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CHAPTER I THE NATURE OF INTERNATIONAL LAW INTERNATIONAL LAW, IN GENERAL What is international law? It is the law governing the conduct of 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. 1 What is the scope of international law ? Generally, international law covers a wide range of matters involving maintenance of peace, protection of the environment, human rights, war, and space expeditions among other things. 2 Under international law, there are subjects and objects. Who are the subjects and objects of international law? According to the Reparations Case, a subject of international law is an entity capable of possessing international rights and duties and having the capacity to maintain its rights by bringing international claims. Objects of international law, on the other hand, are those who indirectly have rights under, or are beneficiaries of, international law through subjects of international law. Is international law a law? Strictly speaking, there can be no law binding all sovereign states. However, according to Henkin , there remains a general respect for law, by virtue of which the States observe the principles of international law.
Public Internati onal Law governs the relationship among States and also their relations with international organizations and individual persons. Private International Law (Conflict of Laws) is domestic law which deals with cases wherein foreign law intrudes into the domestic sphere. It concerns: first, in which legal jurisdiction may a case be heard; and second, the law concerning which jurisdiction applies to the issues in a case.
J US US G ENTIUM AND J US US INTER GENTES AS ELEMENTS OF PUBLIC INTERNATIONAL LAW. What is jus gentium? Jus gentium was originally part of Roman Law that the Romans applied to its dealings with foreigners, especially provincial subjects. Presently, it is used to refer to the natural or common law among nations considered as States within a larger human society, especially governing the rules of peace and war, national bounderies, diplomatic exchanges, and extradition. Together with jus inter gentes, jus gentium makes up Public International Law. What is jus inter gentes? Jus inter gentes consists of agreements between nations and includes the body of treaties, UN conventions, international agreements, and internationally recognized human rights.
HISTORICAL DEVELOPMENT OF INTERNATIONAL LAW •
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THEORIES ON INTERNATIONAL LAW •
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2. 3.
Command Theory (John Austin)– “law consists of command emanating from a
sovereign.” Under this theory, international law is not law because it does not emanate from a sovereign. Consensual Theory – interna tional la w derive s its binding force from the consent of the States. (ex: treaties, custom) Natural Theory – law is derived by reason fro m the nature of man. Internati onal law is derived from the application of natural reason to the nature of the state-person.
What is the difference between Public International Law and Private International Law?
Jus gent ium (“law common to all men”) evidenced from treaties between Jews and Romans Hugo Grotius authored De Jure Belli ac Pacis and coined the term “law of nations”. Later given the name “international law by Jeremy Bentham Peace of Westphalia (1648)
Ended the Thirty Years war (1618-1648) and established a treaty based framework for cooperation. Gave birth to pacta sunt servanda 3 o Congress of Vienna (1815) o Ended the Napoleonic Wars and created a sophisticated system of multilateral and economic cooperation. Covenant of the League of Nations (1920) Ended World War 1 and included the Treaty of Versailles 4 o o
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League of Nations (1920)
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The LoN was created as a result of the Treaty of Versailles, and was the precursor to the United Nations, at most it had 58 member states. o The League also created the Permanent Court of International Justice (PCIJ), which is the precursor to the current International Court of Justice (ICJ). The United States was not a member of the League of Nations o The problem was that the League of Nations was not able to prevent World o War II. This was because the mechanism of the League of Nations provided not for the prevention of war, but merely for a ‘cool off’ period. If after such time, they still desired to make war with each other, there was no obligation for them not to do so. World War II (1939-1945) United Nations (1945) The LON was unable to prevent World War II from occurring. There arose o a need to establish a new international institution that shifted power away from Europe. Hence, the UN was born. Cold War (1947-1991) Primarily a war between the Soviet Union and the US and its allies. o During this period, three factions arose in the inernational community: the o Western States, the socialist states and the developing countries. 1995 was a very important year for the development of international law, as this was the year that the WTO was created. WTO had, and still has, the most effective dispute settlement system, even more effective than the ICJ. 5 o
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The Treaty of Versailles was entered into in June 28, 1919. It was primarily for the purpose of ending World War 1 and charged former German Emperor, Wilhelm II, with supreme offense against international
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State practice has three elements: (a) Duration There is no required length of time before a particular state practice o may be considered custom. Provided that the principles of consistency and generality are proven, there is no necessity of passage of a long period of time. However, the passage of time can also be evidence of generality and uniformity. Example: exemption of fishing vessels from being captured as prize of o war (Paquete Havana case) Is there such a thing as instant custom? o YES. According to the ICJ in the North Sea C ontinental Shelf Cases, an instant custom, involving a fairly quick maturing of practice, may emerge. As already discussed above, so long as consistency and generality are proven, state practice need not be extant for long periods of time. Consistency and generality are sufficient to evidence a general recognition for a legal obligation. (b) Consistency o State practice must be continuous and repetitive. Consistency was discussed in the Asylum Case. In this case, however, o the Court held that Colombia was not able to prove the constant and uniform practice of unilateral right of refuge of a State and an obligation upon the territorial state. (c) Generality Practice need not be exactly the same throughout States; it only needs o to be substantial. o Universality is not required. As a matter of fact, according to the Asylum Case, there are instances when a regional custom, or a practice present and binding only to a particular region, may arise.
CHAPTER 2 THE SOURCES OF INTERNATIONAL LAW SOURCES OF INTERNATIONAL LAW What are the sources of international law? According to Article 38(1) of the Statute of the International Court of Justice, the sources of international law are: (1) International conventions, whether general or particular, establishing rules expressly recognized by contesting states
(2) International custom, as evidence of general practice accepted as law (3) Generally accepted principles of law recognized by civilized nations (4) Judicial decisions and works of the most highly qualified publicists of various nations, as subsidiary means for the determination of the rules of law. Note, however, that what the Statute provides is a directive to the court in resolving conflicts; it does not speak of sources. In any event, this is the most widely accepted statement with regard to the sources of international law. What is the implication of this enumeration? It is not exclusive; therefore there can be other sources of international law. 6
I. INTERNATIONAL CONVENTIONS What is a treaty? A treaty is defined an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. 7
II. CUSTOM What is custom? According to the North Sea Continental She lf Cases, it consists of unwritten rules evinced from the generality and uniformity of the practice of States and is adhered to by such states out of a sense of legal obligation or opinio juris.
There are, therefore, two elements of custom: 1. State Practice
2.
Opinio Juris
Opinio Juris is the belief that a certain form of behavior constitutes a legal obligation. According to Brierly, it is the recognition by States that a certain practice is obligatory and that it requires a conception that the practice is required by or consistent with prevailing international law. It means that a State abides by a practice because of a sense of legal obligation, as opposed to motives of courtesy, fairness, or morality. What is wrong with this definition of opinio juris?8
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The definition seems to be circular, in that opinio juris is a belief that a behavior is a legal obligation . In that sense, it cannot be in the strict sense considered a ‘ legal obligation’ if it arises from mere belief. Is custom binding on all States? Generally, States are bound by custom. Exception: when the state, from the very beginning, has expressly objected to the applicability of the said customary behavior to its own State. This is called the principle of persistent object or.
parties’ ratification of that treaty is an expression of their consent to be bound by such, and the principle of pacta sunt servanda should be observed. Situation 2: If a treaty was entered into before a custom develops, the rules are not clear. It would seem that custom, being the latter intention, should prevail. This, however, would run counter to the very nature of a treaty. In the Continental Shelf case, the court attempted to reconcile treaties with custom. In practice, therefore, the solution to this situation would be to reconcile custom with treaty provisions.
What about when, in a region of States, there has already been a long-standing custom and there emerges a new State. Is the New State bound to comply with the existing customs? 9 NO, it will not be bound by such custom. NOT because it was a persistent objector, because obviously it was a nonexistent State at the time the custom began. It is not bound by virtue of the fact that it did not consent to the custom and therefore such custom is not binding on the New State in any respect.
III. G ENERALLY ACCEPTED PRINCIPLES OF LAW
Is there such a thing as instant custom? YES. An example would be the Sept. 11 bombing which gave rise to an instant custom, classifying the attack on the WTC as an armed attack under Article 51 of the UN Charter. 10 Note that what matters in determining the existence of custom is not so much the lapse of time (while in most instances, this may be strong evidence of proving custom), but rather the concurrence the elements of generality and uniformity. The moment that the September 11 bombing happened, a substantial number of States have concurred in the opinion that such constituted an armed attack, and therefore would warrant the US’s valid exercise of self defense. (self-defense will be discussed in greater detail in later chapters)
IV. JUDICIAL DECISIONS AND WORKS OF THE MOST HIGHLY QUALIFIED PUBLICISTS
TREATY VS. CUSTOM What is the relationship between treaty and custom? Treaties can generally, but not always, serve as evidence of opinio juris. Does a treaty override custom? It depends.
Situation 1: If a treaty was entered into after a custom has been established, it can be said that the treaty will govern as regards the parties who entered into it . This is so because, the State-
9
Lecture, November 25, 2010 will be discussed in greater detail later, but for the purposes of instant custom, an armed attack situation
10
Generally accepted principles of law are principles of municipal law common to the legal systems of the world. International tribunals must have recourse to rules typically found in domestic courts and domestic legal systems in order to address procedural and other issues.
Examples are: principles of estoppel and equity
Judicial Decisions under municipal law and works of MHQP are regarded as subsidiary sources of international law. What this means is that they are subject to the Statute provision on consent 11, meaning that the decisions have no binding effect except as regards State-parties that gave their consent. MHQPs are generally authorities such as writers and publicists. There is really no specific qualification, but the acceptance of the writings of these MHQPs depend on the judges themselves and the court’s tradition. Examples of MHQPs: Brownlie (wrote on everything about basic international law), UN reporters and special rappertours, Malcolm Shaw
THERE IS NO STARE D ECISIS IN INTERNATIONAL LAW. This is so because first , the ICJ only derives its jurisdiction from the consent of the Stateparties coming before it, and submitting themselves to the jurisdiction of the Court. Without this consent, the ICJ has no jurisdiction at all to determine the rights and obligations of States. Second , Article 59 of the Statute expressly provides so.
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Therefore, the effect of this would be that State-parties cannot oblige the court to decide on their case in the same manner that the Court decided in previous similar cases. At most, these decisions are highly persuasive but not binding upon the Courts. If there is no stare decisis, then why would we still need to look at previous decisions of the ICJ? Why do we still study them if they have no effect on future decisions anyway? 12 Because it’s convenient. 13 Since past ICJ cases have already been decided, laws have already been interpreted and facts already appreciated, there is nothing precluding the ICJ from looking into these past decisions for purposes of assisting them in resolving cases before the court.
EQUITY AS A SOURCE OF INTERNATIONAL LAW The court is not precluded from applying equity as part of international law, when the needs of justice so require. Note that equity falls under G enerally Accepted P rinciples of Law whic h, under Article 38 of the Statute, is a valid source of international law. The principle of equity was applied in the case of Netherlands v. Belgium 14. Basically, what the Court held in this case, was that Netherlands cannot claim nor can Belgium counter-claim when both of them come to court with unclean hands, Netherlands having built a lock, and Belgium having built canals obstructing water flow of the Meuse River.
OTHER SUPPLEMENTARY EVIDENCE (OTHER SOURCES OF INTERNATIONAL LAW) U.N. Resolutions UN Resolutions have NO binding effect, but can only serve as evidence of customary international law •
As a general rule, UN Resolutions are NOT binding. Then what purpose do they serve in the international community? At most, they serve as highly persuasive evidence of the States’ consent to the subject of the Resolution and may therefore be evidence of customary law. Exception: There are certain UN Resolutions that are binding, depending on the subject of the Resolution. When made under Article VII of the UN Charter ( Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression) of the Charter, resolutions are binding. Example: UN SC Resolution 1674 15
12 13
Lecture, December 2, 2010 Atty. Gatdula
“Soft Law” These are international agreements not concluded as treaties but are actually practiced with consistency and uniformity. They have not, but are in the process of, achieving the status of custom.
Example: duty to protect the environment 16
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CHAPTER 3 THE LAW OF TREATIES The primary law governing treaties is the 1969 Vienna Convention on the Law of Treaties.
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TREATY, DEFINED . !
!
It is a written agreement between States, governed by international law, and embodied in a single instrument or a series of related instruments, in whatever designation it may be given. 18 It is a formal agreement, usually but not necessarily in writing, which is entered into by the states or entities possessing the treaty-making capacity, for the purpose of regulating their mutual relations under the law of nations. 19
Is there such a thing as an oral treaty? YES, however such treaties would not come within the contemplation of the VCLT and therefore would not be governed by the VCLT. There is really no required form, but the treaty, to come under the definition of the VCLT, must at least be in writing, agreed to by the States, and governed by international law.
In Qatar v. Bahrain, the ICJ held that a mere exchange of letters constitutes a valid treaty between the two States. What is the effect of unilateral declarations? The Court held in the Nuclear Test Cases that unilateral declarations can have the effect of creating legal obligations when two elements are present: first, there is clear intent to be bound by the declaration, and second , the commitment is very specific.
FUNCTION OF TREATIES Generally, treaties serve as sources of international law, charters of international organizations, means of settling disputes, among other things.
KINDS OF TREATIES 1. Multilateral treaties Multilateral treaties are generally open to all States o Examples: o o Geneva Convention, Rome Statute 20 17
Hereinafter , VCLT
18
Art. 2 par. 1(b) VCLT
2. Treaties that create collaborative mechanisms 3. Bilateral treaties o Only binding between the State-parties. Examples: JPEPA, Philippine-Indonesia Extradition Treaty o ESSENTIAL REQUISITES TO A VALID TREATY (1) Treaty-making capacity A treaty to be valid must be entered into by parties with treaty making ! capacity. All states have full treaty-making capacity unless limited by reason of their ! status and previous self-imposed inhibitions. The United Nations and its organs (i.e. the Security Council, the Economic ! and Social Council) and international bodies like the World Health Organization may enter into treaties. (2) Authorized representatives It is for municipal law to determine which organ of the state shall be ! empowered to enter into treaties in its behalf. (i.e. The Constitution authorizes the President to make treaties subject to a concurrence of twothirds of all the members of the Senate). General Rule: A state is not bound by a treaty made in its behalf by an ! organ or authority not competent under the law to conclude the treaty. Exception: A state may be responsible for an injury resulting to another state for reasonable reliace by the latter upon the misrepresentation of the former. 21 (3) Freedom to consent Fraud or mistake will invalidate a treaty as it would an ordinary contract. ! (4) Lawful Subject Matter When the subject matter of a treaty is illegal, it is rendered null and void. ! Example: The Treaty of Tordesillas of 1949 is invalid for illegality of the ! subject matter insofar as it sought to divide between Spain and Portugal parts of theAtlantic, Pacific, and Indian Oceans which are opean seas. (5) Compliance with the Constitutional Processes Ratification processes are governed by municipal law. Non-compliance ! with this requisite will prevent the enforcement of the treaty even if already signed by the negotiators.
THE MAKING OF TREATIES Steps in the making of treaties: Negotiation " Authentication of Text Entry into Force
" Consent
to be bound
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Reservations (if any)
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The ratification, approval or acceptance will have the effect of binding a state to a treaty when the treaty so provides, the States agreed to give it that effect, the representative of the State signed it subject to ratification, or the States so intended. 25 Ratification is followed by either an exchange of ratification or deposit of ratification. Accession This applies to States that did not participate in the initial negotiations. Accession binds a state when the treaty so provides, when the negotiating parties have agreed that such consent may be expressed by accession, or when all the subsequent parties have agreed that consent is expressed by accession. •
Step 1: Negotiation Negotiations are usually done through foreign ministries. Negotiators have the power to negotiate, naturally, a treaty entered into by one who is not authorized to do so is invalid and without effect. Two elements must be present for someone to be considered with full powers to represent a state: • •
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(1) he produces appropriate full powers (2) The practice of States so provide for evidence that there is an intention to consider that person a representative of the State. Who are empowered to enter into treaties as representatives of their States? (1) Heads of States (2) Ministers of Foreign Affairs (3) heads of diplomatic missions (4) accredited representatives of States to international conferences or to an international organization.
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Step 2: Authentication This is evidenced by the signing of the document. The manner by which such authentication is primarily guided by the procedures set •
Step 4: Reservations A reservation is a unilateral statement, however phrased or named, made by a State when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to the State. 26
A reservation is different from an interpretative declaration. The latter refers merely to the expression or the interpretation of the State of the treaty, it does not in any way constitute derogation from the treaty.
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forth in the treaty itself. If not followed, then the signature ad referendum or initialing of representatives will serve as sufficient authentication. 22 Step 3: Consent to be bound There are several means of expressing consent: signing, ratification, acceptance, approval or accession, exchange of instruments, or other means if so agreed.
1. Signing The act of signing will have the effect of binding a state to the treaty when the treaty so provides, or when it is the intention of the parties that the signature would have that effect, or when the parties agree that the signature would have that effect. 23 2. Exchange of Instruments The exchange of instruments will have the effect of binding a state to the treaty when the instruments themselves provide for such effect, or when it is otherwise established that the States agreed that the exchange would produce that effect. 24 3. Ratification, approval or acceptance •
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Articles 9 and 10, VCLT
Article 19 Generally, States may make reservations. EXCEPT WHEN: (1) Reservation is prohibited by the treaty (2) The treaty provides for only specified reservations (3) When the reservation would be contrary to the object and purpose of the treaty. 27 Article 20 (1) A reservation expressly authorized by a treaty does not need subsequent acceptance by the other State-parties. (2) A reservation requires the acceptance of all the parties when it appears that the application of the treaty is an essential condition of the consent of each State-party to be bound by the treaty. (3) When a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organization. (4) In cases not falling within the preceding paragraphs and unless the treaty otherwise provides:
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Article 14, VCLT
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a. b.
c.
acceptance by another contracting State of the reserving State’s reservation makes the reservaing State a party to that treaty in relation to the accepting State. An objection by another contracting State does not preclude entry into force of that treaty as between the reserving State and the objecting State, unless a contrary intention is definitely expressed by the objecting State. A reservation is effective as soon as at least one other contracting State has accepted the resrervation.
THE PHILIPPINES AND THE 1982 CONVENTION OF THE LAW OF THE SEA •
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(5) A reservation is deemed accepted by a State if it did not raise any objection to the reservation by the end of the period of 12 months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later. Legal effects of reservation: 1. A reservation established with regard to another party: a. modifies for the reserving state in its relations with that other party the provisions of the treaty b. modifies those provisions to the same extent for that other party in relation
2. 3.
to the reserving State. The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se. When a State objecting to a reservation does not oppose the treaty’s entry into force between itself and the reserving State, the provisions to which the reservation relates do not apply as between two States to the extent of the reservation.
Withdrawal of reservations and of objections Withdrawal of a reservation may be made at any time, and the consent of the accepting State is not required. Withdrawal of an objection may be made at any time. As to effectivity: The withdrawal of a reservation becomes operative in relation to another o •
The Philippines, upon its ratification of the Convention of the Law of the Sea, on the August 5, 1984, made a reservation. This is so because there is a conflict between Article I of the Philippine Constitution and the provision of the Conveneion on ‘archipelagic waters’. The reservations are as follows: 1. The signing of said Convention shall not in any manner impair or prejudice the sovereign rights of the Philippines. 2. The signing shall not impair the sovereign rights of the Philippines as a successor of the United States. 3. The signing shall not affect the rights and obligations of the Contracting Parties under the Mutual Defense Treaty 28 and its related instruments, or other treaties to which the Philippines is a party. 4. The provisions on archipelagic passage do not nullify or impair the Philippines’ sovereignty as an archipelagic state. What this means is that it remains with authority to enact legislation over sea lanes, particularly when necessary to protect its sovereignty, interest, and security. 5. The concept of archipelagic waters is deemed similar to the concept of internal waters under the Philippine Constitution; more importantly, it removed straits connecting these waters with the economic zone or high sea from the rights of foreign vessels to transit passage for international navigation.
Step 5: Entry into Force A treaty enters into force on the date the parties agreed to. If there is no such agreement, then the treaty enters into force on the date of consent. 29 A treaty may be provisionally applied when the treaty itself provides, or when the negotiating parties so agree. 30 •
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APPLICATION OF TREATIES •
contracting State only when it receives notice thereof The withdrawal of an objection becomes operative only when notice thereof has been received by the State which formulated the objection.
Form and Procedure of Reservation: Reservations must be in writing, and formally confirmed by the reserving State The acceptance of the reservation DOES NOT itself require confirmation
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Treaties must be complied with in good faith, pursuant to the principle of pacta sunt servanda. When there is conflict between Municipal Law and International Law (further discussed in Chapter 4)
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entered into between the Philippines and the U.S. on August 30, 1951
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A State may NOT its domestic laws as a justification for violation of its obligations under international law. 31 Unless otherwise provided, the treaty applies to the entire territory of the State-party. 32
BINDING EFFECT OF TREATIES General Rule: Treaties are binding only on the contracting parties Exception: Third states may be validly held to the observance of or benefit from the provisions of a treaty. The treaty may be merely a formal expression of customary international law which is enforceable in all civilized states. A treaty may expressly extend benefit to non-signatory states (i.e. the HayPauncefote Treaty of 1901). •
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INTERPRETATION OF TREATIES •
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Treaties are to be interpreted taking into consideration three elements: the ordinary meaning of the words, the purpose of the treaty, and the special meaning given to it by parties. 33 When there are ambiguities, recourse may be had to supplementary sources. When a treaty is entered into in two or more languages, the general rule is that the treaties are equally authoritative in all languages, except when the parties agree to making a particular text prevail. The terms are presumed to be of the same meaning, but if a difference arises, then the meaning that will best reconcile both shall be adopted. Air France v. Saks
Facts: Saks was a passenger of Air France who later on suffered permanent deafness in her left ear after landing in LA. She filed a case in a California State Court against Air France, alleging that her deafness was due to Air France’s negligence in maintaining their pressurization system. The contested term here is “accident” within the meaning of Article 17 of the Warsaw Convention. District Court ruled in favor of Air France, CA reversed, ruled in favor of Saks. Held: Air France is not liable. Liability under Article 17 arises only when the passenger’s injury is caused by an unexpected or unusual event or happening that is external to the 31
Art. 46, VCLT
passenger, and not when the injury is a result of the passenger’s own internal reaction to the normal expected operation of an aircraft. Moreover, the provision of the Montreal Agreement imposing absolute liability for injuries cannot deemed a waiver of the ‘accident’ requirement under the Warsaw Convention.
INVALIDITY OF TREATIES Grounds for invalidating a treaty are: 1. error of fact 2. fraud 3. corruption of the State’s representative 4. duress 5. the treaty is a violation of jus cogens Generally, a State may invoke the aforesaid grounds to invalidate a treaty. EXCEPT when the State expressly agrees that it remains effective, or when the state acquiesces.
AMENDMENT AND MODIFICATION OF TREATIES Amendment – formal revision done with the participation of all the parties to the treaty. Rules on amending treaties: (Art. 40) Proposal to amend must be made known to all the contracting States. These States shall take part in the decision-making, negotiation and conclusion of any agreement for the amendment of the treaty. Parties to the pre-amendment treaty are entitled to be parties to the amended treaty. If the State is a party to one treaty but is no a party to the amended treaty, then Article 30 par. 4(b) governs. 34 Any State which becomes party to a treaty after entry into force of the amending agreement shall: o be considered a party to the amended treaty be considered a party to the unamended treaty in relation to any party not o bound by the amended treaty. • •
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Modification – formal amendment invo lving some of the parties Rules on modifying treaties: (Art. 41) A treaty can only be modified when: o Modification is provided for by the treaty •
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Art. 30 par. 4 (b) as between a State party to both treaties and a State party to only one of the treaties, the
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o o o
Modification is not prohibited by the treaty Modification does not affect the rights and obligations of other States Modification is not incompatible with the object and purpose of the treaty.
TERMINATION OF TREATIES Treaties are terminated by: Lapse of definite period provided for by the treaty Purpose for which it was established has already been achieved Material Breach In order to constitute material breach, it must at least be an act in o repudiation of a treaty, or a violation of a treaty provision essential to the accomplishment of the object or purpose of the treaty. 35 Impossibility of performance In order to constitute impossibility of performance, the impossibility must o result from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. 36 Rebus Sic Stantibus Rebus sic stantibus is the principle of fundamental change in circumstances o allowing States to suspend or terminate the application of a treaty Basically, it can be said that the general rule is pacta sunt servanda and o rebus sic statibus is one exception. 37 • • •
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Fisheries Jurisdiction Case (United Kingdom v. Iceland)
Facts: UK and Iceland bring this case before the Court in order to settle their dispute regarding the extension of Iceland’s exclusive fisheries jurisdiction from 12 nautical miles to 50 nautical miles. Iceland previously entered into an agreement (through an Exchange of Notes) with UK NOT to extend its fisheries jurisdiction, but it nevertheless did, thereby violating its obligation to UK.
35 36
Art. 60. VCLT Art. 61, VCLT
Issue: W/N the Court had jurisdiction (this is the primary issue, but the relevant part of rebus sic stantibus is discussed in the ratio) Held: The Court ruled that it had jurisdiction. Article 62 constituted customary international law. In order for a State to validly invoke rebus sic stantibus, the change must have been fundamental. The change should have resulted in a radical transformation of the extent of the obligations still to be performed. The change must have increased the burden of the obligations to be executed to the extent of rendering the performance of something essentially different from that originally undertaken. 38 Namibia Case (Namibia v. South Africa)
Facts: South Africa is being mandated by the Security Council, by virtue of Resolution 276 (1970) to withdraw its administration over Namibia. It refused to do so, si Namibia sought advisory opinion from the Court requesting that the Court determine what the legal consequences are of South Africa’s continued stay. Held: The Court held that South Africa was under an obligation to withdraw from Namibia and that other States have an obligation not to recognize South Africa’s administration in Namibia. What is important to note here is that the Mandate by the Resolution is considered by the court to have the same binding effect as an international agreement. Therefore, the provisions of the VCLT on breach of treaty provisions can be considered as evidence of customary international law. Applying this same view to the Mandate, an outright repudiation of the Mandate and a violation of a provision essential to the Mandate’s purpose are means by which we can determine whether a State has violated its obligations under international law. Having committed these two outright breaches of the Mandate, the General Assembly’s resolution is the exercise of its right to terminate the relationship in view of the outright violation of its international obligations.
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Any one of the parties may submit it to the ICJ for a decision unless the parties agree to submit to arbitration Any one of the parties may set in motion the procedure laid down # in the Convention by submitting a request to the SecretaryGeneral of the United Nations. The instruments containing the declaration of termination of the treaties should be in writing, and must be communicated to other parties. #
Danube Dam Case (Hungary v. Slovakia)
Facts: Slovakia succeeds Czechoslovakia in the 1977 Treaty entered into between Czechoslovakia and Hungary regarding the building of dams on the Danube River. Hungary suspended the construction due to environmental concerns, to which Czechoslovakia responded by carrying out unilateral measures. The treaty does not contain any provision regarding its termination.
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AUTHORITY TO TERMINATE Who can terminate treaties?
Held: In order to justify its unilateral termination of the said treaty, Hungary invokes the grounds of: (1) state of necessity; (2) impossibility of performance; and (3) fundamental change of circumstances. All of which have been deemed unmeritorious by the Court. On the state of necessity, the Court ruled that this ground is not a valid ground for the termination of a treaty, at most, it could be a justification for failure to implement treaty provisions, but NOT termination thereof. On the impossibility of performance, the Court ruled that Hungary cannot invoke this ground as if Slovakia’s breach is only the result of Hungary’s corollary breach of its obligations. The investment was no longer possible because Hungary itself did not carry out the works. On fundamental change of circumstances, the Court held that the changed circumstances invoked by Hungary (changes political in nature, progress of environmental knowledge, etc.) are not of such nature so as to warrant a termination of the treaty.
TERMINATION OF TREATIES Procedure: A party invoking any of the grounds for termination must notify all the parties If after the expiry of the period, which shall not be less than three months after the receipt of the notification, no State objects, then the termination may be carried out in accordance with Art. 67. If a State objects, resort to Art. 33 of the UN Charter is necessary. 39 If no solution has been reached after 12 months following the date of the o objection: • •
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The Convention does not provide. In the Philippines, however, the power to enter into treaties is shared between the President and the Senate. The law does not specify who has the authority to terminate, but as a corollary, those empowered to enter into them can be deemed the same ones empowered to terminate them.
SUCCESSION TO TREATIES A new State succeeding another State previously a party to a treaty is not obliged to maintain in force that treaty or to become a party thereto. This is called the clean slate rule. Exceptions to the clean slate rule:
1. 2.
Boundary Regimes – succession does not affect boundaries already set by a treaty, or obligations and rights established relating to the regime of a boundary. Other territorial regimes – succession does not affect use of any territory, or restrictions thereof, or rights established by a treaty for the benefit of any territory. The provisions on other territorial regimes do NOT apply to treaty obligations of the predecessor State providing for establishment of foreign military bases.40 •
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CHAPTER 4 MUNICIPAL LAW AND INTERNATIONAL LAW
Under this theory, municipal law and international law are essentially the same. There are two primary divisions with regard to the monist theory 43: 1. The ethical position on “human rights” (supported by Lauterpacht) The 'naturalist' strand sees the primary function of all law as concerned with the well-being of individuals, and advocates that international law is the best way of achieving this well-being. It is an approach characterized by deep suspicion of an international system based upon the sovereignty and absolute independence of states, and by faith in the capacity of the rules of international law to imbue the international order with a sense of moral purpose and justice founded upon respect for human rights and the welfare of individual. 44
DUALISM AND MONISM In international law, conflict between municipal law and international law often arise. There are two theories that attempt to address this conflict: the dualist theory and the monist theory. Basically, the dualist theory holds international law and municipal law to be two distinct and separate laws. The monist theory considers international law and municipal law to constitute only one system of law.
2. The formalistic logical approach (supported by Kelsen) This approach finds its basis on Kant’s philosophy. Under this approach, international law is superior to municipal law. Law is regarded as constituting an order which lays down patterns of behavior that ought to be followed, coupled with provision for sanctions which are employed once an illegal act or course of conduct has occurred. Since the same definition appertains within both the internal sphere and the international sphere, a logical unity is forged, and because states owe their legal relationship to one another to the rules of international law, such as the one positing equality, since states cannot be equal before the law without a rule to that effect, it follows that inter-national law is superior to or more basic than municipal law.
Dualist Theory Under this theory, international law and municipal law are two distinct systems of law. The differ in several ways: 41 Municipal Law
1. As to source
2. As to the relations they regulate
3. As to substance
Arises from custom grown up within the boundaries of the State concerned and statutes enacted by lawmaking authority. State-person relations and person-person (interpersonal) relations The law of the sovereign is over individuals
International Law
Custom grown up among States and law-making treaties entered into by them
State – State relations The law is not over, but states, and between therefore is the weaker law
Emerging t hird approach: the “no common fi eld” approach (supported by Fitzmaurice and Rosseau) There arises a third approach, under which there is no common field between International Law and Municipal Law. It considers municipal law and domestic law as distinct laws, much like the French Rule and the English Rule are different systems of law, one not being superior over the other. They are both the legal element contained within the domestic and international systems respectively, and they exist within different juridical orders. 45
MUNICIPAL LAW IN INTERNATIONAL LAW According to most dualists 42 , municipal law prevails. Dualists are positivists who put strong emphasis on sovereignty. Why? Positivism stresses the overwhelming importance of the state and tends to regard international law as founded upon the consent of states.
The general rule is that a State may not invoke provisions of its own laws as a justification for the violation of its obligations under int ernational law. 46 Neither may it claim that its consent to be bound by a treaty has been expressed in violation of a provision of its
Monist Theory 43
Shaw, 2003. International Law , 5th ed. Cited in Bernas,
44
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internal law regarding competence to conclude treaties as invalidating its consent. 47 The exception to the general rule is when there is a manifest violation of the fundamental laws of the State concerned. It is manifest where it would be objectively evident to any state conducting itself in the matter in accordance with normal practice and in good faith. 48
The doctrine of incorporation The doctrine of incorporation simply provides that international law is automatically part of the law of the land without further need of legislation. The best known exponent of this doctrine is Blackstone 49 who, in his Commentary said:
the law of nations, wherever any question arises which is properly the object of its jurisdiction, is here adopted in its full extent by the common law, and it is held to be a part of the law of the land
Exchange of Greek and Turkish Population Case “A state that enters into a valid international obligation is bound to make in its legislation such modifications as may be necessary to ensure the fulfillment of the obligations undertaken.” Barcelona Traction Case
Facts: Belgium wants to seek damages from Spain for the losses suffered by its citizens who are shareholders in the Barcelona Traction, Light and Power Company. Barcelona Traction was incorporated in Canada, but pursuant to Spain’s refusal to authorize foreign currency transfers, the Company went bankrupt and accordingly, its shareholders adversely affected. Spain contends that Belgium has no locus standi. Held: The Court ruled in favor of Spain, Belgium had no locus standi. In this case, international law had to recognize the corporate entity and its shareholders in light of the existing municipal law.
Brazilian Loans Case (France v/ Brazil)
The doctrine of transformation The doctrine of transformation, on the other hand, provides that before international law becomes effective in the domestic sphere, it has to be “transformed” into municipal law by the use of the appropriate constitutional machinery, whether through an act of Congress or through an Act of Parliament. Which doctrine does the Philippines adhere to? The Philippines, in essence, adheres to both. It depends on the element of international law entering the domestic sphere. As regards treaties, the doctrine of transformation applies. 50 This is because the validity of a treaty entered into requires the concurrence of the Senate. 51 With regard to customary law and treaties that have become customary law, the Philippines adopts the incorporation theory. This is because the Constitution explicitly provides that the Philippines “adopts generally accepted principles of international law as part of the law of the land ”, thereby evincing our adherence to the incorporation theory.
Facts: This is a dispute between the Brazilian Federal Government and the French holders of various Brazilian Federal loans, with regard to the question whether the service of these loans should be effected based on gold franc or paper franc.
What is the legal implication ? It means that our courts can apply international law to settle disputes, and such would have the same binding effect as would the Civil Code or the RPC. By incorporating customary law and treaties that have become customary law into “the law of the land”, international law attains the same value and effect as our municipal laws.
Held: The Court ruled that even if this case involved municipal law rather than international law, the court has jurisdiction over the case. The Court was required to take into account the decisions of the municipal courts of a state and apply it.
To reiterate: In the Philippines, the doctrine of incorporation applies only to customary law and treaties that have become customary law; whereas the doctrine of transformation applies to treaties. 52 Mejoff v. Director of Prisons (1951)
INTERNATIONAL LAW IN MUNICIPAL LAW Dualism also applies in this regime. In order for international law to become part of domestic law, it has to be made part of the municipal law. How is this done? There are two ways of making international law a part of domestic law: incorporation and transformation .
49
Shaw, 2003. International Law , 5th ed. No legal basis for this, just noted from one of our previous discussions. However , it may be argued that precisely because treaties require an act of Congress before they become effective, this in itself constitutes our adherence to the doctrine of transformation. 50
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Facts: In the 1949 case, the Court decided that the detention of Mejoff pending proper deportation arrangements was valid, as he posed a threat to security. In this case (1951), the Court took into account that Mejoff was already in detention for two years and ordered that he be released. Mejoff is a Russian secret operative working for the Japanese forces; he illegally entered the Philippines sometime in 1944 without proper admission and inspection. Because of this, the Court ordered his deportation, and pending the arrival of the ship that will take him home, he was to be detained in the Bilibid Prison . A ship arrived and requested for him but the masters of prisons refused claiming that they had no authority to do so. Two years later and still, no ship nor country is willing to take him.
covering 1943-1944. He is now being tried before the Military Commission for ‘having failed to discharge his duties and prevent the brutal atrocities committed against civilians and prisoners of the Imperial Japanese Forces in violation of the laws and customs of war’. He comes before the court, questioning the legality of E.O. 68 (establishing a National War Crimes Office prescribing rule and regulation governing the trial of accused war criminals) and the participation of American attorneys Melville S. Hussey and Robert Port in the prosecution proceedings. Issues: (1) (2)
Issue: Should the Court issue a writ of habeas corpus and order the release of Mejoff notwithstanding his status? Held: YES, the writ should be issued. Mejoff is released, but subjected to reasonable surveillance.
Held: (1) (2)
Is E.O. 68 valid? Whether the participation of Hussey and Port is valid, even if they are not qualified to practice law in the Philippines, and whether it deprives the Philippines of sovereignty
YES, E.O. 68 is valid and constitutional. YES, their participation in the proceedings is valid, and NO, such does not diminish Philippine sovereignty.
Ratio: The protection against deprivation of liberty without due process of law is not limited only to Filipino citizens. It is a fundamental right guaranteed to every individual, regardless of nationality. Our courts should respect Mejoff’s right to liberty. On what ground? First , by the Constitutional provision on the Philippines’ adoption of generally accepted principles of law, the Philippines adopts the generally accepted principle of due process. Second, the Philippines is a member of the UN, and should therefore adhere to the “Universal Declaration on Human Rights”. The UDHR among other things, requires that: All human beings are born free and equal in degree and rights" (Art. 1); that "Everyone is entitled to all the rights and freedom set forth in this Decl aration, wit hout distinc tion of any kind, such as race, colour, sex, language, religion, political or other opinion, nationality or social origin, property, birth, or other status" (Art. 2); that " Every one has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by law" (Art. 8); that " No one shall be subjected to arbit rary arrest, detention or exile" (Art. 9). Hence, these principles should be respected in our domestic courts.
Ratio: (1)
Notwithstanding that the Philippines is not a signatory to the Hague Convention or the Geneva Conventions (not until 1947), these treaties, in addition international jurisprudence still evince generally accepted principles of international law. Such generally accepted principles, are by virtue of Article II, Sec. 3, part of our Constitution. Therefore, the President, in issuing EO 68, was merely acting pursuant to its role as Commander in Chief and clearly within his constitutional powers. It was the President’s duty to try and punish individuals who have attempted to wage war. (2) The Military Commission is a special tribunal governed by special law and not the Rules of Court. Since the law creating it has been upheld as valid, so it follows that the said Commission has jurisdiction. Having the American lawyers in the proceedings does not in any way diminish the Philippines’ sovereignty, as the U.S. is an aggrieved party. If anything, it’s the U.S. that is relinquishing its sovereignty in allowing the Philippines to prosecute the case. Agustin v. Edu
Facts: Kuroda v. Jalandoni
Facts: Shigenori Kuroda is a former Lieutenant-General of the Japanese Imperial Army and
President Marcos issued on December 2, 1974 a Letter of Instruction in accordance to the 1968 – Vienna Convention on Road Signs and Signals and the UN which was ratified by the Philippine Government under PD 207. The Letter of Instruction 229, in the interest of safety in public highways and expressways direct owners of motorized vehicles to acquire an
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Hon. Edu issued Memorandum Circular 32 requiring all vehicle owners to procure the EWD’s, complying with the prescribed size, shape, and measurements. Agustin argues that other forms of WD’s can be used, and that the EWD’s were too expensive. Issue: is the LOI unconstitutional? Is it a valid delegation of police power? Held: YES, LOI is constitutional. Ratio: This is a valid exercise of police power, the end goal being to reduce accidents. It is also in keeping with the principle of pacta sunt serv anda, as the Philippines has already ratified the Vienna Convention on Road Signs and Signals. Other forms of warning may not be universally understood, so to adopt a uniform means of warning, the Philippines complies with its obligations under the VC on Road Signs. What happens when there is a conflict of obligations? It depends on whether the case is brought before a domestic court or an international tribunal. Conflict between International Law and Domestic Law: International Rule
Before an international tribunal, it is a settled rule that a State may not invoke provisions of its own laws as justification for its failure to comply with its obligations under international law. Moreover, States are not only obliged to not ‘make excuses’, they are moreover mandated to carry out their obligations in good faith. 53 (Refer to the rule laid down in page 15, referring to manifest vi olations of the Constitution as an e xception to this rule) Conflict between International Law and Domestic Law: Municipal Rule Before a domestic court, usually, the court applies domestic law. It seems that our laws cannot be in conflict with customary international law because our Constitution explicitly adopts CIL as part of the law of the land. However, when it comes to treaties, treaties entered into by the Philippines are somteimes incompatible with the Constitution. What happens then? The treaty would be invalid and unenforceable under domestic law. Note that just because a treaty is unconstitutional does not mean that it is no longer valid as international law. It is only invalid in the context of the domestic sphere.
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CHAPTER 5 SUBJECTS OF INTERNATIONAL LAW : STATES SUBJECTS OF INTERNATIONAL LAW, DEFINED . ! Subjects
of international law are entities endowed with rights and obligations in the international order and possessing the capacity to take certain kinds of action on the international plane.54 ! A subject of international law is an entity that has rights and responsibilities under that law. It has an international personality that it can directly assert rights and be held directly responsible under the law of nations. 55 ! The stricter definition would be Lauterpacht’s : 'the orthodox positivist doctrine has been ex- plicit in the affirmation that only states are subjects of international law' 56 In practice however, other entities have already been considered subjects of o international law, namely: Holy See (particularly from 1871 to 1929) ! Insurgents and belligerents ! International organisations ! Chartered companies and various territorial entities such as the ! League of Cities
o
•
•
o
• • •
o
• •
STATES AS SUBJECTS OF INTERNATIONAL LAW state may be defined as a group of people living together in a defined territory under an independent government organized for political ends and capable of entering into international relations. (Cruz) 57 ! The state as a person of international law must possess the following qualifications: Permanent population (OR PEOPLE ) o A community of persons sufficient in number and capable of maintaining a permanent existence of the community and held together by a common bond of law. Defined territory o A fixed portion of the surface of the earth in which the people of the state reside. An entity may satisfy the territorial requirement for statehood even if its boundaries are disputed, or some of its territory is claimed by another state. 58 A state may be recognised as a legal person even though it is
!A
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•
•
•
•
RECOGNITION OF STATES Recognition means the act of acknowledging the capacity of an entity to exercise rights belonging to statehood.
Can an entity claim to be a state before it is recognized by other states? There are two views on this: (1) The Declaratory Theory
54
59
55
60
Bernas Cruz 56 Lauterpacht, International Law, p. 489.
involved in a dispute with its neighbours as to the precise demarcation of its frontiers, so long as there is a consistent band of territory which is undeniably controlled by the government of the alleged state. Government An agency through which the will of the state is formulated, expressed and realized. For purposes of international law, it is the national government that has legal personality and it is the national government that is internally responsible for the actions of other agencies and instrumentalities of the state. Sovereignty Independence from outside control The capacity to enter into relations with other states. 59 Sovereignty, however, is dependent on recognition. Notably, the Philippines was able to sign the United Nations Charter notwithstanding that it was still not an independent state then. Self determination This is a broader concept than sovereignty. All peoples have a right to self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development. 60 Levels of claims to self-determination: (1) Establishment of new states – the claim by a group within an established state to break away and form a new entity. (2) Claims to be free from external coercion, or the claim to overthrow effective rulers and establish a new government
Montevideo Convention of 1993 on Rights and Duties of States International Covenant on Civil an Political Rights and the International Covena nt on Economic, Social and Cultural Rights, also reaffirmed in the Declaration Granting Independence to Colonial Countries and
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Recognition is merely declaratory for the existence of the state, meaning that its being a state depends upon its possession of the required elements and not upon recognition. (2) Constitutive Theory Recognition constitutes a state, that is, it is what makes a stae a state and confers legal personality on the entity. It merely emphasizes the point that the states are under no obligation to enter into bilateral relations. In relation to the declaratory theory, a State may recognize another State as a state even if it does not have all the elements of a state found in the Montevideo Convention.,
preventing the recognizing state from passing upon their legality in its own courts. 61 Does admission of a government to the United Nations mean recognition by all members? No. The recognition is only to the extent of the activities of the organization. When is recognition terminated? Recognition of a regime is terminated when another regime is recognized. For as long as a state continues to meet the qualifications of statehood, its status cannot be derecognized.
RECOGNITION OF GOVERNMENT
SUCCESSION OF STATES
Recognition of government is the act of acknowledging the capacity of an entity to exercise powers of government of a state. The recognition of states is decided mainly on the basis of political considerations.
Various views are adopted in relation to succession of States. Some suggest that the new state succeeds to absolutely no rights or obligations of the predecessor state, but begins with a clean slate. Others claim that the successor state assumes all the rights and obligations of the predecessor state. Others hold that succession has varying effects on states’ rights and obligations. 62
The Tinoco Arbitration Great Britain v. Costa Rica (1923)
Facts: In 1917, the Government of Costa Rica was overthrown by Frederico Tinoco. He assumed power in June 1917. He eventually retired and left the country. In 1922 the restored Costa Rican Government passed a law declaring all contacts entered into during the Tinoco government invalid. The Tinoco Government had granted a concession to the Central Costa Rica Petroleum Company and was indebted to the Royal Bank of Canada, both being British corporations. Great Britain is claiming on behalf of these coporation, though it never really recognized the Tinoco government.
Rules on Succession of States 1. Succession to territory The succeeding state assumes all the capacities, rights and obligations of the predecessor state with respect to that territory 2. Succession to state property Where a part of State A’s territory becomes territory of State B, the property of A located in that territory passes to B. When State A is absorbed by State B, A’s property passes to B, wherever the property is located. Where part of State A becomes a separate state, property of the State A located in the territory of the separate state become the separated state’s. 3. Succession to public debts Where part of the territory of State A becomes territory of State B, local public debt and the rights and obligations of State A under contracts relating to that territory are transferred to State B. Where state A is absorbed by State B, the public debt, rights and obligations of State A pass to State B. Where part of State A becomes a separate state, local public debt, rights and obligations of the predecessor state under contracts relating to the territory of the new state pass to the new state. 4. Succession to contracts When part of State A becomes territory of State B, State A’s international agreements with respect to that territory ceases and t he force of the treaty •
•
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Held: The Tinoco Government was an actual sovereign government and was in effective control of Costa Rica, it was a valid government regardless of who recognized it and who did not. The non-recognition of other nations of a government claiming to be a national personality is usually appropriate evidence that it has not attained the independence entitling it under international law. But when recognition by such nations is determined by inquiry, their nonrecognition loses something of evidential weight on the issue, which those applying the rules are concerned.
•
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Consequences of Recognition of States and Governments: (1) Full diplomatic relations are established except where the government recognized is de facto. (2) The recognized government acquires the right to sue in the courts of the recognizing state. (3) The recognizing government has a right to the possession of the properties of its predecessor in the territory of the recognizing state.
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transfers to State B. this is called the “moving treaty rule” or “moving boundaries rule”. (Basically, the treaty follows the territory.) When a State is absorbed by another State, the international agreements that govern the absorbed state will now be those applicable to the absorbing state. When there is a new state, it does not succeed to the treaties of the predecessor state unless it accepts agreements or agree to it or acquiesced to it. This is called the “clean slate theory”. (Because the new state accedes to no treaties unless those ratified by it) Uti possidentis rule: pre-existing boundary and territorial arrangements continue to be binding notwithstanding.
•
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FUNDAMENTAL RIGHTS OF STATES Independence •
The capacity if a state to provide for its own well-being and development free from the domination of other states. As a right, it means the right to exercise within its portion of the globe the functions of a state.
Equality
Simply requires equality of legal rights irrespective of the size or power of the State. Example: UN General assembly: 1 state = 1 vote. Peaceful co-existence Mutual respect for each other’s territory and sovereignty, mutual nonaggression, non-interference in state affairs. 63 •
•
•
act as one entity. (b) Federal union – combination of two or more sovereign states which upon merger cease to be states, resulting in the creation of a new state with full international personality to represent them in their external relations. (c) Confederation – organization of states which retain their internal sovereignty and to some extent, their external sovereignty while delegating the collective body power to represent them as a whole for certain limited and specified purposes. (d) Personal union – come s into being w hen tw o or more inde pendent states are brought together under the rule of the same monarch. B. Dependent States Dependent states fall into two general categories, the protectorate and the suzerainty. One view is that the protectorate always retains a greater measure of control over its external affairs than the suzerainty. C. Neutralized States An independent state whether simple or composite may be neutralized through an agreement with other states by virtue of which the latter will guarantee the integrity and independence provided it refrains from taking any act that will involve it in war or other hostile activities except for defensive purposes. Example: Switzerland was neutralized in 1815 and has managed to maintain its status despite the many wars that has engulfed Europe since the Congress of Vienna.
SOME INCOMPLETE SUBJECTS
CLASSIFICATION OF STATES A. Independent States A state who is not subject from dictation from others with respect to the freedom to enter into external affairs is known as an independent state. It may either be: (1) Simple states A simple state is that which is placed under a single and centralized government exercising power over both its internal and external affairs. (2) Composite states A composite state consists of two or more states, each with its own separate government but bound under a central authority exercising to a greater or lesser degree control over their external relations. Examples: (a) Real union – created when two or more states are merged under a unified authority so that they form a single international person through which they
1. Protectorates These are dependent states which have control over their internal affairs but whose external affairs are controlled by another state. 2. Federal State A union of previously autonomous entities. There can be various arrangements. On the one hand, placing full authority in the central organ and on the other, placing authority on the individual entities. 3. Mandated and Trust Territories Those placed by the League of Nations under one or other victorious allies of the World War I. Examples: Carolinas, Marianas, Marshall Islands 4. Taiwan Taiwan seems to be a non-state territory, which is de jure part of China.
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5. The Sovereign Order of Malta Italian Court of Cassation in 1935 recognized the international personality of Malta. Now, it has diplomatic relations with over 40 states. 6. The Holy See and Vatican City The Lateran Treaty signed by Italy, which recognized the Vatican City and the recognized and the Holy See’s sovereignty in the field of international relations.
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1. Objective Personality The entity is subject to a wide range of international rights and duties and will be entitled to be accepted as an international legal person by any other international person with which it has relations. Simply put, will operate erga omnes.68 Having an objective personality is harder to achieve because it may require the recognition of the entire international community or at least a substantial part of it. But how many States do you really need to vest an entity with objective international personality? 50 .69
CHAPTER 6 OTHER SUBJECTS OF INTERNATIONAL LAW
•
Generally, States are the subjects of international law, having rights and obligations directly under international law. As international law evolved, however, the following have become recognized as subjects of international law: 1. International Organizations 2. Insurgents 3. National Liberation Movements 4. Individuals
•
2. Qualified Personality Qualified personality is easier to achieve than objective personality, because as opposed to the erga omnes nature of objective personality, qualified personality is in personam. What this means is that an entity has international legal personality ONLY with regard to that entity that recognizes such personality.
Note that the list is NOT exclusive. There are other recognized subjects of international law namely recognized to have international legal personality, namely 64 :
! ! ! !
•
International Committee of the Red Cross Holy See International Public Companies Transnational Corporations
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Reparations for Injuries Suffered in the Service of the United Nations ICJ Advisory Opinion, 1949 (Midterms 2010 Question)
1. INTERNATIONAL ORGANIZATIONS In principle, it is established that international organizations possess objective international legal personality. But how is such legal personality determined? It is determined by several factors including: (a) capacity to enter into relations with states and other organizations; (b) conclude treaties with them and (c) the status it has been given under international law.65 (d) Immunities66 - note that the basis for the immunities of international organizations is NOT sovereignty, but the need for the effective exercise of their functions. 67
Facts: In 1948, Count Bernadotte, a Swedish national was murdered in Jerusalem (which at that time was under the control of Israel), while carrying out his duties as a UN Mediator in Palestine. The General Assembly then requested for the Court’s advisory opinion on the matter in determining two questions: (1)
Does the UN have a capacity to bring an international claim against the responsible government with a view to obtaining reparation due to respect of the damage caused (a) to the United Nations and (b) to the victim or persons entitled through him? (2) If 1(b) is in the affirmative, how is the action of the UN reconciled with the rights possessed by the State of which the victim is a national?
(Note that the discussion on the elements of legal capacity of States as discussed in Brownlie is similar to those of international organizations, Shaw only provides for the first three elements, Brownlie provides for the fourth.)
ACQUISITION , NATURE AND CONSEQUENCES OF LEGAL PERSONALITY Subjects are not necessarily identical in the nature or extent of their rights. There are however, two basic categories of legal personality: objective and qualified personality. 64
Shaw, International law. 5th ed. 241 (2003) Shaw, International Law. 5th ed. 241 (2003) 66 Brownlie 65
Held: 68
erga omnes are obligations owed by States to the international community as a whole intended to protect and promote the basic values and common interests of all. This has been recognized by the ICJ in the Barcelona Tractions Case and further cited in the East Timor Case and the Israeli Wall Advisory Opinion . (erga omnes will be discussed in detail in State Responsibility)
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(1)
The ICJ ruled unanimously regarding 1(a), answering it in the affirmative. The UN has capacity to bring an international claim. 1(b) was also upheld in the affirmative. (In 1950, Israel paid for the UN claim of $54,628 arising from the murder of Count Bernadotte.)
•
Court’s Opinion: The UN has international legal personality. In answering the question of whether or not a certain entity has international legal personality, the characteristics of that entity (as conferred to it by its Charter) must be considered. What rights was it intended to possess? What functions was it obliged to carry out? The Charter not only intended the UN to be a “center for harmonizing actions of nations” [art. 1 (4)], but has equipped it with organs and designated them with special tasks. It does not mean that the UN is a State, what it simply means is that it is a subject of international law capable of possessing international rights and duties and that it has capacity to maintain rights by bringing international claims. The UN is a supreme time of international organization intended to exercise and enjoy functions and rights, which can only be explained on the basis of the possession of a large measure of international personality and capacity to operate upon the international plane. As such, it cannot carry out its functions if it was devoid of international personality. Under international law, the UN must be deemed to have those powers which though not expressly provided for in its Charter, is a necessary implication as being essential to the performance of its duties.
ratification by the five permanent members of the Security Council, came into force on October 25, 1945. Membership 2 kinds of members in the UN: o (1) original or charter members Those states which having participated in the UN Conference on International Organization or having previously signed the Declaration by the United Nations, signed and ratified the Charter. Note: The Philippines, Lebanon and Syria were included as original members although they were not yet states at the time. (2) elective members o Other members may be admitted to the UN through the discretion of the General Assembly upon a favorable recommendation by the Security Council. Qualifications to be eligible for elective membership: o (1) It must be a state (2) It must be peace-loving (3) It must accept, be willing, and be able to carry out the obligations of the Charter. What is the U.N. Charter? It consists of 111 articles besides the Preamble and concluding provisions. o It also includes the Statute of the International Court of Justice, which is an integral part of it. May be considered a treaty because it derives it binding force from the o agreement of the parties to it. It is intended to apply not only to the members of the Organization but also o to non-Member states so far as may be necessary for the maintenance of peace and security. Purpose of the UN (Art. 1 of the UN Charter) 71: o To maintain peace and security by taking collective measures to suppress acts of aggression, and by bringing about peaceful settlement of disputes. To develop friendly relations based on respect for the principle of equal o rights and self-determination of peoples To achieve cooperation in solving international problems of an economic, o social, cultural and humanitarian character, and in promoting respect for human rights and fundamental freedoms. To be a center for harmonizing the actions of nations in the attainment of o these common ends. Seven Cardinal Principle (Art. 2, UN Charter) 72 : •
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THE UNITED NATIONS What is the United Nations? It is a body which possesses juridical and international personality and is vested with prerogatives normally granted only to sovereign states. While not a stare or a superstate, the UN has such powers as to enable it to send and receive diplomatic agents, conclude treaties and govern territories. Brief history of the UN: In the Moscow Declaration of General Security on November 1, 1943, the o UK, US, Soviet Union and China recognized the necessity of establishing a general international organizations based on principles of sovereign equality of States for the maintenance of international peace and security. 70 The initial blueprint of the organization was the Dumbarton Oaks Proposals o which contained the tentative proposals for a General International Organization. The U.N Charter was signed on June 26, 1945 and upon
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71
Annotation from International Law by Jorge Coquiat & Miriam Defensor-Santiago.
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o
o
o
o
o
o
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Sovereign equality Based on one of the fundamental rights of states (i.e. the right to equality) Good faith The UN Charter partakes in the nature of a treaty, and must be complied with in good faith in accordance with the principle of pacta sunt servanda. Peaceful settlement of disputes The most common amicable methods of settlement of disputes include the active participation of the ICJ and Security Council. Efforts to settle disputes must not endanger international peace, security and justice. Prohibition on threat and the use of force This principle prohibits threat or force upon the territorial integrity or political independence of states with certain exceptions. This categorical outlawry of war is the most important principle. Mutual assistance The efficacy of the UN will depend upon the cooperation extended to it by the member-states. Inclusion of non-members into the UN Charter coverage (discussed elsewhere in this reviewer) Domestic jurisdiction clause The rule is, as long as the matter remains internal, it cannot be the subject of intervention by the United Nations. The exceptions are: (1) where the international conflict aggravates into a threat or to an actual breach of international peace and security (2) where parties voluntarily invoke and submit to the jurisdiction of the UN for the settlement of the dispute.
members, questions relating to the trusteeship system, and budgetary matters require two-thirds of those present and voting.75 (2) The Security Council The key organ of the UN in the maintenance of international peace and security. It consists of 5 permanent members (China, France, UK, Union of Soviet Socialists Republics, and the US or the “Big Five”), and 10 elective members 76 . The Security Council may take steps for the pacific settlement of disputes or when necessary even preventive or enforcement action. The only limitation is that the dispute must be international, that is, it must not be an internal dissention 77 , unless parties themselves submit the matter to the UN. The Council approves trusteeship agreements in strategic areas. Voting method: Substantive questions o Each member shall have one vote, but distinction is to be made between the Big Five and the other members in the resolution of substantive questions. o Procedural matters affirmative vote of any of any nine or more members (3) The Economic and Social Council Composed of 54 members, which are elected by the General Assembly for 3-year terms and may be re-elected immediately. The Council meets in regular session in accordance with its rules and in special session at the request of a majority of its members. Voting method: Each member has one vote and decisions are reached by the majority of those present and voting. The Council, under the authority of the General Assembly is vested with responsibility for the promotion of international and social cooperation. (4) The Trusteeship Council The organ charged with the duty of assisting the Security Council and the general assembly in the administration of the international trusteeship system. Composition: The members of the UN administering trust territories o The permanent members of the Security Council not o administering trust territories •
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What are the six principal organs of the United Nations? (1) General Assembly The most representative of the organs of the UN which consists of all the members of the Organization, each of which is entitled to send not more than 5 representatives 73. It meets in regular annual session beginning on 3 rd Tuesday of September or in a special session upon the call of a majority of its members or at the request of the Security Council. Voting method: Each member has one vote74. Decisions on matters such as recommendations concerning international peace and security, election of members of the Councils, admission, suspension and expulsion of
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Art. 18(2), UN Charter The elective members are elected for two-year terms by the General As sembly.
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As many other members elected for 3-year terms by the General Assembly as may be necessary. (5) The International Court of Justice The judicial organ of the UN which functions in accordance with the Statute. The Court is composed of 15 members 78 who are elected by absolute majority vote in the General Assembly and the Security Council. The judges must be of high moral character and possesses the o qualifications required in their respective countries for appointment to the highest judicial offices. No two of the judges may be nationals of the same state 79 . o The members has a term of 9 years 80 and may be re-elected. No judge o can be removed unless, in the unanimous opinion of the other members, he has ceased to fulfill the required conditions. 81 The functions of the Court are to decide contentious cases and to render advisory opinions. Its jurisdiction is based on the consent of the parties as manifested under the “optional jurisdiction clause” under Art. 36 of the Statute. They may also give advisory opinions upon the request of the General assembly or the Security Council. (6) The Secretariat The chief administrative organ of the UN, which is headed by the Secretary-General. o The Sec-Gen is chosen by the General assembly upon recommendation of the Security Council. Term: 5 years, with reelection. o The Sec-Gen is the highest representative of the UN and is authorized to act on its behalf. He is entitled to full diplomatic immunities and priveleges. o He also acts as a secretary in all meetings of the other organs and performs such other functions as may be assigned to him by these organs. He also prepares the budget of the UN, to be submitted to the General Assembly. o
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2. INSURGENTS Insurgents become subjects of international particularly in instances wherein a noninternational armed conflict exists (NIAC will be discussed in later chapters). Insurgents may enter into valid arrangements in certain instances but this would depend on the administration 78
Art. 3(1), Statute of the ICJ Ibid. 80 Art. 13, Statute of the ICJ 81 Art. 18(1), Statute of the ICJ 79
of specific territory. 82 In NIAC, AP II applies. And in order for insurgents to be considered as being part of a non-international conflict, the ‘material field of application’ must be met: First, the armed dissidents have armed command Second, there has to be control over a part of its territory as to enable them to carry out sustained and concerted military operations. What happens when these requisites are met? First, the insurgents will be recognized of belligerent status and second, they are seen as having treaty-making capacity.
3. NATIONAL LIBERATION MOVEMENTS NLMs are organized groups fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination. The elements of NLMs are: (1) they are based on territories which they are seeking to liberate and (2) a goal of self-determination.
4. INDIVIDUALS Individuals have now come to be recognized as possessing rights and obligations under international law albeit these rights are limited. These international obligations of individuals may include the obligation to comply with regulations of armed conflict, as well as to not commit international crimes such as aggression, genocide, terrorism, and other crimes against humanity. (If they do commit these crimes, they are subjected to the jurisdiction of the ICC or the International Criminal Court, not the ICJ!)
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CHAPTER 7 TERRITORY What is the definition of territory? It is the fixed portion of the surface of the earth inhabited by the people of the state. 83 It must be permanent and indicated with precision because jurisdiction is determined on the basis of such. It must also be big enough to provide for the needs of the population, but must not be so extensive as to be difficult to administer or defend from external aggression. What are the components of territory? (1) The terrestrial domain Refers to land mass which may be integrated or dismembered or partly bounded by water, or consist of one whole island. (2) The maritime and fluvial domain Consists of bodies of water within the land mass and the waters adjacent to the coasts of the state up to a specified limit. Includes internal waters in the land-locked lakes, rivers, man-made canals within the land mass, and certain bays, gulfs, and straits, as well as external waters in the territorial sea. What is the territorial sea? The territorial sea may be described as the belt of waters adjacent to the coasts of the state, excluding the internal waters in bays and gulfs. The Philippine territorial sea is now limited to 12 miles from the low-water mark of our coasts 84. Previously, the claim of the Philippines to its territorial sea was based on historic right or title which embraces all non-internal waters comprised within the limits set forth in the Treaty of Paris, and all applicable laws. The territorial sea may be defined regardless of its breadth, according either to the normal baseline method or the straight baseline method. Normal baseline method – the territorial sea is drawn o from the low-watermark of the coast to the breadth claimed following its sinuosity and curvatures but excluding internal waters in bays and gulfs. o Straight baseline method – straight lines are made to connect appropriate points on the coast without departing radically from its general direction.
What is the Archipelago Doctrine? 85 The Philippine position on the definition of its internal waters is commonly known as the archipelago doctrine, which is articulated in Art. I, Sec. 1 of the 1987 Constitution 86 . This doctrine puts forth the view that all the 7,100 islands should be considered one integrated whole instead of being fragmented into separate units, each with its own territorial sea. Hence, in defining the internal waters of the archipelago, straight baselines should be drawn to connect appropriate points of the outermost islands without departing radically from the general direction of the coast. The waters inside the baseline shall be considered internal and thus, not subject to entry by foreign vessels without the consent of the local state.
(3) The aerial domain The airspace above the terrestrial domain and the maritime and fluvial domain of the state to an unlimited altitude but not including outer space. Every state has complete and exclusive sovereignty over the airspace above its territory.87
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How is territory acquired or lost? Acquired by: discovery and occupation, prescription, cession, subjugation, accretion. Lost by: abandonment or dereliction, cession, subjugation, prescription, erosion, revolution, natural causes. •
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This doctrine has been embodied in the 1982 Convention of the Law of the Sea with the modificatioin that archipelagic sealanes shall be designated over the internal waters of the archipelago through which foreign vessels shall have the right of passage. 86
Art. I, Sec. 1 states: “The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the int ernal waters of the Philippine s.”. Basis of this article: RA no. 3046 as amended by R.A no. 5446. 87
Paris Convention on Aerial Navigation (1919), Chicago Convention on International Civil
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Discovery and Occupation It is an original mode of acquisition by which a territory not belonging to any state or terra nullius is placed under the sovereignty of the discovering state (except, the open seas or outer space which is res communes and not susceptible to discover and occupation). Requisites: (1) Possession must be claimed on behalf of the state represented by the discoverer and may be effected through a formal proclamation and the symbolic act of raising the national flag in the territory. (2) Administration of the territory •
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Subjugation Territory is deemed acquired by subjugation when having been previously conquered or occupied in the course of war by the enemy, it is formally annexed to it at the end of the war. Conquest alone confers only inchoate rights, because the annexation is the act that completes the acquisition. Illustration: during the Japanese occupation in the Philippines, sovereignty in our country did not pass from US due to its inability to exercise it. •
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Accretion Accomplished through both natural and gradual processes, as by the gradual and imperceptible deposit of soil on the coasts of the country through the action of water or by reclamation projects. •
The Island of Palmas Case88 Title was disputed between the US and the Netherlands to an island situatied between the boundaries of the Philippine archipelago as ceded to the former Spain under the Treaty of Paris. The US primarily based its claim on the right of discovery of the island by Spain, and the Netherlands asserted that it had possessed and exercised sovereignty. The arbitrator held that discovery alone without any subsequent act cannot suffice to prove sovereignty. Dereliction This occurs when the state exercising sovereignity over it physically withdraws from it with the intention of abandoning it altogether. •
Prescription Prescription requires long, continued and adverse possession to vest acquisitive title in the claimant. However, no rule on the period of possession necessary to transfer title have yet been established. •
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It is a method by which territory is transferred from one state to another by agreement between them, and is effected through transactions such as sale, donation, barter or exchange, and testamentary disposition. Example: purchase by the US of Alaska from Russia in 1867; gift by Austria of Lombardy to France in 1859; the exchange between Great Britain and Germany of the island of Helgoland in 1890. Transfer of title is effected upon the meeting of the minds of the parties, since cession is essentially consensual.
