members Abstention = veto
Trusteeship Council—supervises non-self governing territories The Council suspended operations after Palau became independent on Oct. 1, 1994 International Court of Justice (ICJ)—principal judicial organ of the UN
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Secretariat—comprises a Secretary General and such staff as the Organization may require o Secretary General—elected to a 5 year term by General Assembly upon the recommendation of the Security Council, subject to veto power
Other Agencies: 1. United Nations Educational, Scientific and Cultural Organizations (UNESCO) 2. International Civil Aviation Organization (ICAO) 3. World Health Organization (WHO) 4. Food and Agricultural Organization (FAO) 5. World Bank 6. International Monetary Fund (IMF) Regional Organizations—they are neither organs nor subsidiary organs of UN They are autonomous international organizations having an institutional affiliation with UN by concluding agreements with UN Created by international agreements for the purpose of dealing with regional problems in general or with specific matters be they economic, military or political ASEAN—established on Aug. 8, 1967 in Bangkok, Thailand with the signing of the Bangkok Declaration by the 5 original member countries: Indonesia, Malaysia, Philippines, Singapore and Thailand Brunei Darrusalam joined on Jan. 8, 1994; Vietnam on July 28, 1995; Laos and Myanmar on July 23, 1997; Cambodia in 1999. 3 main objectives: a. Promote economic, social and cultural development of the region through cooperative programs b. Safeguard the political and economic stability of the region against big power rivalry c. Serve as a forum for the resolution of intra-regional differences INSURGENTS Protocol II—first and only international agreement exclusively regulating the conduct of parties in a non-international armed conflict Requirements for Material Field of Application: a. Armed dissidents must be under responsible command b. They must exercise such control over a part of its territory as to enable them to carry out sustained and converted military operations and to implement this Protocol Insurgent groups which satisfy the material field of application may be regarded as ―para-statal entities possessing definite if limited form of international personality‖ a. They are recognized as having belligerent status against the de jure government b. They are seen as having treaty making capacity 叶清蓮 & DSP
Common Article 3—for armed conflict not of an international character Prohibited acts under Article 3: a. Violence to life and person, in particular, murder of all kinds, mutilation, cruel treatment and torture b. Taking of hostages c. Outrages upon personal dignity, in particular, humiliating and degrading treatment d. Passing of sentences and the carrying out of executions without previous judgment pronounced NATIONAL LIBERATION MOVEMENTS Organized groups fighting in behalf of a whole people for freedom from colonial powers Characteristics: a. They can be based within the territory which they are seeking to liberate or they might find a base in a friendly country b. Their goal is self-determination—to free themselves from colonial domination, or a racist regime or foreign occupation c. There is the ultimate goal of controlling a definite territory d. They must have an organization capable of coming into contract with other international organizations INDIVIDUALS Possess limited rights and obligations (deriving from customary international law) in international law Obligations of individuals are those arising from the regulation of armed conflicts When individual rights are violated, however, individuals still have to rely on the enforcement power of states; but some treaties have provided for the right of individuals to petition international bodies alleging that a contracting state has violated some of their human rights CHAPTER 7
TERRITORY: LAND, AIR, OUTER SPACE
Territory in International Law—an area over which a state has effective control Exact boundaries might be uncertain but there should be a definitive core over which sovereignty is exercised Acquisition of territory—acquisition of sovereignty over territory Includes land, maritime areas, airspace and outer space
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Modes of Acquisition of Sovereignty over Territory 1. Discovery and Occupation o Occupation—acquisition of terra nulliusterritory which prior to occupation belonged to no state or which may have been abandoned by a prior occupant o There is abandonment when occupant leave the territory with the intention of not returning o Discovery of terra nullius is not enough to establish sovereignty; it must be accompanied by effective control
In resolving island territorial disputes, the following 3 important rules must be followed: 1. Title based on contiguity has no standing in international law 2. Title by discovery is only an inchoate title 3. If another sovereign begins to exercise continuous and actual sovereignty and the discoverer does not contest this claim, the claim by the sovereign that exercises authority is greater than a title based on mere discovery EASTERN GREENLAND CASE HELD: A claim to sovereignty based not upon some particular act or title such as treaty or cession but merely upon continued display of authority, involves 2 elements each of which must be shown to exist: (a) intention and will to act as sovereign, and (b) some actual exercise or display of such authority.
WESTERN SAHARA CASE HELD: Territories inhabited by tribes or peoples having a social and political organization were not regarded as terra nullius. The information furnished to the Court shows that at the time of colonization, Western Sahara was inhabited by peoples which, if nomadic, were socially and politically organized into tribes and under chiefs competent to represent them. THE ISLAND OF PALMAS HELD: Contiguity—US also argued that Palmas was US’ territory because the island was closer to the Philippines than to Indonesia which was then held by the Netherlands East Indies. The arbitrator said there was no positive international law which favored the US’ approach of terra firma, where the nearest continent or island of considerable size gives title to the land in dispute. The arbitrator held that mere proximity was not an adequate claim to land noted that if the international community followed the proposed United States approach, it would lead to arbitrary results.
Another circumstance which must be taken into account is the extent to which the sovereignty is also claimed by some other Power. One of the peculiar features of the present case is that up to 1931, there was no claim by any Power other than Denmark to the sovereignty of Greenland. 2.
Prescription—requires effective control and the object is not terra nullius o The required length of effective control is longer than in occupation o May be negated by a demonstrated lack of acquiescence by the prior occupant
3. o
Continuous and peaceful display of sovereignty—the Netherlands' primary contention was that it held actual title because the Netherlands had exercised authority on the island since 1677. The arbitrator noted that the US had failed to show documentation proving Spanish sovereignty on the island except those documents that specifically mentioned the island's discovery. Additionally, there was no evidence that Palmas was a part of the judicial or administrative organization of the Spanish government of the Philippines. However, the Netherlands showed that the Dutch East India Company had negotiated treaties with the local princes of the island since the 17th century and had exercised sovereignty, including a requirement of Protestantism and the denial of other nationals on the island. The arbitrator pointed out that if Spain had actually exercised authority, than there would have been conflicts between the two countries but none are provided in the evidence.
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Cession—acquisition of territory through treaty A treaty of cession which is imposed by a conqueror is invalid
Conquest and Subjugation Conquest—taking possession of a territory through armed force It is necessary that the war had ended either by treaty or by indication that all resistance had been abandoned o Now, conquest is proscribed by international law o ―No territorial acquisition resulting from the use or threat of force shall be recognized as legal‖ o o
5.
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Accretion and Avulsion—sovereignty by operation of nature Accretion—gradual increase of territory by the action of nature Avulsion—sudden change resulting for instance from the action of a volcano
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Is Contiguity a Mode of Acquisition? It is impossible to show a rule of positive international law to the effect that islands situated outside the territorial waters should belong to a state from the fact that its territory forms part of the terra firma (Las Palmas Case) Intertemporal Law Rules in effect at the time of the acquisition should be applied AIRSPACE Each state has exclusive jurisdiction over the air space above its territory Sovereignty over airspace extends only until where outer space begins Consent for transit must be obtained from the subjacent nation State Aircraft—aircraft used in military, customs and police services ―No state aircraft of a contracting State shall fly over the territory of another State or land thereon without authorization by special agreement or otherwise, and in accordance with the terms thereof.‖ (Art. 3[a] of Chicago Convention on International Civil Aviation) Aircraft must not only not be attacked unless there is reason to suspect that the aircraft is a real threat but also that a warning to land or change course must be given before it is attacked (Lissitzyn) Civilian aircraft should never be attacked OUTERSPACE Outer space, wherever that might be, and celestial bodies, are not susceptible to appropriation by any state ―The Moon and other celestial bodies shall be used by all State Parties to the Treaty exclusively for peaceful purposes.‖ (1967 Treaty on the Exploration and Use of Outer Space) CHAPTER 8 TERRITORY: LAW OF THE SEA Importance of the Sea 1. Medium of communication 2. Contain vast natural resources Grotius – elaborated the doctrine of the open seas which considers the high seas as res communis accessible to all o The doctrine recognized as permissible the delineation of a maritime belt by littoral states as an indivisible part of its domain o Maritime belt = territorial sea
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Convention on the Law of the Sea of 1982 – prevailing law on maritime domain Art. 2 of the 1982 Law of the Sea provides that 1. Sovereignty of a coastal State extends, beyond its land territory and internal waters and, in case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as territorial sea 2. Sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil 3. Sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law Territorial Sea – belt of sea outwards from the baseline and up to 12 nautical miles beyond o The width of this territorial belt of water is the 12-mile rule o However, where the application of the 12-mile rule to neighboring littoral states would result in overlapping the rule is that the dividing line is the median line equidistant from the opposite baselines o Equidistance rule does not apply where historic title or other special circumstances require a different measurement Baselines – the low-water line along the coast as marked on large scale charts officially recognized by the coastal State Two ways of drawing the Baseline: 1. Normal baseline – one drawn following the low-water line along the coast as marked on large scale charts officially recognized by the coastal State o this line follows the curvatures of the coast and therefore would normally not consist of straight lines 2. Straight baseline – drawn connecting selected points on the coast without appreciable departure from the general shape of the coast o Most archipelagic states use straight baselines o Art. 47 of the Convention on the Law of the Sea – the length of such baseline shall not exceed 100 nautical miles, except that up to 3% of the total number of baselines enclosing any archipelago may exceed that length up to a maximum length of 125 nautical miles Sovereignty over Territorial Sea – same as sovereignty over its land territory o The sea and the strait are subject to the right of innocent passage by other states Right of Innocent Passage – passage that is not prejudicial to the peace, good order or security of the coastal state o Applies to ships, aircrafts, and submarines
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Coastal states have the unilateral right to verify the innocent character of passage, and it may take the necessary steps to prevent passage that it determines to be not innocent
Internal Waters – all waters landwards from the baseline of the territory o Coastal states may regulate access to its ports (Nicaragua case) Archipelagic Waters o An archipelagic state may designate sea lanes and air routes thereabove, suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea o The concept of the archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines, and removes straits connecting these waters with the economic zone or high sea from the rights of foreign vessels to transit passage for international navigation Bays – well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain land-locked waters and constitute more than a mere curvature of the coast o Considered as internal waters of a coastal state o Indentation shall not be regarded as bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation Historic Bays – treated by the costal state as internal waters on the basis of historic rights acknowledge by other states Contiguous Zone – an area of water not exceeding 24 nautical miles from the baseline o It extends 12 nautical miles from the edge of the territorial sea o Coastal state exercises authority over that area to the extent necessary to prevent infringement of its customs, fiscal, immigration or sanitation authority over its territorial waters or territory and to punish such infringement o However, the power of control given to the littoral state does not change the nature of the waters o Beyond the territorial sea, the waters are high sea and are not subject to the sovereignty of the coastal state Exclusive Economic Zone or “Patrimonial Sea” – an area extending not more than 200 nautical miles beyond the baseline o Coastal state has rights over the economic sources of the sea, seabed and subsoil – but the right does not affect the right of navigation and overflight of other states o The delimitation of the overlapping EEZ between adjacent states is determined by agreement 叶清蓮 & DSP
Two Primary Obligations of Coastal States: 1. They must ensure through proper conservation and management measures that the living sources of the EEZ are not subjected to over exploitation 2. They must promote the objective of ―optimum utilization‖ of the living sources The Continental (Archipelagic) Shelf – refers to the a. Seabed and subsoil of the submarine areas adjacent to the coastal state but outside the territorial sea, to a depth of 200 meters or, beyond that limit, to where the depth allows exploitation b. Seabed and subsoil of areas adjacent to islands The Deep Seabed: “Common Heritage of Mankind” o These are areas of the seabed and ocean floor, and their subsoil, which lie beyond any national jurisdiction o These are the common heritage of mankind and may not be appropriated by any state or person Islands – naturally formed area of land, surrounded by water, which is above water at high tide o Artificial islands or installations are not ―islands‖ o Important due to the possibility of exploiting oil and gas resources around them o Islands can have their own territorial sea, exclusive economic zone and continental shelf o Rocks which cannot sustain human habitation or economic life shall have no exclusive economic zone or continental shelf, but can have a territorial sea The High Seas – all parts of the sea that are not included in the territorial sea or in the internal waters of a state o The flag state has exclusive jurisdiction over its ships on the high seas to the extent not limited by agreement Six Freedoms which High Seas are subject to: a. Navigation b. Overflight – belongs to both civilian and military aircraft c. Fishing – includes the duty to cooperate in taking measures to ensure the conservation and management of the living resources of the high seas d. Lay submarine cables and pipelines e. Construct artificial islands and structures f. Scientific research
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Hot Pursuit o Art. 111 allows hot pursuit of a foreign vessel where there is good reason to believe that the ship has violated laws or regulations of a coastal state o This must commence when the foreign vessel is within the internal waters, archipelagic waters, territorial waters, exclusive economic zone, continental shelf or the contiguous zone of the pursuing state o Hot pursuit must stop as soon as the ship pursued enters the territorial waters of its own state or of a third state o May be carried out only by warships or military aircraft, or any other ships or aircraft properly marked for that purpose Settlement of Disputes o Peaceful settlement is compulsory CHAPTER 9 JURISDICTION OF THE STATES Jurisdiction – authority to affect legal interests o The scope of a state’s jurisdiction over a person, thing or event depends on the interest of the state in affecting the subject in question o Corresponding to the powers of the government, jurisdiction can be: 1. Legislative jurisdiction – prescribe norms of conduct 2. Executive jurisdiction – enforce the norms prescribed 3. Judicial jurisdiction – adjudicate o International law limits itself to criminal rather than civil jurisdiction o Civil jurisdiction is subject for private international law or conflicts of law o Jurisdiction may also be acquired by treaty o However, there are 5 popular principles on jurisdiction TERRITORIALITY PRINCIPLE o This is generally supported in customary law o Fundamental source of jurisdiction is sovereignty over territory o It is necessary that boundaries be determined o To have jurisdiction, occupation is not enough; control must also be established (Las Palmas Case) Boundary – separating the land areas of two states is determined by the acts of the states expressing their consent to its location o When the boundary between 2 states is a navigable river its location is the middle of the channel of navigation o When boundary between 2 states is a non-navigable river or lake its location is the middle of the river or lake
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Effects Doctrine o State also has jurisdiction over acts occurring outside its territory but having effects within it 1. Subjective Territorial Principle – a state has jurisdiction to prosecute and punish for crime commenced within the state but completed or consummated abroad 2. Objective Territorial Principle – state has jurisdiction to prosecute and punish for crime commenced without the state but consummate within its territory Jurisdiction over Foreign Vessels in Philippine Territory – we follow the English Rule 1. French Rule – crimes committed abroad a foreign merchant vessel should not be prosecuted in the courts of the country within whose territorial jurisdiction they were committed unless their commission affects the peace and security of the territory 2. English Rule – crimes perpetrated under such circumstances are in general triable in the courts of the country within whose territory they were committed NATIONALITY PRINCIPLE o This is generally supported in customary law o Every state has jurisdiction over its nationals even when those nationals are outside the state Effective Nationality Link – used to determine which 2 states of which a person is a national will be recognized as having the right to give diplomatic protection to the holder of dual nationality Corporations – state has jurisdiction over corporations organized under its laws Maritime vessels – state has jurisdiction over vessels flying its flag o Same applies to aircraft and spacecraft Stateless Persons – persons who have no nationality a. De jure stateless – persons who have lost their nationality, if they had one, and have not acquired a new one b. De factor stateless – persons who have a nationality but to whom protection is denied by their state when out of the State PROTECTIVE PRINCIPLE o This is generally supported in customary law o State may exercise jurisdiction over conduct outside its territory that threatens its security as long as that conduct is generally recognized as criminal by states in the international community o However, this is strictly construed to those offenses posing a direct, specific threat to national security
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Examples of acts covered by Protective Principle: a. Plots to overthrow the government b. Forging its currency c. Plot to break its immigration regulations
b. Is the effect sufficiently large to present a cognizable injury to the plaintiffs, and, therefore, a violation of the anti-trust law? c. Are the interests of the state sufficiently strong, vis-à-vis those of other nations, to justify an assertion of extraordinary authority
UNIVERSALITY PRINCIPLE o This recognizes that certain activities, universally dangerous to states and their subjects, require authority in all community members to punish such acts wherever they may occur, even absent a link between the state and the parties or the acts in question Examples of acts covered by Universality Principle: a. Piracy – any illegal act of violence or depredation committed for private ends on the high seas or outside the territorial control of any state b. Genocide – acts committed with intent to destroy, in whole or in part, a national, ethical, racial or religious group c. Crimes against humanity – acts committed as part of a widespread or systematic attack directed against any civilian population 1. Attack directed against any civilian population 2. Extermination – internal infliction of conditions of life 3. Enslavement 4. Deportation or forcible transfer of population 5. Torture 6. Forced pregnancy 7. Persecution 8. Crime of Apartheid 9. Enforced disappearance of persons d. War crimes – grave breaches of the Geneva Convention of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention e. Aircraft piracy f. Terrorism PASSIVE PERSONALITY PRINCIPLE o This does not enjoy wide acceptance o State may apply law, criminal law, to an act committed outside its territory by a person not its national where the victim of the act was its national o Not accepted for ordinary torts or crimes but is increasingly accepted as applied to terrorist and other organized attacks on a state’s nationals by reason of their nationality, or to assassination of a state’s diplomatic representatives or other officials
2.
International Comity – state will refrain from exercising its jurisdiction is it is unreasonable o Factors to consider in determining unreasonableness: a. Link or connection of the activity to the territory of the regulating state b. Character of the activity to be regulated c. Existence of justified expectations that might be protected or hurt by the regulation d. Likelihood of conflict with regulation by another state 3. Forum non conveniens – application is discretionary with the court o If in the whole circumstances of the case it be discovered that there is real unfairness to one of the suitors in permitting the choice of a forum which is not the natural or proper forum, either on the ground of convenience of trial or the residence or domicile of parties or of its being the locus contractus or locus solutionis EXTRADITION – the surrender of an individual by the state within whose territory he is found to the state under whose laws he is alleged to have committed a crime or to have been convicted of a crime o This is a process that is governed by a treaty o Legal right to demand extradition and the correlative duty to surrender a fugitive exist only when created by treaty o Procedure for extradition is normally through diplomatic channels Principles governing Extradition 1. No state is obliged to extradite unless there is a treaty 2. Differences in legal system can be an obstacle to interpretation of what the crime is 3. Religious and political offenses are not extraditable Bail in Extradition Cases o Bail may be granted to a possible extraditee only upon a clear and convincing showing that 1. He will not be a flight risk or a danger to the community 2. There exist special, humanitarian and compelling circumstances
CONFLICTS OF JURISDICTION – modes of resolving conflict of jurisdiction 1. Balancing Test – if the answer is yes to all the following questions, then the court will assume jurisdiction a. Was there an actual or intended effect on a state’s foreign commerce? 叶清蓮 & DSP
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CHAPTER 10: IMMUNITY FROM JURISDICTION
B. State Immunity - The State may not be sued without its consent. - Based on the principle of equality and independence of states: par in parem non habet imperium. - With the gradual expansion of state involvement in commerce, the principle of state immunity has evolved to one of restrictive state immunity: only acts jure imperii (governmental acts) and not acts jure gestionis (trading and commercial acts) are immune.
* GR: Jurisdiction of a state within its territory is complete and absolute. * Exceptions: 1.) Sovereign immunity 2.) Diplomatic/consular immunity A. Immunity of Head of State - Applies to both the Head of State and to the State itself Mighell v. Sultan of Johore The Sultan of Johore was sued for bread of a promise to marry in a British court. Despite the fact that it was a private suit, it was dismissed upon verification that the Sultan was a sitting foreign sovereign. Pinochet Case: Regina v. Bartle and the Commissioner of Police (House of Lords, 1999) General Augusto Pinochet led a military coup that overthrew the Chilean President Allende. According to a national truth and reconciliation mission, at least 3,196 people were killed or forcibly disappeared during his dictatorship. British authorities detained Pinochet on an arrest warrant issued by Spanish Magistrate Baltasar Garzon under the charges of genocide, terrorism, and torture. In affirming that Pinochet did not enjoy immunity from prosecution as a former head of state and could thus be extradited, the House of Lords explained: a.) Senator Pinochet as a former head of state enjoys immunity rationae materiae in relation to acts done by him in relation to his official function as such. b.) However, organization of state torture is not an act committed in his official function. The commission of a crime which is an international crime against humanity and jus cogens cannot be a state function. The principle of individual responsibility for international criminal conduct has become an accepted part of international law. c.) The notion of continued immunity for ex-heads of state is inconsistent with the provisions of the Torture Convention which provides that the international crime of torture can only be committed by an official or someone in official capacity. Since the immunity applies also to officials who carried out the functions of the state, if torture is treated as official business sufficient to justify the immunity, then no party would be held liable and the structure of universal jurisdiction over torture committed by officials is rendered abortive. d.) Thus, Senator Pinochet was not acting in any capacity which gives rise to immunity rationae materiae since authorized and organized torture are contrary to international law. 叶清蓮 & DSP
The Schooner Exchange v. MacFaddon States enjoy absolute immunity. Despite the absolute territorial jurisdiction of states, one sovereign, being bound to not degrade the dignity of his nation by placing himself within the jurisdiction of another, can be supposed to enter into foreign territory in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication and will be extended to him. Dralle v. Republic of Czechoslovakia It can no longer be said that by international law, acta gestionis are exempt municipal jurisdiction. The classic doctrine of immunity arose at a time when there was no justification for any distinction between private transactions and acts of sovereignty. Today, States engage in commercial activities and enter into competition with their own nationals as well as foreigners. USA v. Hon. V.M. Ruiz (Philippines) The traditional rule of State immunity is a necessary consequence of the principles of independence and equality of States. However, the rules of International Law are constantly developing and evolving. Because state activities have multiplied, it has become necessary to distinguish them between sovereign and governmental acts, and private, commercial and proprietary acts. The result is that State immunity now extends only to acts jure imperii. A state may be said to have descended to the level of an individual and can thus be deemed to have tacitly given its consent to be sued only when it enters into business contracts. But this does not apply where the contract relates to the exercise of its sovereign functions. In this case, repairs of base facilities are an integral part of the naval base devoted to the defense of both the US and the Philippines, which is a function of the government not utilized nor dedicated to commercial or business purposes. US v. Hon. Luis Reyes (Philippines) A claim of immunity by an American official was rejected when shown to have been committed outside the scope of her authority as well as contrary to law.
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Unauthorized acts of government officials or officers are not acts of the State, and an action against the latter is not a suit against the State within the rule of immunity of the State from suit. The doctrine of state immunity cannot be used as an instrument to perpetrate an injustice.
the Philippines and by the proper court of Makati City, Philippines. In addition, the Ambassador and Minister Counsellor may be sued in their personal capacity for tortious acts done with malice and bad faith. The trial court denied the Motion to Dismiss, which the CA affirmed.
Holy See v. Eriberto Rosario, Jr. (Philippines) The mere entering into a contract by a foreign state with a private party cannot be the ultimate test of whether the activity or transaction is ―commercial‖. One must also question: (a.) whether the foreign state is engaged in the activity in the regular course of business; and (b.) if not, whether the nature of the particular transaction or act is in pursuit of a sovereign activity or an incident thereof. If the answer to (b.) is yes, and especially if it is not undertaken for profit or gain, then the act is jure imperii.
Petitioner questions the ruling of the CA that the former had waived its immunity from suit based on the agreement. The SC ruled in favor of the petitioner: a.) The rules of IL are neither unyielding not impervious to change. The increasing need of sovereign states to enter into purely commercial activities brought about a new concept of immunity. The restrictive theory holds that immunity of the sovereign is recognized only with regard to public acts but not with regard to private acts.
In this case, petitioner has denied having bought and sold lands in the ordinary course of a real estate business. Instead, he claimed that the acquisition of Lot 5-A was for the site of its mission or the Apostolic Nunciature of the Philippines. Respondent failed to dispute such claim. * How to claim State immunity? - In PIL, a State must request the Foreign Office of the state where it is sued to convey to the court that it is entitled to immunity. - In the Philippines, the foreign government or international organization must first secure an executive endorsement (in whatever form) of its claim of sovereign or diplomatic immunity. Republic of Indonesia v. Vinzon (2003) Petitioner, Republic of Indonesia entered into a Maintenance Agreement with respondent, James Vinzon of Vinzon Trade and Services, to maintain specified equipment (aircons, generator sets, electrical facilities, water heaters, water motor pumps) at the Embassy Main and Annex buildings and that the Wisma Duta. Chief of Administration, Minister Counselor Azhari Kasim allegedly found Vinzon’s work unsatisfactory and not in compliance with the agreed standards. Thus, the Embassy terminated the agreement. Respondent alleges that the termination was arbitrary and unlawful. Vinzon filed a complaint in the RTC Makati. Petitioner filed a Motion to Dismiss based on sovereign immunity from suit as well as diplomatic immunity under the Vienna Convention on Diplomatic Relations, regarding the suit against Ambassador Soeratmin and Minister Counsellor Kasim. Respondent alleged that the petitioner has expressly waived its immunity from suit based on a provision in the Maintenance Agreement which states that any legal action arising from the agreement will be settled according to the laws of 叶清蓮 & DSP
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b.) The mere entering into a contract by a foreign state with a private party cannot be construed as the ultimate test of whether or not it is an act jure imperii or jure gestionis. If the foreign state is not engaged regularly in a business or commercial activity, as in this case, the particular act or transaction must be then tested by its nature. If it is in pursuit of a sovereign activity or an incident thereof, then it is an act jure imperii. c.) The existence alone of a provision in the contract stating that any legal action arising out of the agreement shall be settled according to the laws of the Philippines and by a specified court of the Philippines is not necessarily a waiver of state immunity from suit. It is merely meant to apply where: (a.) the sovereign party elects to sue in the local courts; or (b.) otherwise waives its immunity by any subsequent act. The applicability of Philippine laws include the principle recognizing sovereign immunity. d.) Submission by a foreign state to local jurisdiction must be clear and unequivocal, given explicitly or by necessary implication. There is not such waiver in this case. e.) The establishment of a diplomatic mission is a sovereign function. It encompasses its maintenance and upkeep. Hence, the state may enter into contracts with private entities to maintain the premises, furnishings and equipment of the embassy and the living quarter of its agents and officials. f.) Under Article 31 of the Vienna Convention on Diplomatic Relations, a diplomatic agent may be sued in his private capacity for (c.) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. Bu the acts of the Ambassador and the Minister Counsellor in P a g e | 15
terminating the agreement was committed in relation to their official functions. Thus, they enjoy immunity from suit. C. Diplomatic and Consular Immunities - Based on customary law. - Official representatives of a state are given immunities and privileges within the territory of another state. - The immunities and privileges are personal (for diplomat’s benefit) but also functional (to enable the diplomat to perform his functions properly). - The receiving state has a corresponding obligation to protect the representative and his property and office. * Diplomatic Immunities (Vienna Convention on Diplomatic Relations 1961) - Diplomatic relations are purely by mutual consent. - An agreement by the receiving state (RS) is a prerequisite before the head of mission is sent. The RS has no obligation to explain its refusal, and may at any time and without explanation notify the sending state (SS) that a diplomatic agent is persona non grata or that a staff member is unacceptable. - The SS can either recall the person or terminate his functions with the mission. Article I. Who can enjoy diplomatic immunities? a.) head of mission b.) diplomatic agent (head of mission or member of diplomatic staff) c.) members of the mission including the diplomatic, administrative and technical, and service staff d.) private servant in the domestic service of a member of the mission, not employed by the sending state e.) premises of the mission, irrespective of ownership Article III. Functions of the diplomatic mission: a.) Represent the sending state in receiving state b.) protect its interests and of its nationals c.) negotiate with the government d.) report on developments and conditions in the receiving state e.) promote friendly relations
* Rights and Privileges of the diplomatic mission: a.) Inviolability of mission premises and means of transport; RS has duty to protect the premises and prevent any disturbance to the mission or impairment of its dignity. (Art. 22) b.) Tax Exemptions for the SS and the head of mission, not extending to those payable under the laws of RS by persons contracting with them. (Art. 23) c.) Inviolability of archives and documents of the mission. (Art. 24) d.) Free communication and inviolability of official correspondence, of the diplomatic courier, and of the diplomatic bag. (Art. 27) 叶清蓮 & DSP
- Exceptions: 1.) Mission must have consent of RS to instate and use a wireless transmitter. 2.) Diplomatic bag may only contain diplomatic documents or articles for official use. e.) Inviolability of the person of diplomatic agent from arrest or detention. (Art. 29) f.) Inviolability of the private residence, property, papers, and correspondence of a diplomatic agent. (Art. 30) g.) Immunity of diplomatic agent from criminal, civil, and administrative jurisdiction of RS; immunity from giving evidence as witness; immunity from execution of judgement. (Art. 31) - Exceptions: 1.) real action relation to private immovable property in the RS, unless held on behalf of the SS for mission purposes 2.) action relating to succession, done as a private person and not on behalf of the SS 3.) action relating to any professional or commercial activity done in the RS outside his official capacity h.) Express waiver of immunity from suit made by SS or impliedly by diplomatic agent upon initiation of proceedings, but only in respect to compulsory counterclaims. Waiver of immunity from suit is distinct from waiver of immunity from execution. (Art. 32) i.) Exemption from social security provisions of the RS for services rendered for the SS. (Art. 33) - Exception: 1.) private servant who is either a national or a permanent resident of the RS; and 2.) not covered by the social security provision in the SS or a third state j.) Tax exemption of diplomatic agents. (Art. 34) - Exceptions: 1.) indirect taxes incorporated in price of goods or services 2.) dues and taxes on private immovable property in RS (unless on behalf of SS, for mission purpose) 3.) estate, inheritance, succession duties 4.) private income from within RS 5.) charges levied for services rendered 6.) registration, court or record fees, mortgage dues and stamp duty on immovable property k.) Free entry of articles for official use of the mission and for the personal use of the diplomatic agent or his family. (Art. 36) - Exception: 1.) personal baggage of the diplomatic agent may be inspected in his/duly authorized representative’s presence if there is serious ground to presume that it contains articles not exempted, or prohibited by import or export laws or quarantine regulations
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l.) Extension of immunity to family of diplomatic agent under Art. 29-36; immunity of members of administrative and technical staff and their families under Art. 29-35; immunity of service staff for official acts and tax exemption under Art. 33; and tax exemption of private servant for emoluments due to employment. (Art. 37) - Exception: 1.) nationals of RS 2.) permanent resident of RS (not for family of diplomatic agent) m.) Immunities of a diplomatic agent who is a national or permanent resident of RS is limited to immunity from jurisdiction and inviolability in respect to official acts. For others, only such privileges and immunities that the RS may allow. (Art. 38) n.) Privileges and immunities begin from entry into RS, or if already there, from notification of appointment to Ministry of Foreign Affairs of the RS. They cease upon leaving the RS, or on reasonable period, but shall subsist even in armed conflict. (Art. 39) *Obligations of diplomatic mission: a.) To respect the laws and regulations of the RS (Art. 41) b.) To refrain from practice for personal profit any professional or commercial activity in the RS. (Art. 42) * Consuls and Consular Immunities (Vienna Convention on Consular Relations 1967) - Not concerned with political matters. - Attend only to the administrative and economic issues. - Head of consular post must first be authorized by RS via an exequatur. - RS may at any time and without explanation notify the SS that a consular officer is a persona non grata or a staff member is unacceptable. - SS can only recall or terminate his functions with the consular post. - RS has duty to protect the consular premises, archives and interests of the SS and ensure the unimpeded functioning of the consular offices. * Article V. Consular Functions: a.) protect the interest of the SS and of its nationals in the RS b.) further development of economic, commercial, cultural and scientific relations and promote friendly relations between RS and SS c.) report on development and condition of RS d.) issue passports and travel documents to nationals of SS and visa and appropriate documents for those who wish to travel to SS e.) assist nationals f.) act as notary and civil registrar and perform administrative functions g.) safeguard interests of nationals in cases of succession mortis causa in RS h.) safeguard interest of nationals who are minors or lack full capacity i.) represent or arrange representation for nationals before the tribunals or other authorities of the RS j.) transmit judicial and extrajudicial documents or executing letters to take evidence for the courts of the SS 叶清蓮 & DSP
k.) exercise supervision and inspection over vessels under SS flag, aircrafts registered in SS, and their crew l.) extend assistance to such vessels and aircrafts and their crew m.) other functions not prohibited by laws of RS * Rights and Privileges of the consular mission: a.) Freedom of movement (Art. 34) b.) Freedom of communication (Art. 35) c.) Communication and contact with nationals of the SS (Art. 36) d.) Personal inviolability of consular officers from arrest or detention (Art. 41) - Exceptions: 1.) grave crime; and 2.) pursuant to a decision by a competent judicial authority e.) Notification of arrest, detention or prosecution (Art. 42) f.) Immunity from jurisdiction for official acts. (Art. 43) - Exceptions: 1.) civil actions arising from contract not entered into in official capacity; 2.) civil action by a 3rd party for damage arising from an accident in the RS cause by a vehicle, vessel or aircraft g.) Liability to give evidence; a consular employee can’t refuse while a consular officer may refuse without threat of coercive measure or penalty. (Art. 44) h.) Waiver of privilege and immunity under Art. 41, 43, and 44 by SS (Art. 45) US v. Tehran: US Dipliomatic and Consular Staff in Iran Case ICJ (1980) Iranian students seized the US embassy in Tehran and a number of consulates in the outlying cities. The Iranian authorities failed to protect the embassy and later appeared to adopt the students’ actions. Over 50 US nationals were held hostage for 444 days. Court must decide whether the initial attack by the students could be attributed to the Iranian government and whether Iran was therefore in violation of its international obligations. In deciding in favor of the US, the ICJ ruled: a.) The Iranian authorities were fully aware of their obligations under the conventions to protect the premises of the US embassy and its diplomatic and consular staff and were aware of the urgent need for action. They had the means to perform their obligations but failed to do so. b.) The actions required of the Iranian Government by the Vienna Conventions and by general IL is manifest. They must immediately take every effort and opportunity to bring the flagrant infringements of the inviolability of the premises, archives, and diplomatic and consular staff of the US embassy to a speedy end and to restore the consulates to the US control, and in general reestablish the status quo and offer reparation for damage.
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c.) The Iranian Government’s decision to continue the subjection of the embassy to occupation by militants and the staff to detention as hostages clearly gave rise to repeated and multiple breaches of the Vienna Conventions, beyond their failure to prevent the attacks. d.) The Iranian Government did not break of diplomatic relations with the US, not did it indicate any intention to declare any member of the US diplomatic or consular staff in Tehran persona non grata. Thus, Iran failed to employ the remedies placed at its disposal by diplomatic law specifically for dealing with activities it now complains of. D. Immunity of International Organization - The basis of their privileges and immunities is not sovereignty but necessity for the effective exercise of their functions.
Alfred Dunhill of London, Inc. v. Cuba The issue is whether or not the failure of Cuba to return to Dunhill funds mistakenly paid by the latter for cigars sold to him by certain expropriated Cuban cigar business was an ―act of state.‖ The Court ruled in favor of Dunhill: a.) The concept of an act of state should not be extended to include the repudiations of a purely commercial obligation owed by a foreign sovereign or by one of its commercial instrumentalities. Kirkpatrick Co. v. Environmental Tectonics Corp. A contract was entered into between the Nigerian Government and Kirkpatrick Co. for the construction and equipment of an aeromedical center at Kaduna Air Force base in Nigeria. Environmental Tectonics, an unsuccessful bidder, found that Kirkpatrick had bribed Nigerian officials to win the contract. It brought the matter to the Nigerian Air Force and the US embassy in Lagos.
E. The Act of State Doctrine Underhill v. Hernandez Through the 1982 revolution in Venezuela, Gen. Hernandez who commanded the anti-administration party, assumed leadership of the government.
US attorney for the District of NJ charged Kirkpatrick with violations of the Foreign Corrupt Practices Act of 1977 to which the latter pleaded guilty.
George Underhill, a US citizen, had constructed a waterworks system for Bolivar under a contract with the government and operated a machinery repair business. Gen. Hernandez refused to grant Underhill a passport to leave the city to coerce him to operate his waterworks and repair works for the benefit of the community and the revolutionary forces.
Environmental Tectonics brought a civil action against Kirkpatrick to seek damages under the Racketeer Influenced and Corrupt Organizations Act.
Underhill files a suit in the US to recover damages for the detention, his alleged confinement to his own house, and for certain alleged assaults and affronts by the soldiers of Hernadez’s army.
SC ruled that the act of state doctrine is inapplicable where the validity of a foreign government act is not in question, as in this case.
In denying Underhill’s plea, the US court applied the ―act of state doctrine‖: a.) Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one county will not sit in judgment on the acts of the government of another, done within its own territory. b.) Redress of grievances due to such acts must be obtained through the means open to be availed of by sovereign powers as between themselves. Banco Nacional de Cuba v. Sabbatino The act of state doctrine is not a rule of international law but of judicial restraint in domestic law, embodied by the principle of separation of powers, whereby courts refrain from making decisions in deference to the executive who is the principal architect of foreign relations.
叶清蓮 & DSP
Defendant moved to dismiss the complaint on the ground of ―act of state doctrine.‖
CHAPTER 11 STATE RESPONSIBILITY PROTECTION OF ALIENS No State is obliged to admit aliens into its territory unless there is a treaty requiring it Generally, it is difficult to deny admission to all; Hence, States impose legal standards for admission Once admitted, at least under democratic regimes, aliens may not be expelled without due process Aliens = ―nationals abroad‖ States protect aliens within their jurisdiction in the expectation that their own nationals will be properly treated when residing or sojourning abroad Forms of ill-treatment of foreign nationals: a. Mistreatment by judicial or police authorities
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b. Unlawful expropriation of property c. Denial of justice or denial of due process of law – failure to prosecute those who attack foreign nationals Diplomatic protection – the instrument used for the protection of aliens o Injury to a national abroad = injury to the individual’s State of nationality o The interest of the State is in the redress of the injury to itself and not of the injury to the individual o Individuals are at the mercy of their own State
Neer Claim Facts: Mr. Neer, a US national working in Mexico, was shot to death. It was claimed that the Mexican government had been negligent in their investigation of the murder. Held: Treatment of an alien, in order to constitute an international delinquency should amount to an outrage, bad faith, willful neglect of duty, or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency.
Corporations and Shareholders The doctrine of ―effective link‖ Barcelona Traction Case Facts: The claim arose out of the adjudication of bankruptcy in Space of Barcelona Traction, a company incorporated in Canada. The claim’s object was to seek reparation for damage suffered by its shareholders, Belgian nationals, as a result of acts committed contrary to international law. Held: The Court found that Belgium lack jus standi to exercise diplomatic protection of shareholders in a Canadian company with respect to measures taken against that company in Spain. The breach, if any, was committed against the company, hence, only the company could take action. Whenever a shareholder’s interests are harmed by an act done to the company, it is to the latter that he has to look to institute appropriate action. As to who should have the right to protect the corporation, it is the State of Nationality of the corporation, in this case, Canada. Standard for the Protection of Aliens Under the Roman Law: 1. Jus gentium – applicable to both citizens and aliens 2. Jus civile – applicable only to Roman citizens In modern times 1. National treatment or Equality of treatment – aliens are treated in the same manner as nationals o Bright side: aliens would enjoy the same benefits as local nationals o Dark side: if the State is tyrannical and its municipal laws are harsh and violative of human rights, then aliens would likewise be subject to such laws 2. Minimum International Standard – however harsh the municipal laws might be, aliens should be protected by certain minimum standards of humane protection
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Denial of Justice Harvard Draft Convention on the Responsibility of States for Damages o Art. 9. Denial of Justice exists when there is a. Denial b. Unwarranted delay or obstruction of access to courts c. Gross deficiency in the administration of judicial or remedial process d. Failure to provide those guarantees which are generally considered indispensable to the proper administration of justice e. Manifestly unjust judgment – but error of a national court which does not produce manifest injustice is not denial of justice Enforcement Regimes Who can resolve issues of violations of the rights of aliens when appealed to by States in conflict? 1. International Court of Justice 2. Ad-hoc tribunals established for the purpose a. US-Iran Claims Tribunal b. UN Compensation Settlements 3. Lump-sum Settlements (Claims Settlement Agreements) a. US-Cambodia b. US-Vietnam DOCTRINE OF STATE RESPONSIBILITY When an injury has been inflicted, there is need to determine whether the State can be held responsible for it Internationally wrongful act – committed when a State violates a customary rule of international law or a treaty obligation What needs to be understood? 1. Elements of an Internationally wrongful act 2. Attributability of the wrongful act to the State 3. Enforcement of the obligation that arises from the wrongful act INTERNATIONALLY WRONGFUL ACT No State can escape this responsibility when once it has committed an act which satisfies the requirements of an ―internationally wrongful act‖
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Elements of Internationally wrongful act: Subjective – act must be attributable not to the persons or agencies who performed it, but to the State itself 2. Objective – act constitutes a breach of an international obligation of the State What determines the wrongful character of the act is international law and not internal law
This responsibility does not find its justification in general principles, those regulating the judicial organization of the State. The act of an official is only judicially established as an act of State if such an act lies within the official’s sphere of competence.
ATTRIBUTION TO THE STATE 1. Acts of State Organs a. Acts of any State organ whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds, and whatever its character o Organ – includes any person or body which has that status in accordance with the international law of the State b. Conduct of an entity which is not an organ of the State but which is empowered to exercise elements of governmental authority provided the entity was acting in that capacity in the case in question c. Conduct of an organ placed at the disposal of a State by another State acting in the exercise of elements of governmental authority of the State at whose disposal it had been placed d. Conduct of a State organ or of an entity empowered to exercise elements of governmental authority, such organ or entity having acted in that capacity, exceeding its authority or contravening instructions concerning its exercise
In order to be able to admit this so-called objective responsibility of the State for acts committed by its officials or organs outside their competence, they must have acted at least to all appearances as competent officials or organs, or they must have used powers or methods appropriate to their official capacity.
1.
CAIRE CLAIM Facts: Caire, a French national, was killed in Mexico by Mexican soldiers after they had demanded money from him. Issue: w/n Mexico is responsible for actions of individual military personnel acting without orders or against the wishes of their commanding officers Held: Objective responsibility of the States – responsibility for the acts of the officials or organs of a State, which may devolve upon it even in the absence of any ―fault‖ on its own It tends to impute to the State, in international affairs, the responsibility for all the acts committed by its officials or organs which constitute offenses from the point of view of the law of nations, whether the official or organ in question has acted within or exceeded the limits of his competence.
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The act of an official operating beyond this competence is not an act of State. It should not in principle, therefore, affect the responsibility of the State.
Applying to the present case, the officers in question consistently conducted themselves as officers in the brigade of the Villista general; in this capacity they began exacting the remittance of certain sums of money and when Caire refused, they finally shot him. Under these circumstances, there remains no doubt that, even if they are to be regarded as having acted outside their competence, the officers have involved the responsibility of the State. CORFU CHANNEL (previous case) NICARAGUA v. US Facts: Nicaragua alleges that the mining of Nicaraguan ports or waters was carried out by US military personnel. The President of US authorized a US Government agency to lay mines in Nicaraguan ports, either in Nicaraguan internal waters or in its territorial sea, by persons in the pay and acting of the instructions of such agency. US did not issue any public and official warning to international shipping of the existence and location of the mines; and that personal and material injury was caused by the explosion of the mines. The imputability to US of these attacks appear therefore to the Court to be established. Nicaragua complains also of infringement of its air space by US military personnel. The Court finds that only violations of Nicaraguan air space imputable to US on the basis of the high altitude reconnaissance flights and low altitude flights causing ―sonic booms.‖ Nicaragua also alleges that US conceived, created and organized a mercenary army, the contra force. The Court is not able to satisfy itself that US created the contra force but holds it largely financed, trained, equipped, armed and organized the FDN, one element of the force.
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2.
Issue: w/n the contras is equated as an organ of US or is acting on behalf of US
Held: Even assuming that the ―hut tax‖ was the effective cause of the native rebellion, it was in itself a fiscal measure to which British Government was perfectly entitled to exercise.
Held: The Court considers that the evidence available to it is insufficient to demonstrate the toal dependence of the contras on US aid. A partial dependency may be inferred from the fact that the leaders were selected by US. There is no clear evidence that US actually exercised such a degree of control as to justify treating the contras as acting on its behalf.
It is well established principle of international law that no government can be held responsible for the act of rebellious bodies of men committed in violation of its authority, where it is itself guilty of no breach of good faith, or of no negligence in suppressing insurrection.
Acts of other Persons Conduct of a person or group of persons acting on the instructions of, or under the direction or control of, that State in carrying out the conduct b. Conduct of a person or group of persons exercising elements of the 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 a.
US v. IRAN (previous case) 3.
Acts of Revolutionaries Conduct of an insurrectional movement, which becomes the new government of a State b. Conduct of a movement, insurrectional or other, which succeeds in establishing a new State in part of the territory of a pre-existing State or in a territory under its administration
SHORT v. IRAN Facts: Claimant is an American national employed by an American Company in Iran. 3 days before the Islamic Revolutionary Government took office, claimant was evacuated from Iran on company orders. The claimant sought compensation for salary and other losses resulting from his alleged expulsion contrary to international law. Held: Where a revolution leads to the establishment of a new government, the State is held responsible for the acts of the overthrown government insofar as the latter maintained control of the situation.
a.
Claimant relies only on the acts committed by revolutionaries and is unable to identify any agent of the revolutionary movements whose actions compelled him to leave Iran. The acts of supporters of a revolution as opposed to its agents cannot be attributed to the government.
HOME MISSIONARY SOCIETY CLAIM (US v. BRITAIN) Facts: The collection of a tax newly imposed by Great Britain on the natives of Sierra Leone known as the ―hut tax‖ was the signal for a serious and widespread revolt in the Ronietta district.
Claimant relies on the declarations made by the leader of the Revolution. While these statements are of anti-foreign and in particular anti-American sentiments, these does not amount to an authorization to revolutionaries to act in such a way that the Claimant should be forced to leave Iran.
In the course of rebellion, all US’ Missions were attacked, and either destroyed or damaged, and some of the missionaries were murdered.
PRELIMINARY OBJECTIONS Claim of denial of justice may be lost due to failure to answer some preliminary objections a. Lack of nationality link b. Failure to exhaust national remedies o Purpose: to protect international courts from being swamped with cases which are better handled locally o Application: cases founded on diplomatic protection or on injury to aliens
US contends that British Government is responsible for the revolt since it wholly failed to take proper steps for the maintenance of order and the protection of life and property, and that the loss of life and damage to property is the result of such neglect. Issue: w/n the revolt is attributable to the British Government
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REPARATION 1. Obligation to make full reparation for the injury caused by the internationally wrongful act 2. Injury consist of any damage, whether material or moral, arising in consequence of the internationally wrongful act 3. Responsible State may not rely on the provisions of its internal law as justification for failure to comply with its obligation CHORZOW FACTORY CASE (GERMANY v. POLAND) Facts: The action of Poland which the Court has judged is not an expropriation but is a seizure of property which could not be expropriated even against compensation. Held: If follows that the compensation due to German Government is not necessarily limited to the value of the undertaking at the moment of disposition, plus interest to the day of payment. Such a limitation might result in placing Germany and the interests protected by Geneva Convention, in a situation more unfavourable than that in which Germany and these interests would have been if Poland had respected the said Convention. Such a consequence would not only be unjust, but also and above all incompatible with the aim of the Convention that is the prohibition of the liquidation of property, rights and interests of German nationals and of companies controlled by German nationals in Upper Silesia. The essential principle contained in the actual notion of an illegal act is that reparation must wipe out all the consequences of the illegal act and re-establish the situation would have exited if that act had not been committed. 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 its – such are the principles which should serve to determine the amount of compensation due for an act contrary to international law. CALVO CLAUSE REJECTED A provision in a contract to the effect that ―under no condition shall the intervention of foreign diplomatic agents in any matter related to the contract‖ be resorted to This was rejected in North American Dredging Company Claim due to the right to seek redress is a sovereign prerogative of a State and a private individual has no right to waive the State’s right
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EXPROPRIATION OF ALIEN PROPERTY Expropriation can be internally wrong if it is done contrary to the principles of international law 1962 UN General Assembly Resolution on the Sovereignty over Natural Resources o Expropriation shall be based on grounds or reasons of public utility, security or the national inters which are recognized as overriding purely individual or private interests, both domestic and foreign o In such cases, the owner shall be paid appropriate compensation in accordance with the rules in force in the State taking such measures in the exercise of its sovereignty and in accordance with international law
CHAPTER 12 INTERNATIONAL HUMAN RIGHTS LAW FROM ALIEN RIGHTS TO HUMAN RIGHTS Early concern about human rights was about specific classes of people, e.g. slaves, minorities, and certain nationalities It was not until the birth of the United Nations that human rights of all people became the subject of legislation Human Rights – those inalienable and fundamental rights which are essential for life as human beings 3 generations of human rights: 1. Traditional civil and fundamental rights 2. Social and economic rights 3. Right to peace, clean environment, self-determination, common heritage of mankind, development, minority rights AN EMERGING INTERNATIONAL BILL OF HUMAN RIGHTS The UN became the cradle for the development of the new international law on human rights Key obligations assumed by the Organization and its Members: 1. Higher standards of living, full employment, and conditions for economic and social progress and development 2. Solutions for international related problems 3. Universal respect for, and observance of, human rights These, however, do not provide for the definitions of human rights THE COVENANT ON CIVIL AND POLITICAL RIGHTS The following are substantive rights:
1. Life, Liberty and Property, and Equality This, however, does not say when protected life begins, whereas the Philippines protects ―the life of the unborn from conception‖ There is also no provision on the right to property
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On the right to life, the Covenant’s Article 6(2) expresses a bias for the abolition of the death penalty and allows its imposition, in countries which still have death penalty, only after conviction for the most serious crimes In Article 14, it is more restrictive in the matter of publicity of criminal proceedings ―where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children 2 provisions on Right to Compensation: 1. Anyone who has been a victim of unlawful arrest or detention 2. Any person who has been a victim of miscarriage of justice unless the non-disclosure of the unknown fact in time is wholly or partly attributable to him 2. Torture, ill-treatment and Prison Conditions Proscription on torture and other forms of ill-treatment that offend not only against bodily integrity but also against personal dignity Imprisonment in conditions seriously detrimental to a prisoner’s health constitutes a violation of Articles 7 and 10(1) of the Covenant 3. Freedom of Movement Right to travel within the country, right to leave the country, right to return to one’s country, the right to change one’s residence and the right of the aliens not to be expelled without due process Limitations: a. Those provided for by law b. Necessary to protect national security, public order, public health or morals The separation between the right to leave and right to return to one’s country is to make the limitation more narrow than for the right to leave the country since exile is now prohibited by customary law and may even be jus cogens
4. Legal Personality, Privacy and the Family When does one become a person? The Covenant does not say. Legal Personality Capacity to Act Whether citizens or aliens May not be available to some by reason, for instance, infancy, minority or insanity
5. Thought, Conscience, Religion, Expression and Political Freedoms This includes the explicit protection of the Right of Parents in the matter of Religion for their children Covenant prohibits ―propaganda for war‖ 6. Associations and Unions Covenant is silent about the right of government employees to form unions which is explicit in our Constitution
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7. Minorities This guarantees ―ethnic, religious or linguistic minorities‖ This is one of the few rights which was already the subject of earlier treaties (Treaty of Versailles and Polish-German Upper Silesia Treaty) 2-fold aspect for the concern for minorities: 1. Fear of a secessionist movement by minorities 2. Genuine concern for the human rights of minorities and the desire to flourish 8. Self-determination of Peoples This covers 2 important rights: a. Right to freely determine their political status and freely to pursue their economic, social and cultural development b. Right for their own ends, to freely dispose of the natural wealth and resources without prejudice to any obligation arising out of international cooperation Peoples – include those ruled by colonial powers; those who form a component part of a multi-national state 2 aspects of Self-Determination: a. Internal – this is the 2 important rights b. External – belongs to colonies and to those non-self governing and Trust Territories
OPTIONAL PROTOCOL ON THE COVENANT ON CIVIL AND POLITICAL RIGHTS This treaty is designed to enable private parties who are victims of human rights violations Complaints may be filed only against States who have ratified the Protocol THE COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS The rights specific to this are social welfare rights a. Right to work b. Right to favorable conditions of work c. Right to form free trade unions d. Right to social security and insurance e. Right to special assistance for families f. Right to adequate standard of living g. Right to the highest standard of physical and mental health h. Right to education including compulsory primary education i. Right to the enjoyment of cultural and scientific benefits and international contracts DUTY TO IMPLEMENT The Philippines is a party to the UN Charter, UNDHR, the 2 Covenants, and to the Optional Protocol to the Covenant on Civil and Political Rights Treaty commitments become part of domestic law Those which are not self-executing provisions must be attended to by the necessary steps, in accordance with its constitutional processes and with the provisions of present Covenants
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Progress Realization – State is obligated to undertake a program of activities and to realize those rights which are recognized by the Economic Covenant
Other Conventions on Human Rights a. Genocide Convention b. Convention on the Elimination of All Forms of Racial Discrimination c. Convention on the Elimination of All Forms of Discrimination Against Women d. Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment e. Convention on the Rights of the Child f. Convention on Migrant Workers CUSTOMARY HUMAN RIGHTS LAW Prohibition on Torture, Genocide, Slavery and Discrimination INTERNATIONAL IMPLEMENTATION OF HUMAN RIGHTS LAW Each country has the obligation to implement human rights law within its jurisdiction properly done through municipal or regional courts 2 different procedures used by Human Rights Commission for responding to violations of human rights: a. Confidential consideration under ECOSOC Resolution 1503 o The confidential findings of the Sub-Commission are brought to the attention of CHR o The CHR is expected to submit its report and recommendation to the ECOSOC o Procedure is kept confidential, but findings invariably find their way into media b. Public debate procedure under ECOSOC Resolution 1235 o This carries 2 types of activities: 1. It holds annual public debates in which governments and NGOs are given opportunity to identify specific situations which deserve attention 2. It engages in studies and investigations of particular situations INTERNATIONAL CRIMINAL COURT Until the establishment of ICC, international crimes were prosecuted in ad hoc criminal courts (Nuremberg and Tokyo Tribunals) The goal of ICC is to demand individual and not collective accountability Its jurisdiction is limited to most serious international crimes: Genocide, Crimes against Humanity, War crimes, and the Crime of Aggression Principle of Complementarity – the court of last resort
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CHAPTER 13: PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES What is international dispute? A disagreement on a point of law of fact, a conflict of legal views or interests between 2 persons Must have practical effect on the relationship between the parties Peaceful methods of settling disputes: Art. 2, par. 3 of UN Charter: ―All members shall settle their international disputes by peaceful means in such manner that international peace and security, and justice are not endangered. There is no obligation to settle disputes except in cases that might endanger peace and security. But if a decision is made to settle disputes, the obligation is to settle them peacefully. Key provisions in UN Charter: Art. 33: (disputes likely to endanger international peace and security) Parties to any dispute shall first of all seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their choice. When it deems necessary, the SC shall call upon the parties to settle their disputes by such means.
Art. 36: SC may, at any stage recommend appropriate procedures or methods of adjustment. SC should take into consideration what has already been adopted by the parties. SC should consider that legal disputes should generally be referred by the parties to the ICJ.
Art. 37: If parties fail to settle disputes via Art. 33, they shall refer it to the SC. If SC deems the dispute to likely endanger international peace and security, it shall: (a) take action under Art. 36; or (b) recommend appropriate terms of settlement.
Art. 38: If all parties request, SC may make recommendations for pacific settlement.
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Classifications of peaceful means of settlement: A. Non-judicial Negotiation: Preferred since States are hesitant to submit disputes to adjudicatory bodies. No set rules: An agreement to negotiate may be formalized via treaty or exchange of notes. May be arm’s-length or face to face. To be binding, parties MUST agree to it. Preliminary step is ―good offices‖ when a neutral 3rd party tries to bring 2 disputants together, after which disputants look for a win-win solution via a give-and-take process.
Mediation: Involves assistance of 3rd parties (approved by bother parties) who either act as bridge between parties who don’t meet OR may sit with the disputants to chair meetings, suggest solutions, etc.
Inquiry: Fact-finding done by a designated group of individuals or institutions. Resolves disputes based on questions of fact.
Conciliation: A more formal technique whereby parties agree to refer controversies to a 3rd party to make findings of fact and recommendations. Generally, parties are not bound by the recommendations. Merely clears the air.
B. Quasi-judicial Arbitration Binding settlement of a dispute on the basis of law by a non-permanent body designated by the parties. The compromis d’arbitrage is agreed upon by the parties and sets out: (a) composition; (b) jurisdiction; (c) rules of procedure to be applied. States cannot be required to submit to arbitration UNLESS there is a previous agreement. Different from judicial settlement since parties have a greater say in deciding the law applied, composition of tribunal, process, etc.
3 types of arbitral agreement: a. Arbitration clause incorporated in a treaty b. Treaties solely to establish methods of arbitration (i.e. Hague Convention for Pacific Settlement of Disputes) c. Ad-hoc arbitral agreements (i.e. US-Iran claims)
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Arbitral decisions Applies international law UNLESS parties specify that some other law applies. Arbitral decisions may be challenged if: a. the arbitral body exceeds its powers b. there was corruption on the part of a member of the body c. failure to state reasons for the awards OR a serious departure from fundamental rule of procedure d. the undertaking to arbitrate OR the compromis is a nullity
Domestic courts may refuse to give recognition to arbitral awards under Convention on the Recognition and Enforcement of Foreign Arbitral Awards: a. agreement to arbitrate was not valid under applicable law b. adverse party did not receive proper notice OR was not afforded opportunity to present its case c. award is outside the terms of agreement to arbitrate d. the constitution of the tribunal OR the arbitral procedure was contrary to the agreement or the law of the state where arbitration took place e. award has not yet become binding, has been set aside or suspended by a competent court where it was made f. under the law of the adverse party, the subject matter is not capable of settlement by arbitration g. under the law of the adverse party, recognition or enforcement would be contrary to public policy
C. Judicial ICJ All members of the UN are ipso facto parties to the Statute of ICJ, but it does not mean acceptance of the court’s jurisdiction. Only means that the State may accept its jurisdiction. Only states may be parties in the court. General principles: a. States cannot be compelled to submit their disputes to international adjudication unless they consent. b. States may limit their acceptance to certain types of disputes and attache various conditions and reservations.
Composition of the ICJ: Art. 2: Composed of a body of (a) independent judges, regardless of nationality, (b) with high moral character, (c) who possess qualifications required by their countries for appointment to the highest judicial offices OR are jurisconsults of recognized competence in international law. Art. 3: 15 members, no 2 of whom from the same State
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If dual citizenship, nationality is based on where civil and political rights are ordinarily exercised.
Disputes are to be settled by IL and not DL. Court acquires jurisdiction only upon referral by both parties.
Art. 4: The Court can form chambers, composed of 3 or more judges, for dealing with particular categories of cases; or (b) particular cases, the composition to be approved by the parties; or (c) at the request of the parties.
Art. 26: Chamber decisions are deemed Court decisions. Art. 27: Judges of the nationality of the parties shall retain their right to sit in the case. If a judge of the same nationality of a party is included in the Bench by the Court, the other party may choose a person to sit as judge, preferably among those nominated as candidates. If the Bench does not include a judge of the same nationality as the judges, the parties may choose a judge. The President shall request the members of the Chamber to give place as necessary. Several parties of the same interest are deemed one party only.
3 ways to accept ICJ’s jurisdiction: a. Ad-hoc basis (one party applies unilaterally to the Court and is consented to by the other party) b. Parties adhere to a treaty which accepts jurisdiction on matters of interpretation or application of a treaty. c. Optional system (Unilateral declaration of recognition in relation to any other state accepting the same jurisdiction in all legal disputes)
Jurisdiction of the ICJ: 1. Contentious Art. 36: All cases which parties refer to it and all matters specially provided for in the UN Charter or in treaties and conventions in force. Signatory states may at any time declare compulsory recognition in relation to any other state accepting the same obligation, the jurisdiction of the ICJ in all legal disputes concerning: [Optional system] a. interpretation of a treaty b. any question of international law c. existence of any fact which, if established, would constitute a breach of international obligation d. nature or extent of the reparation for breach of international obligation Declarations of compulsory recognition may be made un/conditionally, on condition of reciprocity of several or certain states, or for a certain time. Submitted to the Sec.Gen. of UN Reciprocity enables a party to invoke a reservation to the compulsory recognition which was not expressed in its own Declaration BUT was expressed in the other party’s. In case of dispute as to Court’s jurisdiction, it shall be settled by ICJ decision. 叶清蓮 & DSP
Aerial Incidence Case (US. vs. Bulgaria, ICJ 1959) 1. Facts: US acceded to the optional clause, thereby accepting the compulsory jurisdiction of the ICJ but subsequently made a reservation for ―disputes with regard to matters which are essentially within the domestic jurisdiction of the US, as determined by the US‖ (Connally amendment) EL Al Israel airliner was driven off course by bad weather and innocently passed through Bulgarian air space where it was shot down by Bulgarian military planes, killing all passengers and crew, including 6 US nationals. Investigators argue that Bulgarian military failed to adhere to international civil aviation agreements involving appropriate interception and identification of intruding aircraft. The case was initially brought to the ICJ by Israel, where ICJ ruled that it had no jurisdiction, stating that Bulgaria’s acceptance of the optional clause in the Statute of PCIJ did not carry over to acceptance of the optional clause of the ICJ. US continued its claim based on violation of international law and injuries to US nationals. On grounds of reciprocity and consensual basis of ICJ jurisdiction, Bulgaria contests ICJ’s jurisdiction. Bulgaria had invoked the Connelly amendment exempting matters within its internal competence and contended that its airspace security and anti-craft defenses were within its domestic jurisdiction. US withdrew its application, which the Court accepted as the end of the dispute. Nicaragua vs. US (ICJ, 1984) I. Facts: In 1964, the US made a Optional Clause Declaration with a reservation that ―it would remain in force for 5 years and thereafter until the expiration of 6 months after notice was given to terminate.‖ The 1984 notification was deposited with the Sec.Gen. by the US, stating that ―the 1946 declaration shall not apply to disputes with any
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Central American State or arising out of events in Central America...this notice shall take place immediately and remain in force for 2 years.‖ The ICJ initially found that Nicaragua could rely on the 1946 declaration since it was a ―state accepting the same obligation‖ on the basis if its own declaration under the Statute of the PCIJ. US contends that the 1984 notification should be given effect, thereby taking away the court’s jurisdiction over the case.
II. Held: In its 1946 declaration, the US included a proviso which required a 6 months’ notice prior to termination. US contends that Nicaragua was not a ―state accepting the same obligation‖ since its own declaration was of undefined duration and thus liable to immediate termination. Thus, Nicaragua could not rely the the US’ time-limit proviso under the principle of reciprocity. However, the Court found the same untenable, given that the timelimit proviso was made by the US freely and by its own choice. Furthermore, the notion of reciprocity is concerned with the scope and substance of commitments (including reservations) and not with the formal conditions of their creation, duration or extinction. Reciprocity cannot be invoked to excuse departure from the terms of the State’s own declaration. Nicaragua can invoke the 6 months notice not on the basis of reciprocity but because it is an undertaking which is an integral part of the instrument that contains it. Case concerning East Timor (Portugal vs. Australia, ICJ 1995) I. Facts: Portugal initiated proceedings against Australia for the latter’s ―failure to observe the obligation to respect the duties and powers of Portugal as the administering power of East Timor and the right of the people of ET to self determination and related rights‖ pertaining to the Treaty of 1989 for the creation of a zone of cooperation in the area between East Timor and Northern Australia. As basis for jurisdiction, it referred to the declarations of both states under the optional system. Australia contends that the real dispute is between Portugal and Indonesia and that the latter has not signed the optional clause. The Court ruled that w/n Portugal has rightly formulated complaints against Australia, the fact that the latter denied the same created a legal dispute. Australia contends that the effect of Portugal’s application would require the Court to determine the rights and obligations of Indonesia to settle the validity of the treaty between Australia and Indonesia. Portugal insists that the dispute is exclusively based on the objective conduct of Australia when the latter negotiated, concluded and initiated performance of its treaty with Indonesia. II. Held: 叶清蓮 & DSP
Court found that Australia’s behavior cannot be assessed without first entering into the question of why Indonesia could not lawfully have concluded the 1989 treaty. The very subject matter would be a determination whether, having regard to the circumstances in which Indonesia entered and remained in East Timor, it could/not have acquired power to enter into treaties on behalf of ET relating to resources of its continental shelf. The court cannot make such determination without the consent of Indonesia. W/N the behavior of Australia breaches rights erga omnes (ET’s right to self determination), the Court cannot rule on the lawfulness of the conduct of a State when its judgment would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case. Further, the nature of the obligation is different from the rule of consent to jurisdiction. Finally, the court ruled that it cannot be inferred from the sole fact that a number of resolutions of the GA and the SC refer to Portugal as the administering Power of ET that they intended to establish an obligation on 3rd states to treat exclusively with Portugal as regards the continental shelf of ET.
Provisional Measures Art. 41: ICJ has the power to indicate any provisional measures which ought to be taken to preserve the respective rights of either party Pending final decision, notice of the measures suggested shall be given to the parties and the SC.
Nicaragua vs. US I. Facts: Court finds it necessary to indicate provisional measures under Art. 41 to preserve the rights claimed. Such decision in no way prejudges the question of jurisdiction to deal with the merits of the case. Such measures include: a. US should cease and refrain from any action restricting, blocking or endangering access from or to Nicaraguan ports, and in particular, laying mines. b. The right to sovereignty and political independence of Nicaragua. States should refrain from using force or threat of force against its territorial integrity or political independence. States should not intervene in matter within the domestic jurisdiction of a State. c. The governments of US and Nicaragua should ensure that no action is made to aggravate or extend the dispute. d. Both Governments should ensure that no action is taken which might prejudice the rights of the other party in respect to the carrying out of whatever decision the Court may render. e. Until final judgment, the Court will keep matters covered by this order continuously under review.
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f.
Written proceedings shall first be addressed to the question of jurisdiction of the Court.
Case concerning legality of use of force (Yugoslavia vs. US, ICJ, 1999) I. Facts: By request of the Federal Republic of Yugoslavia against the NATO states (Belgium, Canada, France, Germany, Italy, Netherlands, Portugal, Spain, UK, US) in relation to the bombings carried out by NA 8:00 AM forces. Court recognizes that it can exercise jurisdiction only between states parties to a dispute who not only have access to the Court but also have accepted the jurisdiction of the Court, either in general form or for the individual dispute concerned. In requests for provisional measures, the Court need not, before deciding w/n to indicate them, finally satisfy itself that it has jurisdiction on the merits of the case, yet only if the provisions invoked by the applicant appear, prima facie, to afford a basis on the the jurisdiction of the Court might be established. Yugoslavia claims ICJ jurisdiction based on Art. IX of the Genocide Convention to which both parties are signatories. US contends that it made a clear and unambiguous reservation that ―with reference to Art. IX, specific consent of the US is required in each case.‖ Further, (a) reservations in the Genocide Convention are generally permitted; (b) the reservation is not contrary to its object and purpose; (c) absence of Yugoslavia’s objection to the reservation means acceptance. US adds that there no legally sufficient basis between the charges against the US and the supposed jurisdictional basis under the GC. II. Held: Court accepts US’ contentions and finds that it does not have jurisdiction to entertain the dispute between Yugoslavia and the US alleged to fall under the provisions of the GC, and that Article manifestly does not constitute a basis of jurisdiction in the present case, even prima facie. Even under Art. 38, par. 5 of the Rules of Court which allows the jurisdiction of the Court to be founded upon the consent thereto yet to be manifested or given by the other party, the fact that US has not made such consent does not create a prima facie jurisdiction allowing the Court to indicate any provisional measure. There is a fundamental distinction between the question of acceptance by a State of the Court’s jurisdiction and the compatibility of particular acts with international law. W/N States accept jurisdiction, they remain responsible for acts attributable to them that violate IL, including humanitarian law. Disputes relating to the legality of such acts MUST be resolved by peaceful means chosen by the parties. 叶清蓮 & DSP
Intervention Art. 62: If a State has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene, which the Court shall decide at its discretion.
Art. 63: Registrar shall inform all parties to a convention regarding cases which relate to its construction. Every state notified has the right to intervene, but the construction given by the judgment shall be binding on the intervenor.
El Salvador vs. Honduras (Nicaraguan Intervention, ICJ 1992) I. Facts: Nicaragua filed an application to intervene based on Art. 62: a. to protect the legal rights of the Republic of Nicaragua in the Gulf of Fonseca and the adjacent maritime areas by all legal means available b. to inform the Court of its legal rights which are in issue in the dispute The Court points out that there must be a legal interest that may be affected. Further, Rules of Court require a statement of the ―precise object of intervention.‖ Court finds that the subject of intervention is proper. El Salvador contends that for intervention to be proper, Nicaragua must also show a ―valid like of jurisdiction‖ between Nicaragua and the Parties. Nicaragua however bases jurisdiction only upon the ICJ Statute and states that Art. 62 does not require a separate title of jurisdiction. II. Held: The Court’s decision’s binding power rests upon the agreement of both parties to the case to confer jurisdiction upon the Court. Normally, therefore, no other State may involve itself in the proceedings without the consent of the original parties. However, procedures for a 3rd state to intervened are provided in Art. 62 and 63 of the Court’s Statute. The Court’s competence in this matter is not derived from the consent of the parties to the case, but the the consent given by them, in becoming parties to the Court’s statute. Thus, the Court has competence to permit intervention (subject only to the requirements of object and purpose) even if both parties oppose. A state allowed to intervene does not become a party to the case. It is not allowed to tack on a new case nor have its own claims adjudicated by the Court. It does not acquire the rights or become subject to the obligations, which attach to the status of a party. It has the right to be heard by the Chamber, but limited to the scope of its legal interests.
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Obligation to comply with decisions Art. 59: No binding force except as between the parties and in respect to that particular case
Art. 60: Final without appeal. In the event of dispute as to (a) meaning or (b) scope of the judgment, the Court shall construe it upon request of any party.
Art. 61: Application for Revision of a judgment may be made only when based upon newly discovered fact, which must be: (a) a decisive fact; (b) at the time judgment was given, was unknown to the Court and to the party; (c) such ignorance was not due to negligence. The Court must first decide whether the fact is of such character as to lay the case open to revision, and declaring the application admissible. The Court may require previous compliance with the terms of judgment before it admits proceedings in revision. Application must be made within 6 months from discovery and within 10 years from date of judgment.
Art. 94 of UN Charter: If any party fails to perform any obligation under ICJ judgment, the other party may have recourse to the SC, which may make recommendations OR decide upon measures to be taken to give to the judgment. Such enforcement measures are subject to veto powers of the permanent members. Winning state may make uses of alternative methods of enforcement, such as economic or diplomatic pressure.
2. Advisory non-binding non/acceptance depends on internal law of the institution
Art. 66: Registrar shall: a. give notice of the request to all state entitled to appear before the Court b. via special and direct communication, notify any state entitled to appear or international organization likely to furnish information on the question, within a time limit fixed by the President, that the Court will be prepared to receive written statements OR hear at a public sitting oral statements relating to the question If an entitled state fails to receive notification, it may express a desire to submit a written statement or to be heard, and the court will decide. Parties which presented shall be permitted to comment on statements made by others. CHAPTER 14 THE USE OF FORCE SHORT OF WAR
Use of Force General Principle: International law recognizes the a. Autonomy of individual states b. Their right to freedom from coercion and to the integrity of their territory Art. 2(4) of the UN Charter: 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.
The above text does not use the word ―war‖ because it is a technical term which does not include some uses of force o Hence, the prohibition is broader than the prohibition of war noting that it applies to ―any other matter inconsistent with the Purposes of the United Nations‖ Corfu Channel
Art. 96 UN Charter: SC and GA may make requests for advisory opinion. GA may also authorize other UN agencies to seek advisory opinion on legal questions arising within the scope of their activities. Art. 65: Advisory jurisdiction in accordance with the UN Charter On any legal matter at the request of any body authorized to do so. Through written requests containing (a) the exact statement of the question and (b) all documents likely to throw light upon the question.
叶清蓮 & DSP
Facts: After a British warship had been struck by mines, Britain sent additional warships to sweep the minefields within Albanian territory arguing the theory of intervention where its objective was to secure the mines for possible fear that they should be taken away, and the theory of self-help. Held: The Court cannot accept these lines of defense. It can only regard the alleged right of intervention as the manifestation of policy of force which cannot find a place in international law. The Court is also unable to accept the theory of self help as between independent States, the respect for territorial sovereignty is an essential foundation for international relations.
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Nicaragua v. US
The prohibition of the use of force is customary international law
The general rule prohibiting force established in customary law allows for certain exceptions. The exception of the right of individual or collective self-defense is also established in customary law, which Art. 51 refers to an ―inherent right‖.
Nicaragua v. US Consent to such resolutions is one of the forms of expression of an opinio juris with regard to the principle of non-use of force, regarded as a principle of customary international law, independently of the provisions, especially those of an institutional kind, to which it is subject on the treaty-law plane of the Charter
Threat of Force Charter prohibits not just use of force but also the threat of force Typical form of threat of force: o A State is given an ultimatum, a time-limit, within which to accept the demands made upon it and is told that, if it rejects the demands, war will be declared on it or certain coercive measures will be taken Examples of coercive measures: a. Naval blockade b. Bombardment c. Occupation of a given territory Legality of the Threat or Use of Nuclear Weapons The Charter recognizes the inherent right of individual or collective self-defense if an armed attack occurs. The entitlement to resort to self-defense is subject to the conditions of necessity and proportionality. A further lawful use of force is envisage whereby the Security Council may take military enforcement measures in conformity of the Charter. These apply to any use of force, regardless of the weapons employed.
Individual and Collective Self-Defense Exception to the prohibition of the use of force
The Parties agree in holding that whether the response to an attack is lawful depends on the observance of the criteria of necessity and the proportionality of the measures taken in self-defense. Whether self-defense be individual or collective, it can only be exercised in response to an ―armed attack.‖ The Court does not believe that the concept of ―armed attack‖ includes assistance to rebels. Furthermore, the Court finds that in customary international law, there is no ruling permitting the exercise of collective self-defense in the absence of a request by the State which is a victim of the alleged attack, this being additional to the requirement that the State should have declared itself to have been attacked.
Is anticipatory self-defense allowed? 2 views: 1. States do not invoke the right because they are afraid that it might be used against them too 2. Israel launched a preemptive strike against its Arab neighbors but the UN did not condemn the act In the case of the Gulf War against Iraq, the Allied forces came on invitation of Kuwait which was under invasion The right to use force to defend claimed territory was rejected in the Falkland War Traditionally Allowable Coercive Measures 1. Severance of Diplomatic Relations o Reason: there is no obligation to maintain diplomatic relations o Limitation: not be resorted unless truly necessary because it might endanger peace o Suspension involves withdrawal of diplomatic representation but not of consular representation 2.
Retorsion o Any forms of counter-measures in response to an unfriendly act o Includes: a. Shutting of ports to vessels of an unfriendly State b. Revocation of tariff concessions not guaranteed by treaty c. Display of naval forces near the waters of an unfriendly State
3.
Reprisal o Any kind of forcible or coercive measures where by one State seeks to exercise a deterrent effect or obtain redress or satisfaction, directly or indirectly, for the consequences of illegal act of another State which has refused to make amends for such illegal acts o This must be preceded by an unsatisfied demand for reparation
Article 51 Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and the responsibility of the Security Council to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
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4.
NATO, The UN and the Use of Force: Legal Aspects Bruno Simma
Embargo o A lawful measure o Consists of: a. Seizure of vessels even in the high seas b. State keeps its own vessels for fear that it might find their way in foreign territory pacific embargo c. Seizure of import of drugs or of oil collective embargo
5.
Boycott o A form of reprisal which consists of suspension of trade or business relations with the nationals of an offending State
6.
Non-intercourse o Suspension of all commercial intercourse with a State
7.
Pacific Blockade o Naval operation carried out in time of peace whereby a State prevents access to or exit from particular ports or portions of coast of another State o Purpose: compel a State to yield to demands by the blockading State
Protection of Nationals Abroad Right to defend nationals abroad is an aspect of the right to self-defense since population is an essential element of Statehood Examples of forcible rescue of nationals a. Raid of Entebee in Uganda b. US intrusion into Stanleyville to rescue American students Humanitarian Intervention The prohibition in Art. 2(4) is now considered jus cogens Prevailing opinion: intervention without the authorization of the Security Council violates international law
叶清蓮 & DSP
Certain points on Humanitarian Intervention a. If the Security determines that massive violations of human rights occurring within a country constitute a threat to the peace, and then calls for or authorizes an enforcement action to put an end to these violations, a humanitarian intervention by means of military is permissible b. When humanitarian crises do not transcend borders and lead to armed attacks against other States, recourse to Art. 51 is not available Reasons for the majority legal opinion against the existence of a right of Humanitarian Intervention: 1. UN Charter and the corpus of modern international law do not seem to specifically incorporate such right 2. State practice provides only a handful of genuine cases of humanitarian intervention 3. Scope for abusing such a right argues strongly against its creation Whether we regard the NATO threat employed in the Kosovo crisis as an ersatz humanitarian intervention, or as a threat of collective counter-measures involving armed force, any attempt at legal justification will ultimately remain unsatisfactory
Under certain strict conditions, resort to armed force may gradually become justified, even absent any authorization by the Security Council Ex Injuria Oritur Jus Antonio Cassese Conditions: 1. Gross and egregious breaches of human rights involving loss of life of hundreds or thousands of innocent people, and amounting to crimes against humanity 2. Such crimes against humanity result from anarchy in a sovereign State, proof is necessary that the central authorities are utterly unable to put an end to those crimes while at the same time refusing to call upon or to allow other States or international organization to enter the territory to assist in terminating the crimes 3. Security Council is unable to take any coercive action to stop it because of disagreement among the Permanent Members or because one or more of them exercises its veto power 4. All peaceful avenues have been exhausted, notwithstanding which, no solution can be agreed upon by the parties to the conflict 5. A group of States decides to try to halt the atrocities, with the support or at least the non-opposition of the majority of Member State of UN 6. Armed force is exclusively used for the limited purpose of stopping the atrocities and restoring respect for human rights 7. Use of force must be commensurate with and proportionate to the human rights exigencies on the ground
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CHAPTER 15 THE LAW OF WAR INTERNATIONAL HUMANITARIAN LAW Previously known as Laws of War a. Provides for instances when the use of armed force is justifiable – jus ad bellum b. Regulates the conduct of armed conflict – jus in bello Early international law did not consider as illegal a war admittedly waged for the purpose of gaining political or other advantages over another State Art. 2(4) of the UN Charter: 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.
The above provisions outlaws war The paradox is that side by side with the prohibition of armed conflict is the proliferation of laws of war o 3 facts which explain the paradox: a. Those who resort to the use of arms do not give up until they have achieved victory b. Humanitarian considerations dictate the need for rules which curtail violence beyond what is necessary to achieve a State’s goal c. There still remains in the hearts of the soldiery an acceptance of chivalry as a value On the assumption that wars can always occur, there arose the need to formulate laws that can humanize the conduct of war THE HAGUE LAW In 1899, 26 Countries met at The Hague and promulgated Conventions and Declaration which adopted the principles constituting the law of armed conflict, Law of the Hague, governing land and naval warfare
GENEVA CONVENTIONS OF 1949 Essence: persons not actively engaged in warfare should be treated humanely o Geneva ―Red Cross‖ Conventions a. Wounded and Sick in the Field b. Wounded, Sick and Shipwrecked at Sea c. Prisoners of War d. Civilians
叶清蓮 & DSP
CUSTOMARY and CONVENTIONAL LAW What is embodied in Hague and Geneva Conventions are customary law o Thus, non-parties are still covered Commencement and Termination of Hostilities Under Hague Convention III, for an armed conflict to be considered a war, the hostilities should be preceded by a declaration of war or an ultimatum with a fixed limit While the Constitution gives to the legislature the power to declare the existence of a state of war and to enact all measures to support the war, the actual power to make war is lodge in the executive The commencement of hostilities result in the severance of all normal relations, including treaties, except treaties of a humanitarian character Nationals of a combatant State residing in enemy territory become subject to restrictions which the enemy might impose subject to limitations found in customary or treaty law Merchant vessels found in enemy territory are given a period of grace to depart Laws of armed conflict remain in effect until the conflict is terminated, by means of a a. peace treaty b. in the absence thereof, by declaration made by the combatant states that hostilities have come to an end Armistice – an agreement to suspend hostilities, whether local or general, does not end the conflict but only puts an end to the active fighting Protocol I International armed conflict includes armed conflicts in which peoples are fighting against a. Colonial denomination b. Alien occupation c. Racist regimes Those engaged in such conflict receive combatant status and are entitled to combatant rights o Instead being treated as ordinary criminals when captured, they are treated as prisoners of war METHODS OF WARFARE: JUS IN BELLO Declaration of St. Petersburg: o The only legitimate object which States should endeavor to accomplish during war is to weaken the military forces of this enemy o This object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable
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The Hague Convention prohibits the employment of ―arms, projectiles or material calculated to cause unnecessary suffering‖ There is a need to balance military necessity and humanitarian consideration
Legality of the Threat or Use of Nuclear Weapons (ICJ 1996) Cardinal Principles constituting the Fabric of Humanitarian Law: 1. States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets 2. It is prohibited to cause unnecessary suffering to combatants INTERNATIONAL COMMISSION ON RED CROSS Basic Rules Governing Armed Conflicts: 1. Soldier’s Rules a. Fight only enemy combatants and attack only military objectives b. Prisoners of war must be treated humanely and are bound to give only information about their identity c. Looting is prohibited. Respect other’s property. 2. Fundamental Rules of International Humanitarian Law Applicable to Armed Conflicts a. Persons hors de combat and those who do not take a direct part in hostilities are entitled to respect for their lives and moral and physical integrity b. It is forbidden to kill or injure an enemy who surrenders or is hors de combat 3. Non-International Armed Conflicts a. Obligation to distinguish between combatants and civilians b. Prohibition of attacks against the civilian population as such or against individual citizens c. Customary rule prohibiting the use of chemical weapons, bullets which expand or flatten easily in the human body, poison as means of warfare, and booby-traps NEUTRALITY To adopt an attitude of impartiality towards the belligerents Such attitude must be recognized by belligerents and creates both rights and duties in the neutral states Neutrals must not engage in activities which interfere with the activities of the belligerents NON-INTERNATIONAL CONFLICTS Civil wars or rebellion do not violate international law International law on armed conflict does not apply to internal conflicts 叶清蓮 & DSP
Outside help for governments experiencing rebellion is legitimate provided requested by the government Aid to rebels is contrary to international law
Common Article 3 In case of armed conflict not of an international character, persons should still be accorded a minimum humanitarian protection Prohibited acts: a. Violence like murder of all kinds, mutilation, cruel treatment and torture b. Taking of hostages c. Outrages on human dignity d. Passing of sentences and carrying out of executions without previous judgment pronounced by a regular court International Committee of the Red Cross – an impartial humanitarian body Protocol II The first and only international agreement exclusively regulating the conduct of parties in a non-international armed conflict International armed conflict – that which takes place in the territory of a Contracting Party between its armed forces and dissident armed forces or other organized armed groups which Material Field of Application: a. Armed dissidents must be under responsible command b. They must ―exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol INTERNATIONAL TERRORISM There is no crime terrorism in Philippines statute books but some acts are considered terroristic and are independently punished by the RPC Terrorism Act (British Law) – violent moves against person or property or against public health and safety which have for their purpose to influence the government or to intimidate a section of the public or to advance a political, religious or ideological cause Draft of an International Convention for the Suppression of the Financing of Terrorism: o Any person commits an offense of terrorism if he does an act intended to cause: a. Death or serious bodily injury to any person b. Serious damage to a State or Government Facility with the intent to cause extensive destruction Attack on WTC on 9-11 was characterized as Crime against Humanity through the atrocious character exhibited by the act: its magnitude, gravity, targeting of civilians
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o
The importance of this characterization is that it led to what seems to be a development in the international law of self-defense Self-defense – legitimate response to an armed attack by a State CHAPTER 16 INTERNATIONAL ENVIRONMENTAL LAW
Sec. 16, Art. 2 of the Constitution. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.
The protection of the environment is now also a concern of international law a. Protection of the atmosphere, the sea, land, flora and fauna b. Preservation of the cultural heritage of mankind The protection of the environment is a vital part of contemporary human rights doctrine, for it is a sine qua non for numerous human rights such as the right to health, and the right to life itself
WHO HAVE ENVIRONMENTAL RIGHTS? Persons capable of having rights Minors pleading for intergenerational protection (Factoran case)
SUSTAINABLE DEVELOPMENT A concept adopted by the World Commission on Environment and Development This encourages development in a manner and according to methods which do not compromise the ability of future generation and other States to meet their needs EMERGING PRINCIPLES The following are only declarations, they do not have the force of law 1. Stockholm Declaration Man has fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations Natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded Man has a special responsibility to safeguard and wisely manage the heritage of wildlife and its habitat The struggle of the peoples of ill countries against pollution should be supported States shall take all possible steps to prevent pollution of the seas 叶清蓮 & DSP
ENVIRONMENTAL CONCERNS
Resources should be made available to preserve and improve the environment Rational planning constitutes an essential tool for reconciling any conflict between the needs of development and the need to protect and improve the environment International matters concerning the protection and improvement of the environment should be handled in a cooperative spirit by all countries on an equal footing Man and his environment must be spared the effects of nuclear weapons and all other means of mass destructions 2. Rio Declaration Human beings are at the center of concerns for sustainable development States have the sovereign right to exploit their own resources In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it The special situation and needs of developing countries shall be given special priority Environmental issues are best handled with the participation of all concerned citizens, at the relevant level States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage States shall immediately notify other States of any natural disasters or other emergencies that are likely to produce sudden harmful effects on the environment of those States Warfare is inherently destructive of sustainable development
Some Treaties a. Vienna Convention for the Protection of the Ozone Layer – the layer of the atmospheric ozone above the planetary boundary layer b. UN Conference on Environment and Development – stabilization of greenhouse gas concentration in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system c. Kyoto Protocol – protection of the atmosphere d. Convention on International Trade in Endangered Species of Wild Fauna and Flora e. Convention on Biological Diversity Regional Treaties a. Treaty of Rome b. North American Agreement on Environmental Cooperation c. Protocol on Environmental Protection to the Antarctic Treaty d. Amazon Declaration
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CHAPTER 17 INTERNATIONAL ECONOMIC LAW
3.
What is International Economic Law? In its broadest sense includes all international law and international agreements governing economic transactions that cross state boundaries or that otherwise have implications for more than one state o Those involving the movement of a. Goods e. Technology b. Funds f. Vessels c. Persons g. Aircraft d. Intangibles Characteristics: 1. It is part of public international law o Treaties alone make this so 2. It is intertwined with municipal law 3. It requires multi-disciplinary thinking 4. Empirical research is very important for understanding its operation Important Economic Institutions Objectives of the Bretton Woods Conference of 1944: 1. To advance the reduction of tariffs and other trade barriers 2. To create a global framework designed to minimize economic conflicts International Monetary Fund o Function: to provide short-term financing to countries in balance of payments difficulties International Bank for Reconstruction and Development [World Bank] o Provide long-term capital to support growth and development International Trade Organization (ITO) o Promote a liberal trading system by proscribing certain protectionist trade rules o ITO General Agreement on Tariff and Trade (GATT) World Trade Organization (WTO) WTO o Oversees the operation of GATT and a new General Agreement on Trade and Services Key Principles of International Trade Law 1. Agreed Tariff Levels o GATT contains specified tariff levels for each State o However, these can be re-negotiated 2. Most Favored Nation Principle o Embodies the principle of non-discrimination o Any special treatment given to a product from one trading partner must be available for like products originating from or destined for other contracting partners o Tariff concessions 叶清蓮 & DSP
4.
Principle of National Treatment o Prohibits discrimination between domestic producers and foreign producers o Once foreign producers have paid the proper border charges, no additional burdens may be imposed on foreign products Principle of Tariffication o Prohibits the use of quotas on imports or exports and the use of licenses on importation or exportation o Purpose: to prevent the imposition of non-tariff barriers o Exception: GATT provides for a quantitative and temporary basis for balance of payments or infant industry reasons in favor of developing states
Exceptions to Key Principles 1. General exceptions a. Public morals b. Public health c. Currency protection d. Products of prison labor e. National treasures of historic, artistic or archaeological value f. Protection of exhaustible natural resources 2. Security exceptions 3. Regional Trade exceptions 4. Exceptions for developing nations [Tanada v. Angara] Dispute Resolution Body Established by the WTO agreement Consists of General Council of the WTO Operates under the Understanding on Rules and Procedures Governing the Settlement of Disputes 1994 a. Each State has a right to establish a Panel b. It provided for a permanent Appellate Body consisting of persons with recognized expertise in law Expanding Scope of International Economic Law Uruguay Round of 1994 expanded the scope of the multilateral trade regime It includes: a. Intellectual property b. Services c. Sanitary and physiosanitary measures d. Investment e. Strengthening of the rules on subsidies, countervailing duties and atidumping International Economic Law affects the sovereignty of States and their capacity to give force to national policy objectives
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