Chapter 1 authority that can make judgments binding on states.

The
THE NATURE OF INTERNATIONAL LAW International Court of Justice can bind states only when states
consent to be bound. Moreover, national officials tend to find
justification for whatever they do. Psychologically too, the
What is international law?
allegiance to one’s sovereign state can be very strong to the
The traditional definition of international law is that it is point of defying reason. When the chips are down, national
a body of rules and principles of action which are binding upon policy or interest is often preferred over international law.
civilized states in their relations to one another. States are the Enforcement of international law is a real problem for several
sole actors in this definition and, in the past, public reasons. Frequently, there is no assured procedure of
international law dealt almost exclusively with regulating the identifying violation. Even the powers of the UN have
relations between states in diplomatic matters and in the reference largely to lawbreaking that takes the form of an act of
conduct of war. Today, sovereign states remain as the principal aggression or threat to peace. But there are many violations of
subjects of international law; but they are now joined by international law which are not of this nature. Most of the time,
international organizations and even by individuals.' Thus, the all the UN can do is censure. For these reasons, it is said that
Restatement (Third) of Foreign Relations Law of the United what is called international law is not law because it is
States, which U.S. courts generally consider as the most commonly disregarded.
authoritative work on the subject, defines international law as
These objections are based on an exaggerated notion of
the law which deals “with the conduct of states and of
sovereignty as embodying an individualist regime. This,
international organizations and with their relations inter se, as
however, is not the reality. The reality is social interdependence
well as with some of their relations with persons, whether
and the predominance of the general interest. The reality is that
natural or juridical.”2
States are bound by many rules not promulgated by
Scope of international law. themselves. As Henkin observes, “It is probably the case that
The expansion of the scope of international law is almost all nations observe almost all principles of international
nothing short of revolutionary: New subject matters are being law and almost all of their obligations almost all of the time.” 3
added, new subjects of international law are being recognized,
non-Western states are flooding into the community of nations, Brierly adds: “The ultimate explanation of the binding force of
political and social principles are changing, international all law is that man, whether he is a single individual or whether
organizations are assuming new roles. This is being affected by he is associated with other men in a state, is constrained, in so
various factors: rapid changes in technology, the multiplication far as he is a reasonable being, to believe that order and not
of the number of states with differing backgrounds and chaos is the governing principle of the world in which he
achieving loose forms of cooperation, fear of war, rising lives.”4
demands for social reform. In the ultimate analysis, although the final enforcer is
power, fundamentally, there is a general respect for law
The topics that are covered by international law today because of the possible consequences of defiance either to
include the regulation of space expeditions, the division of the oneself or to the larger society.
ocean floor, the protection of human rights, the management of Some theories about international law.
the international financial system, and the regulation of the If international law is a law, what is its theoretical basis or what
environment. Beyond the primary concern for the preservation makes it a
of peace, it now covers all the interests of contemporary law?
international and even domestic life. Command theory. In the view of John Austin, a renowned
legal philosopher, law consists of commands originating from a
Is international law a law?
sovereign and backed up by threats of sanction if disobeyed. In
The question is sometimes asked whether international
this view, international law is not law because it does not come
law is indeed law. The basic challenge to international law as from a command of a sovereign. Neither treaties nor custom
law is the claim that there can be no law binding sovereign come from a command of a sovereign. This theory, however,
states. Moreover, there exists no international legislative body. has generally been discredited. The reality is that nations see
There is, of course, the General Assembly of the United international law not as commands but as principles for free
Nations; but its resolutions are generally not binding on and orderly interaction.
anybody. There is no international executive. The Security
Consensual theory. Under this theory, international law
Council was intended to be that entity but it is often effectively derives its binding force from the consent of states. Treaties are
hamstrung by the veto power. Neither is there a central an expression of consent. Likewise, custom, as voluntary
adherence to common practices, is seen as expression of Before Grotius was Alberico Gentili, Oxford Professor of
consent.5 In reality, however, there are many binding rules Roman Law (De Jure Belli) and the Spanish theologian
which do not derive from consent. Francisco de Vitoria and the Jesuit theologian Francisco
Natural law theory. The natural law theory posits that law Suarez; Samuel Pufendorf, German (De Jure Naturae
is derived by reason from the nature of man International law is Gentium); Emmerich de Vattel, Swiss (The Law of Nations).
said to be an application of natural reason to the nature of the These were generally natural law people.
state-person. Although the theory finds little support now,
much of customary law and what are regarded as generally The positivist approach reinterpreted international law
accepted principles of law are in fact an expression of what not on the basis of concepts derived from reason but rather on
traditionally was called natural law. the basis of what actually happened in the conflict between
Some dissenters, however, see no objective basis for states. With the emergence of the notion of sovereignty of
international law. They see international law as a combination states came the view of law as commands originating from a
of politics, morality and self-interest hidden under the sovereign and backed up by threats of sanction if disobeyed. In
smokescreen of legal language. this view, international law is not law because it does not come
from a command of a sovereign. Neither treaties nor custom
In the ultimate analysis, however, the best answer is
come from a command of a sovereign.
pragmatic. Fundamentally, there is a general respect for law
The following are some of the significant milestones in
and also there is concern about the consequences of defiance
the development of international law:
either to oneself or to the larger society. International law is
The Peace of Westphalia, which ended the Thirty Years
law because it is seen as such by states and other subjects of
War (1618-1648) and established a treaty based framework for
international law.
peace cooperation. (It was at this time that pacta sunt servanda
Public and private international law. arose.)
A distinction should be made between public Congress of Vienna (1815), which ended the Napoleonic
international law, sometimes referred to only as international Wars and created a sophisticated system of multilateral
law and which is the subject matter of this book, and private political and economic cooperation.
international law, more commonly called conflict of laws.
Covenant of the League of Nations (1920) which
Public international law governs the relationships between and
included the Treaty of Versailles which ended World War I.
among states and also their relations with international
organizations and individual persons. Private international law In the aftermath of World War I, the victors decided to
is really domestic law which deals with cases where foreign create an institution designed to prevent the recurrence of
law intrudes in the domestic sphere where there are questions world conflagration. Thus, the League of Nations was bom. Its
of the applicability of foreign law or the role of foreign courts. membership consisted of 43 states which included the five
British dominions of India, Canada, South Africa, Australia and
Brief historical development of international law.
New Zealand. The United States did not join.
From Ancient law to the League of Nations The League created the Permanent Court of International Justice.
What may be called ancient international law governed
From the end of World War II to the end of the Cold War
exchange of diplomatic emissaries, peace treaties, etc., in the
world of ancient Romans and even earlier. There is evidence of The League of Nations failed to prevent World War II.
treaties concluded between Jews and Romans, Syrians and Thus, the formulation of a new avenue for peace became the
Spartans. The progressive rules of jus gentium, seen as a law preoccupation of the victors. Hence was founded the United
“common to all men,” became the law of the vast Roman Nations in 1945. This marked the shift of power away from
empire. Europe and the beginning of a truly universal institution. The
universalization was advanced by decolonization which
Modem international law began with the birth of nation-
resulted in the expansion of the membership of the United
states in the Medieval Age. The governing principles were
Nations. New states, carrying a legacy of bitterness against
derived from Roman Law or Canon Law which in turn drew
colonial powers, became members of the UN.
heavily from natural law. Hugo Grotius, Dutch, is considered
father of modem international law. He authored De Jure Belli
ac Pads. What he called the “law of nations” was later given
the name of “international law” by the British philosopher
Jeremy Bentham.
It was during this period that three major groupings of states arose.
The Western states, although they were not all completely
of one mind, formed one group. Some remained satisfied with
the status quo while others were more open to Third World
demands and supported social and legal changes. As to
international legislation, however, they insisted on two points.
First, legal provisions miust'be clear and precise. Second, any
substantive rule must be accompanied by an implementation
mechanism that can spot and correct violations.
Another grouping consisted of the socialist states led by
the Soviet Union. They formed the “socialist camp.” They
sought to avert Western intrusion into domestic affairs even as
they sought relatively good relations with the West for the sake
of economic and commercial interchange. They also sought to
convert developing nations to their ideology.
The third group, the developing countries, formed the
overwhelming majority. The group consisted mainly of former
colonies suffering from underdevelopment together with newly
industrializing countries such as the Philippines, Malaysia,
Thailand, Singapore, and South Korea who had earned their
independence through armed or political struggle while
remaining under the influence of Western or socialist ideas.
This was the Cold War period which succeeded in
maintaining peace through the balancing of the two super
powers, the United States and its allies on the one hand and the
Soviet Union.

The end of the Cold War

The dissolution of the Soviet Union resulted in the end of
the Cold War with the re-emergence of international relations
based on multiple sources of power and not mainly on
ideology. Many of the Baltic states were restored to statehood.
Yugoslavia collapsed and fragmented. The newly bom Russian
Federation did not inherit the Soviet Union’s position as a
superpower.
At present there is
only one super power, the
United States, politically
and ideologically leading
the western states. The
United States acts both as
world policeman (but in an
obviously selective manner
as dictated by its own
interests) and also as global
mediator.
 CHAPTER 1
THE NATURE OF INTERNATIONAL LAW

Meanwhile, socialist
countries are no longer
united with some of them
depending on the support of
Western states.
For their part, the
developing countries seem
to have veered away from
ideological orientation and
towards market orientation
instead and towards fighting
poverty and backwardness.
As for the United
Nations, it seems to have
declined as an international
agency for the maintenance
of peace.
 Sources are often
classified into formal
sources and material
sources. Authors, however,
differ in defining these
concepts. Formal sources
can refer to the various
Chapter 2
processes by which rules
THE SOURCES OF INTERNATIONAL LAW come into existence. Thus,
for instance, legislation is a
formal source of law. So are
What sources are. treaty making and judicial
The task of decision making as well as
ascertaining what the laws the practice of states.
are in the domestic sphere Material sources, on the
is a relatively simple other hand, are not
matter. Domestic laws are concerned with how rules
found in statute books and come into existence but
in collections of court rather with the substance
decisions. It is an altogether and content of the
different matter with obligation. They identify
international law. In the what the obligations are. In
absence of a centralized this sense, state practice,
legislative, executive and UN Resolutions, treaties,
judicial structure, there is judicial decisions and the
no single body able to writings of jurists are
legislate and there is no material sources in so far as
system of courts with they identify what the
compulsive power to decide obligations are. They are
what the law is nor is there also sometimes referred to
a centralized repository of as “evidence” of
international law. Thus, international law.
there is the problem of The doctrine of
finding out where the law sources lays down
is. This problem is conditions for verifying and
exacerbated by the anarchic ascertaining the existence
nature of world affairs and of legal principles. The
the competing conditions are the
sovereignties. Nevertheless observable manifestations
international law exists and of the “wills” of States as
there are “sources” where, revealed in the processes by
with some effort, the law which norms are formed —
can be found. that is, treaty and state prac-

8
 ← the general principles of law
recognized by civilized
nations;
CHAPTER 2
← subject to
THE SOURCES OF INTERNATIONAL LAW
the provisions of
tice accepted as law. The Article 59, judicial
process of verification is decisions and the
inductive and posi- tivistic. teachings of the most
It is the process of finding highly qualified
what laws the states publicists of the
themselves have created various nations, as
and what laws they are subsidiary means for
willing to place themselves the determination of
under. It is a manifestation rules of law.
of the fact that international ←
This provision
law is characterized by shall not prejudice the
individualism. power of the Court to
It is interesting, decide ex aequo et bono, if
however, that the most the parties agree thereto.1
widely accepted statement Article 38 is a
of the “sources” of declaration by states that
international law, that is, these are the laws under
Article 38(1) of the Statute which they are willing to be
of the International Court of bound. Thus, another
Justice, does not speak of
statement of sources is the
sources. Rather, Article 38
Restatement (Third) of
is primarily a directive to
Foreign Relations Law of
the Court on how it should
the United States which
resolve conflicts brought
says:
before it. Article 38 says:
← ← A rule of
The Court,
international law is
whose function is to decide
one that has been
in accordance with
accepted as such by
international law such
the international
disputes as are submitted to
community of states
it, shall apply:
a)
← internatio
nal conventions, in
whether general or
particular, the
establishing rules form
expressly recognized
by contesting states; of
customary law;
← international custom, as
evidence of a general practice b)
accepted
by
as law;
international
agreement; or
 'Article 59 says:
“The decision of the
Court has no binding
force except between
the parties and in
respect to that particular
case.”
 invoked as
supplementary rules
← INTRODUCTION TO PUBLIC of international law
INTERNATIONAL LAW where appropriate.
Briefly, therefore, the
← “sources” of international
b law are custom, treaties and
y other international
derivati agreements, generally
on from recognized principles of
general
law, judicial decisions and
principl
teachings of highly
es
commo qualified and recognized
n to the publicists. We shall discuss
major these sources one by one.
legal
Custom or customary law.
systems
of the Custom or customary
world. international law means “a
← Customar general and consistent
y international law practice of states followed
results from a general by them from a sense of
and consistent legal obligation.”
practice of states (Restatement) This
followed by them statement contains the two
from a sense of legal basic elements of custom:
obligation. the material factor, that is,
← Internatio how states behave, and the
psychological or subjective
nal agreements create
factor, that is, why they
law for the states
behave the way they do.
parties thereto and
may lead to the The material factor: practice of states or
usus
creation of customary
international law The initial factor for
which such determining the existence
agreements are of custom is the actual
intended for behavior of states (usus).
adherence by states This includes several
generally and are in elements: duration,
fact widely accepted. consistency, and generality
← General of the practice of states.
principles common to The required
the major legal duration (diuturnitas) can
systems, even if not be either short or long. An
example of customary law
incorporated or
that is the result of long,
reflected in
almost immemorial,
customary law or
practice is the rule affirmed
international in The Paquete Havana2 on
agreements, may be the exemption of fishing
vessels from capture as
prize of war.

2
175U.S. 677,687 (1900).
 requirement
would be that
within the
CHAPTER 2 period in
THE SOURCES OF INTERNATIONAL LAW
question, short
We are then brought though it might
to the consideration of the be, State
practice,
question whether, upon the
including that of
facts appearing in these
states whose
records, the fishing smacks interests are
were subject to capture by specially
the armed vessels of the affected, should
United States during the have been both
recent war with Spain. extensive and
virtually
By an ancient usage uniform in the
among civilized nations, sense of the
beginning centuries ago, provision
and gradually ripening into invoked — and
a rule of international law, should
coast fishing vessels, moreover have
pursuing their vocation of occurred in such
a way as to
catching and bringing in
show a general
fresh fish, have been
recognition that
recognized as exempt, with a rule of law or
their cargoes and crews, legal obligation
from capture as prize of is involved.
war. Duration therefore is
In the North Sea not the most important
Continental Shelf Cases,3 element. More important is
however, the Court the consistency and the
indicated that a short generality of the practice.
duration, by itself, will not
The basic rule on
exclude the possibility of a
consistency, that is,
practice maturing into
continuity and repetition,
custom provided that other
was laid down in the
conditions are satisfied:
Asylum Case (ICJ Reports
. . . 1950). The facts in the case
Although the were as follows:
passage of only
a short period of On
time is not October 3rd,
necessarily, or 1948, a military
of itself, a bar to rebellion broke
the formation of out in Peru; it
a new rule of was suppressed
customary the same day.
international On the
law on the basis following day, a
of what was decree was
purely a con- published
ventional rule, charging a
an indispensable political party,
the American denounced as
People’s being
Revolutionary responsible.
Party, with With other
having prepared members of the
and directed the party, he was
rebellion. The prosecuted on a
head of the charge of
Party, Victor military
Raul Haya de la rebellion....
Torre, was

3
[1%9] ICJ Rep.
 The decision of the ICJ was against
Colombia:
Finally,
12 INTRODUCTION TO PUBLIC
INTERNATIONAL LAW as regards
American
international
On law, Colombia
January 4th, had not proved
1949, the the existence,
Colombian either
Ambassador in
regionally or
Lima informed
locally, of a
the Peruvian
constant and
Government of
uniform
the asylum
practice of
granted to Haya
de la Torre, at unilateral
the same time qualification as
he asked that a a right of the
safe-conduct be State of refuge
issued to enable and an
the refugee to obligation upon
leave the the territorial
country. On State. The facts
January 14th, submitted to the
he further stated Court disclosed
that the refugee too much
had been contradiction
qualified as a and fluctuation
political to make it
refugee. The possible to
Peruvian discern therein
Government a usage peculiar
disputed this to Latin
qualification
America and
and refused to
accepted as law.
grant a safe-
conduct. A It
diplomatic therefore
correspondence followed that
ensued which Colombia, as
terminated in the State
the signature, in granting
Lima, on asylum, was not
August 31st, competent to
1949, of an qualify the
Act by which nature of the
the two offence by a
Governments unilateral and
agreed to definitive
submit the decision
case to the binding on
International Peru.
Court of
Uniformity and
Justice.
generality of practice need
not be complete, but it must
be substantial. In
Nicaragua v. United States
(ICJ Reports 1986), the
Court said that the practice
need not be “in absolute
conformity” with the
purported customary rule. It
said:

In order
to deduce the
existence of
customary
rules, the Court
deems it
sufficient that
the conduct of
states should, in
general, be
consistent with
such rules, and
that instances of
state conduct
inconsistent
with a given
rule should
generally have
been treated as
breaches of that
rule, not as
indications of
the recognition
of a new rule.

Opinio juris
Once the existence of
state practice has been
established, it becomes
necessary to determine why
states behave the way they
do. Do states behave the
way they do because they
consider it obligatory to
behave thus or do they do it
only as a matter of
courtesy? Opinio juris, or
the belief that a certain
form of behavior is
obligatory, is what makes
 It should be noted that
it is also possible for
customary law to develop
CHAPTER 2
THE SOURCES OF INTERNATIONAL LAW which will bind only several
states, or even only two
practice an international states. But the party
rule. Without it, practice is claiming it must prove that
not law. ... Even it is also binding on the
humanitarian consideration other party. In the Asylum
by itself does not constitute case, this was not proved.
opinio juris. As the But this was proved in the
Nicaragua case again put it: case of Right of Passage
over Indian Territory (ICJ
... [f]or a
Reports 1960) where the
new customary
right of Portugal to pass
rule to be
through Indian territory was
formed, not
only must the recognized.
acts concerned Dissenting states; subsequent contrary
‘amount to a practice
settled practice,’ Would dissenting
but they must states be bound by custom?
be accompanied Yes, unless they ha4
by the opinio consistently objected to it
juris sive while the custom was
necessitatis. merely in the process of
Either the States formation. The authority
taking such that is usually used for this
action or other is the Anglo-Norwegian
States in a Fisheries* case where the
position to react ICJ said that a coastline
to it, must have
delimitation rule put
behaved so that
forward by England “would
their conduct is
appear to be inapplicable as
“evidence of a
against Norway, in as much
belief that this
as she has always opposed
practice is
any attempt to apply it to
rendered
obligatory by the Norwegian coast.”
the existence of Dissent, however, protects
a rule of law only the dissenter and does
requiring it.” not apply to other states.
The need for Moreover, a state joining
such a belief, the international law system
i.e., the for the first time after a
existence of a practice has become law is
subjective bound by such practice.
element, is It is also possible that
implicit in the after a practice has been
very notion of
accepted as law, contrary
the opinio juris
practice might arise. What
sive
effect would such contrary
necessitatis.
practice have? In Fisheries
Jurisdiction Case (Merits)?
the opinion was expressed
that such contrary practice
can cast doubt on the
alleged law. It noted “great
uncertainty as to the
existing customary law on
account of the conflicting
and discordant practice of
States.” It concluded that

4
[1951]
5
[1974]
 of States
towards certain
General
14 INTRODUCTION TO PUBLIC Assembly
INTERNATIONAL LAW
resolutions, and
particularly
the uncertainty had “an Resolution
unsettling effect on the 2625 (XXV)
entitled
crystallization of a still
“Declaration on
evolving customary law on Principles of
the subject.” ... It might be International
added that, over time, if the Law concerning
contrary practice should Friendly
Relations and
gain general acceptance, it
Co-operation
might instead become the among States in
law. Accordance
with the Charter
Evidence of state practice and opinio
juris of the United
Nations.”
Having said all of the
Consent to such
above, what are the resolutions is
acceptable evidence of state one of the
practice? Various forms of forms of
evidence may point to state expression of
practice. These can be an opinio juris
treaties, diplomatic with regard to
correspondence, statements the principle of
of national leaders and non-use of
force, regarded
political advisers, as well as
as a principle of
the conduct of states. By
customary
themselves, however, they
international
do not constitute customary law,
law unless characterized by independently
opinio juris. of the
The existence of provisions,
especially those
opinio juris is a matter of
of an
proof. The burden of
institutional
proving its existence falls kind, to which
on the state claiming it. In it is subject on
Nicaragua v. United States the treaty-law
where one of the issues was plane of the
whether the prohibition of Charter.
the use of force was “Instant custom”
customary law, the ICJ said: Is there such a thing
It as “instant custom?” Quite
considers that obviously, what is referred
this opinio juris to as “instant custom” is not
may be deduced the product of constant and
from, inter alia,
prolonged practice. Rather
the attitude of
the Parties and it comes about as a
 spontaneous activity of a a coalition of forces arose
great number of states in a matter of months
supporting a specific line of supportive of the action
action. In the after- math of taken by the United States
the attack on the Word against Osama Bin Laden.
Trade Center in New York, At least one writer4 has sug

6
Antonio Cassese, TERRORISM IS ALSO DISRUPTING SOME
CRUCIAL LEGAL CATEGORIES OF INTERNATIONAL LAW, 12
Eur. J. Int’l l, No. 5.
 others, the ICJ in the
Legality of the Threat or
Use of Nuclear Weapons.
CHAPTER 2
THE SOURCES OF INTERNATIONAL LAW What the clause does
is to put the “laws of
gested that this united
humanity” and the “dictates
action may have given birth
of public conscience” on the
to instant customary law
same level as “usages of
classifying the attack as an
states” or usus thus
armed attack under Article
suggesting that even
51 of the UN Charter
without practice or usus or
justifying collective self-
at least without consistent
defense. What was peculiar
practice there can emerge a
about this collective action
principle of law based on
was that the object of
laws of humanity and the
defense was not an attack
dictates of public
from a state but from a non-
conscience. In other words,
state organization.
one need not wait for
Usus and opinio juris in Humanitarian thousands of civilians to be
Law: The Martens Clause killed before a ban becomes
The Martens Clause effective.
refers to a paragraph found Treaties.
in the 1899 Hague Peace
Another important
Convention. It says: “Until
a more complete code of source are treaties or
laws of war has been international agreements,
issued, the High whether bilateral or
Contracting parties deem it multilateral. Treaties
expedient to declare that, in determine the rights and
cases not included in the duties of states just as
Regulations adopted by individual rights are
them, the inhabitants and determined by contracts.
belligerents remain under
Their binding force comes
the protection and the rule
from the voluntary decision
of the principles of the law
of sovereign states to
of nations as they result
obligate themselves to a
from the usages established
among civilized peoples, mode of behavior.
from the laws of humanity, While treaties are
and the dictates of the generally binding only on
public conscience. the parties, the number of
This was first inserted the contracting parties and
by the Russian publicist the generality of the
Fyodor Martens and has acceptance of the rules
found its way into a number created by the treaty can
of treaties including the have the effect of creating a
1949 Vienna Convention universal law
and the First Additional
Protocol of 1977. It has
been cited by, among
 prevail. A treaty manifests a
deliberate choice of the
parties and the principle of
16 INTRODUCTION TO PUBLIC
INTERNATIONAL LAW pacta sunt servanda should
be followed. Thus, for
instance, in the Wimbledon
in much the same way that general practice
suffices to create customary law. Case (PCIJ 1923), although
the PCIJ recognized that
The question is
customary international law
sometimes asked whether
prohibited belligerents from
treaties are law or are
ferrying armaments through
merely obligations which
a neutral state, the Court
the law says must be
said that Article 380 of the
carried out. On the basis of
Treaty of Versailles opened
this question, a distinction
the Kiel Canal to passage
is made between “contract
“to the vessels of commerce
treaties” or “law making
and of war of all nations at
treaties.” The distinction,
peace with Germany on
perhaps, is not very useful
terms of entire equality.”
because all treaties must be
observed by the parties The Kiel Canal cut
under the principle of pacta through Germany linking
sunt servanda. the Baltic and North Sea.
The Court said:
Treaties and custom
The Court
Whether or not considers that
treaties override custom the terms of
depends on the intention of Article 380 are
the parties. If the treaty is categorical and
intended to be declaratory give rise to no
of customary law, it may be doubt. It
follows that the
seen as evidence of
canal has
customary law. ceased to be an
Normally, treaties and internal and
custom can be national
complementary. As seen, navigable
waterway, the
for instance, in Nicaragua
use of which by
v. United States, adherence
the vessels of
to treaties can be indicative states other than
also of adherence to the riparian
practice as opinio juris. state is left
entirely to the
What happens, however,
discretion of
when treaty and custom
that state, and
contradict each other? that it has
Different situations may become an
have different solutions. international
waterway
If a treaty comes later
intended to
than a particular custom, as
provide under
between the parties to the
treaty guarantee
treaty, the treaty should easier access to
the Baltic for
the benefit of all
nations of the
word....
 expression of a later will,
should prevail. But such an
approach would militate
CHAPTER 2
THE SOURCES OF INTERNATIONAL LAW against the certainty of
treaties. In practice,
However, if a later however, an attempt is
treaty is contrary to a made to keep the treaty
customary rule that has the alive by efforts at
status of jus cogens, custom reconciling a treaty with the
will prevail. This is because developing custom. An
of Article 53 of the Vienna example given of this
Convention on the law of reconciliation is the Anglo-
Treaties: French Continental Shelf
Case (1979). The issue was
A treaty is
the applicability of the
void if, at the
equidistance principle in
time of its
the delimitation of the
conclusion, it
continental shelves of the
conflicts with a
United Kingdom and
peremptory
France. The Court said:
norm of general
international Article
law. For the 6 ... does not
purposes of the formulate the
present equidistance
principle and
Convention, a
“special
peremptory
circumstances”
norm of general
as two separate
international
rules. The rule
law is a norm
there stated in
accepted and each of the two
recognized by cases is a single
the international one, a
community of combined
States as a equidis- tance-
whole as a norm special
from which no circumstances
derogation is rule. ...
permitted and The Court
which can be does not
modified only overlook that
by a subsequent under Article 6
norm of general the equi-
international distance
law having the principle
same character. ultimately
possesses an
In a situation, where
obligatory force
custom develops after a
which it does
treaty, the rule is not clear. not have in the
The logical rule perhaps same measure
should be that the later under the rules
custom, being the of customary
 law, for Article
6 makes the
application of
the equidistance
principle a
matter of treaty
obligation for
Parties to the
Convention.
But the
combined
character of the
equidistance-
special
circumstances
rule means that
the obligation to
apply the
equidistance
principle is
always one
qualified by the
condition
“unless another
boundary line is
justified by
special
circumstances. .
..”
Treaties will be treated in greater detail
in Chapter 3.

General principles of law recognized by

civilized nations.
The third source cited
by the Statute are “the
general principles of law
recognized by civilized
nations.” This is also
referred to by the
 common to the legal
systems of the world. They
may, in a sense, be said to
18 INTRODUCTION TO PUBLIC
INTERNATIONAL LAW belong to no particular
system of law but are
evidence rather of the
Restatement as “general
fundamental unity of law.
principles of law
Most of these principles,
recognized by or common
however, have either
to the world’s major legal
become part of customary
systems.” This has
law or have been
reference not to principles
incorporated into
of international law but to
conventional international
principles of municipal law
law.
It is worth noting that the nations.” Its Restatement avoids the language “civilized is
colonial connotation community. now unacceptable in the international
The Restatement law makes up for the fact
refers to them as that there is no
“supplementary rules of international legislative
international law.” These system. The insertion of
may be found in “judicial this provision in Article
decisions and the teachings 38(1) thus plugs some of
of the most highly qualified the gaps in the existing
publicists of the various international law system.
nations” which the Statute Barcelona Traction Case
refers to as “subsidiary (ICJ 1964) adverted to this
means for the purpose when it said:
determination of rules of If the
law.” Court were to
An example would decide the case
be the 1928 Chorzow in disregard of
the relevant
Factory case7 where the
institutions of
Permanent Court declared
municipal law,
that “it is a general it would
conception of law that without
every violation of an justification,
engagement involves an invite serious
obligation to make legal
reparation.” Another difficulties. It
example would be the would lose
affirmation that private touch with
rights acquired under one reality....
regime does not cease upon It is to rules
the change of government. generally
The principle of estoppel is accepted by
yet another example. Other municipal
examples can be given. systems,... and
The affirmation of not to the
general principles of law municipal law
found in domestic systems of a particular
as a source of international State, that
international
law refers.

7
P.C J J, Ser. A, No. 9.
 the formation of
international law principles.
CHAPTER 2 The teachings of highly qualified
THE SOURCES OF INTERNATIONAL LAW writers and “Publicists.”

More will be said in In many cases of first

Chapter 4 on the relation impression, the only
authorities that can be cited
between international law
are writers. The extent to
and municipal law.
which they are referred to
Judicial decisions. depends on the tradition of
Article 38 of the the court or of individual
Statute directs the Court to judges. In common law
jurisdictions, there is
apply judicial decisions as
reluctance to use them,
subsidiary means for the
more so in the US than in
determination of the rules of
Britain. In civil law
law. But this is made
jurisdictions, there is more
subject to Article 59 which
ready reference to writers.
says that “the decisions of
The ICJ is generally
the court have no binding
reluctant to refer to writers
force except between the but they are often taken into
parties and in respect of that consideration.
particular case.” Hence, “Publicists” are
such decisions do not institutions which write on
constitute stare decisis. international law. They also
However, the decisions of play a role. The more
the ICJ are not only significant ones are: The
regarded as highly International Law
persuasive in international
Commission, an organ of
law circles; they have also
the U.N.; the Institut de
contributed to the
Droit International, the
formulation of principles
International Law
that have become
Association, a multinational
international law. Later in
body; the (Revised)
this book it will be seen that
Restatement of Foreign
the ICJ is the source of
Relations Law of the United
principles recognizing the
States; and the annual
international personality of
publication of the Hague
international organizations,
Academy of International
the doctrine on “genuine
Law. It should be noted,
link” between a person and
however, that these
a state for purposes of
institutions are generally
jurisdiction, and the straight
government sponsored;
baseline method in drawing
hence, they bear within
baselines for archipelagos.
themselves a potential for
Similarly, arbitral decisions
national bias.
have been instrumental on
 the so-called
maxims of
equity which
20 INTRODUCTION TO PUBLIC exercised great
INTERNATIONAL LAW
influence in the
creative period
Equity. of the
The Permanent Court of Justice had development of
occasion to use equity as a source of law the Anglo-
in the case of Diversion of Water from the American law.
Meuse (Netherlands v. Belgium). Some of these
Netherlands had maxims are,
complained that certain “Equality is
canals constructed by equity”; “He
Belgium were in violation who seeks
of an agreement in that the equity must do
equity.” It is in
construction would alter the
line with such
water level and rate of flow
maxims that “a
of the Meuse River. The
court of equity
Court rejected the refuses relief to
Netherlands claim and a a plaintiff
Belgian counterclaim based whose conduct
on the construction of a in regard
lock by the Netherlands at to
an earlier time. Judge
Halsbury’s
Hudson, in an individual
concurring opinion said: the
subj
It would ect-
seem to be an mat
important ter
principle of of
equity that the
where two litig
parties have atio
assumed an n
identical or a has
reciprocal bee
obligation, one n
imp
party which is
rop
engaged in a
er.”
continuing non-
OF
performance of EN
that obligation GL
should not be AN
permitted to D
take advantage (2n
of a similar d
non- Ed.,
performance of 193
that obligation 4),
by the other p.
party. The ← A very
principle finds similar principle
expression in was received
into Roman recognition of
Law. The equity as a part
obligations of a of international
vendor and a law is in no way
vendee being restricted by the
concurrent, special power
“neither could conferred upon
compel the it “to decide a
other to perform case ex aequo
unless he had et bono, if the
done, or parties agree
tendered, his thereto.”
own part.” [Citations
omitted.] It
Judge Hudson justified his use of equity must be
thus: concluded,
The Court therefore, that
has not been under Article 38
expressly of the Statute, if
authorized by not
its Statute to independently
apply equity as of that Article,
distinguished the Court has
from law. Nor, some freedom
indeed, does the to consider
Statute principles of
expressly direct equity as part of
its application the international
of international law which it
law, though as must apply.
has been said on
several
occasions the
Court is “a
tribunal of
international
law.” Series A,
No. 7, p. 19;
Series A, Nos.
20/21, p.
← Article 38
of the Statute
expressly
directs the
application of
“general
principles of
law recognized
by civilized
nations,” and in
more than one
nation
principles of
equity have an
established
place in the
legal system.
The Court’s
 what has become
customary law.
CHAPTER 2 “Soft Law"
THE SOURCES OF INTERNATIONAL LAW
Not included among
Equity, when the sources is what a
accepted, is an instrument growing literature refers to
whereby conventional or as “soft law.” Others prefer
customary law may be to call this category “non-
supplemented or modified treaty agreements.” They
in order to achieve justice. are international
It has both a procedural and agreements not concluded
substantive aspect. as treaties and therefore not
Procedurally, it means a
covered by the Vienna
mandate given to a judge to
Convention on the Law of
exercise discretion in order
Treaties.
to achieve a determination
Other sources of soft
that is more equitable and
law are administrative rules
fair. Different kinds of
which guide the practice of
equity are distinguished:
intra legem (within the states in relation to
law), that is, the law is international organizations.
adapted to the facts of the These are mostly
case; praeter legem administrative procedures
(beyond the law), that is, it that are carried out with
is used to fill the gaps varying degrees of
within the law; and contra consistency and uniformity
legem (against the law), that may eventually ripen
that is, a refusal to apply into customary law or
the law which is seen as become formalized later on
unjust. Obviously, this can in treaties.
be an area of great Soft law plays an
controversy. important role in
Other supplementary evidence. international relations
because often states prefer
UN Resolutions
non-treaty obligations as a
Declarations of legal simpler and more flexible
principles and Resolutions foundation for their future
by the United Nations are relations. The difference
generally considered lies mainly in the wish of
merely recommendatory. the parties to model their
But if they are supported by relationship in a way that
all the states, they are an excludes the application of
expression of opinio juris treaty or customary law on
communis. But a growing the consequences of a
number of weaker nations,
breach of obligations.
who have a very substantial
vote, feel that U.N.
Resolutions should have the
force of law. Resolutions
can also be a reflection of
 contain customary law
precepts antedating 1969.
A Convention on the
Law of Treaties Between
States and International
Organizations or Between
International
Organizations was adopted
on March 26,1986. It
Chapter 3 THE LAW OF TREATIES should enter into force 30
days after the 35th
ratification or accession of
states.
Definition of treaties.
Treaties can assume
various names. They can be The Vienna
conventions, pacts, Convention defines a treaty
covenants, charters, as “an international
protocols, concordat, agreement concluded
modus vivendi, etc. They between States in written
represent the most form and governed by
deliberate form of international law, whether
commitment through which embodied in a single
governments cooperate instrument or in two or
with one another. The more related instruments
generic term that is used is and whatever its particular
international agreements. In designation.” The Vienna
the absence of an Convention applies to
international legislative international agreements
body, international that satisfy the
agreements are a Convention’s definition,
convenient tool through specifically that they be in
which states are able to writing and reflective of the
project common intention of the parties to be
expectations. bound, and governed by
The law on treaties is international law.
found in the 1969 Vienna While treaties are
Convention on the Law of generally in written form,
Treaties. It governs treaties there are writers who hold
between states. It entered that even an oral agreement
into force in January 1980. can be binding. However,
While the document is not only writ
retroactive in effect, it does

22
 The Court
would observe,
in the first
CHAPTER 3
place, that
THE LAW OF TREATIES
international
ten agreements that are new, come under the agreements may
provisions of the Vienna Convention. take a number
No particular form is of forms and be
given a
prescribed. Thus for
diversity of
instance, in Qatar v.
names. Article
Bahrain,' the exchange of 2, paragraph 1
notes between the two of the Vienna
heads of state was Convention on
considered an international the Law of
agreement. Treaties of 23
May 1969
QUATAR V. BAHRAIN ICJ 1994 provides that
for the purposes
The
of that
Parties agree Convention,
that the ‘treaty’ means
exchanges of an international
letters of agreement
December 1987 concluded
constitute an between States
international in written form
agreement with and governed
binding force in by international
their mutual law, whether
relations. embodied in a
Bahrain, single
however, instrument or in
two or more
maintains that
related
the Minutes of
instruments and
25 December
whatever its
1990 were no
particular
more than a designation,”
simple record of Furtherm
negotiations, ore, as the
similar in nature Court said, in a
to the Minutes case concerning
of the Tripartite a joint
Committee; that communique,
accordingly “it knows of no
they did not rule of
rank as an international
international law which
agreement and might preclude
could not, a joint
therefore, serve communique
as a basis for from
the jurisdiction constituting an
of the Court. international
agreement to above all to its
submit a dispute actual terms and
to arbitration or to the particular
judicial circumstances
settlement”
in which it was
(Aegean Sea
drawn up.”
Continental
Shelf; l.CJ. (ibid.)
Reports IY78, p. The 1990
39, para. 96). Minutes refer to
In order the
to ascertain consultations
whether an between the two
agreement of Foreign
that kind has Ministers of
been concluded, Bahrain and
“the Court must Qatar, in the
have regard presence of the
For-

'[1994] ICJ Rep.

 while the case is
pending before
the Court, and
go on to say
INTRODUCTION TO PUBLIC INTERNATIONAL LAW that, if a
compromise
agreement is
eign Minister of reached during
Saudi Arabia, that time, the
and state what case is to be
had been withdrawn.
“agreed” Thus, the
between the 1990 Minutes
Parties. In include a
paragraph 1, the reaffirmation of
commitments obligations
previously
previously
entered into are
entered into;
reaffirmed
they entrust
(which
King Fahd with
includes, at the
least, the the task of
agreement attempting to
constituted by find a solution
the exchanges to the dispute
of letters of during a period
December of six months;
1987). In and lastly, they
paragraph 2, the address the
Minutes provide circumstances
for the good under which the
offices of the Court could be
King of Saudi seised after
Arabia to May 1991.
continue until Accordin
May 1991, and gly, and
exclude the
contrary to the
submission of
contentions of
the dispute to
Bahrain, the
the Court prior
Minutes are not
thereto. The
a simple record
circumstances
of a meeting,
are addressed
under which the similar to those
dispute may drawn up within
subsequently be the framework
submitted to the of the Tripartite
Court. Qatar’s Committee;
acceptance of they do not
the Bahraini merely give an
formula is account of
placed on discussions and
record. The summarize
Minutes provide points of
that the Saudi agreement and
good offices are disagreement.
to continue They enumerate
the not have been
commitments to permitted to
which the sign an
Parties have international
consented. They agreement
thus create taking effect at
rights and the time of the
obligations in signature. He
international was aware of
law for the that situation,
Parties. They and was
constitute an prepared to
international subscribe to a
agreement. statement
Bahrain, recording a
however, political
maintains that understanding,
the signatories but not to sign a
of the Minutes legally binding
never intended agreement.
to conclude an The Court
agreement of does not find it
this kind. It necessary to
submitted a consider what
statement made might have
by the Foreign
been the
Minister of
intentions of the
Bahrain and
Foreign
dated 21 May
1992, in which Minister of
the States that Bahrain or,
“at no time did I
consider that in
signing the
Minutes I was
committing
Bahrain to a
legally binding
agreement.” He
goes on to say
that, according
to the
Constitution of
Bahrain,
“treaties
‘concerning the
territory of the
State’ can come
into effect only
after their
positive
enactment as a
law.” The
Minister
indicates that he
would therefore
 Similar was the case
of Norway v. Denmark} The
CHAPTER 3 case involved a dispute
THE LAW OF TREATIES between Denmark and
Norway over sovereignty in
for that matter, Eastern Greenland. In the
those of the
course of negotiations,
Foreign
Denmark had offered
Minister of
Qatar. The two certain concessions
Ministers important for Norway for
signed a text the purpose of persuading
recording Norway not to obstruct
commitments Danish plans in regard to
accepted by Greenland. In reply, the
their Norwegian Minister
Governments,
accepted the offer: “I told
some of which
the Danish Minister today
were to be
given that the Norwegian
immediate Government would not
application. make any difficulty in the
Having signed settlement of this question.”
such a text, the The Court found this
Foreign declaration suf-ficient to
Minister of bind the Norwegian
Bahrain is not
government.
in a position
subsequently to In fact, even a
say that he unilateral declaration
intended to concerning legal or factual
subscribe only situations may create legal
to a “statement obligations. This was what
recording a happened in Nuclear Test
political Cases:
understanding,” Australia v. France, New
and not to an Zealand v. France,3 France
international
was a signatory to the
agreement.
Nuclear Test Ban Treaty
and thus continued to
The Court conduct tests in the South
concludes that
Pacific until 1973. The tests
the Minutes of
conducted in 1972 and 1973
25 December
1990, like the led to the filing of protests
exchanges of by Australia and New
letters of Zealand. The case, however,
December was taken off the Court’s
1987, constitute list without a decision when
an inter-national France announced by a
agreement series of unilateral
creating rights announcements that it
and obligations
would conduct no further
for the Parties.
tests after 1973. The Court
nevertheless commented on
the legal significance of
these announcements
saying:
It is well-
recognized that
declarations
made by way of
unilateral acts
concerning
legal or factual
situations, may
have the effect
of creating legal
obligations.
Declarations of
this kind may
be, and often
are, very
specific. When
it is the
intention of the
State making
the declaration
that it should
become bound
according to

2
[1933] P.C.IJ. Ser.
3
[ 1974] ICJ Rep.
 these statements
and their legal
consequences
26 INTRODUCTION TO PUBLIC
INTERNATIONAL LAW must be
considered
within the
its terms, that general
intention framework of
confers on the the security of
declaration the international
character of a intercourse, and
legal the confidence
undertaking, the and trust which
State being are so essential
thenceforth in the relations
legally required among States.
to follow a
course of Two characteristics
conduct the Court found which
consistent with convinced it that a binding
the declaration. obligation had been
An undertaking incurred. First, the
of this kind, if
commitment was very
given publicly,
and with an specific; second, there was
intent to be a clear intent to be bound.
bound, even This, however, did
though not not prevent France from
made within the
conducting nuclear tests in
context of
the South Pacific. After
international
negotiations, is having conducted six
binding.... nuclear tests, France
responded to worldwide
The Court added:
outrage and stopped the
In
testing at six in 1996 rather
announcing that
the 1974 series than the originally planned
of atmospheric eight.
tests would be Moreover, care in
the last, the
attributing binding effect to
French
Government a unilateral declaration was
conveyed to the expressed in a case
world at large ... involving the Trade Act of
its intention to 1974 between the European
terminate these
and the USA.4
tests. It was
bound to 7.118
assume that Attributing
other States international
might take note legal
of these significance to
statements and unilateral
rely on their statements
being effective. made by a State
The validity of should not be
 done lightly and nature and
should be reach compared
subject to strict to other
conditions. internationally
Although the relevant
legal effects we instances in
are ascribing to which legal
the US effect was given
statements to unilateral
made to the declarations, we
DSB [Dispute have
Settlement conditioned
Body] through even these
this Panel are of limited effects
a more narrow on the
and limited fulfillment

♦CASE
CONCERNING
SECTIONS 301-310 OF
THE TRADE ACT OF
1974 (EUROPEAN
UNION v. USA, 1999).
 of a pre-
existing US of a
pre-existing US
CHAPTER 3
THE LAW OF TREATIES policy and
undertaking
of the most made in a
stringent domestic
criteria. A setting into an
sovereign State international
should normally forum.
not find itself
legally affected Function of treaties.
on the
international Treaties have many
plane by the functions. They are sources
casual statement of international law, they
of any of the serve as the charter of
numerous international organizations,
representative
they are used to transfer
speaking on its
behalf in territory, regulate
today’s highly commercial relations, settle
interactive and disputes, protect human
inter-dependent rights, guarantee
world nor by a investments, etc.
representation
The different kinds of
made in the heat
of legal treaties may be classified
argument on a from the standpoint of their
State’s behalf. relevance as source of
This, however,
international law.
is very far from
the case before The first are
us. multilateral treaties open to
7.121 The all states of the world. They
statements create norms which are the
made by the US basis for a general rule of
before this
law. They are either
Panel were a
codification treaties or
reflection of
“law-making treaties” or
official US
policy, intended they may have the character
to express US of both.
understanding Another category
of its includes treaties that create
international a collaborative mechanism.
obligations as These can be of universal
incorporated in scope {e.g., regulation of
domestic US
allocation of radio
law. The
frequencies) or regional
statements did
(e.gfishing agreements).
not represent a
new US policy They operate through the
or undertaking organs of the different
but the bringing states.
 The third and largest
category of treaties are
bilateral treaties. Many of
these are in the nature of
contractual agreements
which create shared
expectations such as trade
agreements of various
forms. They are sometimes
called “contract treaties.”
While treaties are
generally binding only on
the parties, the number of
the contracting parties and
the generality of the
acceptance of specific rules
created by the treaty can
have the effect of creating a
 d or from
other
circumsta
28 INTRODUCTION TO PUBLIC
INTERNATIONAL LAW nces that
their
intention
universal law in much the was to
same way that general consider
practice suffices to create that
customary law. person as
representi
The making of treaties.
ng the
Negotiation Bilateral State for
treaties, and multilateral
such
treaties among a small
number, generally originate purposes
from the foreign ministries. and to
Negotiation is done through dispense
foreign ministries. Larger
multilateral treaties are with full
negotiated in diplomatic powers.
conferences which are run ← In
like a legislative body.
Power to negotiate The virtue of their
negotiators must possess functions and
powers to negotiate. An act without having
relating to the conclusion
of a treaty by one who has to produce full
no proper authorization has powers, the
no legal effect unless following are
confirmed by his state:
considered as
Article 7. Full powers.
representing
← A their State:
person is
←
considered as
Hea
representing a
ds of
State for the
State,
purpose of
Heads of
adopting or
authenticating Governm
the text of a ent and
treaty or for the Min-
purpose of isters for
expressing the Foreign
consent of the Affairs,
State to be for the
bound by a purpose
treaty if: of
← he produces appropriate performin
full powers; or g all acts
← relating to
it the
appears conclusio
from the n of a
practice treaty;
of the ←
States hea
concerne ds of
diplomati
c
missions,
for the
purpose
of
adopting
the text of
a treaty
between
the
accreditin
g State
and the
State to
which
they are
accredite
d;
←
repr
esentative
s
accredite
d by
States to
an inter-
national
conferenc
e or to an
internatio
nal
organizati
on or one
of its
organs,
for the
purpose
of
adopting
the text of
a treaty in
that
conferenc
e,
organizati
on or
organ.
 its drawing up;
or
CHAPTER 3 ← faili
THE LAW OF TREATIES ng such
procedure, by
Authentication of text the signature,
Negotiations conclude signature ad
with the signing of the referendum or
initialing by the
document. The signatures
representatives
serve as authentication of of those States
the document. of the text of
Article 9. Adoption of the text: the treaty or of
← The the Final Act of
adoption of the a conference
text of a treaty incorporating
takes place by the text.
the consent of The
all the States authentication
participating in of a treaty
its drawing up makes the text
except as authoritative
provided in and definitive.
paragraph 2. It is necessary
← The so that the states
adoption of the will know
text of a treaty definitively the
at an contents of the
international text and avoid
conference any
takes place by misunderstandi
the vote of two- ng as to the
thirds of the terms.
States present
and voting, Consent to be bound
unless by the Once the document
same majority has been signed, there are
they shall stages which follow which
decide to apply
culminate in making the
a different rule.
document binding. The
Article 10. Authentication of the
text: most important step is the
The text of a treaty is established consent to be bound. There
as authentic and definitive: are various ways by which
← by consent to be bound is
such procedure
expressed:
as may be
provided for in Article 11. Means of expressing
consent to be bound by a treaty:
the text or
agreed upon by The
the States consent of a
participating in State to be
bound by a
treaty may be
expressed by
signature,
exchange of
instruments
constituting a
treaty,
ratification,
acceptance,
approval or
accession, or by
any other means
if so agreed.
 negotiatio
n.
← For the purposes of paragraph
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
1:
← t
Article he
12. Consent to initialing
be bound by a of a text
treaty expressed constitute
by signature: s a
← The signature
consent of a of the
State to be treaty
when it is
bound by a
establishe
treaty is ex-
d that the
pressed by the negotiatin
signature of its g States
representative so agreed;
when: (b) the
← the treaty provides that signature
signature shall have that and
effect; referendu
(b) it is m of a
otherwise treaty by
establishe a
d that the represent
negotiatin ative, if
g States confirme
were d by his
agreed State,
that constitute
signature s a full
should signature
have that
of the
effect; or
treaty.
(c) the
Article
intention
13. Consent to
of the
State to be bound by a
give that treaty expressed
effect to by an exchange
the of instruments
signature constituting a
appears treaty:
from the The
full consent of
powers of States to be
its bound by a
represent treaty
ative or constituted by
was instruments
expressed exchanged
during the between them is
expressed by
that exchange ratification
when: appears from
← the the full powers
instruments of its
provide that representative
their exchange or was
shall have that expressed
effect; or (b) it during the
is otherwise negotiation.
established that ← The
those States consent of a
were agreed State to be
that the bound by a
exchange of treaty is ex-
instruments pressed by
should have acceptance or
that effect, xxx approval under
Article conditions
14. Consent to similar to those
be bound by a which apply to
treaty expressed ratification.
by ratification,
acceptance or
approval:
← The
consent of a
State to be
bound by a
treaty is ex-
pressed by
ratification
when: (a) the
treaty provides
for such consent
to be expressed
by means of
ratification; (b)
it is otherwise
established that
the negotiating
States were
agreed that
ratification
should be
required; (c) the
representative
of the State has
signed the
treaty subject to
ratification; or
(d) the intention
of the State to
sign the treaty
subject to
 deposit with the
depositary; or
(c) their
notification to
CHAPTER 3
the contracting
THE LAW OF TREATIES
States or to the
The manner of depositary, if so
ratification differs from agreed.
state to state. In the Article 17
Philippines, it is governed Consent to be
by Article VII, Section 21 bound by part
of the Constitution. But of a treaty and
between signature and choice of
ratification a state is differing
required by Article 18(a) provisions:
not to engage in acts which ← Wit
can defeat the purpose of hout prejudice
the treaty. to Articles 19 to
Ratification is next 23, the consent
of a State to be
followed by either
bound by part
exchange of ratification, in
of a treaty is
bilateral treaties, or, in effective only if
multilateral treaties, deposit the treaty so
of ratification: permits or the
other
Article
contracting
16. Exchange States so agree.
or deposit of ← The
instruments of consent of a
ratification, State to be
acceptance, bound by a
approval or treaty which
accession: permits a
Unless choice between
the treaty differing
otherwise provisions is
provides, effective only if
instruments of it is made clear
ratification, to which of the
acceptance, provisions the
approval or consent relates.
accession
Accession to a treaty
establish the
consent of a States which did not
State to be participate in the initial
bound by a negotiation may also
treaty upon:
express their consent to be
← their
bound by “accession.”
exchange
between the Article 15 of the
contracting Convention says:
States; (b) their
 The
consent of a
State to be
bound by a
treaty is
expressed by
accession
when:
← the
treaty provides
that such
consent may be
expressed by
that State by
means of
accession;
← it is
otherwise
established that
the negotiating
States were
agreed that such
consent may be
expressed by
that State by
means of
accession; or
← all
the parties have
subsequently
agreed that such
consent may be
expressed by
that State by
means of
accession.
 formulate a
reservation
unless:
32 INTRODUCTION TO PUBLIC the
INTERNATIONAL LAW reservation is
prohibited by
the treaty; (b)
Reservations the treaty
In deference to the provides that
sovereignty of states, the only specified
Vienna Convention allows reservations,
which do not
for “reservations.” Article 2
include the
defines reservations as “a reservation in
unilateral statement, question, may
however phrased or named, be made; or (c)
made by a State, when in cases not
signing, ratifying, falling under
accepting, approving or sub-paragraphs
(a) and (b), the
acceding to a treaty,
reservation is
whereby it purports to incompatible
exclude or to modify the with the object
legal effect of certain and purpose of
provisions of the treaty in the treaty.
their application to that Article 20. Acceptance of and objection to reservations
State.” In this regard, A
therefore, treaties are reservation
different from statutes. expressly
Statutes must necessarily authorized by a
treaty does not
apply to all.
require any
Reservations,
subsequent
however, are different from
acceptance by
“interpretative the other
declarations” which are not contracting
meant to be a derogation States unless
from the treaty but an the treaty so
expression of how a state provides.
understands its adoption of When it
the treaty. appears from
The rules on reservations are found in the limited
Articles 19 to 23: number of the
ne-gotiating
Article 19. Formulation of States and the
reservations.
object and
A State purpose of a
may, when treaty that the
signing, ap-plication of
ratifying, the treaty in its
accepting, entirety
approving or between all the
parties is an
acceding to a
essential
treaty,
condition of the
consent of each to the
one to be bound treaty
by the treaty, a
reservation
requires
acceptance by
all the parties.
When a
treaty is a
constituent
instrument of
an interna-
tional
organization
and unless it
otherwise
provides, a
reservation
requires the
acceptance of
the competent
organ of that
organization.
In cases
not falling
under the
preceding
paragraphs and
unless the treaty
otherwise
provides:
←
a
ccepta
nce by
another
contrac
ting
State
of a
res-
ervatio
n
constit
utes
the
reservi
ng
State a
party
 containing
a
reservatio
n is
CHAPTER 3
effective
THE LAW OF TREATIES
as soon as
in relation at least
to that one other
other contractin
State if or g State
when the has
treaty is accepted
in force the
reservatio
for those
n.
States;
For the
←
purposes of
an
paragraphs 2
objection
and 4 and
by another
unless the treaty
contractin
otherwise
g State to
provides, a
a
reservation is
reservatio
considered to
n does not
have been
preclude
accepted by a
the entry
State if it shall
into force
have raised no
of the
objection to the
treaty as
between reser-vation by
the the end of a
objecting period of
and twelve months
reserving after it was
States notified of the
unless a reservation or
contrary by the date on
intention which it
is expressed its
definitely consent to be
expressed bound by the
by the treaty,
objecting whichever is
State; later.
← Article
an 21. Legal
act effects of
expressing reservations
a State’s and of
consent to objections to
be bound reservations:
by the A
treaty and reservation
established with When a
regard to State objecting
another party in to a reservation
accordance has not opposed
with Articles the entry into
force of the
19,20 and 23:
treaty between
←
itself and the
mod
reserving State,
ifies for
the provisions
the
to which the
reserving
reservation
State in
relates do not
its
apply as
relations
between the
with that two States to
other the extent of the
party the reservation.
provisions
Article
of the
22. Withdrawal
treaty to
of reservations
which the
and of
reservatio
objections to
n relates
reservations:
to the
extent of Unless the
the treaty otherwise
reservatio provides, a
n; and reservation may
be withdrawn at
←
any time and
mod
the consent of a
ifies those
State which has
provisions
accepted the
to the
reservation is
same
not required for
extent for its withdrawal.
that other
party in
its
relations
with the
reserving
State.
The
reservation
does not modify
the provisions
of the treaty for
the other parties
to the treaty
inter se.
 Article 23. Procedure regarding
reservations:
A
INTRODUCTION TO PUBLIC reservation, an
INTERNATIONAL LAW express
acceptance of a
reservation and
← Unl
an objection to a
ess the treaty
reservation must
otherwise
be formulated in
provides, an
writing and
objection to a communicated
reservation may to the
be withdrawn at contracting
any time. States and other
← Unless the treaty otherwise States entitled to
provides, or it is otherwise become parties
agreed: to the treaty.
←t If
he formulated
withdrawa when signing
l of a the treaty
reservatio subject to rati-
n becomes fication,
operative acceptance or
in relation approval, a
to another reservation must
contractin be formally
g State
confirmed by
only when
the reserving
notice of
State when
it has been
expressing its
received
consent to be
by that
bound by the
State; (b)
treaty. In such a
the
case the
withdrawa
reservation shall
l of an
be considered as
objection
having been
to a
reservatio made on the
n becomes date of its
operative confirmation.
only when An
notice of express
it has been acceptance of,
received or an objection
by the to, a reser-
State vation made
which previously to
formulate confirmation of
d the the reservation
reservatio does not itself
n. require
confirmation.
 The
withdrawal of a
reservation or of
an objection to a
reservation must
be formulated in
writing.

A proliferation of
reservations in multilateral
treaties can very well defeat
the purpose of a treaty. In
bilateral treaties, a
reservation by one party
means a rejection of the
treaty and necessitates re-
negotiation. Reservations,
therefore, are meant only for
multilateral treaties.
Must a reservation be
consented to by all parties
for it to be effective? This
question was answered by
the ICJ in its advisory
opinion in Reservations to
the Genocide Convention
(ICJ Reports 1951) saying,
by seven votes to five, that
“a state which has made and
maintained a reservation
which has been objected to
by one or more parties to the
Convention but not by
others, can be regarded as a
party to the Convention if
the reservation is
compatible with the object
and purpose of the
Convention.” The Court
added that compatibility
could be decided by
 in any manner impair
or prejudice the
sovereign rights of the
CHAPTER 3 Republic of the
THE LAW OF TREATIES
Philippines under and
states individually since “if arising from the
a party to the Convention Constitution of the
objects to a reservation Philippines;
which it considers Such signing
incompatible with the object shall not in any
and purpose of the manner affect the
sovereign rights of the
Convention, it can consider
Republic of the
that the reserving state is not
Philippines as
a party to the Convention.”
successor to the
Under this view, it is
United States of
possible for different legal
America, under and
relationships to arise among
arising out of the
parties to the same treaty.
Treaty of Paris
This view some see as
between Spain and
reflected in Article 19, the United States of
supra, of the Vienna America of December
Convention. 10, 1988, and the
The Philippines and the 1982 Convention Treaty of Washington
on the Law of the Sea between the United
In this connection, it States of America and
should be noted that the Great Britain of
provision on “archipelagic January 2,1930;
waters” found in the 1982 3.
Convention on the Law of uch signing shall not
the Sea conflicts with the diminish or in any
Philippine claim in Article I manner affect the
of the Constitution that the rights and obligations
waters connecting the of the Contracting
islands, irrespective of their Parties under the
breadth and dimension, are Mutual Defense
“internal waters.” The Treaty between the
Philippine government is Philippines and the
clearly aware of these United States of
possible conflicts. Hence, America of August
upon its ratification of the
30,1951, and its
Convention on the Law of
related interpretative
the Sea on August 5,1984, it
instruments; nor those
added the following
under any pertinent
reservation:5
bilateral or
The signing of
multilateral treaty or
the Convention by the
agreement to which
Government of the
the Philippines is a
Republic of the
party;
Philippines shall not
 5
UN Office for Oceans Affairs and the
Law of the Sea, Law of the Sea Bulletin,
Special Issue 1, March
1987, Annex II, p. 6, quoted in Sweeney, Oliver,
Leech, THE INTERNATIONAL LEGAL
SYSTEM 193 (3rd Ed., 1988).
 waters. The 1973
Constitution, which in its
Article I classified as
INTRODUCTION TO PUBLIC internal waters what is now
INTERNATIONAL LAW referred to as archipelagic
waters, pre-dates the 1982
← The Convention.
provisions of the
Reservations in Human Rights Treaties
Convention on
archipelagic passage The Human Rights
through sea lanes do Committee of the UN made
not nullify or impair the following observations
the sovereignty of the regarding reservations in
Philippines as an human rights treaties:
archipelagic State
over the sea lanes and As
do not deprive it of indicated above,
authority to enact it is the Vienna
Convention on
legislation to protect
the Law of
its sovereignty,
Treaties that
independence, and provides the
security; definition of
← The reservations and
also the
concept of
application of
archipelagic waters is
the object and
similar to the concept purpose test in
of internal waters the absence of
under the Constitution other specific
of the Philippines, and provisions. But
removes straits the Committee
connecting these believes that its
waters with the provisions on
economic zone or the role of State
high sea from the objections in
relation to
rights of foreign
reservations are
vessels to transit
inappropriate to
passage for address the
international problem of
navigation; reservations to
human rights
treaties. Such
The USSR filed a treaties, and the
formal protest against the Covenant
Philippine reservation. specifically, are
However, the reservation not a web of
does not seem to be inter-State
necessary because Article exchanges of
8(2) itself says that the new mutual
rule applies only to “areas obligations.
They concern
which had not previously
the endowment
been considered as” internal
of individuals
with rights. The
principle of
inter-State
reciprocity has
no place, save
perhaps in the
limited context
of reservations
to declarations
on the
Committee’s
competence
under Article
41. And because
the operation of
the classic rules
on reservations
is so inadequate
for the
Covenant,
States have
often not seen
any legal
interest in or
need to object
to reservations.
The absence of
protest by
States cannot
imply that a
reservation is
either
compatible or
incompatible
with the object
and purpose of
the Covenant.
Objections have
been
occasional,
made by some
States but not
others, and on
grounds not
always
 Committee in
its interpretation
as to its
compatibility
CHAPTER 3
THE LAW OF TREATIES with the object
and purpose of
specified; when the Covenant.
an objection is Entry into force of treaties
made, it often
does not specify Treaties enter into
a legal force on the date agreed
consequence, or upon by the parties. Where
sometimes even no date is indicated, the
indicates that treaty enters into force once
the objecting consent has been given.
party Multilateral treaties
nonetheless generally contain a
does not regard provision which says how
the Covenant as
many states have to accept
not in effect as
the treaty before it can
between the
come into force. The rules
parties
concerned. In on entry into force are as
short, the follows:
pattern is so Article 24. Entry into force:
unclear that it is
not safe to A treaty
assume that a enters into force
non-objecting in such manner
State thinks that and upon such
a particular date as it may
reservation is provide or as the
acceptable. In negotiating
the view of the States may
Committee, agree.
because of the
Failing
special
any such
characteristics
provision or
of the Covenant
agreement, a
as a human
treaty enters
rights treaty, it
into force as
is open to
soon as consent
question what
to be bound by
effect
the treaty has
objections have
been established
between States
for all the
inter se.
negotiating
However, an
States.
objection to a
When the
reservation
consent of a
made by States
State to be
may provide
bound by a
some guidance
treaty is
to the
established on a
date after the
treaty has come
into force, the
treaty enters
into force for
that State on
that date, unless
the treaty
otherwise
provides.
The
provisions of a
treaty regulating
the
authentication
of its text, the
establishment of
the consent of
States to be
bound by the
treaty, the
manner or date
of its entry into
force,
reservations, the
functions of the
depositary and
other matters
arising
necessarily
before the entry
into force of the
treaty apply
from the time of
the adoption of
its text.
Article 25. Provisional application:

A treaty
or a part of a
treaty is applied
provisionally
pending its
entry into force
if:
 must be performed by them
in good faith.”
A second fundamental
INTRODUCTION TO PUBLIC rule, Article 46, is that a
INTERNATIONAL LAW
“party may not invoke the
provisions of its internal law
← t
as justification for its failure
he treaty
to perform a treaty.”
itself so
As to the territorial
provides;
scope of its applicability,
or (b) the
negotiatin Article 29 says: “Unless a
g States different intention appears
have in from the treaty or is
some otherwise established, a
other treaty is binding upon each
manner so party in respect of its entire
agreed. territory.”
← Unl
Interpretation of treaties
ess the treaty
otherwise Article 31 contains the rules for
provides or the the interpretation of treaties:
negotiating A treaty
States have shall be
otherwise interpreted in
agreed, the good faith in
provisional accordance with
application of a the ordinary
treaty or a part meaning to be
of a treaty with given to the
respect to a terms of the
State shall be treaty in their
terminated if context and in
that State the light of its
notifies the object and
other States purpose.
between which The
the treaty is context for the
being applied purpose of the
provisionally of interpretation of
its intention not a treaty shall
to become a comprise, in
party to the addition to the
treaty. text, including
its preamble
Application of treaties and annexes:
The first fundamental ←
rule on treaties is pacta sunt any
servanda. Article 26 of the agreement
Convention says that “every relating to
treaty in force is binding the treaty
which
upon the parties to it and
 was made
between
all the
parties in
connectio
n with the
conclusio
n of the
treaty; (b)
any
instrumen
t which
was made
by one or
more
parties in
connectio
n with the
conclusio
n of the
treaty and
accepted
by the
other
parties as
an
instrumen
t related
to the
treaty.
There shall be taken into account,
together with the
context:
 term if it is es-
tablished that
the parties so
CHAPTER 3 intended.
THE LAW OF TREATIES
Article 31 combines
any various approaches to treaty
subsequen interpretation. Article 31(1)
t follows the “objective”
agreement approach, that is,
between interpretation according to
the parties
the ordinary meaning of the
regarding
words. This is
the
supplemented by the
interpretat
ion of the “teleological” approach in
treaty or Article 31(2), that is,
the interpretation according to
applicatio the telos or purpose of the
n of its treaty. Finally, Article 31(3)
provisions and (4) follow a
; “subjective” approach
any which honors special
subsequen meaning given by the
t practice parties.
in the
Where there are
applicatio
n of the ambiguities in the meaning
treaty of a treaty, resort may be
which made to supplementary
establishe sources. Articles 32 and 33
s the
are relevant:
agreement
Article 32. Supplementary means of
of the
interpretation.
parties Recourse
regarding may be had to
its supplementary
interpretat means of
ion; interpretation,
← including the
any preparatory
relevant work of the
rules of treaty and the
internatio circumstances
of its
nal law
conclusion, in
applicable order to confirm
in the the meaning
relations resulting from
between the application
the of Article 31, or
parties. to determine the
A special meaning when
the
meaning shall
interpretation
be given to a
according to Article 33.
Article 31:
Interpretation of
leaves the meaning ambiguous or
treaties
obscure; or
authenticated in
leads to a result which is manifestly two or more
absurd or unrea-
languages:
sonable.
1. W
hen a treaty has been authenticated in two
or more languages, the text
is equally authoritative in each language,
unless the treaty provides or
the parties agree that, in case of
divergence, a particular text shall
prevail.
A version
of the treaty in a
language other
than one of
those in which
the text was
authenticated
shall be
considered an
authentic text
only if the
treaty so
provides or the
parties so agree.
 the accident
which caused
the damage so
sustained took
INTRODUCTION TO PUBLIC
place on board
INTERNATIONAL LAW
the aircraft or in
the course of
← The any of the
terms of the operations of
treaty are embarking or
presumed to disembarking.”
have the same Respondent,
meaning in each while a
authentic text. passenger on
← Exc petitioner’s
ept where a jetliner as it
particular text descended to
prevails in land in Los
accordance with Angeles on a
paragraph 1,
trip from Paris,
when a
felt severe
comparison of
pressure and
the authentic
texts discloses a pain in her left
difference of ear, and the pain
meaning which continued after
the application the jetliner
of Articles 31 landed. Shortly
and 32 does not thereafter,
remove, the respondent
meaning which consulted a
best reconciles doctor who
the texts, having concluded that
regard to the she had become
object and permanently
purpose of the deaf in her left
treaty, shall be
ear. She then
adopted.
filed suit in a
In case there is California state
conflict among “official court, alleging
texts,” the language that is that her hearing
loss was caused
agreed by the parties as
by negligent
authoritative is followed.
maintenance
AIR FRANCE V. SAKS 470 US 392 and operation of
(Syllabus the jetliner’s
) Article 17 of pressurization
the Warsaw system. After
Convention the case was
makes air removed to
carriers liable Federal District
for injuries Court,
sustained by a petitioner
passenger “if moved for
summary proximately
judgment on the caused by the
ground that risks inherent in
respondent air travel; and
could not prove that normal
that her injury cabin pressure
was caused by changes qualify
an “accident” as an “accident”
within the within the
meaning of definition
Article 17, the contained in
evidence Annex 13 to the
indicating that Convention on
the International
pressurization Civil Aviation
system had as meaning “an
operated in a occurrence
normal manner. associated with
Relying on the operation of
precedent that an aircraft.”
defines the term
“accident” in
Article 17 as an
“unusual or
unexpected”
happening, the
District Court
granted
summary
judgment to
petitioner. The
Court of
Appeals
reversed,
holding that the
language,
history, and
policy of the
Warsaw
Convention and
the Montreal
Agreement (a
private
agreement
among airlines
that has been
approved by the
Federal
Government)
impose absolute
liability on
airlines for
injuries
 “occurrence,”
implies that the
drafters of the
CHAPTER 3 Convention
THE LAW OF TREATIES understood the
word “accident”
Held: to mean
Liability under something
Article 17 arises different than
only if a the word
passenger’s “occurrence.”
injury is caused Moreover,
by an Article 17 refers
unexpected or to an accident
unusual event or which caused
happening that the passenger’s
is external to the injury, and not
passenger, and to an accident
not where the which is the
injury results passenger’s
from the injury. The text
passenger’s own thus implies
internal reaction that, however
to the usual, “accident” is
normal, and defined, it is the
expected cause of the
operation of the injury that must
aircraft, in satisfy the
which case it definition rather
has not been than the
caused by an occurrence of
accident under the injury alone.
Article 17. And, since the
The text Warsaw
of the Warsaw Convention was
Convention drafted in
suggests that the French by
passenger’s continental
injury must be jurists, further
so caused. The guidance is
difference in the furnished by the
language of French legal
Article 17 meaning of
imposing “accident” —
liability for when used to
injuries to describe a cause
passengers of injury, rather
caused by an than the event of
“accident” and injury — as
Article 18 being a
imposing fortuitous,
liability for unexpected,
destruction or unusual, or
loss of baggage unintended
by an event.
 The above defenses under
interpretation of Article 20(1) of
Article 17 is the Warsaw
consistent with Convention, did
the negotiating not waive
history of the Article 17’s
Warsaw “accident”
Convention, the requirement.
conduct of the Nor can
parties thereto, enforcement of
and the weight Article 17 be
of precedent in escaped by
foreign and reference to the
American equation of
courts. “accident” with
While any “occurrence” in
standard Annex 13,
requiring courts which, with its
to distinguish corresponding
causes that are Convention,
“accidents” expressly
from causes that applies to
are aircraft accident
“occurrences” investigations
requires and not to
drawing a line principles of
that may be liability to
subject to passengers
differences as to under the
where it should Warsaw
fall, an injured Convention.
passenger is
only required to
prove that some
link in the chain
of causes was an
unusual or
unexpected
event external to
the passenger.
Enforcement of
Article 17’s
“accident”
requirement
cannot be
circumvented by
reference to the
Montreal
Agreement.
That Agreement
while requiring
airlines to waive
“due care”
 If a State
has been
induced to
42 INTRODUCTION TO PUBLIC conclude a
INTERNATIONAL LAW treaty by the
fraud-ulent
conduct of
Invalidity of Treaties.
another
The usual ground for invalidation of negotiating
contracts can also invalidate a treaty:
State, the State
error of fact, fraud, corruption or duress. may invoke the
Article 48. Error: fraud as
A State invalidating its
may invoke an consent to be
error in a treaty bound by the
as invalidating treaty.
its consent to be Article 50. Corruption of a
bound by the representative of a State:
treaty if the If the
error relates to a expression of a
fact or situation State’s consent
which was to be bound by
assumed by that a treaty has
State to exist at
been procured
the time when
through the
the treaty was
concluded and corruption of its
formed an representative
essential basis direcdy or
of its consent to indirectly by
be bound by the another
treaty. negotiating
Paragraph State, the State
1 shall not may invoke
apply if the such corruption
State in as invalidating
question its consent to be
contributed by bound by the
its own conduct treaty.
to the error or if Article 51. Coercion of a
the representative of a State:
circumstances The
were such as to expression of a
put that State on State’s consent
notice of a
to be bound by
possible error.
a treaty which
An error
has been
relating only to
procured by the
the wording of
coercion of its
the text of a
representative
treaty does not
through acts or
affect its
threats directed
validity; Article
against him
79 then applies.
Article 49. Fraud:
shall be without
any legal effect.
Article 52. Coercion of a State by
the threat or use of force:
A treaty is
void if its
conclusion has
been procured
by the threat or
use of force in
violation of the
principles of
international
law embodied
in the Charter of
the United
Nations.
Moreover, a violation of jus cogens
invalidates a treaty:

Article
53. Treaties
conflicting with
a peremptory
norm of general
international
law (jus
cogens):
 cogens. It is the intrinsic
nature of the rule that
disallows derogation.
CHAPTER 3 What are the rules considered to be jus
THE LAW OF TREATIES cogens ?

A treaty While there is wide

is void if, at the acceptance of the existence
time of its of jus cogens, there is wide
conclusion, it dispute as to what principles
conflicts with a rank as jus cogens. A 1966
peremptory Report of the International
norm of general Law Commission said that
international there were suggestions to
law. For the specify what these were.
purposes of the Some examples given were:
present (a) a treaty contemplating
Convention, a an unlawful use of force
peremptory contrary to the provisions of
norm of general the Charter; (b) a treaty
international contemplating the
law is a norm performance of any other
accepted and act criminal under
recognized by international law; (c) a
the
treaty contemplating or con-
international
niving towards the
community of
commission of acts such as
States as a
trade in slaves, piracy, or
whole as a
genocide. But the
norm from
Commission decided not to
which no
derogation is stipulate a list of jus cogens
permitted and rules for fear of being
which can be misunderstood and for fear
modified only of prolonged debate.
by a subsequent A state, however, can
norm of general lose the right to assert the
international invalidity of a treaty. The
law having the
following rules apply:
same character.
Article
Note, however, that
45. Loss of a
the definition quoted here is
right to invoke
based on the legal effect of
a ground for
the rule and not on its
intrinsic nature. It seems to invalidating,
say that the rule is jus terminating,
cogens because no withdrawing
derogation from it is from or
permitted. However, what suspending the
jus cogens really means is operation of a
that no derogation is treaty:
allowed because it is jus
 A State
may no longer
invoke a ground
for invalidating,
terminating,
withdrawing
from or
suspending the
operation of a
treaty under
Articles 46 to
50 or Articles
60 and 62 if,
after becoming
aware of the
facts:
it shall
have expressly
agreed that the
treaty is valid
or remains in
force or
continues in
operation, as
the case may
be; or
 fundamental
importance.
A
violation is
44 INTRODUCTION TO PUBLIC
manifest if it
INTERNATIONAL LAW
would be
objectively
it must by evident to any
reason of its State
conduct be conducting
considered as itself in the
having matter in
acquiesced in accordance
the validity of with normal
the treaty or in practice and in
its maintenance good faith.
in force or in Article
operation, as 46. Provisions
the case may of internal law
be.
regarding
A state, moreover, with competence to
limited exception, may conclude
not plead its municipal treaties:
law as a ground for A State
may not invoke
invalidating a treaty
the fact that its
that has been entered. consent to be
Article bound by a
46. Provisions treaty has been
of internal law expressed in
regarding violation of a
competence to provision of its
conclude internal law
treaties: regarding
A State competence to
may not invoke conclude
the fact that its treaties as
consent to be invalidating its
bound by a consent unless
treaty has been that violation
expressed in was manifest
violation of a and concerned a
provision of its rule of its
internal law internal law of
regarding fundamental
competence to importance.
conclude A
treaties as violation is
invalidating its manifest if it
consent unless would be
that violation objectively
was manifest evident to any
and concerned a State
rule of its conducting
internal law of itself in the
 matter in done with the
accordance participation, at
with normal
practice and in
good faith.
Article
47. Specific
restrictions on
authority to
express the
consent of a
State:
If the
authority of a
representative
to express the
consent of a
State to be
bound by a
particular treaty
has been made
subject to a
specific
restriction, his
omission to
observe that
restriction may
not be invoked
as invalidating
the consent
expressed by
him unless the
restriction was
notified to the
other
negotiating
States prior to
his expressing
such consent.
Article 47 is an example of manifest
violation.

Amendment and Modification of

Treaties.
A distinction is
made between
amendment and
modification of
a treaty.
Amendment is a
formal revision
 treaties, Article 40 provides
for the possibility of
amendments which will
CHAPTER 3 affect only some states but
THE LAW OF TREATIES only after all parties have
been given the opportunity
least in its initial stage, by to consider the proposed
all the parties to the treaty. amendments. Article 41, for
Modification, on the other its part, allows for
hand, involves only some of modification of a treaty by
the parties. two or more of the parties.
The general rule on
Amendment
amendments, found in
Article 40. Amendment of
Article 39, is that a “treaty
multilateral treaties:
may be amended by
Unless
agreement of the parties.”
the treaty
The procedure that is
otherwise
followed is the same as that
provides, the
for the formation of treaties.
amendment of
The process is simple
multilateral
enough with regard to
treaties shall be
bilateral treaties. In
governed by the
recognition of the fact that
following
it is not easy to obtain the
paragraphs.
consent of all in multilateral
2. A
ny proposal to amend a multilateral
treaty as between all the parties
must be notified to all the contracting
States, each one of which shall
have the right to take part in:
←t become a party
he to the treaty
decision shall also be
as to the entitled to
action to become a party
be taken to the treaty as
in regard amended.
to such The
proposal; amending
(b) the agreement does
negotiatio not bind any
n and State already a
conclusio
party to the
n of any
treaty which
agreement
does not
for the
become a party
amendme
nt of the to the amending
treaty. agreement;
Every Article 30,
State entitled to paragraph 4(b),
applies in
relation to such
State.
Any State
which becomes
a party to the
treaty after the
entry into force
of the amending
agreement shall,
failing an
expression of a
different
intention by that
State:
←
be
considere
d as a
party to
the treaty
as
amended;
and (b) be
considere
d as a
party to
the
unamende
d treaty in
relation to
any party
to the
treaty not
bound by
the
amending
agreement
.
 nt
by
the
othe
46 INTRODUCTION TO PUBLIC r
INTERNATIONAL LAW
part
ies
Modification of
Article thei
r
41. Agreements
righ
to modify
ts
multilateral
und
treaties between er
certain of the the
parties only — treat
Two or y or
more of the the
parties to a perf
multilateral orm
treaty may anc
conclude an e of
agreement to thei
modify the r
treaty as obli
between gati
themselves ons;
alone if: (ii)
doe
←
s
the
not
possibility
relat
of such a
e to
modificati a
on is pro
provided visi
for by the on,
treaty ; or dero
(b) the gati
modificati on
on in fro
question m
is not whi
prohibited ch
by the is
treaty inco
and: mpa
← tible
d with
oes the
not effe
affe ctiv
ct e
the exe
enjo cuti
yme on
 of performance and change of
the fundamental conditions
obje (rebus sic stantibus).
ct
and Material breach
pur Article
pos
60. Termination
e of
the or suspension of
treat the operation of
y as a treaty as a
a consequence of
who its breach:
le. A
2. Unles s in a material breach
case falling under of a bilateral
paragraph 1(a) the treaty by one of
treaty
the parties
entitles the
otherwise
other to invoke
provides, the
the breach as a
parties in
ground for ter-
question shall
minating the
notify the other
treaty or
parties of their
suspending its
intention to
operation in
conclude the
whole or in
agreement and
part.
of the
modification to A
the treaty for material breach
which it of a multilateral
provides. treaty by one of
the parties
Termination of Treaties.
entitles:
A treaty may be
terminated or suspended
according to the terms of
the treaty or with the
consent of the parties. A
treaty with a definite period
may also expire. It may also
end when the purpose for
the treaty has already been
achieved. But a mere
change of government or
severance of diplomatic
relations does not terminate
or suspend a treaty.
Three other important
modes of terminating a
treaty are material breach,
impossibility of
 v
e
s

CHAPTER 3 a
THE LAW OF TREATIES n
d
the
other t
parties by h
unanimou e
s
agreement d
to e
f
suspend
a
the
u
operation l
of the t
treaty in i
whole or n
in part or g
to
terminate S
t
it either:
a
← t
i e
n ,
t o
h r
e
← as between all the
r parties;
e ←
l a
a party
t
specially
i
o affected
n by the
s breach to
invoke it
b
as a
e
t ground
w for
e suspendin
e g the
n
operation
t of the
h treaty in
e whole or
m in part in
s
the
e
l relations
between
 itself and article, consists
the in:
defaulting ←
State; a
← repudiatio
any n of the
party treaty not
other than sanctione
the
d by the
defaulting
State to present
invoke the Conventio
breach as n; or
a ground ←
for the
suspendin violation
g the of a
operation
provision
of the
essential
treaty in
whole or to the
in part accomplis
with hment of
respect to the object
itself if or
the treaty purpose
is of such of the
a treaty.
character
The
that a
foregoing
material
breach of paragraphs are
its without
provisions prejudice to any
by one provision in the
party treaty
radically applicable in
changes the event of a
the
breach.
position
Paragraph
of every
s 1 to 3 do not
party with
respect to apply to
the further provisions
performan relating to the
ce of its protection of
obligation the human
s under person
the treaty. contained in
A material treaties of a
humanitarian
breach of a
character, in
treaty, for the
particular to
purposes of this provisions
prohibiting any
form of
reprisals against
persons
protected by
such treaties.

Supervening impossibility of
performance
Article 61. Supervening
impossibility of performance:

A party
may invoke the
impossibility of
performing a
treaty as a
ground for
terminating or
withdrawing
from it if the
impossibility
results from the
permanent
disappearance
or destruction
of an object
indispensable
for the
execution of the
treaty. If the
impossibility is
temporary, it
may be invoked
only as a
ground for
suspending the
operation of the
treaty.
 from the treaty
unless:
← t
INTRODUCTION TO PUBLIC he
INTERNATIONAL LAW existence
of those
← Imp circumsta
ossibility of nces
performance constitute
may not be d an
invoked by a essential
party as a basis of
ground for the
terminating, consent of
withdrawing the parties
from or to be
suspending the bound by
operation of a the treaty;
treaty if the and (b)
impossibility is the effect
the result of a of the
breach by that change is
party either of radically
an obligation to
under the treaty transform
or of any other the extent
international of
obligation owed obligation
to any other s still to
party to the be
treaty. performed
under the
Rebus sic stantibus treaty.
Article 62. Fundamental change of A
circumstances: fundamental
change of
A
fundamental circumstances
change of may not be
circumstances invoked as a
which has oc- ground for
curred with terminating or
regard to those withdrawing
existing at the from a treaty:
time of the ←
conclusion of a if
treaty, and the treaty
which was not establishe
s a
foreseen by the
boundary;
parties, may not
or (b) if
be invoked as a
the
ground for
fundamen
terminating or tal change
withdrawing is the
 result of a radical
breach by transformation
the party of the extent of
invoking the obligations
it either of imposed by it,
an may, under
obligation
certain
under the
conditions,
treaty or
afford the party
of any
affected a
other
internatio ground for
nal invoking the
obligation termination or
owed to suspension of
any other the treaty.
party to
the treaty.
If, under
the foregoing
paragraphs, a
party may
invoke a
fundamental
change of
circumstances
as a ground for
terminating or
withdrawing
from a treaty it
may also invoke
the change as a
ground for
suspending the
operation of the
treaty.

Article 62 is a
codification of the common
law principle of rebus sic
stantibus. But the modem
approach to it is restrictive.
As the ICJ said in the
Fisheries Jurisdiction case (ICJ Reports 1973),
international
law admits that
a fundamental
change in the
circumstances
which
determined the
parties to accept
a treaty, if it has
resulted in a
 by an
Exchange
of Notes
CHAPTER 3 in 1961.
THE LAW OF TREATIES Iceland
contended
But the Court also that the
added that the changes Court had
“must have increased the no
burden of the obligations to jurisdictio
n to hear
be executed to the extent of
the case
rendering performance and it also
something essentially submitted
different from the original that any
intention.” agreement
which it
The following three
had with
cases illustrate how difficult the United
it is to establish causes for Kingdom
the termination of treaties: not to
extend its
fisheries
FISHERIES
jurisdictio
JURISDICTION CASE
n, was no
(UNITED KINGDOM V.
ICELAND) longer
ICJ REP 1973 3 binding
due to a
[Th fundamen
e United tal change
Kingdom, of
as part of circumsta
what was nces since
known as that
“the Cod agreement
Wars,” .
applied to
[Th
the Court
e court
claiming
that the decided
proposed that it did
extension have
of jurisdictio
Iceland’s n. It also
exclusive considere
fisheries d that Art.
jurisdictio 62 of the
n from 12 Vienna
miles to Conventio
SO miles n on the
was a Law of
breach of Treaties
an represente
agreement d
between
customary
the two
internatio
states,
nal law.]
evidenced
 One of the the 1961
basic Exchange of
requirements Notes, must be
embodied interpreted, in
[Article 62] is the context of
that the change the assertion of
of changed
circumstances circumstances,
must have been as an indication
a fundamental by Iceland of
one. In this the reason why
respect the it regards as
Government of fundamental the
Iceland has, changes which
with regard to in its view have
developments in taken place in
fishing previously
techniques, existing fishing
referred ... to techniques. This
the increased inter-
exploitation of
the fishery
resources in the
seas
surrounding
Iceland and to
the danger of
still further
exploitation
because of an
increase in the
catching
capacity of
fishing fleets.
The Icelandic
statements
recall the
exceptional
dependence of
that country on
its fishing for its
existence and
economic
development.”
The
invocation by
Iceland of its ‘
vital interests ’,
which were not
made the
subject of an
express
reservation to
the acceptance
of the
jurisdictional
obligation under
 the originally
undertaken. In
respect of the
obligation with
which the Court
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
is here
concerned, this
pretation would condition is
correspond to wholly
the traditional unsatisfied; the
view that the change of
changes of
circumstances
circumstances
alleged by
which must be
Iceland cannot
regarded as
be said to have
fundamental or
transformed
vital are those
which imperil radically the
the existence or extent of the
vital jurisdictional
development of obligation
one of the which is
parties. imposed in the
1961 Exchange
of Notes. The
Moreover, compromissory
in order that a clause enabled
change of either of the
circumstances parties to
may give rise to submit to the
a ground for Court any
invoking the dispute between
termination of a them relating to
treaty it is also an extension of
necessary that it Icelandic
should have fisheries
resulted in a jurisdiction in
radical the waters
transformation above its
of the extent of continental
the obligations shelf beyond
still to be the 12-mile
performed. The limit. The
change must present dispute
have increased is exactly of the
the burden of character
the obligations anticipated in
to be executed the
to the extent of compromissory
rendering the clause of the
performance Exchange of
something Notes. Not only
essentially has the
different from jurisdictional
obligation not opinion
been radically from the
transformed in Court,
its extent; it has asking
remained what
precisely what were the
it was in 1961. legal
conseque
nces for
NAMIBIA
States of
CASE
ICJ REP 1971 the
16 continued
[Th presence
e Security of South
Council Africa in
had Namibia
resolved notwithst
that South anding
Africa’s Resolutio
Mandate n 276
over (1970).
South- The Court
West held that
Africa South
(Namibia Africa
) was was under
terminate an
d, but this obligation
had been to
ignored withdraw
by South its
Africa. administr
The ation in
Security Namibia.
Council It also
then held that
resolved, other
by States
Resolutio where
n 276 under an
(1970), obligation
that the not to
continued recognize
presence any acts
of South by South
Africa in Africa’s
Namibia administr
was ation in
illegal. It Namibia
sought an (see
advisory Chapter
5).]
 331). The Court
stated
conclusively in
CHAPTER 3 that Judgment
THE LAW OF TREATIES that the
Mandate ... ‘in
In
fact and in law,
examining this
is an
action of the
international
General
agreement
Assembly, it is
having the
appropriate to
character of a
have regard to
treaty or
the general
convention.’
principles of
(ICJ Rep 1962,
international
p. 330). The
law regulating
rules laid down
termination of a
by the Vienna
treaty
Convention on
relationship on
the Law of
account of
Treaties
breach. For even
concerning
if the mandate is
termination of a
viewed as
treaty
having the
relationship on
character of an
account of
institution, as is
breach (adopted
maintained, it
without a
depends on
dissenting vote)
those
may in many
international
respects be
agreements
considered as a
which created
codification of
the system and
existing
regulated its
customary law
application. As
on the subject.
the Court
In the light of
indicated in
these rules, only
1962 ‘this
a material
Mandate, like
breach of a
practically all
treaty justifies
other similar
termination,
Mandates’ was a
such breach
special type of
being defined
instrument
as:
composite in
nature and a
instituting a repudiation of
novel the treaty not
international sanctioned by
regime. It the present
incorporates a Convention; or
definite the
agreement. (ICJ violation of a
Rep 1962, p.
provision to terminate a
essential to the mandate for
accom- misconduct of
plishment of the the mandatory
and that no such
object or
power could
purpose of the
therefore be
treaty. (Art. 60, exercised by the
para. 3) United Nations,
General since it could
Assembly not derive from
Resolution 2145 the League
(XXI) greater powers
determines that than the latter
both forms of itself had. For
material breach this objection to
had occurred in prevail it would
this case. By be necessary to
stressing that show that the
South Africa mandates
‘has, in fact, system, as
disavowed the established
Mandate’, the under the
General League,
Assembly excluded the
declared in fact application of
that it had the general
repudiated it. principle of law
The resolution that a right of
in question is termination on
therefore to be account of
viewed as the breach must be
exercise of the presumed to
right to exist in respect
terminate a of all treaties,
relationship in except as
case of a regards
deliberate and provisions
persistent relating
violation of
obligations
which destroys
the very object
and purpose of
that
relationship.
It has
been contended
that the
Covenant of the
League of
Nations did not
confer on the
Council of the
League power
 only in co-
operation with
the Mandatory
which had
committed a
INTRODUCTION TO PUBLIC INTERNATIONAL LAW serious breach
of the
to the protection obligations it
of the human had undertaken.
person To contend, on
contained in the basis of the
treaties of a principle of
unanimity
humanitarian
which applied
character (as
in the League
indicated in Art.
of Nations, that
60, para. 5, of
in this case
the Vienna
revocation
Convention).
could only take
The silence of a
place with the
treaty as to the
concurrence of
existence of
the Mandatory,
such a right
would not only
cannot be
run contrary to
interpreted as
the general
implying the
principle of law
exclusion of a
governing
right which has
termination on
its source
account of
outside the
breach, but also
treaty, in
postulate an
general
impossibility.
international
For obvious
law, and is
reasons, the
dependent on
consent of the
the occurrence
wrongdoers to
of
such a form of
circumstances termination
which are not cannot be
normally required.
envisaged when
a treaty is DANUBE DAM
concluded. CASE
(Hungary v.
Slovakia)
It has 37ILM162 (1998)
been suggested
that, even if the [In
Council of the 1977,
League had Hungary
possessed the and
power of Czechoslo
revocation of vakia
the Mandate in concluded
an extreme a treaty to
case, it could facilitate
not have been the
exercised constructi
unilaterally but on of
dams on culminati
the ng in the
Danube diversion
River. of the
Hungary Danube.
later Slovakia
suspended became a
works due party to
to the 1977
environm Treaty as
ental successor
concerns to
in Czechoslo
response vakia (see
to which above on
Czechoslo successio
vakia n).]
carried The 1977
out
Treaty does not
unilateral
contain any
measures.
Hungary provision
then regarding its
claimed termination..
the right The Court
to will now turn to
terminate
the first ground
the treaty,
at which advanced by
point the Hungary, that of
dispute the state of
was necessity. In
submitted this respect, the
to the Court
Internatio
nal Court
of Justice.
Hungary
also
submitted
that it was
entitled to
terminate
the Treaty
on the
ground
that
Czechoslo
vakia had
violated
Articles
of the
Treaty by
undertaki
ng
unilateral
measures,
 to that treaty
when it results
from that
CHAPTER 3 party’s own
THE LAW OF TREATIES breach of an
obligation
will merely
flowing from
observe that, that treaty.
even if a state
Hungary
of necessity is
further argued
found to exist,
that it was
it is not a entitled to
ground for the invoke a
termination of a number of
treaty. It may events which,
only be invoked cumulatively,
to exonerate would have
from its constituted a
responsibility a fundamental
State which has change of
failed to circumstances
implement a [changes of
treaty. political nature,
Hungary the reduced
also relied on economic
the principle of viability of the
the Project, and the
impossibility of progress of
performance as environmental
reflected in knowledge and
Article 61 ... international
[I]f the joint environmental
exploitation of law]. The
the investment changed
was no longer circumstances
possible, this advanced by
was originally Hungary are, in
because the Court’s
Hungary did not view, not of
carry out most such a nature’
of the works for that their effect
which it was would radically
responsible; transform the
Article 61, extent of the
paragraph 2, of obligations still
the Vienna to be performed
Convention in order to
expressly accomplish the
provides that Project. A
impossibility of fundamental
performance change of
may not be circumstances
invoked for the must have been
termination of a unforeseen; the
treaty by a party existence of the
circumstances would lead to
must have the putting into
constituted an operation of
essential basis [the unilateral
of the consent measure],
of the parties to Czechoslovakia
be bound by the did not act
treaty. unlawfully.
106. ... In the
[I]t is only a Court’s view,
material breach therefore, the
of the treaty notification of
itself, by a State termination by
party to that Hungary on 19
treaty, which
May 1992 was
entitles the
premature.
other party to
rely on it as a
ground for
terminating the
treaty. The
violation of
other treaty
rules or of rules
of general
international
law may justify
the taking of
certain
measures,
including
countermeasure
s, by the injured
State, but it
does not
constitute a
ground for
termination
under the law of
treaties.
109. ...
Czechoslovakia
violated the
Treaty only
when it diverted
the waters of
the Danube into
the bypass canal
in October
1992. In
constructing the
works which
 except in cases
of special
urgency, shall
not be less than
INTRODUCTION TO PUBLIC INTERNATIONAL LAW three months
after the receipt
of the
Procedure for the Termination of notification, no
Treaties party has raised
Article any objection,
65. Procedure to the party
be followed making the
with respect to notification may
invalidity, carry out in the
termination, manner
withdrawal provided in
from or Article 67 the
suspension of measure which
the operation of it has proposed.
a treaty If,
— however,
A party objection has
which, under been raised by
the provisions any other party,
of the present the parties shall
Convention, seek a solution
invokes either a through the
defect in its means indicated
consent to be in Article 33 of
bound by a
the Charter of
treaty or a
the United
ground for
Nations.
impeaching the
validity of a Nothing
treaty, in the foregoing
terminating it, paragraphs
withdrawing shall affect the
from it or rights or
suspending its obligations of
operation, must the parties
notify the other under any
parties of its provisions in
claim. The force binding
notification the parties with
shall indicate
regard to the
the measure
settlement of
proposed to be
disputes.
taken with
respect to the Without
treaty and the prejudice to
reasons Article 45, the
therefor. fact that a State
If, after has not
the expiry of a previously
period which, made the
notification common
prescribed in consent agree to
paragraph 1 submit the
shall not dispute to
prevent it from arbitration;
making such
notification in
answer to
another party
claiming
performance of
the treaty or
alleging its
violation.
Article
66. Procedures
for judicial
settlement,
arbitration and
conciliation:
If, under
paragraph 3 of
Article 65, no
solution has
been reached
within a period
of 12 months
following the
date on which
the objection
was raised, the
following
procedures
shall be
followed:
any one
of the parties to
a dispute
concerning the
application or
the
interpretation of
Article 53 or 64
may, by a
written
application,
submit it to the
International
Court of Justice
for a decision
unless the
parties by
 65 shall be
carried out
through an
instrument
CHAPTER 3
communicated
THE LAW OF TREATIES
to the other
any one of parties. If the
the parties to a instrument is
dispute not signed by
concerning the the Head of
application or State, Head of
the Government or
interpretation of Minister for
any of the other Foreign Affairs,
articles in Part the
V of the present representative of
Convention may the State
set in motion the communicating
procedure it may be called
specified in the upon to produce
Annex to the full powers.
Convention by Article 68.
submitting a Revocation of
request to that
notifications and
effect to the
instruments
Secretary-
General of the provided for in
United Nations. Articles 65 and
Article 67. 67:
Instruments for A
declaring notification or
invalid, instrument
terminating, provided for in
withdrawing Article 65 or 67
from or may be revoked
suspending the at any time
operation of a before it takes
treaty — effect.
← The notification provided for
Authority to Terminate
under Article 65, paragraph
must be made in writing. While the Vienna
← Any Convention enumerates
act declaring those who have the capacity
invalid, to enter into treaties, it does
terminating, not say who may terminate
withdrawing a treaty. Logically, however,
from or the authority to terminate
suspending the should also belong to the
operation of a one who has the authority to
treaty pursuant enter into the treaty. In the
to the provisions
Philippines, however, as in
of the treaty or
the United States, the
of paragraphs 2
authority to conclude
or 3 of Article
treaties is shared between
the Senate and the not yet ripe for judicial
President. Can the President review: “The Judicial
unilaterally terminate a Branch should not decide
treaty? Goldwater v. issues affecting the
6
Carter, discussed this allocation of power between
question relative to the President and Congress
President Carter’s until the political branches
termination of the defense reach a constitutional
treaty with Taiwan. No impasse. Otherwise, we
decision was reached except would encourage small
to say that the matter was groups or even individual

‘444 U.S. 996 (1979).

 Article 11. Boundary regimes
A
succession of
56 INTRODUCTION TO PUBLIC States does not
INTERNATIONAL LAW
as such affect:
(a) a boundary
Members of Congress to established by a
seek judicial resolution of treaty ; or (b)
issues before the normal obligations and
political process has the rights
established by a
opportunity to resolve the
treaty and
conflict.”
relating to the
Succession to treaties. regime of a
When one state ceases boundary.
to exist and is succeeded by Article 12. Other territorial regimes
another on the same ← A
territory, the question arises succession of
whether the new state is States does not
bound by the commitments as such affect:
made by its predecessor. (a) obligations
This subject is taken up by relating to the
the 1978 Vienna use of any
Convention on the territory, or to
Succession of States with restrictions
upon its use,
Respect to Treaties which
established by a
entered into force on
treaty for the
November 6,1996.
benefit of any
The Convention
territory of a
follows the “clean slate” foreign State
rule. Article 16 says: “A and considered
newly independent State is as attaching to
not bound to maintain in the territories in
force, or to become a party question;
to, any treaty by reason rights
only of the fact that at the established by a
treaty for the
date of the succession of
benefit of any
States the treaty was in
territory and
force in respect of the
relating to the
territory to which the
use, or to
succession of States
restrictions
relates.” But a new state
upon the use, of
may agree to be bound by
any territory of
the treaties made by its
a foreign State
predecessor. and considered
The “clean slate" as attaching to
rule, however, does not the territories in
apply to treaties affecting question.
boundary regimes.
 ← A
succession of
States does not
as such affect:
(a) obligations
relating to the
use of any
territory, or to
restrictions
upon its use,
established by a
treaty for the
benefit of a
group of States
or of all States
and considered
as attaching to
that territory;
rights
established by
a treaty for the
benefit of a
group of States
or of all States
and relating to
the use of any
territory, or
 CHAPTER 3
THE LAW OF TREATIES

to restrictions upon its use, and considered as attaching to that

territory.
The
provisions of
the present
article do not
apply to treaty
obligations of
the predecessor
State providing
for the
establishment of
foreign military
bases on the
territory to
which the
succession of
States relates.
 Municipal law regulates
relations between individual
persons under the state
whereas international law
regulates relations between
states, They also differ
regarding their substance.
Chapter 4
Municipal law is a law of
INTERNATIONAL LAW AND MUNICIPAL LAW the sovereign over
individuals whereas
international law is a law
Dualism vs. Monism. between sovereign states.
When a domestic For the dualists, when
court is confronted with a international law and
problem and one of the municipal law conflict,
opposing parties relies on municipal law must prevail.
municipal law as the proper The dualists are positivists
solution and the other party with a strong emphasis on
claims that the problem state sovereignty.
should be solved by Opposite to the
international law, what is dualist theory is the
the court to do? In other Monistic Theory or
words, when there is Monism. Under this theory,
conflict between international law and
international law and domestic law belong to only
domestic law, which is to one system of law.
prevail? However, there are two
There are varying monist theories. One theory
theories which try to answer holds that municipal law
the question. The dualist or subsumes and is superior to
pluralist theory holds that international law, and a
international law and second theory, supported by
municipal law are Kelsen, holds that
essentially different from international law is superior
each other. They differ as to to domestic law. The
source. Municipal law is a superiority of international
product of local custom or law is seen as flowing from
of legislation whereas the a deep suspicion of local
sources of international law sovereigns and from the
are treaties and custom conviction that international
grown among states. They law can imbue the domestic
differ as regards the order with a sense of moral
relations they regulate. purpose.

58
 Population Case,' the Court
adverted to “a principle
which is self-evident
according to which a state
CHAPTER 4
INTERNATIONAL which has contracted a valid
LAW AND international obligation is
MUNICIPAL LAW bound to make in its
legislation such
Municipal Law in International Law.
modifications as may be
At present the necessary to ensure the
prevailing practice accepts fulfillment of the
dualism at least in its obligations undertaken.”
postulate that there are two
But even in dualism,
legal systems. There are
prevailing provisions in the two systems are not
treaties which recognize completely separated. Thus,
dualism. Thus, Article 27 of Article 38 recognizes the
the Vienna Convention on common teachings of
the Law of Treaties says, “A domestic law as part of
party may not invoke the international law.
provisions of its internal Barcelona Traction Case2
law as justification for its said:
failure to perform a treaty.” If the
Article 13 of the Court were to
Declaration of Rights and decide the case
Duties of States adopted by in disregard of
the International Law the relevant
Commission in 1949 institutions of
provides: “Every State has municipal law,
it would
the duty to cany out in good
without
faith its obligations arising
justification,
from treaties and other invite serious
sources of international law, legal
and it may not invoke difficulties. It
provisions in its constitution would lose
or its laws as an excuse for touch with
failure to perform this reality.... It is to
duty.” This follows the rules generally
dualist tradition and blocks accepted by
domestic law from entry municipal
into the international arena. systems,... and
Thus, a state which has not to the
violated a provision of municipal law
international law cannot of a particular
justify itself by recourse to State, that
its domestic law. Moreover, international
a state which has entered law refers.
into an international For a situation,
agreement must modify its moreover, where the court
law to make it conform to must decide a dispute which
the agreement. In Exchange turns not upon international
of Greek and Turkish
law but upon domestic law,
as in the Brazilian Loans
Case3 the Court stated what
it must do: “Once the Court
has arrived at the
conclusion that it is
necessary to apply the

'Advisory Opinion PCU

2
[1964] ICJ Rep.
Trance v. Brazil, PCU
 incorporation. Blackstone
expressed this in his
Commentary when he said
60 INTRODUCTION TO PUBLIC that:
INTERNATIONAL LAW the law of
nations,
municipal law of a wherever
particular country, there any
seems to be no doubt that it question
must seek to apply it as it arises which
would be applied in that is properly
country....” the object of
its
International Law in Domestic Law.
jurisdiction,
Dualism also rules is here
when it comes to entry of adopted in
international law into the its full
domestic sphere. extent by
International law, unless it the common
is made part of the domestic law, and it
system, has no role in the is held to be
settlement of domestic part of the
conflicts. law of the
How does land.
international law become What does Philippine
part of domestic law for law follow? In the case of
“dualists”? In this regard, treaties as international law,
there are two theories. The they become part of the law
first is the doctrine of of the land when concurred
transformation. This is in by the Senate in
based on a strict dualist accordance with Article VII,
approach. Since the two Section 21 of the
systems are distinct and Constitution which sets
operate separately, for
down the mechanism for
international law to become
transforming a treaty into
part of domestic law it must
binding municipal law. With
be expressly and
regard to customary law and
specifically transformed
treaties which have become
into domestic law through
customary law, by saying
the appropriate
that the Philippines “adopts
constitutional machinery
the generally accepted
such as an act of Congress
or Parliament. This doctrine principles of international
flows by analogy from what law as part of the law of the
is applicable to treaties. land,” the Constitution
Treaties do not become part manifests its adherence to
of the law of a state unless the “dualist” theory and at
it is consented to by the the same time adopts the
state. incorporation theory and
The other theory is thereby makes international
the doctrine of law part of domestic law.
This provision makes the
Philippines one of the states
which make a specific
declaration that
international law has the
force also of domestic law. 4
International law

4
Similar provisions
are found in the Austrian
Constitution, Article 9:
“The generally recognized
rules of international law
shall be considered as
component parts of the
Federal Law,” and in Article
25 of the Constitution of the
Federal Republic of
Germany: “The general
rules of public international
law are an integral part of
federal law.”
 generally
accepted
principles of
international
CHAPTER 4
INTERNATIONAL LAW AND MUNICIPAL LAW law as part of
the law of the
therefore can be used by Nation.” And in
a resolution
Philippine courts to settle
entitled
domestic disputes in much “Universal
the same way that they Declaration of
would use the Civil Code or Human Rights”
the Penal Code and other and approved
laws passed by Congress. by the General
Assembly of the
What elements of United Nations
international law become of which the
part of Philippine law by Philippines is a
incorporation through member, at its
Article II, Section 2? Since plenary meeting
treaties become apart of on December
Philippine law only by 10, 1948, the
right to life and
ratification, the principle of
liberty and all
incorporation applies only
other
to customary law and to
fundamental
treaties which have become rights as applied
part of customary law. This to all human
distinction, however, is beings were
sometimes blurred in some proclaimed. It
Philippine Supreme Court was there
decisions.5 resolved that
There have been “All human
beings are bom
occasions when the
free and equal
Supreme Court made use of
in degree and
international law to settle
rights”
domestic problems. In
(Art. 1); that
Mejojfv. Director of “Everyone is
6
Prisons, an alien of entitled to all
Russian descent who had the rights and
been detained pending freedom set
execution of the order of forth in this
deportation was ordered Declaration,
released on bail when after without
two years the deportation distinction of
order could not be carried any kind, such
out because no ship or as race, color,
country would take him. sex, language,
The Court said in part:7 religion,
political or
Moreover,
other opinion,
by its
nationality or
Constitution
social origin,
(Art. II, Sec. 3)
property, birth,
the Philippines
“adopts the
or other status”
(Art.
2)\ that
“Everyone has
the right to an 'See Aloysius Llamzon,
effective THE GENERALLY
remedy by the ACCEPTED
competent PRINCIPLES OF
nationals for
INTERNATIONAL
acts violating
LAW: TOWARDS A
the fundamental
rights granted STRUCTURALLY
him by the CONSISTENT USE OF
Constitution or CUSTOMARY
by law” (Art. INTERNATIONAL LAW
8); that “No one IN PHIUPPINE
shall be COURTS, JD Thesis
subjected to
submitted to the Ateneo de Manila School of
arbitrary arrest, Law, 2002.
detention or <90 Phil. 70 (1951).
exile” (Art. 9);
etc.
Vd. at 73-4.
 is, moreover, at war with
the principle of
international morality.”10
Strictly speaking, therefore,
62 INTRODUCTION TO PUBLIC
INTERNATIONAL LAW the incorporation here was
done not via the
Constitution but by
Earlier, in Kuroda v.
ratification.
Jalandoni,8 the Court said
Likewise, the
that the provision “is not
international duty of
confined to the recognition
of rules and principles of protecting foreign
international law as embassies was recognized
contained in treaties to in JBL. Reyes v.
which our government may Bagatsing." The doctrine of
have been or shall be a immunity from suit of a
signatory.” Thus, although foreign state is likewise a
the Philippines was not a principle of international
signatory to the Hague law whose acceptance in
Convention and became a this jurisdiction has been
signatory to the Geneva established in a long line of
Convention only in 1947, cases starting with Raquiza
the Court held that a v. Bradford.'2 It was
Philippine Military summarized and reaffirmed
Commission had
in Baer v. TizonP
jurisdiction over war crimes
committed in violation of Conflict between International Law and
the two conventions prior to Domestic Law: International Rule
1947. Apparently, the Court This incorporation or
considered jurisdiction over reception of international
war crimes part of law into domestic
customary law. Philippine law can become
In Agustin v. Edu,9 a a problem when
case involving a
international law, whether
presidential Letter of
customary or conventional,
Instruction prescribing the
comes into conflict with
use of early warning
devices (EWD), the Court domestic law, whether
said that the constitutional constitutional or statutory.
provision “possesses Which law should prevail?
relevance.” The court It will
pointed out that the 1968
Vienna Convention on
Road Signs and Signals had
been ratified by the
Philippine government
under Presidential Decree
No. 207. “It is not for this 8
83 Phil. 171,178(1949).
country to repudiate a 9
88 SCRA 195,213 (February
commitment to which it had '°Id.
pledged its word. The "G.R. No. 65366, October 25,1983.
concept Pacta sunt I2
75 Phil. 50 (1945).
servanda stands in the way ”57 SCRA 1,6-8 (May 3,1974).
of such an attitude, which
 objectively evident to any
State conducting itself in
the matter in accordance
CHAPTER 4 with normal practice and in
INTERNATIONAL LAW AND MUNICIPAL LAW good faith.” If the treaty
that is declared
depend on whether the case
unconstitutional, however,
goes to a domestic court or
does not come under the
to an international tribunal.
It is an established principle exception, the treaty can be
that, before an international ignored domestically but
tribunal, a state may not only at the risk of
plead its own law as an international repercussions
excuse for failure to comply before an international
with international law. court.
“Every State has the duty to
carry out in good faith its Conflict between International Law and
Domestic Law: Municipal Rule
obligations arising from
treaties and other sources of The situation,
international law, and it however, is different when
may not invoke provisions the conflict comes before a
in its constitutions or its domestic court. Domestic
laws as an excuse for failure courts are bound to apply
to perform this duty.”14 In the local law. In
the advi-sory opinion on
international practice,
Exchange of Greek and
however, courts are very
Turkish Populations Case,'5
rarely confronted with such
the Court said: “this
clause ... merely lays stress a problem. The reason for
on a principle which is self- this is that courts are
evident, according to which generally able to give to
a State which has contracted domestic law a construction
valid international which does not conflict with
obligations is bound to international law. But
make in its legislation such should conflict arise, what
modifications as may be rule should be followed and
necessary to ensure the
what are the possible
fulfillment of the
consequences?
obligations undertaken.”
This principle of the
Vienna Convention has long
been established and is
generally recognized. But
an exception is made to the
rule by Article 46 of the
same Convention in cases
where the constitutional
“Article 13, Declaration of Rights and Duties
“violation was manifest and adopted by the International Law Commis
concerned a rule of its sion in 1949.
internal law of fundamental ,s
[1925] PCIJ, Ser. B,No. 10.
importance.” The same
article defines the violation
as “manifest if it would be
 Law of Treaties says, “A
party may not invoke the
provisions of its internal
64 INTRODUCTION TO PUBLIC law as justification for its
INTERNATIONAL LAW failure to perform a treaty.”
Of interest here is the
Conflict may arise manner in which the
between a state’s Supreme Court handled the
Constitution and challenge to the Senate’s
international law. ratification of the GATT
Conceivably, however, there Treaty in Tanada v.
should be no such conflict Angara}6 The petitioners in
between the Philippine the case argued that the
Constitution or statutes on “letter, spirit and intent” of
the one hand and customary the Constitution mandating
international law on the “economic nationalism”
other because the were violated by the “parity
Constitution when provisions” and “national
treatment clauses” scattered
formulated accepted the
in various parts not only of
general principles of
the WTO Agreement and its
international law as part of
annexes but also in the
the law of the land.
Ministerial Decisions and
Problems can more likely
Declarations and in the
arise between treaties on the
Understanding on
one hand and the
Commitments in Financial
Constitution or statutes on
Services. The petitioners
the other.
had relied on the
Should a conflict arise nationalistic provisions of
between an international Articles II and XII of the
agreement and the Constitution. In reply, the
Constitution, the treaty Court said:
would not be valid and By its
operative as domestic law. very title,
The Constitution, in Article Article II of the
VIII, Section 5, 2(a) Constitution is a
explicitly recognizes the “declaration of
power of the Supreme Court principles and
to declare a treaty state policies.”
unconstitutional. This does The counterpart
not mean, however, that a of this article in
the 1935
treaty that has been declared
Constitution is
unconstitutional loses its
called the
character as international “basic political
law. Under the “dualist” creed of the
theory, which the nation” by Dean
Constitution accepts, the Vicente Sinco.
unconstitutionality of a These principles
treaty is purely a domestic in Article II are
matter. As Article 27 of the not intended to
Vienna Convention on the be self-
executing
principles ready its power of
for enforcement judicial review,
through the and by the
courts. They are legislature in its
used by the enactment of
judiciary as aids laws. As held in
or as guides in the leading case
the exercise of of

l6
G.R. No. 118295, May 2,1997.
 competition and
trade practices
that are unfair.
In other words,
CHAPTER 4
the Constitution
INTERNATIONAL LAW AND MUNICIPAL LAW
did not intend to
Kilosbayan, pursue an
Incorporated isolationist
vs. Morato, the policy. It did not
principles and shut out foreign
state policies investments,
enumerated in goods and
Article II and services in the
some sections development of
of Article XII the Philippine
are not “self- economy. While
executing the Constitution
provisions, the does not
disregard of encourage the
which can give unlimited entry
rise to a cause of foreign
of action in the goods, services
courts. They do and investments
not embody into the country,
judicially it does not
enforceable prohibit them
constitutional either. In fact, it
rights but allows an
guidelines for exchange on the
legislation.” basis of equality
and reciprocity,
frowning only
All told,
on foreign
while the
competition that
Constitution
is unfair.
indeed
mandates a bias The position of the Court in Tafiada is a
in favor of retreat from an the earlier case of
Filipino goods, Manila Prince Hotel v.
services, labor Government Service
and enterprises, 17
Insurance System where
at the same the Court said that the
time, it command of Article XII,
recognizes the Section 10 was mandatory
need for and self-executory. Section
business 10 says: “In the grant of
exchange with rights, privileges, and
the rest of the
concessions covering the
world on the
national economy and
bases of
patrimony, the State shall
equality and
give preference to qualified
reciprocity and
limits protection Filipinos.” In awarding a
of Filipino contract to a Filipino
enterprises only corporation which had a
against foreign lower bid than that of a
Malaysian, the Court said Manila Prince
that the command of Hotel vs.
Section Government
“is a mandatory, positive Service
command which is Insurance
complete in itself and which System, et al„
this Court held
needs no further guidelines
that “Sec. 10,
or implementing laws or
second par., Art.
rules for its enforcement.
XII of the 1987
From its very words, the Constitution is a
provision does not require man-datory,
any legislation to put it in positive
operation. It is per se command
judicially enforceable.” The which is
Court, however, attempted complete in
to justify its new position itself and which
by saying: needs no further
guidelines or
It is true implementing
that in the laws or rules for
recent case of its

l7
GJt. No. 122156, February
3,1997.
 Agreement.
And we hold
that there are.

66 INTRODUCTION TO PUBLIC The municipal rule

INTERNATIONAL LAW for settling a conflict
between international
enforcement. agreement and legislation is
From its very different. The rule followed
words, the in the United States is that
provision does
treaties and statutes are
not require any
legislation to equal in rank and that, since
put it in neither is superior to the
operation. It is other, the rule followed is
per se judicially that as between an earlier
enforceable.”
treaty and a later law, the
However, as the
constitutional later one prevails. As the
provision itself United States Supreme
states, it is Court said: “This Court has
enforceable also repeatedly taken the
only in regard position that an Act of
to “the grants of
Congress ... is on a full
rights,
privileges and parity with a treaty, and that
concessions when a statute which is
covering subsequent in time is
national inconsistent with a treaty,
economy and
the statute to the extent of
patrimony” and
not to every conflict renders the treaty
aspect of trade null.”18 The same rule
and commerce. applies in the Philippines.
It refers to But again, the rule applies
exceptions
only in the domestic sphere.
rather than the
rule. The issue The treaty, even if contrary
here is not to later statute, remains as
whether this international law; while an
paragraph of international tribunal would
Sec.
not have the power to
10 of Art. XII is
self-executing reverse the nullification of
or not. Rather, the treaty in domestic law,
the issue is it can take appropriate
whether, as a action in favor of an
rule, there are aggrieved state.
enough
balancing Illustrative cases
provisions in
HEAD MONEY CASES EDYE V.
the Constitution ROBERTSON 112 U^. 580 (1884)
to allow the
Senate to ratify A treaty is primarily a compact
the Philippine between independent nations.
concurrence in It depends for
the WTO the enforcement
of its provisions negotiations
on the interest and
and the honor reclamations, so
of the far as the
governments injured party
which are chooses to seek
parties to it. If redress, which
these fail, its may, in the end,
infraction be enforced by
becomes the actual war. It is
subject of obvious that,
international

18
Reid v. Covert, 354 U.S. 1,18
(1957).
 same category
as other laws of
Congress by its
declaration that
CHAPTER 4 this Constitution
INTERNATIONAL LAW AND MUNICIPAL LAW and the laws
made in
with all this, the
pursuance
judicial courts thereof, and all
have nothing to treaties made or
do, and can give which shall be
no redress. made under
But a authority of the
treaty may also United States,
contain shall be the
provisions supreme law of
which confer the land.
certain rights A treaty,
upon the then, is a law of
citizens or the land; it
subjects of one becomes an an
of the nations act of Congress
residing in the whenever its
territorial limits provisions
of the other, prescribe a rule
which partake by which the
of the nature of rights of the
municipal law private citizen
and which are or subject may
capable of be determined.
enforcement as And when such
between private rights are of a
parties in the nature to be
courts of the enforced in a
country. An court of justice,
illustration of that court
this character is resorts to the
found in treaties treaty for a rule
which regulate of decision for
the mutual the case before
rights of citizens it as it would to
and subjects of a statute.
the contracting But, even
nations in in this aspect of
regard to rights
the case, there is
of property by
nothing in this
descent or
law which
inheritance
when the makes it
individuals irrepealable or
concerned are unchangeable.
aliens. The The
Constitution of Constitution
the United gives it no
States places superiority over
such provisions an act of
as these in the
Congress in this which, when
respect, which made, usually
may be repealed suspends or
or modified by destroys
an act of a later existing treaties
date. Nor is between the
there anything nations thus at
in its essential war.
character, or in In short,
the branches of we are of
the government opinion that, so
by which the far as a treaty
treaty is made, made by the
which gives it United States
this superior with any foreign
sanctity. nation can
A treaty is become the
made by the subject
President and
the Senate.
Statutes are
made by the
President, the
Senate, and the
House of
Representatives.
The addition of
the latter body
to the other two
in making a law
certainly does
not render it less
entitled to
respect in the
matter of its
repeal or
modification
than a treaty
made by the
other two. If
there be any
difference in
this regard, it
would seem to
be in favor of an
act in which all
three of the
bodies
participate. And
such is, in fact,
the case in a
declaration of
war, which must
be made by
Congress and
 entered at the
custom-house at
the port of New
York; the
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
plaintiffs
claiming that,
of judicial by the treaty
cognizance in with the
the courts of republic of San
this country, it Domingo, the
goods should be
is subject to
admitted on the
such acts as
same terms, that
Congress may is, free of duty,
pass for its as similar
enforcement, articles, the
modification, or produce and
repeal. manufacture of
the Hawaiian
WHITNEY v. ROBERTSON, 124 US. 190 (1888) FIELD, J. islands. The
defendant, who
The
was at the time
plaintiffs are
collector of the
merchants,
port, refused to
doing business
allow this
in the city of
claim, treated
New York; and
the goods as
in August,
dutiable articles
1882, they
under the acts
imported a large
of Congress....
quantity of
The
‘centrifugal and
plaintiffs
molasses
appealed from
sugars,’ the
the collector’s
produce and
decision to the
manufacture of
secretary of the
the island of
treasury, by
San Domingo.
whom the
These goods
appeal was
were similar in
denied. They
kind to sugars
then paid, under
produced in the
protest, the
Hawaiian
duties exacted,
Islands, which
and brought the
are admitted
present action
free of duty
to recover the
under the treaty
amount.... The
with the king of
defendant
those islands,
demurred to the
and the act of
complaint, the
congress passed
to carry the demurrer was
treaty into sustained, and
effect. They final judgment
were duly was entered in
his favor; to When the
review which stipulations are
the case is not self-
brought here. executing, they
can only be
enforced
pursuant to
legislation to
carry them into
effect, and such
... [t]he legislation is as
act of Congress much subject to
under which the modification
duties were and repeal by
collected, congress as
authorized their legislation
exaction. It is of
general
application,
making no
exception in
favor of goods
of any country.
It was passed
after the treaty
with the
Dominican
republic, and, if
there be any
conflict
between the
stipulations of
the treaty and
the
requirements of
the law, the
latter must
control.
A treaty
is primarily a
contract
between two or
more inde-
pendent nations,
and is so
regarded by
writers on
public law. For
the infraction of
its provisions a
remedy must be
sought by the
injured party
through
reclamations
upon the other.
 that can be done
without
violating the
language of
CHAPTER 4
either; but, if the
INTERNATIONAL LAW AND MUNICIPAL LAW
two are
upon any other inconsistent, the
subject. If the one last in date
treaty contains will control the
stipulations other: provided,
which are self- always, the
executing, that stipulation of
is, require no the treaty on the
legislation to subject is self-
make them executing.
operative, to If the
that extent they country with
have the force which the treaty
and effect of a is made is
legislative dissatisfied with
enactment. the action of the
Congress may legislative
modify such department, it
provisions, so may present its
far as they bind complaint to the
the United executive head
of the
States, or
government,
supersede them
and take such
altogether. By
other measures
the constitution,
as it may deem
a treaty is
essential for the
placed on the
protection of its
same footing,
interests. The
and made of like
courts can
obligation, with afford no
an act of redress.
legislation. Both Whether the
are declared by complaining
that instrument nation has just
to be the cause of
supreme law of complaint, or
the land, and no our country was
superior justified in its
efficacy is given legislation, are
to either over not matters for
the other. When judicial
the two relate to cognizance.
the same In Taylor
subject, the v. Morton, 2
courts will Curt. 454, 459,
always endeavor this subject was
to construe them very elaborately
so as to give considered at
effect to both, if the circuit by
Mr. Justice our government;
CURTIS, of this and that they
court, and he belong to
held that diplomacy and
whether a treaty legislation, and
with a foreign not to the
sovereign had administration
been violated by of the laws. And
him; whether he justly
the observed, as a
consideration of necessary
a particular consequence of
stipulation of these views,
the treaty had that, if the
been voluntarily power to
withdrawn by determine these
one party, so matters is vested
that it was no in congress, it is
longer wholly
obligatory on immaterial to
the other; inquire whether
whether the by the act
views and acts assailed it has
of a foreign departed from
sovereign had the treaty or not,
given just or whether such
occasion to the departure was
legislative by accident or
department of design, and, if
our government the latter,
to withhold the whether the
execution of a reasons were
promise good or bad. In
contained in a these views we
treaty, or to act fully concur. It
in direct follows,
contravention of therefore, that,
such promise, when a law is
were not
judicial
questions; that
the power to
determine these
matters had not
been confided to
the judiciary,
which has no
suitable means
to exercise it,
but to the
executive and
legislative
departments of
 and elaborate
consideration of
the subject, it
held that, ‘so
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
far as a treaty
made by the
clear in its United States
provisions, its with any
validity cannot foreign nation
be assailed can be the
before the subject of
courts for want judicial
of conformity cognizance in
to stipulations the courts of
of a previous this country, it
treaty not is subject to
already such acts as
executed. congress may
Considerations pass for its
of that character enforcement,
belong to modification, or
another repeal.’
department of
the government.
The duty of the
courts is to
construe and
give effect to
the latest
expression of
the sovereign
will. In Head-
Money Cases,
112 US. 580, 5
Sup. Ct. Rep.
247, it was
objected to an
act of congress
that it violated
provisions
contained in
treaties with
foreign nations,
but the court
replied that, so
far as the
provisions of
the act were in
conflict with
any treaty, they
must prevail in
all the courts of
the country;
and, after a full
 in any legal
system are not
necessarily
identical in their
nature or in the
extent of their
rights, and their
Chapter 5 nature depends
SUBJECTS OF INTERNATIONAL LAW: STATES upon the needs
of the
community.
Subjects of International Law. Throughout its
history, the
Subjects of
development of
international law are entities international
endowed with rights and law has been
obligations in the influenced by
international order and the
possessing the capacity to requirements of
take certain kinds of action international
on the international plane. life, and the
In other words, they are progressive
increase in the
those who have
collective
international personality.
activities of
They are actors in the
States has
international legal system already given
and are distinct from objects rise to instances
of international law. Objects of action upon
of international law are the international
those who indirectly have plane by certain
rights under or are entities which
beneficiaries of are not States....
international law through States enjoy the
subjects of international
fullest personality in
law.
international law. They will
Not all subjects of
be the concern of this
international law enjoy the
chapter. Other subjects will
same rights and obligations.
States remain the be treated in the following
predominant actors, but chapter.
other actors have come to
be recognized. In asserting
the international personality
of the United Nations, for
instance, the
Reparations Case1 had this to say:
'[1949] ICJ Rep.
The
subjects of law

71
 inhabitants render habitual
obedience. Commentators,
following the Montevideo
72 INTRODUCTION TO PUBLIC Convention, break down
INTERNATIONAL LAW
the concept into four
elements: people, territory,
States: Commencement of their government, and
Existence. sovereignty
There are various
People or Population
situations when the
As an element of a
question of statehood
state, “people” simply
arises. Examples are when
means a community of
a portion of a territory has
persons sufficient in
seceded, or when there is
number and capable of
foreign control over the
affairs of an entity which maintaining the permanent
claims to be a state, or existence of the community
when states have formed a and held together by a
union but continue to retain common bond of law. It is
some autonomy, and when of no legal consequence if
individual members of a they possess diverse racial,
federation claim statehood. cultural, or economic
interests. Nor is a minimum
The traditional
population required.
statement of the
characteristics which make Territory
an entity a state is found in A definite territory
the Montevideo Convention over which an entity
of 1933 on Rights and exercises permanent
Duties of States: “The state sovereignty is another
as a person of international element of a state. But as
law should possess the the Restatement (Third) on
following qualifications: (a) the Foreign Relations Law
a permanent population; (b) of the United States
a defined territory; (c) explains: “An entity may
government; satisfy the territorial
the capacity to enter into requirement for statehood
relations with other States.” even if its boundaries have
Hence, the definition of the not been finally settled, if
concept “state” which has one or more of its
found currency among boundaries are disputed, or
Philippine writers is this: it if some of its territory is
is a community of persons claimed by another state.
more or less numerous, An entity does not
permanently occupying a necessarily cease to be a
definite portion of territory, state even if all its territory
independent of external has been occupied by a
control, and possessing an foreign power or if it has
organized government to otherwise lost control of its
which the great body of territory temporarily.”2

2
§ 201. U.S.
courts generally
view the
Restatement as an
authoritative
scholarly statement
of contemporary
international law.
 other States.” This latter
element of sovereignty,
CHAPTER 5 however, is dependent on
SUBJECTS OF INTERNATIONAL LAW: STATES recognition.
An entity may in fact
Government possess all the elements of
Government, as an a state but if one or more
element of a state, is states do not extend
defined as “that institution recognition to it, the entity
or aggregate of institutions would not be able to
by which an independent establish relations with
society makes and carries those states. Incidentally,
out those rules of action
although the Philippines
which are necessary to
was not yet an independent
enable men to live in a
state in 1945, it was
social state, or which are
accepted as one of the
imposed upon the people
original signatories of the
forming that society by
those who possess the United Nations Charter.
power or authority of Self-determination
prescribing them.”3
Sovereignty as an
International law does not
specify what form a element of a state is related
government should have. to but not identical with the
Moreover, for purposes of broader concept of the right
international law, it is the of self-determination. In the
national government that post- World War II era,
has legal personality and it there have arisen numerous
is the national government new states. The impetus
that is internationally
behind the birth of new
responsible for the actions
states is the principle of
of other agencies and
self-determination of
instrumentalities of the
state. Finally, a temporary peoples. Both the
absence of government, for International Covenant on
instance during an Civil and Political Rights
occupation by a foreign and the International
power, does not terminate Covenant on Economic,
the existence of a state. Social, and Cultural Rights
Sovereignty assert the principle of self
determination of people in
Sovereignty means
identical language: “All
independence from outside
peoples have the right of
control. The Montevideo
self-determination. By
Convention expresses this
in positive terms as virtue of that right they
including “the capacity to freely determine their
enter into relations with political status and freely
pursue
3
U.S. v. Dorr, 2 Phil. 332, cited in Bacani v. NACOCO, 100 Phil.
468,471 (1956).
 determination, helping in
ascertaining the will of the
people, giving rights of
74 INTRODUCTION TO PUBLIC
INTERNATIONAL LAW participation in
international fora, inquiries
and reports, military force
their economic, social and to maintain order,
cultural development.” This formulation of criteria
principle has been affirmed
whether self- government
and reaffirmed by various
exists, and technical
documents of the United
assistance. But
Nations, notably the
international law has not
Declaration on the Granting
recognized a right of
of Independence to
secession from a
Colonial Countries and
legitimately existing state.
Peoples (1960) and the
Declaration on Principles Recognition of states.
of International Law When State A
concerning Friendly recognizes State B, it
Relations and Cooperation means that both recognize
among States in accordance the capacity of each other
with the Charter of the to exercise all the rights
United Nations. (1970). belonging to statehood.
The various levels of Recognition thus means the
claim to self-determination act of acknowledging the
may be broken down into capacity of an entity to
two main categories. The exercise rights belonging to
first is the establishment of statehood.
new states — that is, the
Can an entity claim to
claim by a group within an
be a state before it is
established state to break
recognized by other states?
away and form a new
There are two views on
entity. The second does not
this. One view, the
involve the establishment
declaratory theory, is that
of a new state. This can
recognition is merely
simply be claims to be free
“declaratory” of the
from external coercion, or
existence of the state and
the claim to overthrow
that its being a state
effective rulers and
depends upon its possession
establish a new
of the required elements
government, that is, the
and not upon recognition. A
assertion of the right of
recognizing state merely
revolution; or the claim of
accepts an already existing
people within an entity to
situation. The weight of
be given autonomy.
authority favors the
The UN has used
“declaratory view.”
various means to give effect
The other view, the
to self-determination:
resolutions of support for constitutive theory, is that
demands, sanctions for recognition “constitutes” a
offenses against self- state, that is, it is what
makes a state a state and
confers legal
 the USSR and
Yugoslavia.
The
CHAPTER 5 anarchic
SUBJECTS OF INTERNATIONAL LAW: STATES
situation in
personality on the entity. In Georgia led
some countries
effect, this merely
to refrain from
emphasizes the point that
recognizing that
states are under no country in
obligation to enter into accordance with
bilateral relations. But then the traditional
states may decide to criteria while in
recognize an entity as a the case of the
state even if it does not Republic of
have all the elements of a Bosnia and
Herzegovina the
state found in the
international
Montevideo Convention.
community
In an extended used
article on recent practice recognition in
of states relative to an attempt to
recognition, the author arrest what
draws the following looked like an
conclusion:4 inevitable slide
The main into anarchy.
conclusion to be Issues
drawn is that such as the
the question of presence of
rec-ognition of foreign forces
states has on a country’s
become less soil have been
predictable and treated
more a matter inconsistently
of political or glossed over.
discretion as a This is
result of recent understandable
practice. The because there
traditional are times when
criteria for train timetables
statehood retain cannot keep up
an uneasy with the march
existence of history. A
alongside the valid distinction
new EC could be made
Guidelines, between
which have situations which
been are the
particularly remnants of the
influential in Cold War such
relation to the as the
recognition of continuing
the new states presence of
emerging from former Soviet
troops in
Germany and detracted from
situations of their
hostile independence in
occupation such international
as the hold of eyes.
Belgrade- At the same
supported local time, the
Serbian forces absence of
over large slabs foreign forces
of Croatia and from the former
Bosnia and Yugoslav
Herzegovina. Republic of
Yet even in the Macedonia
latter case, the (which was
absence of accomplished
control by the when the
central Yugoslav
government People’s Army
over large parts completed its
of its territory
withdrawal
did not halt
from
recognition.
Macedonia in
Nor has the
March 1992)
continuing
has not led
unwelcome
states to accept
presence of
that territory as
‘Soviet’ forces
a fit subject of
in the Baltic
republics recognition.

4
Roland Rich, RECOGNITION OF
STATES: THE COLLAPSE OF
YUGOSLAVIA AND THE SOVIET
UNION, 4 Eur. J Int’l L, No. 1 (1993).
 imply a
statement of
recognition of
INTRODUCTION TO PUBLIC that new state.
INTERNATIONAL LAW However, other
states take a
Members different view.
hip of the UN Both Chile and
has also been Sri Lanka for
seen differently example,
by different having
countries participated in
insofar as a the UN General
vote in favour Assembly vote
may amount to admitting the
recognition. Republic of
India decided to Bosnia and
extend Herzegovina,
recognition nevertheless
before Croatia, considered it
Slovenia and necessary a few
Bosnia and days later to
Herzegovina extend
joined the UN. recognition on a
Sweden took bilateral basis.
the view that, It now
having seems that the
participated in ‘political
the unanimous realities’ have
decision of the gained primacy
UN General over the
Assembly to inclinations to
accept the maintain
membership of consistency by
Bosnia and applying
Herzegovina, accepted
‘this according criteria to test
to Swedish the fact of
practice means statehood. This
that Sweden has should not be
recognized the seen as
Republic of necessarily a
Bosnia and negative
Herzegovina.’ development.
The Swedish The application
view has of the
considerable traditional
merit in that criteria as the
membership of test for
the UN is only statehood and
open to states therefore the
and voting in rationale behind
favour of a new recognition was
member state’s largely amoral.
application How a
would seem to
government of the
came to be in Macedonian
effective case.
control over its The EC’s
territory was, 12 December
for the most 1992 Edinburgh
part, not summit dealt
considered to with the
be a relevant question of the
factor. The former
adoption of Yugoslav
conditions Republic of
leading to Macedonia but
recognition is did not advance
an attempt to the matter
introduce a significantly.
greater moral While falling
dimension. Yet short of
the enemy of
endorsing the
such a moral
line taken at the
stand is
Lisbon summit
inconsistency,
in relation to
the very factor
recognition, the
which the
Edinburgh
traditional
summit did not
criteria tried to
really review
avoid. And
this position
there can be
and simply left
fewer better
EC Foreign
examples of
inconsistency Ministers
than the seized of the
continuing question.
refusal to Authorities in
recognize the Skopje may
independence have no
of the former alternative but
Yugoslav to
Republic of
Macedonia
even though it
meets every
criterion and
every condition
but simply
refuses to
change its
name. The
‘political
realities’ in this
case seem to
have more to do
with internal
EC politics than
with the merits
 also be seen to
fit into this
category.
The end
CHAPTER 5
SUBJECTS OF INTERNATIONAL LAW: STATES of the Cold War
will lead to
consider the EC many new
position as an situations where
abdication of
peoples will not
the leadership
feel as
role hitherto
constrained as
played by the
in the past to
EC. This could
attempt to
lead the
exercise their
government in
Skopje to the right to self-
conclusion that determination.
it should seek In response to
UN membership this
thus by-passing phenomenon the
the EC international
altogether. In community is
such now faced with
circumstances, a far more
the issue of the complex
effect of a vote problem than in
for membership the recent past.
of the UN on Old ideas about
the question of equating the
recognition will status quo to
need to be stability, about
closely
the
considered by
unacceptability
UN members.
of secession,
Reverting
about
to the long-
considering
running debate
peoples only in
about whether
terms of the
recognition is
states they live
declaratory or
constitutive, in and about the
recent events inviolability of
seem to point existing
towards a trend international
to attempt to frontiers will be
constitute states re-examined.
through the When
process of considering a
recognition. question of
Bosnia and recognition,
Herzegovina is states will have
an obvious to ask
example but themselves
Ukraine can questions about
 whether such an two cases involving
action will recognition of government:
contribute to a
peaceful
resolution of a
conflict, and if
the answer is in
the affirmative,
the traditional
criteria for
statehood may
well have to be
finessed.
Nor
should we
expect this new
situation to be
limited to the
problems of
Europe. The
principles
involved are
universal and
the new issues
to be confronted
may soon be
seen to be
problems on a
global scale.

Recognition of Government.

Closely related to
recognition of states is
recognition of governments.
It means the act of
acknowledging the capacity
of an entity to exercise
powers of government of a
state.
If a change in
government in an existing
state comes about through
ordinary constitutional
procedure, recognition by
others comes as a matter of
course. The problem is
acute when a new
government within a state
comes into existence
through extra-constitutional
means. The following are
 What was the
status of the
Tinoco regime
in international
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
law. 2. Was
Great Britain
THE TINOCO estopped from
ARBITRATION
pursuing its
Great Britain v. Costa
Rica (1923) claims because
William H. Taft, Arbitrator it never
In January recognized the
1917, the Tinoco
Government of government
Costa Rica, either de jure or
under President de facto.
Alfredo Taft ...
Gonzalez, was But
overthrown by it is urged
Federico that many
Tenneco. leading
Tenneco’s Powers
government refused to
concluded recognize
certain contracts
the
with British
Tinoco
Corporations.
governme
Tenneco retired
nt. ...
and left the
Undoubte
country. After
Tenneco’s dly,
retirement the recognitio
old constitution n by other
was restored Powers is
and a Law of an
Nullities was important
passed evidential
annulling the factor in
contracts establishi
concluded ng proof
during the of the
Tenneco existence
regime. Great
of a
Britain made
governme
claims on the
nt in the
basis of the
society of
injuries done to
nations.
its nationals
caused by the The
non-
annulments.
recognitio
There were two
n by other
preliminary
nations of
questions: 1.
a
governme weight...
nt [it]
claiming cannot
to be a outweigh
national the
personalit evidence
y, is disclosed
usually by this
appropria record
te before me
evidence as to the
that it has de facto
not character
attained of
the Tinoco’s
independ governme
ence and nt....
control Sec
entitling ond. It
it by is ...
internatio argued on
nal law to behalf of
be classed Costa
as such. Rica that
But when the
recognitio Tinoco
n of a governme
governme nt cannot
nt is by be
such considere
nations d a de
determine facto
d by governme
inquiry, nt,
not into because it
its de was not
facto establishe
sovereign d and
ty and maintaine
complete d in
governme accord
ntal with the
control, constituti
but into on of
its Costa
illegitima Rica of
cy or 1871. To
irregularit hold that
y of a
origin, governme
their non- nt... does
recognitio not
n loses become a
somethin de facto
g of
governme
evidential
nt unless
it
conforms
to a
previous
constituti
on would
be to hold
that
within the
rules of
internatio
nal law a
revolutio
n contrary
to the
fundamen
tal law of
the
existing
governme
nt
 presentation of
claims based on
the de facto
existence of the
CHAPTER 5 previous
SUBJECTS OF INTERNATIONAL LAW: STATES government ...
does not work
cannot
an injury to the
establish succeeding
a new government in
governme the nature of a
nt. This fraud or breach
cannot of good faith.
be, and is
UPRIGHT v. MERCURY
not,true.... BUSINESS MACHINES CO.
Third. It Supreme Court of New York,
is further Appellate Division,
objected by First Department,
Costa Rica that 1961.
Great Britain by 13 A.D.2d 36,213
her failure to N.Y.S.2d 417
recognize the BREITEL
Tinoco , JUSTICE
government is PRESIDING.
estopped now
Plaintiff, an
to urge claims
individual, sues
of her subjects
as the assignee
dependent upon
the acts and of a trade
contracts of the acceptance
Tinoco drawn on and
government accepted by
Here the defendant in
executive of payment for
Great Britain business
takes the typewriters sold
position that the and delivered to
Tinoco it by a foreign
government corporation.
which it did not The trade
recognize, was acceptance is in
nevertheless a the amount of
de facto $27 307.45 and
government was assigned to
that could plaintiff after
create rights in dishonor by
British subjects defendant.
which it now
Involved
seeks to protect.
on this appeal is
Non-
only the legal
recognition
sufficiency of
may have aided
the succeeding the first
government to affirmative
come into defense. It
power; but alleges that the
subsequent foreign
corporation is e. The
the creature of acts of
the East such a de
German facto
Government, a governme
government not nt may
recognized by affect
the United private
States. It rights and
alleges, obligation
moreover, that s arising
such either as a
corporation is result of
an enterprise activity
controlled by in, or with
and that it is an persons or
arm and corporatio
instrument of ns within,
such the
government.
On
motion
addressed to its
sufficiency
Special Term
sustained the
defense. For the
reasons that
follow the
defense should
have been
stricken as
legally
insufficient....
A
foreign
governme
nt,
although
not
recognize
d by the
political
arm of the
United
States
Governm
ent, may
neverthele
ss have
de facto
existence
which is
juridically
cognizabl
 these benefits or, at least,
access to them may be
suspended.
80 INTRODUCTION TO PUBLIC Recognition of a
INTERNATIONAL LAW government, however, like
recognition of a state
territory involves a highly political
controlled judgment. The United
by such States, for instance, refused
de facto for many years to recognize
governme the government of the
nt. This is
People’s Republic of China
traditional
or of North Korea not
law.
(Russian because it was not obvious
Reinsura that these governments had
nce Co. v. effective control of their
Stoddard, territory but because the
240 N.Y. United States did not wish
149, 147 these governments to
N.E. 703; benefit from the legal
M.
effects of recognition.
Salimoff
& Co. v. Does admission of a
Standard government to the United
Oil Co., Nations mean recognition
262 N.Y. by all members? No. The
220,186 recognition is only to the
N.E. 679,
extent of the activities of
89 ALJi.
the organization.
345)
While recognition of
Consequences of Recognition or Non- a state is not the same as
recognition.
recognition of government,
In a world of growing the two often go together in
interdependence, the case of new states.
recognition or However, within
nonrecognition of established states,
government can have very governments come and go
serious consequences. A with no effect on
government, once recognition of the state. It
recognized, gains increased should be noted, moreover,
prestige and stability. The that recognition of
doors of funding agencies government does not mean
are opened, loans are approval of the recognized
facilitated, access to foreign government’s methods. Nor
courts and immunity from do diplomatic relations
suit are gained. Military connote approval; they are
and financial assistance intended merely to secure a
also come within reach. The convenience.
absence of formal An illustration of the
recognition, on the other political nature of
hand, bars an entity from all
recognition may be found
in United States history. In
the 19th century, Daniel
Webster said that nations
have the discretion to
govern themselves and to
choose which agency to
represent them. In 1792,
after the French Revolution,
Jefferson said that the US
would deal with any
government effectively in
power.
 Succession of States.

Succession or Continuity
States do not last
CHAPTER 5
SUBJECTS OF INTERNATIONAL LAW: STATES forever. The issue of state
succession can arise in
In subsequent years,
different circumstances.
however, the US required
Existing sovereignties can
more than just effective
disappear under different
control by the incoming
government. Woodrow circumstances. New
Wilson said that the US political sovereigns may
should not deal with arise as the result of
governments set up in decolonization,
violation of their dismemberment of an
constitution. After the existing state, secession,
Communists took over in annexation and merger. In
China in 1949, Truman said each of these cases an
that the US would not deal existing sovereignty
with a government imposed
disappears either in whole
by a foreign power. When
or in part and a new one
Chinese troops entered the
arises thus giving rise to
Korean war, Dulles said
questions of succession to
that the policy of the United
States was to recognize de rights and obligations.
facto governments when (1) The international law
they control government, and practice of states on
(2) are not confronted with this subject have been
active resistance in the confused. Some on one
country, and (3) are willing extreme suggest that the
to live up to international new state succeeds to no
obligations. rights or obligations of the
When is recognition predecessor state but begins
terminated? The answer is with a tabula rasa. Others
fairly simple: recognition of on another extreme hold
a regime is terminated that the successor state
when another regime is assumes all the obligations
recognized. For as long as a and enjoys all the rights of
state continues to meet the the predecessor. Others
qualifications of statehood, hold that succession has
its status as a state cannot varying effects on state
be “derecognized.” When rights and duties.
the United States The issue of
recognized the government continuity is also
of China in 1979, it particularly problematic.
derecognized the When a new state arises,
government of Taiwan, but what is its relation to the
continued with commercial, predecessor state? Is it
cultural, and other non- completely distinct from
governmental relationships. the predecessor state or is it
a continuation of the
 declared independence.
Majorities in Bosnia and
Herzegovina voted for
82 INTRODUCTION TO PUBLIC independence in a
INTERNATIONAL LAW referendum and this was
recognized by the
Arbitration Commission of
predecessor state? There are
Yugoslavia. The European
cases when there are no
Community recognized
problems. For instance, the
Slovenia, Croatia and
present India is a
Bosnia and these were
continuation of the former
admitted to the United
British India while Pakistan
Nations. Serbia and
is a completely new state.
Montenegro, however,
But there are also very
formed a new state called
problematic situations. Take
the Federal Republic of
for instance the Soviet
Yugoslavia and maintained
Union and the Yugoslavia.
that they were the
After the USSR was
continuation of the former
dissolved, Russia claimed to
mother state. This claim
be a continuation of the
was opposed by the other
USSR and therefore entitled
republics and by the
to membership not only in
international community. In
the UN but also in the
1992, the Security Council
Security Council. Russia’s
even declared that “the state
claim was supported by the
Decision of the Council of formerly known as the
Heads of State of the Socialist Federal Republic
Commonwealth of the of Yugoslavia has ceased to
Independent States on exist.”
December 21, 1991. But the In November 2000,
Baltic states of Estonia, Yugoslavia applied for
Latvia and Lithuania, which membership in the UN
had been annexed by the thereby abandoning its
Soviet Union in 1940, claim to continuity of
declared their
SFRY.
independence. The
European Community Succession of States
adopted a resolution The issues on
welcoming the restoration succession can be
of the sovereignty of the succession to territory, to
Baltic states in 1991. So did treaties, to property and
the United States. contracts. The rules may be
The problem of summarized thus:5
Yugoslavia, however, is When a state
more complicated. The succeeds
mother state was the another state
Socialist Federal Republic with respect to
of Yugoslavia. Over a particular
period of several months, territory, the
this state collapsed and the capacities,
component republics rights and
duties of the
predecessor

’The summary given here is

taken from THIRD
RESTATEMENT OF
FOREIGN RELATIONS
LAW.
 the new state
passes to the
new state.
With
CHAPTER 5
respect to
SUBJECTS OF INTERNATIONAL LAW: STATES
public debts,
state with subject again to
respect to that agreement
territory between the
terminate and states
concerned,
are assumed by
responsibility
the successor
for the public
state.
debt of the
As to
predecessor, and
state property, rights and
subject to obligations
agreement under its
between contracts,
predecessor and remain with the
successor states, predecessor
title passes as state, except as
follows: follows:
where part where part
of the territory of the territory
of a state of a state
becomes becomes
territory of territory of
another state,
another state,
local public
property of the
debt, and the
predecessor
rights and
state located in
obligations of
that territory
the predecessor
passes to the
state under
successor state;
contracts
where a
relating to that
state is territory, are
absorbed by transferred to
another state, the successor
property of the state;
absorbed state, where a
wherever state is absorbed
located, passes by another state,
to the absorbing the public debt,
state; and rights and
where obligations
under contracts
part of a state
of the absorbed
becomes a
state, past to the
separate state,
absorbing state;
property of the
where
predecessor
state located in part of a state
the territory of becomes a
separate state, agreements of
local public the absorbed
debt, and rights state are
and obligations terminated and
of the the
predecessor
state under
contracts
relating to the
territory of the
new state, pass
to the new state.
With respect to treaties (already
touched on in the Chapter on
Treaties), the Vienna Convention is
followed. The rules are:
When part
of the territory
of a state
becomes
territory of
another state,
the international
agreements of
the predecessor
state cease to
have effect in
respect of the
territory and the
international
agreements of
the successor
state come into
force there. This
reflects the
“moving treaty
rule” or
“moving
boundaries
rule.” If X has a
treaty with Y,
and part of Y is
transferred to Z,
X may seek
relief from
treaty obligation
under “rebus
sic stantibus.’’
When a
state is
absorbed by
another state,
the inter-
national
 and East Germany were
governed by the German
Unification Treaty of 1990.
84 INTRODUCTION TO PUBLIC The special case of
INTERNATIONAL LAW Hongkong’s return to China
in 1997 were governed by
international the 1984 Sino-British Joint
agreements of Declaration on the Question
the absorbing of Hongkong.
state become
Fundamental Rights of States.
applicable to
the territory of Independence
the absorbed Independence is the
state. Third capacity of a state to
states may provide for its own well-
appeal to rebus
being and development free
sic stantibus.
from the domination of
When a
other states, providing it
part of a state
does not impair or violate
becomes a new
their legitimate rights. As a
state, the new
state does not right, independence means
succeed to the the right to exercise within
international its portion of the globe, to
agreements to the exclusion of others, the
which the functions of a state.6 But
predecessor restrictions upon a state’s
state was party, liberty arising either from
unless, customary law or from
expressly or by treaties do not deprive a
implication, it state of independence.
accepts such Flowing from
agreements and
independence are certain
the other party
or parties other rights such as
thereto agree or jurisdiction over its
acquiesce. This territory and permanent
applies the population, the right to self
“clean slate defense and the right of
theory.” legation. Independence also
Pre- involves the duty not to
existing interfere in the internal
boundary and affairs of other states.
other territorial
Equality
agreements
continue to be Equality obviously
binding does not mean equality in
notwithstanding political or economic
. This is the uti power. Rather, it means
equality of legal rights
possidetis rule.
irrespective of the size or
The consequences of power of the state. Within
the re-unification of West
the General Assembly, the
doctrine

6
Island of Las Palmas Arbitration
[ 1928].
 states, vassal states,
semisovereign or dependent
states
CHAPTER 5 Federal state. This is
SUBJECTS OF INTERNATIONAL LAW: STATES a union of previously
autonomous entities.
means one state, one vote.
Various arrangements are
The UN Charter, Article 2,
possible. One arrangement
provides that “the
may involve placing full
Organization is based on
authority in a central organ
the principle of the
while another arrangement
sovereign equality of all its
might lodge authority in the
Members.” Hence, each has
individual entities to the
one vote in the General
detriment of the central
Assembly and every state
organ. The central organ
may aspire for the offices
will have personality in
in the various organs of the
international law; but the
UN.
extent of international
Peaceful co-existence personality of the
This right has been component entities can be a
developing over the past problem.
twenty years. The theory Mandated and Trust
was elaborated in 1954 as Territories. Mandated
the Five Principles of Co- territories were territories
existence by India and placed by the League of
China and includes mutual
Nations under one or other
respect for each other’s
of the victorious allies of
territorial integrity and
World War I. The mandate
sovereignty, mutual non-
aggression, non interference system was replaced by the
in each other’s affairs and trusteeship system after
the principle of equality. World War II under the
This has also been Trusteeship Council. For
expressed in other instance, the Carolines,
documents such as the 1970 Marianas and Marshall
Declaration on Principles of Islands were placed under
International Law Friendly
the trusteeship of the United
Relations and Cooperation
States. These have been in
Among States.
the process of evolution and
Some Incomplete Subjects. self-determination since
Protectorates. 1986.
Protectorates are largely of Taiwan. Taiwan seems
historical importance. They to be a non-state territory
are dependent states which
which de jure is part of
have control over their
China. But it is too affluent
internal affairs but whose
and strategically located to
external affairs are
controlled by another state. be over
They were sometimes
referred to as autonomous
86 INTRODUCTION TO PUBLIC
INTERNATIONAL LAW

looked by international
actors. It is interesting that
when Taiwan sought
accession to the GATT
treaty it did not do so as a
state but as part of a
“customs territory.”
The Sovereign Order
of Malta. There was a time
when the order had
sovereignty over Malta.
This has since been lost.
But the Italian Court of
Cassation in 1935
recognized its international
personality. Currently, it has
diplomatic relations with
over forty states.
The Holy See and
Vatican City. In 1929, the
Lateran Treaty was signed
with Italy which recognized
the state of the Vatican City
and “the sovereignty of the
Holy See in the field of
international relations as an
attribute that pertains to the
very nature of the Holy See,
in conformity with its
traditions and the demands
of its mission in the world.”
It has no permanent
population.
 Use of Nuclear Weapons
(1996) about the World
Health Organization:
The Court
observes that in
order to
Chapter 6 delineate the
field of activity
OTHER SUBJECTS OF INTERNATIONAL LAW
or the area of
competence of
an international
States are the
organization,
dominant subjects of one must refer
international law. But there to the relevant
are others: international rules of the
organizations, insurgents, organization
liberation movements, and, and, in the first
in a more limited way, place, to its
individuals. constitution.
From a formal
International Organizations. standpoint, the
constituent
Establishment, international personality, instruments of
immunity
international
In the matter of organizations
international organizations, are multilateral
treaties, to
there are three general
which the well-
questions that need to be
established
discussed. First, how do rules of treaty
they come into existence? interpretation
Second, do they have apply.
international personality? But they are
also treaties of a
Third, do they enjoy any
particular type;
kind of immunity? their object is to
An international create new
subjects of law
organization is an
endowed with a
organization that is set up certain
by treaty among two or autonomy, to
more states. It is different which the
from non-governmental parties entrust
organizations (NGO) which the task of
are set up by private realizing
common goals.
persons. The constituent
Such treaties
document of international
can raise
organizations therefore is a
specific
treaty. For this reason, only
problems of
states are members of
interpretation
international organizations.
owing, inter
As the ICJ put it in its
alia, to their
Advisory Opinion on the
character which is conventional
and at the same

87
 circumstances
involving the
responsibility of
a State, has the
88 INTRODUCTION TO PUBLIC United Nations,
INTERNATIONAL LAW as an
Organization,
time the capacity to
institutional; the bring an
very nature of international
the organization claim against
created, the the responsible
de jure or de
objectives
facto
which have
government
been assigned
with a view to
to it by its obtaining the
founders, the reparation due
imperatives in respect of the
associated with damage caused
the effective to the United
performance of Nations, (b) to
its functions, as the victim or to
well as its own persons entitled
practice, are all through him?
elements which
The Court answered the question after
may deserve
rephrasing it:
special attention
when the time Do the
comes to provisions of
interpret these the Charter
constituent relating to the
treaties. functions of the
Organization
That international
imply that the
organizations have
latter is
international personality empowered to
was established in the oft- assure its agents
quoted Reparations Case limited
(ICJ Advisory Opinion, protection?
1949) involving the These powers,
international personality of which are
essential to the
the United Nations. The
performance of
question raised was
the functions of
formulated thus: the
“I. In the Organization,
event of an must be
agent of the regarded as a
United Nations necessary
in the implication
performance of arising from the
his duties Charter. In
suffering injury discharging its
in functions, the
Organization entity
may find it possessing
necessary to objective
entrust its international
agents with personality and
important not merely
missions to be personality
performed in recognized by
disturbed parts them alone. As
of the world. in the case of
These agents Question 1(a),
must be ensured the Court
of effective therefore
protection. It is answers
only in this way Question 1(b) in
that the agent the affirmative.
will be able to
carry out his
duties
satisfactorily.
The Court
therefore
reaches the
conclusion that
the
Organization
has the capacity
to exercise
functional
protection in
respect of its
agents. The
situation is
comparatively
simple in the
case of Member
States, for these
have assumed
various
obligations
towards the
Organization.
But what
is the situation
when a claim is
brought against
a State which is
not a Member
of the
Organization?
The Court is of
opinion that the
Members of the
United Nations
created an
 are governed by
the “principle
of speciality,"
that is to say,
CHAPTER 6
OTHER SUBJECTS OF INTERNATIONAL LAW they are
invested by the
The Court had to States which
answer the question create them
because the UN Charter is with powers,
silent about the the limits of
organization’s international which are a
personality. In the case of function of the
other organizations, the common
charter itself might interests whose
specifically endow it with promotion those
international personality. States entrust to
But if it does not, them.
possession of international The
personality may be implied powers
from the functions of the conferred on
international
organization, as in the case
organizations
of the UN. are normally the
Although subject of an
international organizations express
have personality in statement in
their constituent
international law, their
instruments.
powers and privileges are Nevertheless,
by no means like those of the necessities
states. Their powers and of international
privileges are limited by the life may point
to the need for
constituent instrument that
organizations,
created them. To quote in order to
again from the Advisory achieve their
Opinion on the Use of objectives, to
possess
Nuclear Weapons cited
subsidiary
supra: powers which
The Court are not
goes on to point expressly
out that provided for in
international the basic
organizations instruments
are subjects of which govern
their activities.
international
It is
law which do
generally
not, unlike
accepted
States, possess a
that
general
international
competence.
International organization
organizations s can
 exercise
such
powers,
known as
“implied”
powers.

Immunities

Because they enjoy

international personality,
they can also be given the
immunities and privileges
of international persons.
Their immunities, however,
have for basis not
sovereignty, as it is for
states, but the need for the
effective exercise of their
functions.
In the case of the
United Nations, the
immunities are spelled out
in Article 105 of the UN
Charter:

The
Organization shall
enjoy in the territory
of each of its Members
such privileges and
immunities as are
necessary for the
fulfillment of its
purposes.
 instrument creating them a
clear example of the grant
of immunity is the 1946
INTRODUCTION TO PUBLIC General Convention on the
INTERNATIONAL LAW Privileges and Immunities
of the United Nations.
← Represent The Philippine Court
atives of the has affirmed the immunity
Members of the of other international
United Nations and organization in
officials of the International Catholic
Migration Commission v.
Organization shall
Calleja,1 Southeast Asian
similarly enjoy such
Fisheries Development
privileges and
Center v. Acosta, and Lasco
immunities as are
v. United Nations Revolving
necessary for the Fund for Natural Resources
independent exercise Exploration?
of their functions in A curious case,
connection with the however, is the case of
Organization. Kapisanan ng mga
← The Manggagawa v. The
General Assembly International Rice Research
may make Institute (IRRI) decided
recommendations jointly with the
with a view to International Catholic
determining the Migration case. IRRI was
details of the created not by a treaty but
application of by a Memorandum of
paragraphs 1 and 2 of Agreement between the
this Article or may Philippine Government on
propose conventions the one hand and the
to the Members of the Rockefeller and Ford
United Nations for Foundations, two private
this purpose. organizations. It is therefore
This has been not an international
supplemented by the organization. Initially, IRRI
General Convention on the was organized and
Privileges and Immunities registered with the
of the United Nations Securities and Exchange
(1946) and by the Commission as a private
Convention and Privileges corporation subject to all
of Specialized Agencies laws and regulations.
(1947). However, by virtue of Pres.
There is no common Decree No. 1620,
law doctrine recognizing promulgated on 19 April
the immunity of 1979, IRRI was granted the
international organizations. status, prerogatives,
privileges and immunities
Their immunities come
of an international
from the conventional
organization. The Supreme recognized the immunity
Court has consistently granted

'G.R. No. 85750, September

28,1990.
’G.R. Nos. 109095-109107,
February
23,1995.
 affairs of
international
organizations,
in accordance
CHAPTER 6 with
OTHER SUBJECTS OF INTERNATIONAL LAW international
practice, from
to IRRI declaring political
it to be on the pressure or
same footing as control by the
host country to
the International
the prejudice a
Catholic Migration member States
Commission. of the
The Court recognized organization,
that the Catholic Migration and to ensure
Commission was a the unhampered
performance of
“specialized agency” under
their functions.
the Charter of the United
The end result of the
Nations. Likewise, without
protective blanket that has
giving the reason why, it
been wrapped around IRRI
recognized the IRRI as an
is the efforts of employees
international organization.
to seek redress for
The Court said:
violations of labor rights
The grant
have been repeatedly
of immunity
from local rebuffed by the Supreme
jurisdiction to Court. For all practical
ICMC and IRRI purposes, they are denied
is clearly the protection given by the
necessitated by Constitution in Article XIII,
their Section 3 guaranteeing full
international
protection for labor.
character and
respective There have also been
purposes. The two cases involving the
objective is to immunity of the Asian
avoid the Development Bank (ADB).
danger of The bank’s Charter is a
partiality and treaty to which the
interference by Philippines is a party. The
the host country
first case was Department
in their internal
workings. of Foreign Affairs v.
The exercise of National Labor
jurisdiction by Relations Board,3 where the
the Department issue was whether the
of Labor in National Labor Relations
these instances Commission could assume
would defeat jurisdiction over a case of
the very illegal dismissal against
purpose of ADB. In upholding the
immunity, immunity of the ADB, the
which is to Court appealed to the
shield the
provisions of the ADB’s in connection
Charter: with the
Article 50(1) of the Charter provides: exercise of its
powers to
The Bank borrow money,
shall enjoy to guarantee
immunity from obligations, or
every form of to buy and sell
legal process, or underwrite
except in cases the sale of
arising out of or securities.

’G.R.No. 113191, September 18,1996.

 The Court reiterated what it had said in
World Health Organization v.
Aquino.*

92 INTRODUCTION TO PUBLIC It is a
INTERNATIONAL LAW recognized
principle of
international
Similar provisions are found in the
Headquarters Agreement. Thus, its law and under
Section 5 reads: our system of
separation of
The Bank powers that
shall enjoy diplomatic
inununity from immunity is
every form of essentially a
legal process, political
except in cases
question and
arising out of, or
courts should
in connection
refuse to look
with, the
beyond a
exercise of its
determination
powers to
by the executive
borrow money,
branch of the
to guarantee
obligations, or government,
to buy and sell and where the
or underwrite plea of
the sale of diplomatic
securities. immunity is
recognized and
The Court concluded:
affirmed by the
The above executive
stipulations of branch of the
both the Charter government.... it
and
is then the duty
Headquarters
of the courts
Agreement
to accept the
should be able,
claim of
nay well
immunity upon
enough, to
appropriate
establish that,
suggestion by
except in the
the principal
specified cases
law officer of
of borrowing
the government,
and guarantee
... or other
operations, as
officer acting
well as the
under this
purchase, sale
direction.
and
Hence, in
underwriting of
adherence to the
securities, the
ADB enjoys settled principle
immunity from that courts may
legal process of not so exercise
every form.... their jurisdiction
... as to
embarrass the
executive arm latter by
of the assuming an
government in antagonistic
conducting jurisdiction.
foreign The World Health
relations, it is
case was an original action
accepted
for certiorari and
doctrine that ‘in
such cases the prohibition to set aside
judicial respondent judge’s refusal
department of to quash a search warrant
government issued by him at the
follows the instance of Constabulary
action of the officers for the search and
political branch
seizure of the personal
and will not
effects of an official of the
embarrass the
World Health Organization.

G.R. No. L-35131, November 29,1972.

 achievement of
international
cooperation in
CHAPTER 6 solving
OTHER SUBJECTS OF INTERNATIONAL LAW international
problems of an
The second case was economic,
Jeffrey Liang (Hue Feng) v. social, cultural
People .5 The case involved and
a criminal complaint against humanitarian
Jeffrey Liang, an ADB character, and
official, for grave oral the promotion
defamation. Appeal was of human rights
made to the political and fundamental
character of Jeffrey Liang freedoms for all
as an agent of international human beings
organization. But the Court without
ruled that the immunity discrimination.
granted to officers and staff Article 1 of the
of the ADB was not Charter says
absolute; but limited to acts that the UN can
performed in an official include “all
capacity and could not other peace-
cover the commission of a loving states
crime such as slander or which accept
oral defamation in the name the obligations
of official duty. contained in the
The United Nations: Structure and present Charter
Powers and, in the
judgment of the
The principal
Organization,
international organization is
are able and will
the United Nations. It came
to carry out
into being on October these
24,1945, when the UN obligations.” As
Charter came into force. new
The membership now independent
includes almost all the nations arise,
world’s independent the number of
nations. Admission to members
membership is governed by continue to
Article 4 which says: grow.

The UN is The Purposes of the United Nations

a universal are:
organization To
charged with maintain
peacekeeping international
responsibilities, peace and
the development security, and to
of friendly that end: to take
effective
relations among
collective
nations, the
measures for the law, adjustment
prevention and or settlement of
removal of international
threats to the disputes or
peace, and for situations which
the suppression might lead to a
of acts of breach of the
aggression or peace;
other breaches To
of the peace, develop friendly
and to bring relations among
about by
nations based on
peaceful means,
respect for the
and in
conformity with principle of
the principles of equal rights and
justice and self-
international determination

G.R. No. 125865, March 26,2001.

 “essentially within the
domestic jurisdiction” of
any state. Article 2(7) says:
94 INTRODUCTION TO PUBLIC Nothing
INTERNATIONAL LAW
contained in the
present Charter
of shall authorize
peoples, the United
and to Nations to
take intervene in
other matters which
appropria are essentially
te within the
domestic
measures
jurisdiction of
to
any state or
strengthe
shall require the
n Members to
universal submit such
peace; matters to
To settlement
achieve under the
international co- present Charter;
operation in but this
solving inter- principle shall
national not prejudice
problems of an the application
economic, of enforcement
social, cultural, measures under
or humanitarian Chapter VII.
character, and in In the hierarchy of
promoting and
international organizations,
encouraging
the UN occupies a position
respect for
of preeminence. Article 103
human rights
and for says that “in the event of a
fundamental conflict between the
freedoms for all obligations of the Members
without of the United Nations under
distinction as to the present Charter and their
race, sex, obligations under any other
language, or international agreement,
religion; and their obligations under the
To be a present Charter shall
center for prevail.” This clause is
harmonizing the known as the “international
actions of constitutional supremacy
nations in the clause.”
attainment of
The principal organs
these common
of the UN are the General
ends.
Assembly, the Security
The UN, however, is Council, the Economic and
enjoined against intervening Social Council (ECOSOC),
in matters which are the Trusteeship Council, the
International Court of
Justice (ICJ), and the
Secretariat.

General Assembly
In the General
Assembly, all members are
represented. It has plenary
powers in the sense that it
“may discuss any question
or any matters within the
scope of the ... Charter.”
(Article 10)
The GA distinguishes
between “important
questions” and “other
questions.” Important
questions are decided by a
two-thirds majority of the
members voting and
present. “Other questions”
require only a
 possible. And an abstention
is considered a veto.

ECOSOC
CHAPTER 6
OTHER SUBJECTS OF INTERNATIONAL LAW The ECOSOC has 54
member states elected for
majority. The Charter three year terms. It has a
identifies what the large number of subsidiary
“important questions” are organs, among them the UN
and the GA may, by a Commission on Human
majority vote, identify other Rights and the Commission
important questions. on the Status of Women.
(Article 18[3])
Trusteeship Council
Security Council The Trusteeship
The Security Council Council supervises non-self
has “primary responsibility governing territories. Its
for the maintenance of jurisdiction has already
international peace and become very limited. Palau
security.” (Article 24[1]) was the last entity to be
There are 15 member under the Council. The
states, five of them Council suspended
permanent (China, France, operations after Palau
Russia [in place of the became independent on 1
former USSR], United October 1994.
Kingdom and the US). The
others are elected for two Secretariat
year terms in accordance The Secretariat “shall
with equitable geographic comprise a Secretary
representation. General and such staff as
the Organization may
The Security Council
require.” (Article 97) The
distinguishes between
Secretary General is elected
“procedural matters” and
to a five year term by the
“all other matters.” Matters
General Assembly upon the
that are not procedural
recommendation of the
require nine affirmative
Security Council, subject to
votes, including the
veto power. He is the chief
“concurring votes of the
administrator of the
permanent members.”
(Article 27[3]) But since organization and has the
the Charter does not specify power to “bring to the
what matters are attention of the Security
procedural, the Council Council any matter which
practice is that a decision in his opinion
on whether a matter is
procedural or not also
requires the concurrence of
the permanent members.
Hence, a double veto by the
permanent members is
 economic, military or
political.
The regional
96 INTRODUCTION TO PUBLIC organization of South East
INTERNATIONAL LAW Asian nations is the
ASEAN. It was established
may threaten the maintenance of international on 8 August 1967 in
peace and security.” (Article 99) Bangkok, Thailand, with the
International Court of Justice signing of the Bangkok
Declaration by the five
The International Court of Justice is the
principal judicial organ of the UN. original Member Countries
This will be treated in another chapter. namely Indonesia,
Malaysia, Philippines,
Other Agencies Singapore and Thailand.
Aside from the main Brunei Darussalam
organs of the UN, there are joined the Association on 8
also specialized agencies. January 1984. Vietnam
Some of these are: the
became the seventh member
United Nations Educational,
of ASEAN on 28 July 1995.
Scientific and Cultural
Laos and Myanmar were
Organization (UNESCO).
The International Civil admitted into ASEAN on 23
Aviation Organization July 1997. Cambodia also
(ICAO), the World Health became a member in 1999.
Organization (WHO), the The Bangkok
Food and Agricultural Declaration united the
Organization (FAO), the ASEAN Member Countries
World Bank and the in a joint effort to promote
International Monetary economic cooperation and
Fund (IMF). the welfare of the people in
Regional Organizations: ASEAN the region. The Bangkok
Declaration set out
Regional
guidelines for ASEAN’s
organizations also play an
activities and defined the
important role. But they are
aims of the organization.
neither organs nor
subsidiary organs of the
UN. They are autonomous
international organizations
having an institutional
affiliation with the UN by
concluding agreements with
the UN. (Article 5). They
are international institutions
created by international
agreements for the purpose
of dealing with regional
problems in general or with
specific matters be they
 community of caring
societies.
In 2003, the ASEAN
CHAPTER 6 Leaders resolved that an
OTHER SUBJECTS OF INTERNATIONAL LAW ASEAN Community shall
The ASEAN nations be established comprising
came together with three three pillars, namely,
main objectives in mind: to ASEAN Security
promote the economic, Community, ASEAN
social and cultural Economic Community and
development of the region ASEAN Socio- Cultural
through cooperative Community.
programs; to safeguard the ASEAN Member
political and economic Countries have adopted the
stability of the region following fundamental
against big power rivalry; principles in their relations
and to serve as a forum for with one another, as
the resolution of intra-
contained in the Treaty of
regional differences.
Amity and Cooperation in
The ASEAN Southeast Asia (TAC):
Declaration states that the
— mutual respect
aims and purposes of the for the
Association are: (1) to independence
accelerate economic , sovereignty,
growth, social progress and equality,
cultured development in the territorial
region and (2) to promote integrity, and
regional peace and stability national
through abiding respect for identity of all
justice and the rule of law nations;
— the right
in the relationship among
of
countries in the region and
every
adherence to the principles
State
of the United Nations to lead
Charter. its
The ASEAN Vision nationa
2020, adopted by the l
ASEAN Leaders on the existen
30th Anniversary of ce free
ASEAN, agreed on a from
shared vision of ASEAN as externa
a concert of Southeast l
Asian nations, outward interfer
looking, living in peace, ence,
stability and prosperity, subver
bonded together in sion or
partnership in dynamic coercio
development and in a n;
 — non-interference in the internal affairs
of one another;
— settlement of differences or disputes
by peaceful manner;
— renunciation of the threat or use of
force; and
— effective cooperation among
themselves.

All ten members have

already ratified the Charter
and it will take effect upon
the deposit of all
ratifications.
 modifying its existing
conditions or application.”
A non-international armed
98 INTRODUCTION TO PUBLIC conflict covered by this
INTERNATIONAL LAW expanded guarantee is
defined in Article I. They
I are armed conflicts
which take
n place in the
s territory of a
High
u
Contracting
r Party between
its armed forces
g
and dissident
e armed forces or
n other oiganized
armed groups
t which, under
s responsible
command,
.
exercise such
control over a
part of its
P
territory as to
r enable them to
o carry out
sustained and
t concerted
o military
operations and
c
to implement
o this Protocol.

l Article I further adds

that the “Protocol shall not
apply to situations of
I internal disturbances and
I tensions, such as riots,
isolated and sporadic acts
The first and only of violence and other acts
international agreement of a similar nature, as not
exclusively regulating the being armed conflicts.”
conduct of parties in a non- This is true even if the
international armed conflict armed forces of the territory
is the 1977 Protocol II to may have been called upon
the 1949 Geneva to suppress the disorder.
Conventions. It “develops
It will thus be seen
and supplements Article 3, that Protocol II sets down
infra, common to the requirements for what it
Geneva Conventions of 12 calls “material field of
August 1949 without application “First, the
armed dissidents must be
under responsible
command; second, they
must exercise such control
over a part of its territory as
to enable them to carry out
sustained and concerted
military operations and to
implement this Protocol.”
The Protocol thus sets a
very high threshold for
applicability, higher than
the threshold for the
applicability of Protocol I
which does not require
control over territory. For
this reason, in the conflict
between the Philippine
government and the
National Democratic Front,
the Philippine government
has been able to maintain
consistently that the NDF
and its New People’s Army
have not crossed this
threshold and that therefore
what applies to them is
Common Article 3 and not
Protocol II. This means that
they do not have the status
of subject of international
law. The same can be said
of the MNLF and MILF in
Mindanao.
Insurgent groups
which satisfy the material
field of application of
Protocol II may be regarded
as “para-statal entities
possessing definite if
limited form of
international personality.”
State practice indicates
 hostilities,
including
members of
armed forces
CHAPTER 6
who have laid
OTHER SUBJECTS OF INTERNATIONAL LAW
down their arms
two specific attributes of and those
such “personality.” First, placed hors de
combat by
they are recognized as
sickness,
having belligerent status
wounds,
against the de jure detention, or
government. Other states any other cause,
are therefore required to shall in all
maintain neutrality circumstances
regarding them. Second, be treated
they are seen as having humanely,
treaty making capacity. without any
adverse
Common Article 3 distinction
Traditionally, founded on
international law on armed race, color,
conflict does not apply to religion or faith,
internal conflicts such as sex, birth or
wealth, or any
civil wars or rebellions. In
other similar
1949, however, it was
criteria.
decided that minimum
humanitarian protection To this
end, the
should also be promulgated
following acts
to cover internal conflict.
are and shall
For this reason, each of the
remain
four Geneva Conventions
prohibited at
contains a common Article any time and in
3 which says: any place
Art. 3. In whatsoever with
the case of respect to the
armed conflict above-
not of an mentioned
international persons:
character ←
occurring in the viol
territory of one
ence to
of the High
life and
Contracting
Parties, each person, in
Party to the particular
conflict shall be murder of
bound to apply, all kinds,
as a minimum, mutilation
the following , cruel
provisions: treatment
Persons and
taking no active torture;
part in the ← taking of hostages;
 ← Parties to the
outr conflict.
ages upon
personal
dignity, in
particular
hu-
miliating
and
degrading
treatment;
←
the
passing of
sentences
and the
carrying
out of
execution
s without
previous
judgment
pronounc
ed by a
regularly
constitute
d court,
affording
all the
judicial
guarantee
s which
are
recognize
d as
indispens
able by
civilized
peoples.
The wounded and sick shall be
collected and cared for.
An
impartial
humanitarian
body, such as
the International
Committee of
the Red Cross,
may offer its
services to the
 According to the First
Protocol of the 1977
Geneva Convention, they
100 INTRODUCTION TO PUBLIC are “peoples fighting
INTERNATIONAL LAW against colonial domination
and alien occupation and
The against racist regimes in the
Parties to the exercise of their right of
conflict should
self-determination, as
further
enshrined in the Charter of
endeavor to
bring into force, the United Nations.” They
by means of first arose in Africa and
special then in Asia. Many of these
agreements, all movements succeeded in
or part of the their struggle and acquired
other provisions
statehood. Thus, liberation
of the present
movements are now on the
Convention.
wane.
The
application of What are their
the preceding characteristics. First, they
provisions shall can be based within the
not affect the territory which they are
legal status of seeking to liberate or they
the Parties to might find a base in a
the conflict. friendly country. Control of
territory, therefore, is not a
The last sentence
necessary factor. Their
means that the application
legitimacy rather comes
does not convert the conflict
from their goal: to free
into an international one
and therefore does not themselves from colonial
preclude the possibility that domination, or a racist
any participant in the regime or foreign
conflict may be prosecuted occupation. Briefly, their
for treason. What this goal is self-determination.
means is that, although Although control over
rebels have the protection of territory and people is not
Common Article 3, they do essential to their legitimacy,
not thereby gain the status the ultimate goal of
of subjects of international controlling a definite
law unless they satisfy the territory is necessary for
“material field of them to be recognized as
application” of Protocol II. international subjects.
Besides, they must have an
National Liberation Movements.
organization capable of
National liberation coming into contact with
movements are organized other international
groups fighting in behalf of organizations. With these
a whole people for freedom characteristics, they can
from colonial powers. claim international status.
As Article 96, of the above
Convention says:
The authority
representing a people
engaged against a High Con
tracting Party in an armed
conflict of the type referred
to in Article 1,
 international law. With the
greater global awareness of
human rights individuals
CHAPTER 6 have now come to be
OTHER SUBJECTS OF INTERNATIONAL LAW recognized as possessing
albeit limited rights and
paragraph 4, may undertake
obligations in international
to apply the Conventions
law.
and this Protocol in relation
Among the
to that conflict by means of
obligations of individuals
a unilateral declaration
addressed to the depositary. are those arising from the
Such declaration shall, upon regulation of armed
its receipt by the depositary, conflicts. Violation of these
have in relation to that rules can place individuals
conflict the following under criminal
effects: responsibility. There are
The also rules on international
crimes to which individuals
Conventions and this
are subject such as crimes
Protocol are brought
against humanity, genocide,
into force for the said
aggression, and terrorism.
authority as a Party to
When individual
the conflict with
rights are violated,
immediate effect; however, individuals still
The said have to rely on the
authority assumes the enforcement power of
same rights and states. But some treaties
obligations as those have provided for the right
which have been of individuals to petition
assumed by a High international bodies
Contracting Party to alleging that a contracting
the Conventions and state has violated some of
this Protocol; and their human rights.
The Antonio Cassese sums up the current
situation thus:6
Conventions and this
In sum, in
Protocol are equally
contemporary
binding upon all
international
Parties to the conflict. law individuals
possess
Individuals.
international
In the early legal status.
development of They have a few
international law human obligations
beings were exclusively deriving from
customary
under the control of states.
international
In international law they
law. In addition,
were objects or at best
procedural
“beneficiaries” of
‘Antonio Cassese, INTERNATIONAL
LAW 85, Oxford University Press, 2001.
 associate them
to their
international
dealings, let
INTRODUCTION TO PUBLIC INTERNATIONAL LAW alone to grant
them the power
rights enure to to sue States
the benefit of before
individuals not international
vis-d-vis States, bodies. To
but only toward differentiate the
the group of position of
States that have individuals
concluded from that of
treaties, or the States, it can be
international maintained that
organizations while States
that have have
adopted international
resolutions, legal
envisaging such personality
rights. Clearly proper,
the international individuals have
legal status of a limited locus
individuals is standi in
unique: they international
have a lopsided law.
position in the Furthermore,
international unlike States,
community. As individual have
far as their a limited array
international of rights and
obligations are obligations: on
concerned, they this score, one
are associated can speak of a
with all the limited legal
other members capacity (in this
of the respect they can
international be put on the
community; in same footing as
contrast, they other non-State
do not possess international
rights in subjects:
relation to all insurgents,
members of that international
community. organizations,
Plainly, all and national
States are liberation
willing to movements).
demand of
individuals
respect for
some
fundamental
values, while
they are less
prepared to
 The scope of a state’s
jurisdiction over maritime
areas will be considered in
another chapter. In this
chapter, only land area, air
space and outer space will
Chapter 7 be considered.
TERRITORY: LAND, AIR, OUTER Modes of Acquisition of Sovereignty
SPACE over Territory.
Some of the questions
regarding territory are now
Territory in International Law. of historical interest merely.
Territory as an But how they are acquired
element of a state means an is still worth examining.
area over which a state has The roots of the law on
effective control. As the Las territorial sovereignty are
Palmas case, infra, shows, traceable to Roman law
control over territory is of provisions governing
the essence of a state. The ownership and possession.
exact boundaries might be Similarly the classification
uncertain, but there should of the different methods of
be a definitive core over acquiring territory comes
which sovereignty is from Roman rules of
exercised. Acquisition of acquiring property. The
territory more precisely traditional modes of
means acquisition of acquisition include
sovereignty over territory. discovery and occupation,
Judge Huber in the Las prescription, cession,
Palmas case said that conquest and subjugation,
“sovereignty over a portion and accretion.
of the surface of the globe is
Discovery and Occupation
the legal condition for the
Occupation is the
inclusion of such portion in
the territory of any acquisition of terra nullius,
particular state.” that is, territory which prior
Territory includes to occupation belonged to
land, maritime areas, no state or which may have
airspace and outer space. been

103
 local rulers. On
occasion, it is
true, the word
“occupation”
104 INTRODUCTION TO PUBLIC was used in a
INTERNATIONAL LAW
non-technical
sense denoting
abandoned by a prior simply
occupant. There is acquisition of
abandonment when the sovereignty; but
that did not
occupant leaves the
signify that the
territory with the intention
acquisition of
of not returning. In the sovereignty
Western Sahara Case,' the through such
question was whether agreements with
Western Sahara, inhabited authorities of
as it was by organized the country was
tribes, was terra nullius. regarded as an
The ICJ answered the “occupation” of
a “terra
question thus:
nullius” in the
Whatever proper sense of
differences of these terms. On
opinion there the contrary,
may have been such
among jurists, agreements with
the State local rulers,
practice of the whether or not
relevant period considered as
indicates that an actual
territories “cession” of the
inhabited by territory, were
tribes or regarded as
peoples having derivative roots
a social and of title, and not
political original titles
organization obtained by
were not occupation of
regarded as terra nullius.
terra nullius.
It shows that in In the
the case of such present
territories the instance, the
acquisition of information
sovereignty was furnished to the
not generally Court shows
considered as that at the time
effected of colonization
unilaterally Western Sahara
through was inhabited
“occupation” of by peoples
terra nullius by which, if
original title but nomadic, were
through socially and
agreements politically
concluded with organized into
 tribes and under is an
chiefs island
competent to about two
represent them. miles long
Discovery of terra by three
fourths of
nullius, moreover, is not
a mile
enough to establish
wide
sovereignty. It must be which at
accompanied by effective the time
control. This is the teaching of this
of the Las Palmas Case. case had a
populatio
THE ISLAND OF PALMAS
n of about
Perm. Ct. Arb. (1928)
750 and
(Abridged)
was of
Bac little
kground. strategic
Palmas or
(also economic
referred to value. It
as sits
Miangas)

'Advisory Opinion, ICJ, 1975.

 23, 1925,
between
the United
States and
CHAPTER 7
the
TERRITORY: LAND, AIR, OUTER SPACE
Netherlan
about ds to
halfway submit the
between dispute to
the islands binding
of arbitration
Mindanao . The
in the Swiss
Phil- jurist,
ippines Max
and Huber,
Nanusa in was the
the selected
Netherlan arbitrator
ds Indies. acting for
It is, the
however, Permanent
within the Court of
boundarie Arbitratio
s of the n. Huber
Philippine was
s as charged to
defined by determine
Spain and “whether
thus ceded the Island
to the of
United Palmas”
States in (or
1898. In Miangas)
1906 an in its
American entirety
General, forms a
Leonard part of
Wood, territory
visited belonging
Palmas to the
and United
discovere States of
d that the America
Netherlan or of
ds also Netherlan
claimed ds
sovereignt territory.
y over the HUBER, Arbitrator:
island. An The
agreement United States,
was as successor to
signed on the rights of
January Spain over the
Philippines, Palmas (or
bases its title in Miangas). The
the first place United States
on discovery. Government
The existence finally
of sovereignty maintains that
thus acquired is, Palmas (or
in the American Miangas) forms
view, confirmed a geographical
not merely by part of the
the most Philippine
reliable group and in
cartographers virtue of the
and authors, but principle of
also by treaty, in contiguity
particular by the belongs to the
Treaty of Power having
Munster, of the sovereignty
1648, to which over the
Spain and the Philippines. ...
Netherlands are Sovereign
themselves ty in the relation
Contracting between States
Parties. As, signifies
according to the independence.
same argument, Independence in
nothing has regard to a
occurred of a portion of the
nature, in globe is the
international right to exercise
law, to cause the therein, to the
acquired title to exclusion of
disappear, this any other State,
latter title was the functions of
intact at the a State. The
moment when, development of
by the Treaty of the national
December 10th, organization of
1898, Spain States during
ceded the the last few
Philippines to centuries and,
as a corollary,
the United
the
States. In these
development of
circumstances,
international
it is, in the
law, have
American view,
established this
unnecessary to
principle of the
establish facts
exclusive
showing the competence of
actual display the State in
of sovereignty regard to its
precisely over own territory in
the Island of such a way as to
make it the
point of
departure in
settling most
questions that
concern
international
relations. ...
 practice, as well
as doctrine,
recognizes —
though under
INTRODUCTION TO PUBLIC INTERNATIONAL LAW different legal
formulae and
Titles of with certain
acquisition of differences as to
territorial the conditions
sovereignty in required — that
present- day the continuous
international and peaceful
law are either display of
based on an act territorial
of effective sovereignty
apprehension, (peaceful in
such as relation to other
occupation or States) is as
conquest, or, good as a title.
like cession, The growing
presuppose that insistence with
the ceding and which
the cessionary international
Power or at law, ever since
least one of the middle of
them, have the the 18th
faculty of century, has
effectively demanded that
disposing of the the occupation
ceded territory. shall be
In the same way effective would
natural be
accretion can inconceivable,
only be if effectiveness
conceived of as were required
an accretion to a only for the act
portion of of acquisition
territory where and not equally
there exists an for the
actual maintenance of
sovereignty the right....
capable of Territorial
extending to a sovereignty, as
spot which falls has already
within its been said,
sphere of involves the
activity. It exclusive right
seems therefore to display the
natural that an activities of a
element which
state. This right
is essential for
has as corollary
the constitution
a duty: the
of sovereignty
should not be obligation to
lacking in its protect within
continuation. So the territory the
true is this, that rights of other
states, in a constituent
particular their element of
right to integrity territorial
and inviolability sovereignty is
in peace and in not only based
war, together on the
with the rights conditions of
which each the formation of
independent
state may claim
states and their
for its nationals
boundaries (as
in foreign
shown by the
territory. experience of
Without political
manifesting its history) as well
territorial as on an
sovereignty in a international
manner jurisprudence
corresponding and doctrine
to widely
circumstances, accepted; this
the state cannot principle has
fulfill this duty. further been
Territorial recognized in
sovereignty more than one
cannot limit federal state,
itself to its where a
jurisdiction is
negative side,
established in
i.e., to
order to apply,
excluding the
as need arises,
activities of rules of
other states; for international
it serves to law to the
divide between interstate
nations the relations of the
space upon states members.
which human
activities are
employed, in
order to assure
them at all
points the
minimum of
protection of
which
international
law is the
guardian....
The
principle that
continuous and
peaceful display
of the functions
of state within a
given region is
 interior of
scarcely
explored
continents
CHAPTER 7 where such
TERRITORY: LAND, AIR, OUTER SPACE sovereignty is
scarcely
Manifestat manifested, and
ions of in this way each
territorial may prevent the
sovereignty other from any
assume, it is penetration of
true, different its territory. The
forms, delimitation of
according to hinterland may
conditions of also be
time and place. mentioned in
Although this
continuous in connection....
principle,
The title
sovereignty
alleged by the
cannot be
United States of
exercised in fact
at every America as
moment on constituting the
every point of immediate
territory. The foundation of its
intermittence claim is that of
and cession, brought
discontinuity about by the
compatible with Treaty of Paris,
the maintenance which cession
of the right transferred all
necessarily rights of
differ according sovereignty
as inhabited or which Spain
uninhabited may have
regions are possessed in the
involved, or region indicated
regions enclosed in Article III of
within territories the said Treaty
in which and therefore
sovereignty is also those
incontestably concerning the
displayed or Island of Palmas
again regions (or Miangas).
accessible from, It is
for instance, the
evident that
high seas. It is
true that Spain could not
neighboring transfer more
states may by rights than she
convention fix herself
limits to their possessed....
own
It is
sovereignty,
recognized that
even in regions
the United
such as the
States
communicated, could be
on February 3rd, affected by the
1899, the Treaty mere silence of
of Paris to the the territorial
Netherlands, sovereign as
and that no regards a treaty
reservations which has been
were made by notified to him
the latter in and which
respect of the seems to
delimitation of dispose of a part
the Philippines of his
in Article III. territory....
The question In any
whether the case for the
silence of a third purpose of the
Power, in regard
present affair it
to a treaty
may be admitted
notified to it,
can exercise any that the original
influence on the title derived
rights of this from discovery
Power, or on belonged to
those of the Spain....
Powers
signatories of
the treaty, is a
question the
answer to which
may depend on
the nature of
such rights.
Whilst it is
conceivable that
a conventional
delimitation
duly notified to
third Powers
and left without
contestation on
their part may
have some
bearing on an
inchoate title
not supported
by any actual
display of
sovereignty, it
would be
entirely contrary
to the principles
laid down above
as to territorial
sovereignty to
suppose that
such
sovereignty
 force of the
Treaty of Paris.
As
regards the
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
question which
of different
If the legal systems
view most prevailing at
favorable to the successive
American
periods is to be
arguments is
applied in a
adopted — with
particular case
every
(the so-called
reservation as
inter-temporal
to the
law), a
soundness of
distinction must
such view —
be made
that is to say, if
between the
we consider as
creation of
positive law at
rights and the
the period in
existence of
question the
rights. The
rule that
discovery as same principle
such, i.e., the which subjects
mere fact of the act creative
seeing land, of a right to the
without any act, law in force at
even the time the
symbolical, of right arises,
taking demands that
possession, the existence of
involved ipso the right, in
jure territorial other words its
sovereignty and continued
not merely an manifestation,
“Inchoate title,” shall follow the
a jus ad rem, to conditions
be completed required by the
eventually by evolution of
an actual and law.
durable taking International
of possession law in the 19th
within a century, having
reasonable regard to the
time, the fact that most
question arises parts of the
whether globe were
sovereignty yet under the
existed at the sovereignty of
critical date, states members
i.e., the moment of the
of conclusion community of
and coming into nations, and
that territories title ever
without a conferred
master had territorial
become sovereignty. For
relatively few, these reasons,
took account of discovery
a tendency alone, without
already existing any subsequent
and especially act, cannot at
developed since the present time
the middle of suffice to prove
the 18th sovereignty
century, and over the Island
laid down the of Palmas (or
principle that Miangas); and
occupation, to in so far as
constitute a there is no
claim to sovereignty, the
territorial question of an
sovereignty, abandonment
must be properly
effective, that speaking of
is, offer certain sovereignty by
guarantees to one state in
other states and order that the
their nationals. sovereignty of
It seems another may
therefore take its place
incompatible does not arise.
with this rule of
positive law ... [E]ven
that there admitting that
should be the Spanish
regions which title still existed
are neither as inchoate in
under the 1898 and must
effective be considered
sovereignty of a as included in
state, nor the cession
without a under Article
master, but III of the Treaty
which are of Paris, an
reserved for the inchoate title
exclusive could not
influence of one prevail over the
state, in virtue continuous and
solely of a title peaceful
of acquisition display of
which is no authority
longer
recognized by
existing law,
even if such a
 belong to a state
from the mere
fact that its
territory forms
CHAPTER 7 the terra firma
TERRITORY: LAND, AIR, OUTER SPACE (nearest
continent or
by another
island of
state; for such
considerable
display may
size). Not only
prevail even
would it seem
over a prior,
that there are no
definitive title
precedents
put forward by sufficiently
another state. frequent and
This point will sufficiently
be considered, precise in their
when the bearing to
Netherlands establish such a
argument has rule of
been examined international
and the law, but the
allegations of alleged
either party as principle itself
to the display of is by its very
their authority nature so
can be uncertain and
compared.... contested that
In the last even
place there governments of
remains to be the same state
considered title have on
arising out of different
contiguity. occasions
Although states maintained
have in certain contradictory
circumstances opinions as to
maintained that its soundness.
islands The principle of
relatively close contiguity, in
to their shores regard to
belonged to islands, may not
them in virtue be out of place
of their when it is a
geographical question of
situation, it is allotting them
impossible to to one state
show the rather than
existence of a another, either
rule of positive by agreement
international between the
law to the effect parties, or by a
that islands decision not
situated outside necessarily
territorial based on law;
waters should but as a rule
establishing are not naturally
ipso jure the obvious....
presumption of It is,
sovereignty in however, to be
favor of a observed that
particular state, international
this principle arbitral
would be in jurisprudence in
conflict with disputes on
what has been territorial
said as to sovereignty
territorial (e.g., the award
sovereignty and in the
as to the arbitration
necessary between Italy
relation and Switzerland
between the concerning the
right to exclude Alpe
other states Craivarola;
from a region Lafontaine,
and the duty to Pasicrisie
display therein international,
the activities of pp. 201- 209)
a state. Nor is would seem to
this principle of attribute greater
contiguity weight to —
admissible as a even isolated
legal method of — acts of
deciding display of
questions of
territorial sovereignty
sovereignty; for than to
it is wholly continuity of
lacking in territory, even if
precision and
such continuity
would in its
application lead is combined
to arbitrary with the
results. This existence of
would be
natural
especially true
in a case such boundaries....
as that of the
island in
question, which
is not relatively
close to one
single
continent, but
forms part of a
large
archipelago in
which strict
delimitations
between the
different parts
 thereby
with the
Netherlan
ds, by
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
contracts
of
In the suzerainty
opinion of the , which
Arbitrator the conferred
Netherlands upon the
have succeeded suzerain
in establishing such
powers as
the following
would
facts:
‘justify
The
his
Island of
consideri
Palmas ng the
(or vassal
Miangas) state as a
Is part of his
identical territory.’
with an
Act
island
s
designate
characteri
d by this
stic of
or a
state
similar
authority
name,
exercised
which has
either by
formed,
the vassal
at least
state or
since
by the
1700,
suzerain
successiv
Power in
ely a part
regard
of two of
precisely
the native
to the
States of
Island of
the Island
Palmas
of Sangi
(or
(Talautse
Miangas)
Isles).
have been
The establishe
se native d as
States occurring
were at
from different
1677
epochs
onwards
between
connected
1700 and
with the
1898, as
East India
well as in
Company,
the period
and
 between over the island,
1898 and or having a
1906. claim to
The acts sovereignty, to
of indirect or have, according
direct display of to local
Netherlands conditions, a
sovereignty at reasonable
Palmas (or possibility for
Miangas), ascertaining the
especially in the existence of a
18th and early state of things
19th centuries contrary to her
are not real or alleged
numerous, and rights....
there are There is
considerable moreover no
gaps in the evidence which
evidence of would establish
continuous any act of
display. But display of
apart from the sovereignty
consideration over the island
that the by Spain or
manifestations another Power,
of sovereignty such as might
over a small and counterbalance
distant island, or annihilate the
inhabited only manifestations
by natives, of Netherlands
cannot be sovereignty. As
expected to be to third Powers,
frequent, it is the evidence
not necessary submitted to the
that the display Tribunal does
of sovereignty not disclose any
should go back trace of such
to a very far action, at least
distant period. It from the middle
may suffice that of the 17th
such display century
existed in 1898, onwards. These
and had already circumstances,
existed as together with
continuous and the absence of
peaceful before any evidence of
that date long a conflict
enough to between
enable any Spanish and
Power who Netherlands
might have authorities
considered
during more
herself as
than two
possessing
centuries as
sovereignty
regards Palmas
(or Miangas),
are an indirect
proof of the
exclusive
display of
Netherlands
sovereignty....
 understood as a
basis of
territorial
CHAPTER 7 sovereignty, has
TERRITORY: LAND, AIR, OUTER SPACE no foundation
in international
The
law....
conditions of
The
acquisition of
Netherlands title
sovereignty by
of sovereignty,
the Netherlands
are therefore to acquired by
be considered continuous and
as fulfilled. It peaceful display
remains now to of state
be seen whether authority during
the United a long period of
States as time going
successors of probably back
Spain are in a beyond the year
position to 1700, therefore
bring forward holds good....
an equivalent or For these
stronger title. reasons the
This is to be Arbitrator ...
answered in the decides that:
negative. The Island of
The title Palmas (or
of discovery, if Miangas) forms
it had not in its entirety a
already been part of
disposed of by
Netherlands
the Treaties of
territory.
Munster and
Utrecht, would, Effective control,
under the most however, is relative and
favorable and may depend on the nature
most extensive
of the case — e.g., whether
interpretation,
exist only as an the territory is inhabited or
inchoate title, as not and how fierce the
a claim to occupants are. Where there
establish are two or more claimants
sovereignty by to a territory, effective
effective
control is also relative to the
occupation. An
strength of claims. (Eastern
inchoate title
however cannot Greenland Case PCIJ
prevail over a 1933) The Permanent Court
definite title of Justice deciding in favor
founded on of Denmark, said:
continuous and Before
peaceful display
proceeding to
of sovereignty.
consider in
The title detail the
of contiguity, evidence
submitted to the
Court, it may be
well to state that
a claim to
sovereignty
based not upon
some particular
act or title such
as a treaty of
cession but
merely upon
continued
display of
authority,
involves two
elements each
of which must
be shown to
exist: the
intention and
will to act as
sovereign, and
some actual
exercise or
display of such
authority.
Another
circumstance
which must be
taken into
account by any
tribunal which
has to
adjudicate upon
a claim to
sovereignty over
a particular
territory, is the
extent to which
the sovereignty
is also claimed
by some other
Power. In most
of the cases
involving claims
to territorial
sovereignty
which have
come before an
international
tribunal, there
have been two
competing
claims to the
 over areas in
thinly
populated or
unsettled
112 INTRODUCTION TO PUBLIC countries.
INTERNATIONAL LAW
Prescription
sovereignty, and Prescription is also
the tribunal has recognized as a mode of
had to decide acquiring sovereignty over
which of the
territory. Like occupation,
two is the
however, prescription
stronger. One of
the peculiar requires effective control.
features of the But unlike occupation, the
present case is object of prescription is not
that up to 1931 terra nullius. Thus the
there was no required length of effective
claim by any
control is longer than in
Power other
occupation. Moreover,
than Denmark
to the prescription might be
sovereignty over negated by a demonstrated
Greenland. lack of acquiescence by the
Indeed, up till prior occupant.
1921, no Power (
disputed the L
Danish claim to a
sovereignty. s
It is
impossible to P
read the records a
l
of the decisions
m
in cases as to a
territorial s
sovereignty )
without
observing that C
in many cases e
the tribunal has s
been satisfied s
with very little i
o
in the way of
n
the actual
exercise of Cession, or
sovereign acquisition of territory
rights, provided through treaty, is another
that the other mode. Thus the United
State could not States acquired the
make out a
Philippines through the
superior claim.
Treaty of Paris. Sovereignty
This is
particularly true over Hong Kong is a more
in the case of recent example of cession.
claims to In the middle of the 19th
sovereignty century, part of the colony
of Hong Kong was ceded in
perpetuity to Britain. The
largest section of the
colony, the so called New
Territories, was merely held
under a lease that was due
to expire in 1997. After
protracted negotiations, a
Joint Declaration was
signed through which the
entire territory of Hong
Kong would be given over
to the sovereignty of China
on July 1,1997. This has
already been accomplished.
It should also be
noted, however, that a
treaty of cession which is
imposed by a conqueror is
invalid. Thus there may be
a situation where what
prevails is merely a de
facto regime.
Conquest
Conquest was in
earlier days the taking
possession of a territory
through armed force. For
acquisition of conquered
territory, it was
 action of nature; avulsion is
a sudden change resulting
for instance from the action
CHAPTER 7 of a volcano.
TERRITORY: LAND, AIR, OUTER SPACE
Is contiguity a mode of acquisition?
necessary that the war had Because of the
ended either by treaty or by closeness of the Spratleys
indication that all resistance to Philippine territory, it has
had been abandoned. been argued that the area
Moreover, the conqueror belongs to the Philippines
must have had the intention by contiguity. The Las
of acquiring the territory Palmas case is argument
and not just of occupying it against contiguity as a basis
temporarily. For instance, for sovereignty when it
the U.S. in Germany had no says: “it is impossible to
intention of acquiring the show a rule of positive
territory. international law to the
Today conquest as a effect that islands situated
mode of acquisition is outside the territorial waters
proscribed by international should belong to a state
law. The 1970 Declaration from the fact that its
of Principles of territory forms part of the
International Law terra frma.”
Concerning Friendly
Relations and Cooperation Intertemporal Law
among States has this to Laws on acquisition
say: “The territory of a of territory have changed.
State shall not be the object Note for instance the
of acquisition by another changes on the legality of
State resulting from the wars of conquest. Which
threat or use of force. No laws then are applicable to
territorial acquisition a controversy? The
resulting from the use or generally accepted view is
threat of force shall be that the rules in effect at the
recognized as legal.”
time of the acquisition
The latest instance of should be applied.
a response to an attempted
conquest was the action
taken against Iraq when it
invaded Kuwait.

Accretion and Avulsion

Accretion and
avulsion can also lead to
sovereignty over territory.
This is sovereignty by
operation of nature.
Accretion is the gradual
increase of territory by the
 sovereignty
over the
airspace above
114 INTRODUCTION TO PUBLIC its territory.
INTERNATIONAL LAW Article 2. Territory
For the
Airspace. purposes of this
Before the First Convention the
World War, there were territory of a
those who held that the State shall be
airspace was completely deemed to be
free. The outbreak of the the land areas
First World War brought and territorial
about the realization that waters adjacent
the use of the air had thereto under
security implications. Out the sovereignty,
of this realization came the suzerainty,
approach which considers
protection or
the air above as an
mandate of
extension of the territory
such State.
below. Each state has
exclusive jurisdiction over Article 3. Civil and state aircraft
the air space above its This
territory. Therefore, consent Convention
for transit must be obtained shall be
from the subjacent nation. applicable only
The present regime to civil aircraft,
on air navigation has and shall not be
developed from the applicable to
Chicago Convention on state aircraft.
International Civil Aviation Aircraft
(1944) which entered into used in military,
force in 1974. The Chicago customs and
Convention created the police services
International Civil Aviation shall be deemed
Organization (ICAO), an to be state
agency of the United aircraft.
Nations, and prescribed the No state
rules for international civil aircraft of a
aviation. contracting
Articles 1 to 4 of the Convention set down the governing State shall fly
principles: over the
territory of
Article 1. Sovereignty another State or
The land thereon
contracting without
authorization
States
by special
recognize that
agreement or
every State has
otherwise, and
complete and in accordance
exclusive
with the terms
thereof.
The
contracting
States
undertake,
when issuing
regu-lations for
their state
aircraft, that
they will have
due regard for
the safety of
navigation of
civil aircraft.
 have the right,
subject to the
observance of
the terms of this
CHAPTER 7 Convention, to
TERRITORY: LAND,
make flights
AIR, OUTER SPACE
into or in transit
Article 4. Misuse of civil aviation nonstop across
its territory and
Each
to make stops
contracting
for non-traffic
State agrees not purposes
to use civil without the
aviation for any necessity of
purpose obtaining prior
inconsistent permission, and
with the aims of subject to the
right of the State
this Convention.
flown over to
As can be seen, the require landing.
Convention does deal with Each
“state aircraft” excepted to contracting
State
say in Article 3(a) that “No
nevertheless
state aircraft of a
reserves the
contracting State shall fly right, for
over the territory of another reasons of
State or land thereon safety of flight,
without authorization by to require
special agreement or aircraft desiring
otherwise, and in to proceed over
accordance with the terms regions which
are inaccessible
thereof.” And “state
or without
aircraft” means “aircraft
adequate air
used in military, customs navigation
and police services.” The facilities to
Convention is about “civil follow
aviation.” prescribed
Flight over territory is classified into routes, or to
“non-scheduled” and “scheduled” obtain special
fights. permission for
such flights.
Article 5. Right of non-scheduled Such
flight aircraft, if
Each engaged in the
contracting carriage of
State agrees that passengers,
all aircraft of the cargo, or mail
other for
contracting remuneration or
States, being hire on other
aircraft not than scheduled
engaged in international air
scheduled services, shall
interna-tional air also, subject to
services shall
the provisions
of Article 7,
have the
privilege of
taking on or
discharging
passengers,
cargo, or mail,
subject to the
right of any
State where
such
embarkation or
discharge takes
place to impose
such
regulations,
conditions or
limitations as it
may consider
desirable.

Article 6. Scheduled air services

No
scheduled
international air
service may be
operated over or
into the territory
of a contracting
State, except
with the special
permission or
other
authorization of
that State, and
in accordance
with the terms
of such
permission or
authorization.
 Israeli plane of El A1 Israel
Airlines was shot down by
Bulgaria. In 1973, Israeli
jets shot down a straying
J16 INTRODUCTION TO PUBLIC
INTERNATIONAL LAW Libyan airliner. In 1983,
Russian jets shot down a
Korean Airlines plane.
Article 7. Cabotage
When the United States
Each made the declaration in the
contracting
Security Council that
State shall have
the right to “sovereignty neither
refuse requires nor permits the
permission to shooting down of airlines in
the aircraft of peacetime,” the USSR’s
other swift reply was that there
contracting was a sovereign right of
States to take on every State to protect its
in its territory
borders including its
passengers,
airspace.
mail and cargo
carried for In 1953, Lissitzyn2
remuneration or suggested a flexible rule
hire and with respect at least to state
destined for or military aircraft: “In its
another point effort to control the
within its movements of intruding
territory. Each aircraft the territorial
contracting
sovereignty must not
State undertakes
expose the aircraft and its
not to enter into
any occupants to unnecessary
arrangements and unreasonably great
which danger — that is, in relation
specifically to the apprehended
grant any such harmfulness of the
privilege on an intrusion.” This implies that
exclusive basis the aircraft must not only
to any other not be attacked, unless there
State or an
is reason to suspect that the
airline of any
aircraft is a real threat, but
other State, and
not to obtain also that a warning to land
any such or change course must be
exclusive given before it is attacked.
privilege from As to civilian aircraft,
any other State. however, there are those
who hold that civilian
The Chicago
aircraft should never be
Convention attempts to
attacked. In fact, even the
provide protection for
Soviet Union justified its
civilian aircraft. Since the
attack on the South Korean
Convention, however, a
airliner by saying that it had
number of incidents have
mistaken the aircraft for an
taken place fatal to civilian
aircraft. In 1955 a civilian
American reconnaissance air sovereignty extended to
aircraft. an unlimited extent, usque
Outer Space. ad coelum. The
development
The assertion under
air space law used to be that

AJIL47 (1953) 559.

 scientific
development,
and shall be the
province of all
CHAPTER 7
TERRITORY: LAND, AIR, OUTER SPACE mankind. Outer
space, including
of the law on outer space the moon and
modified this assertion. other celestial
Sovereignty over air space bodies, shall be
extends only until where free for
exploration and
outer space begins. But
use by all States
where is that?
without
There is as yet no
discrimination
definite answer to that of any kind, on
question. The answer will a basis of
eventually come from equality and in
technological capabilities of accordance with
conventional aircraft to international
reach greater heights. law, and there
Different numbers ranging shall be free
from fifty to one hundred access to all
miles from the earth have areas of celestial
been mentioned. bodies. There
Nonetheless, the shall be freedom
development of outer space of scientific
law has started. It is now investigation in
accepted that outer space, outer space,
wherever that might be, and including the
celestial bodies, are not moon and other
susceptible to appropriation celestial bodies,
by any state. Among the and States shall
first achievements in this facilitate and
area is the 1967 Treaty on encourage
the Exploration and Use of international co-
Outer Space. Some of its operation in
key provisions are the such
following: investigation.
Article I. Article 11.
The exploration Outer space,
and use of outer including the
space, including moon and other
the moon and celestial bodies,
other celestial is not subject to
bodies, shall be national
carried out for appropriation by
the benefit and claim of
in the interests sovereignty, by
of all countries, means of use or
irrespective of occupation, or
their degree of by any other
economic or means.
 Article III. peaceful
States Parties to purposes. The
the Treaty shall
carry on
activities in the
exploration and
use of outer
space, including
the moon and
other celestial
bodies, in
accordance with
international
law, including
the Charter of
the United
Nations, in the
interest of
maintaining
international
peace and
security and
promoting
international co-
operation and
understanding.
Article IV.
States Parties to
the Treaty
undertake not to
place in orbit
around the Earth
any objects
carrying nuclear
weapons or any
other kinds of
weapons of
mass
destruction,
install such
weapons on
celestial bodies,
or station such
weapons in
outer space in
any other
manner.
The Moon
and other
celestial bodies
shall be used by
all States Parties
to the Treaty
exclusively for
 territory of
another State
Party or on the
high seas. When
INTRODUCTION TO PUBLIC INTERNATIONAL LAW astronauts make
such a landing,
establishment of they shall be
military bases, safely and
installations and promptly
fortifications, returned to the
the testing of State of registry
any type of of their space
weapons and vehicle.
the conduct of In
military carrying on
maneuvers on activities in
celestial bodies outer space and
shall be on celestial
forbidden. The bodies, the
use of military astronauts of
personnel for
one State Party
scientific
shall render all
research or for
possible
any other
peaceful assistance to the
purposes shall astronauts of
not be other States
prohibited. The Parties. States
use of any Parties to the
equipment or Treaty shall
facility immediately
necessary for inform the other
peaceful States Parties to
exploration of the Treaty or the
the Moon and
Secretary-
other celestial
General of the
bodies shall
United Nations
also not be
prohibited. of any
Article V. phenomena they
States Parties to discover in
the Treaty shall outer space,
regard including the
astronauts as Moon and other
envoys of celestial bodies,
mankind in which could
outer space and constitute a
shall render to danger to the
them all life or health of
possible
astronauts.
assistance in the
event of
accident,
distress, or
emergency
landing on the
 The basic statement of
the extent of a state’s
sovereignty over waters is
set down in Article 2 of the
1982 Law of the Sea:

Chapter 8 TERRITORY: LAW OF THE SEA Article 2.

Legal status of
the territorial
sea, of the air
space over the
The importance of the territorial sea
seas flows from two factors: and of its bed
first, they are a medium of and subsoil.
communication, and The
second, they contain vast sovereignty of a
natural resources. In the coastal State
17th century, the Portuguese extends, beyond
proclaimed vast areas of sea its land territory
as belonging to itself. But it and internal
was Grotius who elaborated waters and, in
the doctrine of the open seas the case of an
archipelagic
which considers the high
State, its
seas as res communis
archipelagic
accessible to all. The
waters, to an
doctrine, however, adjacent belt of
recognized as permissible sea, described
the delineation of a as the territorial
maritime belt by littoral sea.
states as an indivisible part This
of its domain. This belt is sovereignty
the territorial sea. extends to the
Much of the history of air space over
the law of the sea has the ter-ritorial
centered around the extent sea as well as to
of the territorial sea. But its bed and
over the years, other subsoil.
jurisdictional issues have
occurred and today the
prevailing law on maritime
domain is the Convention The
on the Law of the Sea of sovereignty
1982 (LOS). Many of the over the
provisions of the 1982 Law territorial sea is
of the Sea are a repetition of exercised
earlier convention law or a subject to this
codification of customary Convention and
law. to other rules of
international
law.
119
 by the coastal State.”
(Section 5,182 LOS) The
width of the territorial sea
120 INTRODUCTION TO PUBLIC is measured from the
INTERNATIONAL LAW baseline.
There are two ways
Territorial sea. of drawing the baseline.
The territorial sea is a The “normal” baseline is
belt of sea outwards from one drawn following “the
the baseline and up to 12 low-water line along the
nautical miles beyond. The coast as marked on large-
width of this territorial belt scale charts officially
of water has been the recognized by the coastal
subject of much State.”' This line follows
disagreement. The original the curvatures of the coast
rule was the “cannon shot” and therefore would
rule, that is, the width of normally not consist of
water was measured in straight lines.
terms of the range of shore- There is no fixed
based artillery. Later this norm for determining the
became the three-mile rule. “low water mark” but the
The three mile rule has now Anglo-Norwegian Fisheries
been discarded in favor of Case (U.K. v. Norway ICJ
the twelve-mile rule now 1951) has suggested that
found in Article 3 of the “for the purpose of
1982 LOS. measuring the breadth of
Where, however, the the territorial sea, it is the
application of the twelve- low-water mark as opposed
mile rule to neighboring to the high-water mark, or
littoral states would result the mean between the two
in overlapping, the rule tides, which has generally
now established is that the been adopted in the practice
dividing line is a median of States. This criterion is
line equidistant from the the most favorable to the
opposite baselines. But the coastal State and clearly
equidistance rule does not shows the character of
apply where historic title or territorial waters as
other special circumstances appurtenant to the land
require a different territory.”2
measurement. Article
15,1982 LOS.

Baselines: “normal" or “straight"

To understand the
extent of the territorial sea
one must begin with an
understanding of baselines.
The baseline is “the low- 'Article 5, Law of the
2
water line along the coast 1951 ICJ 116,128.
as marked on large scale
charts officially recognized
 limitations. The article in
full reads:
An
CHAPTER 8 archipelagic
TERRITORY: LAW OF THE SEA State may draw
straight
Archipelagic states, archipelagic
however, instead of baselines
drawing “normal joining the
baselines,” have drawn outermost
“straight baselines.” Instead points of the
of following the curvatures outermost
of the coast, straight lines islands and
are drawn connecting drying reefs of
selected points on the coast the archipelago
without appreciable provided that
within such
departure from the general
baselines are
shape of the coast. This
included the
method of drawing lines
main islands
was first upheld in the
and an area in
Anglo-Nor- wegian which the ratio
3
Fisheries Case which of the area of
upheld the straight baseline the water to the
unilaterally adopted by area of the land,
Norway. Likewise, R.A. including atolls,
No. 3046 and R.A. No. is between 1 to
5446 have drawn “straight 1 and 9 to 1.
baselines” around the The
Philippines. length of such
The decision in the baseline shall
Fisheries Case upholding not exceed 100
the “straight baseline nautical miles,
method” eventually became except that up
part of convention law. to 3 percent of
Article 7(1) of the the total
Convention on the Law of number of
the Sea says: “In localities baselines
where the coastline is enclosing any
deeply indented and cut archipelago
into, or if there is a fringe may exceed that
of islands along the coast in length, up to a
its immediate vicinity, the maximum
method of straight baselines length of 125
nautical miles.
joining appropriate points
may be employed in The
drawing the baseline from drawing of such
which the breadth of the baselines shall
territorial sea is measured.”4 not depart to
Article 47 of the any appreciable
Convention on the Law of extent from the
the Sea allows the use of general
the “straight baseline configuration of
method” for archipelagic the archipelago-
states with certain
 Such
baselines shall
not be drawn to
and from low-
tide elevations,
unless
lighthouses or
similar
installations
which are
permanently
above sea level
have been built
on them or
where

3
1951 ICJ at 130. The
argument from this case is
by analogy and, therefore,
only as strong as the
analogy. See Committee
Report No. 01 and Speech
of Delegate Laggui, Session
of February 14,1972.

'See also 1958 Territorial Sea

Convention.
 exclusive
economic zone
the territorial
sea of another
122 INTRODUCTION TO PUBLIC
State.
INTERNATIONAL LAW
If a part
of the
a low-tide archipelagic
elevation is waters of an
situated archipelagic
wholly or State lies
between two
partially at a
parts of an
distance not
immediately
exceeding adjacent
the breadth neighboring
of the State, existing
territorial rights and all
sea of other legitimate
interests which
another
the latter State
State.
has traditionally
The exercised in
system of such such waters and
baselines shall all rights
not be applied stipulated by
to an agreement
archipelagic between those
State in such a States shall
manner as to continue and be
cut-off from the respected.
high seas or the
7. F
or the purpose of computing the ratio of
water to land under
paragraph 1, land areas may include
waters lying within the hinging
reefs of islands and atolls, including that
part of a steepsided oceanic
plateau which is enclosed or nearly
enclosed by a chain of limestone
islands and drying reefs lying on the
perimeter of the plateau.
The points,
baselines drawn specifying the
in accordance geodetic datum,
with this article may be
shall be shown substituted.
on charts of a The
scale or scales archipelagic
adequate for State shall give
ascertaining due publicity to
their position. such charts or
Alternatively, lists of
lists of geographical
geographical co-ordinates
co-ordinates of and shall
 deposit a copy
of each such
chart or list with
the Secretary-
General of the
United Nations.

Sovereignty over Territorial Sea

The sovereignty of
the coastal state over its
territorial sea and the
airspace above it as well as
the seabed under is the
same as its sovereignty over
its land territory. (Article 2,
LOS) However, the sea is
subject to the right of
innocent passage by other
states. The rule on innocent
passage applies to ships and
aircraft. Submarines,
moreover, must surface.
Innocent passage is
passage that is not
prejudicial to the peace,
good order or security of
the coastal state. Article
19(2) enumerates acts that
are not considered innocent
passage thus:

Passage
of a foreign ship
shall be
considered to be
prejudicial to
the peace, good
order or
security of the
coastal State if
in the territorial
sea it engages in
any of the
following
activities:
 the
defense or security of the coastal
State;
CHAPTER 8
the launching, landing or
TERRITORY: LAW OF THE SEA
taking on board of any
any aircraft;
threat or (f)
use of
force the
against launching, landing or taking on
the board of
sovereignt
any
y,
military device;
territorial
integrity the
or loading or
political unloading
independe of any
nce of the commodit
coastal y, cur-
State, or rency or
in any person
other contrary
manner in to the
violation customs,
of the fiscal,
principles immigrati
of on or
internatio sanitary
nal law laws and
embodied regulation
in the
s of the
Charter of
coastal
the United
State;
Nations;
any
any exercise or practice with
weapons of any act of
kind; willful
(c) and
serious
any
pollution
act contrary
aimed at collecting information to to this
Conventio
the n;
prejudice of the defense or security (i)
of the coastal State;
(d) any

any fishing
activities;
act the carrying out of research or
survey activities;
of any
propaganda aimed at affecting act aimed
 at passage that it determines to
interferin be not innocent.
g with The rule on innocent
any passage is also applicable to
systems
straits. In the Corfu
of 5
Channel Case, the Court
communi
cation or said:
any other It is, in
facilities the opinion
or of the
installatio Court,
ns of the
generally
coastal
recognized
State;
any other activity not having a and in
direct bearing on accordance
passage. with
Coastal states have the internation
unilateral right to verify the al custom
innocent character of that States
passage, and it may take the in time of
necessary steps to prevent peace
5
UJC. v. Albania, [1949] ICJ Rep.
 of every state must be open
to foreign vessels and can
only be closed when vital
124 INTRODUCTION TO PUBLIC interests of the state so
INTERNATIONAL LAW requires. But according to
the Nicaragua v. US.,6 a
coastal state may regulate
have a right to
send their access to its ports.
warships Archipelagic waters.
through straits
used for inter- Article 8(2) of the
national Convention which says:
navigation “Where the establishment
between two of a straight baseline in
parts of the high accordance with the method
seas without the set forth in Article 7 has the
previous effect of enclosing as
authorization of
internal waters areas which
a coastal State,
provided that had not previously been
the passage is considered as such, a right
innocent. of innocent passage as
Unless provided in this Convention
otherwise shall exist in those waters.”
prescribed in an Article 53 of the
international Convention refers to this
convention,
type of internal water as
there is no right
for a coastal “archipelagic waters” and
State to prohibit says that “[a]n archipelagic
such passage State may designate sea
through straits lanes and air routes
in time of thereabove, suitable for the
peace. continuous and expeditious
This rule is now found in Article 45 of passage of foreign ships
the 1982 Convention. and aircraft through or over
its archipelagic waters and
Internal waters.
the adjacent territorial sea.”
Internal waters are all
This provision was
waters (part of the sea,
seen as posing a problem
rivers, lakes, etc.)
for Philippine law because
landwards from the
baseline of the territory. Article I of the Philippine
Sovereignty over these Constitution, which took
waters is the same in extent effect in 1973 prior to the
as sovereignty over land, 1982 Convention on the
and it is not subject to the Law of the Sea, considers
right of innocent passage. all waters connecting the
However, in Saudi Arabia islands as internal waters.
v. Aramco (Arbitration The Philippine government
1963), the arbitrator said was clearly aware of these
that according to possible conflicts. Hence,
international law — ports upon its
‘Merits, [1986] ICJ Rep.
 Contracting Parties
under the Mutual
Defense Treaty
CHAPTER 8 between the
TERRITORY: LAW OF THE SEA Philippines and the
United States of
ratification of the
America of August
Convention on the Law of
30,1951, and its
the Sea on August 5,1984,
it added the following related interpretative
declaration:7 instruments; nor those
The signing of under any pertinent
the Convention by the bilateral or
Government of the multilateral treaty or
Republic of the agreement to which
Philippines shall not the Philippines is a
in any manner impair party;
or prejudice the
sovereign rights of the
The provisions
Republic of the
of the Convention on
Philippines under and
archipelagic passage
arising from the
through sea lanes do
Constitution of the
not nullify or impair
Philippines;
the sovereignty of the
Such signing
Philippines as an
shall not in any
archipelagic State
manner affect the
over the sea lanes and
sovereign rights of the
do not deprive it of
Republic of the
authority to enact
Philippines as
legislation to protect
successor to the
its sovereignty,
United States of
independence, and
America, under and
security;
arising out of the
The concept of
Treaty of Paris
archipelagic waters is
between Spain and
the United States of similar to the concept
America of December of internal waters
10, 1988, and the under the Constitution
Treaty of Washington of the Philippines, and
between the United removes straits
States of America and connecting these
Great Britain of waters with the
January 2,1930; economic zone or
Such signing high sea from the
shall not diminish or rights of foreign
in any manner affect vessels to transit
the rights and passage for
obligations of the international
navigation;
 7
U.N. Office for Oceans Affairs and the
Law of the Sea, Law of the Sea Bulletin,
Special Issue 1, March
1987, Annex II, p. 6, quoted in Sweeney,
Oliver, Leech, THE INTERNATIONAL LEGAL
SYSTEM, 193 (3RD ED. 1988).
 area of an indentation
is that lying between
the low-water mark
126 INTRODUCTION TO PUBLIC around the shore of
INTERNATIONAL LAW the indentation and a
line joining the low-
However, concern water mark of its
about this problem may not natural entrance
be necessary because points. Where,
Article 8(2) itself says that because of the
the new rule applies only to presence of islands,
“areas which had not an indentation has
previously been considered more than one mouth,
as ‘internal waters.”’ The the semi-circle shall
1973 Constitution pre-dates be drawn on a line as
the 1982 Convention. long as the sum total
of the lengths of the
Bays. lines across the
The waters of a bay different mouths.
are considered internal Islands within an
waters of a coastal state. indentation shall be
The rule on bays is found included as if they
were part of the water
in Article 10 of the 1982
area of the
LOS:
indentation.
For the If the distance
purposes of this between the low-
Convention, a bay is water marks of the
a well- marked natural entrance
indentation whose points of a bay does
penetration is in such not exceed 24
proportion to the nautical miles, a
width of its mouth as closing line may be
to contain land- drawn between these
locked waters and two low-water marks,
constitute more than and the waters
a mere curvature of enclosed thereby
the coast. An shall be considered as
indentation shall not, internal waters.
however, be regarded
Where the
as a bay unless its
distance between the
area is as large as, or
low-water marks of
larger than, that of
the semi-circle whose the natural entrance
diameter is a line points of a bay
drawn across the exceeds 24 nautical
mouth of that miles, a straight
indentation. baseline of 24
For the purpose nautical miles shall
of measurement, the be drawn within the
bay in such a manner
as to enclose the
maximum area of
water that is possible
with a line of that
length.
The foregoing
provisions do not
apply to so-called
“historic” bays, or in
any case where the
system of straight
baselines provided
for in Article 7 is
applied.
 immigration or
sanitary laws
and regulations
CHAPTER 8 within its
TERRITORY: LAW OF THE SEA territory or
Historic bays are bays territorial sea;
which are treated by the ← puni
coastal state as internal sh infringement
waters on the basis of of the above
historic rights laws and
acknowledged by other regulations
states. A listing of historic committed
bays may be found in 4
within its
Whitman, DIGEST OF
territory or
INTERNATIONAL LAW
territorial sea.
233-39 (1965).
The contiguous
Contiguous zone. zone may not extend
The contiguous zone beyond 24 nautical
is an area of water not miles from the
exceeding 24 nautical miles baselines from which
from the baseline. It thus the breadth of the
extends 12 nautical miles territorial sea is
from the edge of the measured.
territorial sea. The coastal It should be
state exercises authority understood, however, that,
over that area to the extent according to the
necessary to prevent International Law
infringement of its customs, Commission’s Commentary
fiscal, immigration or on the Draft, the power of
sanitation authority over its control given to the littoral
territorial waters or territory state does not change the
and to punish such
nature of the waters.
infringement. Article 33 (1
Beyond the territorial sea,
and 2), 1982 LOS says:
the waters are high sea and
In a zone are not subject to the
contiguous to its sovereignty of the coastal
territorial sea, state.
described as the
Exclusive economic zone or
contiguous zone, the
“patrimonial sea.”
coastal State may
The doctrine on the
exercise the control
exclusive economic zone is
necessary to:
a recent development. Prior
← prev
to the acceptance of this
ent
doctrine, all waters beyond
infringement of the contiguous zone were
its customs, considered as high seas over
fiscal, which no state had control.
The doctrine developed
owing to the desire of
coastal states for better
conservation and
management of coastal
fisheries.
 should determine the
allowable catch of living
resources. If the coastal
INTRODUCTION TO PUBLIC state does not have the
INTERNATIONAL LAW capacity to harvest the
allowable catch, it must
The exclusive grant access to other states.
economic zone is an area The details on this matter
extending not more than are found in Articles 55 to
200 nautical miles beyond 75.
the baseline. The coastal The delimitation of
state has rights over the the overlapping exclusive
economic resources of the economic zone between
sea, seabed and subsoil —
adjacent states is
but the right does not affect
determined by agreement.
the right of navigation and
overflight of other states. The Continental (Archipelagic) Shelf.
This is a compromise The continental shelf, archipelagic or
between those who wanted insular shelf for archipelagos, refers to
a 200-mile territorial sea the seabed and subsoil of
and those who wanted to the submarine areas
reduce the powers of coastal adjacent to the coastal state
states. but outside the territorial
The provisions on the sea, to a depth of two
exclusive economic zone hundred meters or, beyond
are both a grant of rights to that limit, to where the
and an imposition of depth allows exploitation,
obligations on coastal states and (b) the seabed and
relative to the exploitation, subsoil of areas adjacent to
management and islands. The coastal state
preservation of the has the right to explore and
resources found within the exploit its natural resources,
zone. to erect installations needed,
Coastal states have and to erect a safety zone
two primary obligations. over its installations with a
First, they must ensure radius of 500 meters. The
through proper conservation right does not affect the
and management measures right of navigation of
that the living resources of others. Moreover, the right
the EEZ are not subjected to does not extend to non-
over-exploitation. This resource material in the
includes the duty to shelf area such as wrecked
maintain and restore ship and their cargoes.
populations of harvested The Deep Seabed: “Common Heritage
fisheries at levels which of Mankind.”
produce a “maximum These are areas of the
sustainable yield.” Second, sea-bed and the ocean floor,
they must promote the
and their subsoil, which lie
objective of “optimum
beyond any national
utilization” of the living
jurisdiction. These are the
resources. They therefore
com
 and gas resources around
them. This explains the
controversy over Spratleys.
CHAPTER 8 It is noteworthy that islands
TERRITORY: LAW OF THE SEA can have their own
territorial sea, exclusive
mon heritage of mankind and may not be
appropriated by any state or person. economic zone and
Activities in the area are governed by Articles continental shelf. However,
135 tol53 of the 1982 Convention. rocks “which cannot sustain
human habitation or
Islands.
economic life” only have a
Article 121. Regime of islands territorial sea. But there is
An island no clear international law
is a naturally definition of “economic
formed area of life” referred to in n. 3.
land, Artificial islands or
surrounded by installations are not
water, which is “islands” in the sense of
above water at
Article 121. However,
high tide.
coastal states may establish
Except as
safety zones around
provided for in
paragraph 3, the artificial islands and
territorial sea, prescribe safety measures
the contiguous around them. (Article 60[4]
zone and the and [5])
continental
shelf of an The High Seas.
island are Article 1 of the
determined in Geneva Convention on the
accordance with High Seas defines the high
the provisions
seas as “all parts of the sea
of the
that are not included in the
Convention
applicable to territorial sea or in the
other land internal waters of a State.”
territory. The highs seas are
Rocks subject to six freedoms: (1)
which cannot freedom of navigation; (2)
sustain human freedom of overflight; (3)
habitation or
freedom of fishing; (4)
economic life of
freedom to lay submarine
their own shall
cables and pipelines; (5)
have no
exclusive freedom to construct
economic zone artificial islands and
or continental structures; and (6) freedom
shelf. of scientific research.

Islands can be very

important because of the
possibility of exploiting oil
 in the exclusive economic
zone, in the territorial sea or
in the internal waters of a
130 INTRODUCTION TO PUBLIC state, or in the archipelagic
INTERNATIONAL LAW waters of an archipelagic
state.” This, however, is not
The first four of the a definition of the scope of
the area called “high seas.”
above freedoms were
As noted above, the
mentioned in the 1958
contiguous zone is part of
Convention of the High
the high seas. What Article
Seas and the last two were
86 does is to specify the
added by the 1982 LOS.
areas that are not covered
But these two are subject to
by all the six freedoms.
some restrictions.
The flag state has Hot Pursuit
exclusive jurisdiction over Article 111 allows hot
its ships on the high seas to pursuit of a foreign vessel
the extent not limited by where there is good reason
agreement. By legal fiction, to believe that the ship has
a ship is a floating part of violated laws or regulations
the flag state. The law of of a coastal state. The
the flag state is applied to it
pursuit must commence
“on the pragmatic basis that
when the foreign vessel is
there must be some law on
within the internal waters,
shipboard, that it cannot
the archipelagic waters, the
change at every change of
territorial waters or the
waters, and no experience
contiguous zone of the
shows a better rule than that
pursuing state. It may
of the state that owns it.”8
continue into the high seas
Freedom of overflight belongs to both
civilian and military aircraft. if the pursuit has not been
interrupted. If the foreign
Freedom of fishing
ship is in the contiguous
also includes the duty to
zone, it may be pursued
cooperate in taking only for violations of the
measures to ensure the rights of the coastal state in
conservation and the contiguous zone.
management of the living Mutatis mutandis, the
resources of the high seas. right of hot pursuit shall
Article 86 of the 1982 also apply to violations of
LOS, on the six freedoms, applicable laws and
says: “The provisions of regulations of the coastal
this part apply to all parts of state in the
the sea that are not included

‘Lauritzen v. Larsen, 345 U.S.

571,585 (1953).
 jurisdiction. The
alternatives are the
International Tribunal for
CHAPTER 8 the Law of the Sea, the ICJ,
TERRITORY: LAW OF THE SEA or an arbitral tribunal
constituted under the
exclusive economic zone or
Convention.
the continental shelf
including the safety zones
of the shelf.
Hot pursuit must stop
as soon as the ship pursued
enters the territorial waters
if its own state or of a third
state.
Hot pursuit may be
carried out only by
warships or military
aircraft, or any other ship or
aircraft properly marked for
that purpose.
In the case of The I’m
Alone (29 AJIL 326),
although the pursuit was
found to be legitimate, the
sinking of the pursued
vessel was found to be “not
justified by anything in the
Convention ... [nor] by any
principle of international
law.” The Commission
ordered the United States to
apologize to the Canadian
government and to pay
damages.

Settlement of Disputes.
Peaceful settlement of
disputes is compulsory.
Under Part XV of the 1982
Convention States are
required to settle peacefully
disputes concerning the
Convention. If a bilateral
settlement fails, Article 285
requires submission of the
dispute for compulsory
settlement in one of the
tribunals clothed with
 the various states have. For
that matter, it is possible for
more than one sovereignty
to have jurisdiction over the
same subject matter.
International law
Chapter 9 JURISDICTION OF STATES limits itself to criminal
rather than civil jurisdiction.
Civil jurisdiction is a
subject for private
international law or
Jurisdiction means
conflicts of law.
the authority to affect legal
interests. Corresponding to Writers have come up with five principles
as follows:
the powers of government,
jurisdiction can be: 1) th
(^jurisdiction to prescribe principle;
norms of conduct 2) th
(legislative jurisdiction), (2)
principle;
jurisdiction to enforce the th
norms prescribed (executive 3) pr
jurisdiction), and (3) 4) th
jurisdiction to adjudicate
principle; and
(judicial jurisdiction).
The scope of a state’s 5) th
jurisdiction over a person, principle.
thing, or event depends on The first three are
the interest of the state in generally supported in
affecting the subject in customary law; the fourth
question. Where there are finds application in special
competing interests among circumstances; but the fifth
various states, there may be does not enjoy wide
a need to establish priorities acceptance. Of co rse j
on the basis of the quality
risdiction ma also be acq
and quantity of the linkages
ired thro gh treat
132
 (Thalweg
doctrine)',
← whe
CHAPTER 9 n the boundary
JURISDICTION
OF STATES between two
states is a non-
The Territoriality Principle.
The fundamental navigable river
source of jurisdiction is or a lake, its
sovereignty over territory. A location is the
state has absolute, but not middle of the
necessarily exclusive,
river or lake.
power to prescribe,
adjudicate and enforce rules In this regard it is important to recall
for conduct that occurs what was said in the Las Palmas case:
within its territory. For this to have jurisdiction, occupation is not enough;
reason, it is necessary that control must also be established.
boundaries be determined. The Philippines has
The Third Restatement no problem with surface
summarizes the rules on land boundaries because we
boundaries where states are have no contiguous
not islands but parts of a neighbors. However,
larger land mass thus: because we are very close
the to other Asian states,
boundary knowing where our
separating boundaries end may be
the land necessary for purposes of
areas of determining our exclusive
two states economic zone, treated
is earlier in Chapter 9.
determine Effects Doctrine
d by acts An aspect of the
of the territoriality principle is the
states “effects doctrine A state
expressing also has jurisdiction over
their acts occurring outside its
consent to territory but having effects
its within it. This was
location. enunciated in the Lotus
Unless a consent to a different rule case, an early case dealing
has been expressed, with territorial jurisdiction.
← whe The effects doctrine
n the boundary itself consists of two
between two principles. First, there is the
states is a subjective territorial
navigable river, principle which says that a
its location is state has jurisdiction to
the middle of prosecute and punish for
the channel of crime commenced within
navigation the state but completed or
consummated abroad. The
second is the objective
territorial principle which
says that a state has
jurisdiction to prosecute
and
 Lieutenan
t Demons
argued that the
Turkish Courts
134 INTRODUCTION TO PUBLIC
had no
INTERNATIONAL LAW
jurisdiction.
This argument
punish for crime was rejected
commenced without the and he was
state but consummated sentenced to
eighty days
within its territory. See the
imprisonment
Trail Smelter Arbitration. and a fine of
THE LOTUS CASE FRANCE V. twenty-two
TURKEY PCU (1927) pounds. Hassan
Background Bey received a
slightly heavier
On
sentence.
August 2, 1926,
just before The
midnight, a French
French mail Government
steamer Lotus, objected to the
on the way to actions of the
Constantinople, Turkish Court.
collided with The French and
the Turkish the Turks
cutter Boz- agreed to
Kourt on the submit the
high seas. The
dispute to the
Boz-Kourt sank
Permanent
with the loss of
Court of
eight sailors, all
International
Turkish
Justice (the
nationals. The
Lotus precursor to the
subsequently ICJ).
arrived in In
Constantinople submitting the
at which point dispute to the
Turkish PCIJ, an
authorities
agreement was
arrested
Lieutenant drawn up
Demons, the according to
French officer which the Court
in charge of the had to decide:
Lotus at the Has
time of the Turkey by
collision, and instituting
Hassan Bey, the criminal
captain of the proceedings in
Boz-Kourt. pur-suance of
Both were
Turkish law
charged with
against M.
manslaughter.
Demons, officer
of the watch on
board the Lotus
at the time of
the collision, in
consequence of
the loss of the
Boz-Kourt
having involved
the death of
eight Turkish
sailors and
passengers
violated
international
law?
Judgment:
The
Court, having to
consider
whether there
are any rules of
international
law which may
have been
violated by the
prosecution in
pursuance of
Turkish law of
Lieutenant
Demons, is
confronted in
the first place
by a question of
principle
which . . . has
proved to be a
fundamental
one. The French
Government
contends that
the Turkish
Courts, in order
to have
jurisdiction,
should be able
to point to some
title to
jurisdiction
recognized by
international
law in favor of
Turkey. On the
other hand, the
Turkish
Government
 must ...
ascertain
whether or not
there exists a
CHAPTER 9 rule of
JURISDICTION OF STATES international
takes the view law limiting the
freedom of
that Turkey has
States to extend
jurisdiction the criminal
whenever such jurisdiction of
jurisdiction does their courts to a
not come into situation uniting
the
conflict with a
circumstances
principle of
of the present
international case.
law. ... [T]he
characteristic
Though it features of the
is true that in all situation of fact
systems of law, are as follows
the principle of there has been a
the territorial collision on the
character of high seas
criminal law is between two
fundamental, it vessels flying
is equally true different flags,
that all or nearly
on one of which
all these
was one of the
systems of law
persons alleged
extend their
to be guilty of
action to
the offense,
offenses
committed whilst the
outside the victims were on
territory of the board the other.
State which It is
adopts them, certainly true
and they do so that — apart
in ways which from special
vary from State cases which are
to State. The defined by
territoriality of international
criminal law, law — vessels
therefore, is not on the high seas
an absolute are subject to no
principle of authority except
international that of the State
law and by no whose flag they
means coincides fly. In virtue of
with territorial the principle of
sov-ereignty. the freedom of
the seas, that is
The Court to say, the
therefore absence of any
territorial
sovereignty it exercises
upon the high within its
seas, no State territory
may exercise properly so-
any kind of called. It
jurisdiction over follows that
foreign vessels what occurs on
upon them.... board a
But it by
no means
follows that a
State can never
in its own
territory
exercise
jurisdiction over
acts which have
occurred on
board a foreign
ship on the high
seas. A corollary
of the principle
of the freedom
of the seas is
that a ship on
the high seas is
assimilated to
the territory of
the State the
flag of which it
flies, for, just as
in its own
territory, that
State exercises
its authority
upon it, and no
other State may
do so. All that
can be said is
that by virtue of
the principle of
the freedom of
the seas, a ship
is placed in the
same position as
national
territory, but
there is nothing
to support the
claim according
to which the
rights of the
State under
whose flag the
vessel sails may
go farther than
the rights which
 there was a rule
of customary
international
law which,
INTRODUCTION TO PUBLIC INTERNATIONAL LAW going further
than the
vessel upon the principle stated
high seas must above,
be regarded as if established the
it occurred on exclusive
the territory of jurisdiction of
the State whose the State whose
flag the ship flag was flown.
flies. If, The French
therefore, a Government has
guilty act endeavored to
committed on prove the
the high seas existence of
produces its such a rule,
effects on a having recourse
vessel flying for this purpose
another flag or to the teachings
in foreign of publicists, to
territory, the decisions of
same principles municipal and
must be applied international
as if the tribunals, and
territories of especially to
two different conventions
States were which, whilst
concerned, and creating
the conclusion exceptions to
must therefore the principle of
be drawn that the freedom of
there is no rule the seas by
of international permitting the
law prohibiting war and police
the State to vessels of a
which the ship State to exercise
on which the a more or less
effects of the extensive
offense have control over the
taken place merchant
belongs, from vessels of
regarding the another State,
offense as reserve
having been jurisdiction to
committed in its the courts of the
territory and country as is
prosecuting, flown by the
accordingly, the vessel
delinquent. proceeded
This against.
conclusion In the
could only be Court’s opinion,
overcome if it the existence of
were shown that
such a rule has hand, there is no
not been lack of writers
conclusively who, upon a
proved. close study of
the special
In the first
question
place, as regards
whether a State
teachings of
can prosecute
publicists, and
for offenses
apart from the
committed on
question as to
board a foreign
what their value
ship on the high
may be from the
seas, definitely
point of view of
come to the
establishing the
conclusion that
existence of a
such offenses
rule of
must be
customary law,
regarded as if
it is no doubt
they had been
true that all or
committed in
nearly all
the territory of
writers teach
the State whose
that ships on the
flag the ship
high seas are
flies, and that
subject
consequently,
exclusively to
the general rules
the jurisdiction
of each legal
of the State
system in regard
whose flag they
to offenses
fly. But the
committed
important point
abroad are
is the
applicable.
significance
attached by
them to this
principle; now it
does not appear
that in general,
writers bestow
upon this
principle a
scope differing
from or wider
than that
explained above
and which is
equivalent to
saying that the
jurisdiction of a
State over
vessels on the
high seas is the
same in extent
as its
jurisdiction in
its own territory.
On the other
 proceedings are
exclusively
within the
jurisdiction of
CHAPTER 9
JURISDICTION OF STATES the State whose
flag is flown....
In regard The
to precedents, it offense for
should first be which
observed that, Lieutenant
leaving aside Demons appears
the collision to have been
cases ... none of prosecuted was
them relates to an act of
offenses negligence or
affecting two imprudence —
ships flying the having its origin
flags of on board the
different Lotus, whilst its
countries, and effects made
consequently themselves felt
they are not of on board the
much Boz-Kourt.
importance in These two
the case before elements are,
the Court. ... legally, entirely
On the inseparable so
other hand, much so that
there is no lack their separation
of cases in renders the
which a State offense non-
has claimed a existent. Neither
right to the exclusive
jurisdiction of
prosecute for an
either State, nor
offense,
the limitations
committed on
of the
board a foreign
jurisdiction of
vessel, which it each to the
regarded as occurrences
punishable which took
under its place on the
legislation.... respective ships
would appear
The calculated to
conclusion at satisfy the
which the Court requirements of
has therefore justice and
arrived is that effectively to
there is no rule protect the
of international interests of the
law in regard to two States. It is
collision cases only natural that
each should be
to the effect that
able to exercise
criminal
jurisdiction and
 to do so in
respect of the
incident as a
whole. It is
therefore a case
of concurrent
jurisdiction....

Jurisdiction over foreign vessels in

Philippine Territory

Regarding crimes
committed on foreign
vessels within Philippine
territory, the Supreme Court
had this to say:
There are two
fundamental rules on this
particular matter in
connection with
international law; to wit, the
French rule, according to
which crimes committed
aboard a foreign merchant
vessel should not be
prosecuted in the courts of
the country within whose
territorial jurisdiction they
were committed unless their
commission affects the
peace and security of the
territory; and the English
rule, based on the territorial
principle and followed in
the United States, according
to which, crimes perpetrated
under such circumstances
are in general triable in the
courts of the country within
whose territory they were
committed. Of these
 Columbia, have
been causing
damage in the
INTRODUCTION TO PUBLIC State of
INTERNATIONAL LAW Washington,
and
Recognizi
two rules, it is the last one
ng the
that obtains in this
desirability and
jurisdiction, because at
necessity of
present the theories and
effecting a per-
jurisprudence prevailing in
manent
the United States on the
settlement,
matter are authority in the
Have
Philippines which is now a
decided to
territory of the United
conclude a
States.
convention for
(Syllabus, People v. Wong Cheng, 46 Phil 729
[1922]) the purposes
aforesaid...
TRAIL SMELTER ARBITRATION The
US v. Canada (1938-41) Governments of
(Abridged) the United
The States and of
President of the Canada, here-
United States of inafter referred
America, and to as “the
His Majesty the Governments,”
King of Great mutually agree
to constitute a
Britain, Ireland
tribunal... for
and the British
the purpose of
dominions
deciding the
beyond the
questions
Seas, Emperor referred to it...
of India, in The
respect of the Tribunal shall
Dominion of finally decide
Canada. the questions,
Consideri hereinafter
ng that the
referred to as
Government of
“the
the United
States has Questions,” set
complained to forth hereunder,
the Government namely:
of Canada that Wh
fumes ether
discharged from damage
the smelter of caused by
the consolidated the Trail
Mining and Smelter in
Smelting the State
company at of
Trail, British Washingt
on has being in
occurred the
since the affirmativ
first day e, whether
of the Trail
January, Smelter
1932, and,
should be
if so, what
required
indemnity
to refrain
should be
paid from
therefor? causing
In damage in
the event the State
of the of
answer to Washingt
the first on in the
part of the future
preceding and, if so,
Question to what
extent?
3. I
n the light of the answer to the
preceding Question, what
measures or regime, if any, should
be adopted or maintained by
the Trail Smelter?
 due to an
agency situated
in the territory
CHAPTER 9 of the other (the
JURISDICTION OF STATES Dominion of
Canada), for
W which damage
hat the latter has
indemn assumed by the
ity or Convention an
compe international
nsation responsibility....
, if any,
should In
be paid conclusion, the
on Tribunal
accoun answers
t of Question 1 in
any Article III, as
follows:
decisio
Damage caused
n or
by the Trail
decisio Smelter in the
ns State of
rendere Washington has
d by occurred since
the the first day of
Tribun January, 1932,
al and up to
pursua October 1,1937,
and the
nt to
indemnity to be
the
paid therefor is
next seventy-eight
two thousand dollars
precedi ($78,000), and
ng is to be
Questi complete and
ons? final indemnity
and
compensation
The
for all damage
controversy is
which occurred
between two between such
governments dates. ...
involving
damage As
occurring in the Professor
territory of one Eagleton puts it
of them (the Responsibility
United States of of States in
America) and International
alleged to be Law, 1928, p.
80: “A State government of
owes at all the Dominion
times a duty to of Canada to
protect other see to it that this
States against conduct should
injurious acts be in
by individuals conformity with
from within its the obligation
jurisdiction.” A of the
great number of Dominion under
such general international
pronouncement law as herein
s by leading determined.
authorities The Tribunal, therefore, answers question No. 2 as follows:
concerning the so long as the
duty of a State present
to respect other conditions in
States and their the Columbia
territory have River Valley
been presented prevail, the
to the Trail Smelter
Tribunal.... shall be
[T]his required to
principle, as refrain from
such, has not causing any
been questioned damage through
by Canada. But fumes in the
the real State of
difficulty often Washington;...
arises rather
when it comes
to determine
what... is
deemed to
constitute an
injurious act.

Consideri
ng the
circumstances
of the case, the
Tribunal holds
that the
Dominion of
Canada is
responsible in
international
law for the
conduct of the
Trail Smelter....
It is, therefore,
the duty of the
 The two cases
were heard
together, and a
fine of $30,000
140 INTRODUCTION TO PUBLIC
with costs was
INTERNATIONAL LAW
imposed in each
case, to be
The Nationality Principle. satisfied out of
The nationality the property of
principle says that every the petitioner
state has jurisdiction over which had been
its nationals even when seized by order
those nationals are outside of the court. ...
The subpoenas
the state. Blackmer v.
were issued and
United States, infra, is
served, and the
illustrative of this principle. proceedings to
punish for
BLACKMER V. UNITED STATES 284 U.S. 421 (1932) contempt were
Mr. Chief Justice HUGHES delivered the opinion of the Court. taken, under the
provisions of
The the Act of July
petitioner, 3, 1926, c. 762,
Harry M.
44 Stat. 835,
Blackmer, a
U.S.C., tit. 28,
citizen of the
711-718 (28
United States
USCA 711-
resident in
718).
Paris, France,
was adjudged The
guilty of statute provided
contempt of the that [284 U.S.
Supreme Court 421,434]
of the District whenever the
of Columbia for attendance at
failure to the trial of a
respond to criminal action
subpoenas of a witness
served upon abroad, who is
him in France ‘a citizen of the
and requiring United States or
him to appear domiciled
as a witness on therein,’ is
behalf of the desired by the
United States at Attorney
a criminal trial General, or any
in that court. assistant or
Two subpoenas district attorney
were issued, for acting under
appearances at him, the judge
different times, of the court in
and there was a which the
separate action is
proceeding with pending may
respect to each. order a
subpoena to
 issue, to be
addressed to a
consul of the
United States
and to be
served by him
personally [284
U.S. 421,
435] upon the witness with a tender of
traveling expenses. Sections 2,
3 of the act (28 USCA 712,713).
This
statute and the
proceedings
against the
petitioner are
as-sailed as
being repugnant
to the
Constitution of
the United
States.
First. The principal objections to the statute are that it violates the due
process
clause of the Fifth Amendment. These contentions are:
That the
‘Congress has
no power to
authorize
United States
consuls to serve
process except
as permitted by
treaty’; (2) that
the act does not
provide ‘a valid
method of
acquiring
judicial
jurisdic-
 United States
retained its
authority over
him, and he was
CHAPTER 9 bound by its
JURISDICTION OF STATES laws made
applicable to
tion to render
him in a foreign
personal
country. Thus,
judgment although
against resident abroad,
defendant and the petitioner
judgment remained
against his subject to the
property’; (3) taxing power of
that the act the United
‘does not States. Cook v.
require actual or Tait, 265 US.
any other notice 47, 54, 56 S.,
to defendant of 44 S. Ct. 444.
the offense or of For
the disobedience to
Government’s its laws through
claim against conduct abroad,
his property’; he was subject
(4) that the to punishment
provisions ‘for in the courts of
hearing and the United
judgment in the States. United
entire absence States v.
of the accused Bowman [284 US. 421, 437], 260 US.
and without his 94,102, 43 S. Ct. 39.
con-sent’ are With
invalid; and (5) respect to such
that the act is an exercise of
‘arbitrary, authority, there
capricious and is no question
unreasonable.’ of international
While it law, but solely
appears that the of the purport of
petitioner the municipal
removed his law which
residence to establishes the
France in the duties of the
year 1924, it is citizen in
undisputed that relation to his
he was, and
own
continued to be,
government.
a citizen of the
While the
United States.
legislation of
He continued to
the Congress,
owe allegiance
unless the
to the United
States. By contrary intent
virtue of the appears, is
obligations of construed to
citizenship, the apply only
within the 176b, 73 Eng.
territorial Rep. 388;
jurisdiction of Knowles v.
the United Luce, Moore
States, the 109, 72 Eng.
question of its Rep. 473.4.
application, so What in
far as citizens of England was
the United the prerogative
States in foreign of the sovereign
countries are in this respect
concerned, is pertains under
one of our
construction, constitutional
not of system to the
legislative national
power. authority which
American may be
Banana Co. v. exercised by the
United Fruit Congress by
Co., 213 US. virtue of the
347, 357, 29 S. legislative
Ct. 511, 16 power to
Ann. Cas. prescribe the
1047; United duties of the
States v. citizens of the
Bowman, United States.
supra;
Robertson v. It is also
Labor Board, beyond
268 US. controversy that
619,622,45 S.
one of the
Ct. 621. Nor
duties which the
can it be
doubted that the citizen owes to
United States his government
possesses the is to support the
power inherent administration
in sovereignty of
to require the
return to this
country of a
citizen, resident
elsewhere,
whenever the
public interest
requires it, and
to penalize him
in case of
refusal.
Compare
Bartue and the
Duchess of
Suffolk’s Case,
2 Dyer’s Rep.
 dual nationality. The
doctrine is found in the
Nottebohm case.
142 INTRODUCTION TO PUBLIC
THE NOTTEBOHM
INTERNATIONAL LAW
CASE
Liechtenstein v.
justice by Guatemala
attending its CJ.
courts and 1955
giving his (Abridged)
testimony
Background
whenever he is
properly Notteboh
summoned. m was a
Blair v. United German
States, 250 US. national by
273, 281, 39 S. birth. In 1905,
St. Ct. 468. And at the age of 24,
the Congress he moved to
may provide for Guatemala,
the per- where he
formance of this duty and prescribe maintained a
penalties for disobedience. ... residence and a
business
Each state has the enterprise. On
right to decide who are its several
nationals using either the occasions, he
principle ofjus sanguinis or made business
jus soli or naturalization trips to
laws. However, for a state Germany.
Between 1931
to claim a person as a
and 1939, he
national, the state must have
visited a brother
reasonable connection or an in Liechtenstein
“effective link” with that on several
person. The consent of the occasions. The
individual alone is not rest of his
enough for him to be relatives and
recognized by other states friends lived in
as a national of the state to Germany or
which he claims to belong. Guatemala. In
October 1939
The Nottebohm case
(shortly after
(Liechtenstein v.
the outbreak of
Guatemala), infra, is World War II),
illustrative. he applied for
citizenship by
Effective Nationality Link
naturalization in
The doctrine on Liechtenstein.
effective nationality link is Notteboh
used to determine which of m asked for a
two states of which a person waiver of the
is a national will be residence
recognized as having the requirement,
paid his
right to give diplomatic
naturalization
protection to the holder of fees, and gave a
deposit for the
payment of
taxes. By the
end of October
1939, he was
granted
citizenship and
received a
Liechtenstein
passport. On
December
1,1939, he
received a visa
from the
Guatemalan
Consul in
Zurich.
Nottebohm then
returned to
Guatemala.
Several
months before
declaring war
on Germany,
the United
States
blacklisted
Nottebohm
and froze his
U.S. assets.
Like
 property
without
compensation
CHAPTER 9 acted in breach
JURISDICTION OF STATES of their
obligations
the United under
States, international
Guatemala law and
entered World consequently in
War II against a manner
Germany in requiring the
December payment of
1941. In 1943, reparation.” For
Guatemala its part,
arrested Guatemala
Nottebohm as a asked the Court
dangerous to declare the
enemy alien claim
and deported inadmissible on
him to the grounds of the
United States, nationality of
where he was the claimant.
interned until
1946. He then Decision
returned to Guatemala has
Liechtenstein,
referred to a well-
after Guatemala
refused his established principle of
application for international law,... that ‘it
readmission. By is the bond of nationality
1949, between the State and the
Guatemala had individual which alone
confiscated his
confers upon the State the
property on the
grounds that he right of diplomatic
was an enemy protection’....
alien. Liechtenstein
In 1951, considers itself to be acting
Liechtenstein in conformity with this
brought this principle and contends that
action against
Nottebohm is its national
Guatemala,
by virtue of the
asking the
Court to declare naturalization conferred
that: “The upon him. ... Guatemala, on
Government of the other hand, requests]
Guatemala in the Court ‘to declare that
arresting, the claim of the Principality
detaining, of Liechtenstein is
expelling and
inadmissible’, and set[s]
refusing to
forth a number of grounds
readmit Mr.
Nottebohm and relating to the nationality of
in seizing and Liechtenstein granted to
retaining his Nottebohm by
naturalization. Thus, the
real issue before the Court
is the admissibility of the
claim of Liechtenstein in
respect of Nottebohm.
In order to decide
upon the admissibility of
the application, the court
must ascertain whether the
nationality conferred on
Nottebohm by
Liechtenstein ...
bestows upon Liechtenstein
a sufficient title to the
exercise of protection in
respect of Nottebohm as
against Guatemala and
therefore entitles it to seise
the Court of a claim
relating to him.
Liechtenstein has
argued that Guatemala
formerly recognized the
naturalization which it now
challenges and cannot
therefore be heard to put
forward a contention which
is inconsistent with its
former attitude. ... Reliance
has been placed on the fact
that... the Consul-General
of
 that Guatemala then
recognized that the
naturalization conferred
144 INTRODUCTION TO PUBLIC upon Nottebohm gave
INTERNATIONAL LAW Liechtenstein any title to
the exercise of protection.
Guatemala in Zurich In a letter of the
entered a visa in the Swiss consul of December
Liechtenstein passport of 15, 1944, to the Minister of
Mr. Nottebohm for his External Affairs, reference
return to Guatemala; that on is made to the entry on the
January 29,1940 Black Lists of “Frederick
Nottebohm informed the Nottebohm, a national of
Ministry of External Affairs Liechtenstein.” ...
in Guatemala that he had Guatemala, in its reply ...
adopted the nationality of expressly stated that it
Liechtenstein and therefore could not “recognise that
requested that the entry Mr. Nottebohm, a German
relating to him in the subject habitually resident
Register of Aliens should in Guatemala, has acquired
be altered accordingly, a the nationality of
request which was granted Liechtenstein without
on January 31; that on changing his habitual
February 9, 1940 a similar residence.” ... There is here
amendment was made to an express denial by
his identity document, and Guatemala of Nottebohm’s
lastly that a certificate to Liechtenstein nationality....
the same effect was issued There is nothing here
to him by the civil registry to show that before the
of Guatemala on July institution of proceedings
1,1940. Guatemala had recognised
The acts of the Liechtenstein’s title to
Guatemalan authorities exercise protection in favor
proceeded on the basis of of Nottebohm and that it is
the statements made to thus precluded from
them by the person denying such a title. ...
concerned. ... All of these Since no proof has been
acts have reference to the adduced that Guatemala has
control of aliens in recognized the title to the
Guatemala and not to the exercise of protection relied
exercise of diplomatic upon by Liechtenstein as
protection. When being derived from the
Nottebohm thus presented naturalization which it
himself before the granted to Nottebohm, the
Guatemalan authorities, the Court must consider
latter had before them a whether such an act of
private individual: there did granting nationality by
not thus come into being Liechtenstein directly
any relationship between entails an obligation on the
governments. There was part of Guatemala to
nothing in all this to show recognize its effect, namely,
Liechtenstein’s right to
exercise its protection....
It is for Liechtenstein,
as it is for every sovereign
State, to settle by its own
legislation the rules relating
to the acquisition of its
 international law which
determines whether a State
is entitled to exercise
CHAPTER 9 protection and to seise the
JURISDICTION OF STATES Court.
The naturalization of
nationality, and to confer
Nottebohm was an act
that nationality by
performed by Liechtenstein
naturalization granted by its
in the exercise of its
own organs in accordance
domestic jurisdiction. The
with that legislation. It is
question to be decided is
not necessary to determine whether that act has the
whether international law international effect here
imposes any limitations on under consideration.
its freedom of decision in International practice
this domain. Furthermore, provides many examples of
nationality has its most acts performed by States in
immediate, its most far- the exercise of their
reaching and, for most domestic jurisdiction which
people, its only effects do not necessarily or
within the legal system of automatically have
the State conferring it. international effect, which
Nationality serves above all are not necessarily and
to determine that the person automatically binding on
upon whom it is conferred other States or which are
enjoys the rights and is binding on them only
bound by the obligations subject to certain
which the law of the State conditions....
in question grants to or When one State has
imposes on its nationals. conferred its nationality
upon an individual and
This is implied in the wider
another State has conferred
concept that nationality is
its own nationality on the
within the domestic
same person, it may occur
jurisdiction of the State.
that each of these States,
But the issue which considering itself to have
the Court must decide is not acted in the exercise of its
one which pertains to the domestic jurisdiction,
legal system of adheres to its own view and
Liechtenstein. It does not bases itself thereon in so far
depend on the law or on the as its own actions are
decision of Liechtenstein concerned. In so doing,
whether that State is each State remains within
entitled to exercise its the limits of its domestic
protection, in the case jurisdiction.
under consideration. To This situation may
exercise protection, to arise on the international
apply to the Court is to plane and fall to be
place oneself on the plane considered by international
of international law. It is arbitrators or by the courts
of a third State. If the
arbitrators or the courts of
such a State should confine
themselves to the view that
nationality is exclusively
within the domestic
jurisdiction of the State, it
would be necessary for
them to find that they were
 individual whom two other
States hold to be their
national, seek to resolve the
146 INTRODUCTION TO PUBLIC conflict by having recourse
INTERNATIONAL LAW to international criteria and
their prevailing tendency is
to prefer the real and
confronted by two
effective nationality.
contradictory assertions
made by two sovereign The same tendency
prevails in the writings of
States, assertions which
publicists and in practice.
they would consequently
This notion is inherent in
have to regard as of equal
the provisions of Article 3,
weight, which would oblige
paragraph
them to allow the
2, of the Statute of the
contradiction to subsist and
Court. National laws reflect
thus fail to resolve the
this tendency when, inter
conflict submitted to
alia, they make
them....
naturalization dependent on
International conditions indicating the
arbitrators have decided ...
existence of a link, which
numerous cases of dual
may vary in their purpose
nationality, where the
or in their nature but which
question arose with regard
are essentially concerned
to the exercise of
with this idea. The
protection. They have given
Liechtenstein Law of
their preference to the real
and effective nationality, January 4th, 1934, is a good
that which accorded with example.
the facts, that based on The practice of
stronger factual ties certain States which refrain
between the person from exercising protection
concerned and one of the in favor of a naturalized
States whose nationality is person when the latter has
involved. Different factors in fact, by his prolonged
are taken into absence, severed his links
consideration, and their
with what is no longer for
importance will vary from
him anything but his
one case to the next: the
nominal country, manifests
habitual residence of the
individual concerned is an the view of these States
important factor, but there that, in order to be capable
are other factors such as the of being invoked against
centre of his interests, his another State, nationality
family ties, his participation must correspond with the
in public life, attachment factual situation. A similar
shown by him for a given view is manifested in the
country and inculcated in relevant provisions of the
his children, etc. bilateral nationality treaties
Similarly, the courts concluded between the
of third States, when they United States of America
have before them an
and other States since 1868,
such as those sometimes
referred to as the Bancroft
Treaties, and in the Pan-
American Convention,
signed at Rio de Janeiro on
August 13th, 1906, on the
status of naturalized
citizens who resume
residence in their country of
origin.
 The requirement that
such a concordance must
exist is to be found in the
CHAPTER 9 studies carried on in the
JURISDICTION OF STATES course of the last thirty
years upon the initiative and
The character thus
under the auspices of the
recognized on the League of Nations and the
international level as United Nations. It explains
pertaining to nationality is the provision which the
in no way inconsistent with Conference for the
the fact that international Codification of
law leaves it to each State to International Law, held at
lay down the rules The Hague in 1930, inserted
governing the grant of its in Article I of the
own nationality. The reason Convention relating to the
for this is that the diversity Conflict of Nationality
of demographic conditions Laws, laying down that the
has thus far made it law enacted by a State for
impossible for any general the purpose of determining
agreement to be reached on who are its nationals “shall
the rules relating to be recognized by other
nationality, although the States in so far as it is
latter by its very nature consistent with ...
affects international international custom, and
the principles of law
relations. It has been
generally recognized with
considered that the best way
regard to nationality.” In the
of making such rules accord
same spirit, Article 5 of the
with the vary-ing
Convention refers to criteria
demographic conditions in
of the individual’s genuine
different countries is to
connections for the purpose
leave the fixing of such
of resolving questions of
rules to the competence of
dual nationality which arise
each State. On the other in third States.
hand, a State cannot claim
According to the
that the rules it has thus laid
practice of States, to arbitral
down are entitled to and judicial decisions and to
recognition by another State the opinions of writers,
unless it has acted in nationality is a legal bond
conformity with this general having as its basis a social
aim of making the legal fact of attachment, a
bond of nationality accord genuine connection of
with the individual’s existence, interests and
genuine connection with the sentiments, together with
State which assumes the the existence of reciprocal
defense of its citizens by rights and duties. It may be
means of protection as said to constitute the
against other States. juridical expression of the
fact that the individual upon
whom it is conferred, either
directly by the law or as the
result of an act of the
authorities, is in fact more
closely connected with the
population of the State
conferring nationality than
with that of any other State.
Conferred by a State, it only
entitles that State to
exercise protection vis-d-vis
another State, if it
constitutes a
 following his naturalization
appears to be sufficiently
close, so preponderant in
148 INTRODUCTION TO PUBLIC relation to any connection
INTERNATIONAL LAW which may have existed
between him and any other
translation into juridical State, that it is possible to
terms of the individual’s regard the nationality
connection with the State conferred upon him as real
which has made him its and effective, as the exact
national. juridical expression of a
Diplomatic protection social fact of a connection
and protection by means of which existed previously or
international judicial came into existence
proceedings constitute thereafter.
measures for the defense of Naturalization is not a
the rights of the State. As matter to be taken lightly.
the Permanent Court of To seek and to obtain it is
International Justice has not something that happens
said and repeated, “by frequently in the life of a
taking up the case of one of human being. It involves
its subjects and by resorting his breaking of a bond of
to diplomatic action or allegiance and his
international judicial establishment of a new
proceedings on his behalf, a bond of allegiance. It may
State is in reality asserting have far-reaching
its own rights — its right to consequences and involve
ensure in the person of its profound changes in the
subjects respect for the destiny of the individual
rules of international law.” who obtains it. It concerns
Since this is the him personally, and to
character which nationality consider it only from the
must present when it is point of view of its
invoked to furnish the State repercussions with regard
which has granted it with a to his property would be to
title to the exercise of misunderstand its profound
protection and to the significance. In order to
institution of international appraise its international
judicial proceedings, the effect, it is impossible to
Court must ascertain disregard the circumstances
whether the nationality in which it was conferred,
the serious character which
granted to Nottebohm by
attaches to it, the real and
means of naturalization is of
effective, and not merely
this character or, in other
the verbal preference of the
words, whether the factual
individual seeking it for the
connection between
country which grants it to
Nottebohm and him.
Liechtenstein in the period At the time of his
preceding, naturalization, does
contemporaneous with and Nottebohm appear to have
been more closely attached
by his tradition, his
establishment, his interests,
his activities, his family
ties, his intentions for the
near future to Liechtenstein
than of any other State? ...
 naturalization,
and it remained
the center of his
CHAPTER 9 interests and of
JURISDICTION OF STATES his business
activities. He
The essential facts are as follows: stayed there
until his
At the removal as a
date when he result of war
applied for
measures in
naturalization
1943. He
Nottebohm had
subsequently
been a German
attempted to
national from
return there,
the time of his
and he now
birth. He had
complains of
always retained
his connections Guatemala’s
with members refusal to admit
of his family him. There, too,
who had were several
remained in members of his
Germany and family who
he had always sought to
had business safeguard his
connections interests.
with that In
country. His contrast, his
country had actual
been at war for connections
more than a with
month, and Liechtenstein
there is nothing were extremely
to indicate that tenuous. No
the application settled abode,
for no prolonged
naturalization residence in
then made by that country at
Nottebohm was the time of his
motivated by application for
any desire to naturalization;
dissociate
the application
himself from
indicates that he
the Government
was paying a
of his country.
visit there and
He had confirms the
been settled in transient
Guatemala for character of this
34 years. He visit by its
had carried on request that the
his activities naturalization
there. It was the proceedings
main seat of his should be
interests. He initiated and
returned there concluded
shortly after his
without delay. business
No intention of activities to
settling there Liechtenstein. It
was shown at is unnecessary
that time or in this
realized in the connection to
ensuing weeks, attribute much
months or years importance to
— on the the promise to
contrary, he pay the taxes
returned to levied at the
Guatemala very time of his
shortly after his naturalization.
naturalization The only links
and showed to be
every intention discovered
of remaining between the
there. If Principality and
Nottebohm Nottebohm are
went to the short
Liechtenstein in sojourns
1946, this was already referred
because of the to and the
refusal of presence in
Guatemala to Vaduz of one of
admit him. No his brothers: but
indication is his brother’s
given of the presence is
grounds referred to in
warranting the his application
waiver of the for
condition of naturalization
residence, only as a
required by the reference to his
1934 good
Nationality
Law, which
waiver was
implicitly
granted to him.
There is no
allegation of
any economic
interests or of
any activities
exercised or to
be exercised in
Liechtenstein,
and no
manifestation
of any intention
whatsoever to
transfer all or
some of his
interests and
 circumstances
of speed and
accommodation
. In both
150 INTRODUCTION TO PUBLIC respects, it was
INTERNATIONAL LAW
lacking in the
genuineness
conduct. requisite in an
Furthermor act of such
e, other importance, if it
members is to be entitled
of his to be respected
family by a State in the
position of
have
Guatemala. It
asserted
was granted
Nottebohm without regard
’s desire to to the concept
spend his of nationality
old age in adopted in
Guatemala. international
These relations.
facts clearly Naturaliz
establish, on the ation was asked
one hand, the for not so much
absence of any for the purpose
bond of of obtaining a
attachment legal
between recognition of
Nottebohm and Nottebohm’s
Liechtenstein membership in
and, on the fact in the
other hand, the population of
existence of a Liechtenstein,
long-standing as it was to
and close enable him to
connection substitute for
between him his status as a
and Guatemala, national of a
a link which his belligerent
natural-ization State that of a
in no way national of a
weakened. That neutral State,
naturalization with the sole
was not based aim of thus
on any real coming within
prior the protection
connection with of Liechtenstein
Liechtenstein, but not of
nor did it in any becoming
way alter the wedded to its
manner of life traditions, its
of the person interests, its
upon whom it way of life or of
was conferred assuming the
in exceptional obligations —
other than fiscal Liechtenstein is
obligations — inadmissible.
and exercising
the rights As to corporations, a
pertaining to state has jurisdiction over
the status thus corporations organized
acquired. under its laws. Many states
Guatemal assert jurisdiction over
a is under no corporations whose
obligation to principal place of business
recognize a or registered office is
nationality located in their territories.
granted in such
States have also sought to
circumstances.
regulate corporations
Liechtenstein
organized or having their
consequently is
not entitled to principal place of business
extend its abroad when these corpora
protection to
Nottebohm vis-
a-vis
Guatemala and
its claim must,
for this reason,
be held to be
inadmissible.
The Court
is not therefore
called upon to
deal with the
other pleas in
bar put forward
by Guatemala
or the
conclusions of
the Parties other
than those on
which it is
adjudicating in
accordance
with the reasons
indicated
above.
For these
reasons, the
Court, by
eleven votes to
three, holds that
the claim
submitted by
the Government
of the
Principality of
 denied by their state when
out of the state. This is the
situation of many refugees.
CHAPTER 9 Since they do not
JURISDICTION OF STATES enjoy protection by any
tions are owned or state, how are they
controlled by nationals. This protected against violations
last is controversial. More of their human rights such
controversial still are multi- as by deportation to parts
national corporations which unknown? The following
register various addresses case offers an answer:
for different purposes. Thus,
MEJOFF V. DIRECTOR OF PRISONS
for instance, executive 90 Phil. 70 (1951)
offices, sales operations,
manufacturing and TUASON, J.:
distribution facilities may This is a
each be located in different second petition
for habeas
localities. These problems,
corpus by Boris
however, are more properly
Mejoff, the first
under the domain of conflict having been
of laws. denied in a
For maritime vessels, decision of this
a state has jurisdiction over Court of July
vessels flying its flag. (See 30, 1949. The
Lotus case, supra.) Each history of the
petitioner’s
state determines
detention was
requirements for
thus briefly set
registration. But flags of forth in that
convenience might be decision,
challenged on the ground of written by Mr.
lack of sufficient link. The Justice
same principle is generally Bengzon:
applicable to aircraft and “The
spacecraft. petitioner Boris
Mejoff is an
Stateless persons alien of Russian
Stateless persons are descent who
was brought to
those who do not have a
this country
nationality. They are either
from Shanghai
de jure or de facto stateless. as a secret
De jure stateless persons operative by the
are those who have lost Japanese forces
their nationality, if they had during the
one, and have not acquired latter’s regime
a new one. De facto in these Islands.
Upon liberation,
stateless persons are those
he was arrested
who have a nationality but as a Japanese
to whom protection is spy, by U.S.
Army Counter
Intelligence
Corps. Later, he
was handed to
the
Commonwealth
Government for
disposition in
accordance with
Commonwealth
Act No. 682.
Thereafter, the
People’s Court
 the Cebu
Provincial Jail
together with
three other
INTRODUCTION TO PUBLIC INTERNATIONAL LAW Russians to
await the arrival
ordered his of some
release. But the Russian vessels.
Deportation In July and
Board taking August of that
his case up, year, two boats
found that of Russian
having no travel nationality
documents called at the
Mejoff was Cebu Port. But
illegally in this their masters
country, and refused to take
consequently petitioner and
referred the his companions
matter to the alleging lack of
immigration authority to do
authorities. so. In October
After the 1948, after
corresponding repeated
investigation, failures to ship
the Board of this deportee
Commissioners abroad, the
of Immigration authorities re-
on April 5, moved him to
1948, declared Bilibid Prison
that Mejoff had at Muntinglupa
entered the where he has
Philippines been confined
illegally in up to the
1944, without present time,
inspection and inasmuch as the
admission by Commissioner
the immigration of Immigration
officials at a believes it is for
designation port the best
of entry and, interests of the
therefore, it country to keep
ordered that he him under
be deported on detention while
the first arrangements
available for his
transportation departure are
to Russia. The being made.”
petitioner was The Court
then under held the
custody, he petitioner’s
having been detention
arrested on temporary and
March 18, said that
1948. In May “temporary
1948, he was detention is a
transferred to necessary step
in the process circumstances,
of exclusion or specially the
expulsion of difficulties of
undersirable obtaining a
aliens and that passport, the
pending availability of
arrangements transportation,
for his the diplomatic
deportation, the arrangements
Government with the
has the right to governments
hold the concerned and
undersirable the efforts
alien under displayed to
confinement for send the
a reasonable deportee
length of time.” away;” but the
It took note of Court warned
the fact, that “under
manifested by established
the Solicitor precedents, too
General’s long a detention
representative may justify the
in the course of issuance of a
the oral writ of habeas
argument, that corpus.”
“this Mr.
Government Justice Paras,
desires to expel now Chief
the alien, and
Justice, Mr.
does not relish
keeping him at Justice Feria,
the people’s Mr. Justice
expense . . . Perfecto, and
making efforts the writer of
to carry out the this decision
decree of dissented. Mr.
exclusion by Jus
the highest
officer of the
land.” No
period was
fixed within
which the
immigration
authorities
should carry out
the
contemplated
deportation
beyond the
statement that
“The meaning
of ‘reasonable
time’ depends
upon the
 fault of theirs
that no ship or
country would
take the
CHAPTER 9 petitioner.
JURISDICTION OF STATES Aliens
tice Feria and illegally staying
Mr. Justice in the
Perfecto voted Philippines have
for outright no right of
asylum therein
discharge of the
(Soewapadji vs.
prisoner from
Wixon, Sept.
custody. Mr.
18, 1946, 157 F.
Justice Paras
ed., 289, 290),
qualified his
even if they are
dissent by
“stateless,”
stating that he
which the
might agree “to petitioner claims
a further to be. It is no
detention of the less true
herein however, as
petitioner, impliedly stated
provided that he in this Court’s
be released if decision, supra,
after six months, that foreign
the Government nationals, not
is still unable to enemy, against
deport him.” whom no charge
This writer has been made
joined in the other than that
latter dissent but their permission
thought that two to stay has
months expired, may
constituted not indefinitely
reasonable time. be kept in
Over two detention. The
years having protection
elapsed since against
the decision deprivation of
aforesaid was liberty without
promulgated, due process of
the Government law and except
has not found for crimes
ways and means committed
of removing the against the laws
petitioner out of of the land is
the country, and not limited to
none are in Philippine
sight, although, citizens but
it should be said extends to all
injustice to the residents, except
deportation enemy aliens,
authorities, it regardless of
was through no nationality.
Whether an liberty and all
alien who other
entered the fundamental
country in rights as applied
violation of its to all human
immigration beings were
laws may be proclaimed. It
detained for as was there
long as the resolved that
“All human
Government is
beings are bom
unable to deport
free and equal in
him, is a point
degree and
we need not
rights” (Art. 1)\
decide. The that “Everyone
petitioner’s is entitled to all
entry into the the rights and
Philippines was freedom set
not unlawful; he forth in this
was brought by Declaration,
the armed and without
belligerent distinction of
forces of a de any kind, such
facto as race, colour,
government sex, language,
whose decrees religion,
were law during political or other
the occupation. opinion,
Moreover,
by its
Constitution
(Art. II, Sec. 3),
the Philippines
“adopts the
generally
accepted
principles of
international
law as part of
the law of
Nation.” And in
a resolution
entitled
“Universal
Declaration Of
Human Rights”
and approved by
the General
Assembly of the
United Nations
of which the
Philippines is a
member, at its
plenary meeting
on December
10, 1948, the
right to life and
 war, was
ordered
excluded from
the United
INTRODUCTION TO PUBLIC INTERNATIONAL LAW States and
detained at Ellis
nationality or social origin, property, Island at the
birth, or other status” (Art. expense of the
; that “Every steamship
one has the company, when
right to an he returned
effective from a voyage
remedy by the on which he
competent had shipped
national from New York
tribunals for for one or more
European ports
acts violating
and return to
the fundamental
the United
rights granted
States. The
him by the
grounds for his
Constitution or
exclusion were
by law” (Art.
that he had no
8); that “No passport or
one shall be immigration
subjected to visa, and that in
arbitrary arrest, 1937 had been
detention or convicted of
exile” (Art. 9 ); perjury because
etc. in certain
documents he
The most represented
recent case, as himself to be an
far as we have American
been able to citizen. Upon
find, was that of his application
Staniszewski vs. for release on
Watkins (1948), habeas corpus,
80 Fed. Supp., the Court
132, which is released him
nearly upon his own
foursquare with recognizance.
the case at Judge Leibell,
hand. In that of the United
case a stateless States District
person, Court for the
formerly a Southern
Polish national, District of New
resident in the York, said in
United States part:
since 1911 and “W
many times hen the
serving as a return to
seaman on the writ
American of habeas
vessels both in corpus
peace and in came
before ship and
this court, sailed to
I the Port
suggested (Cherbour
that all g, France)
interested from
parties ... which he
make an last sailed
effort to to the
arrange to United
have the States, he
petitioner would
ship out probably
of some be denied
country permissio
that n to land.
would There is
receive no other
him as a country
resident. that
He is a would
native- take him,
born Pole without
but the proper
Polish document
Consul s.
has “It
advised seems to
him in me that
writing this is a
that he is genuine
no longer hardship
a Polish
case and
subject.
that the
This
petitioner
Governm
should be
ent does
released
not claim
that he is from
a Polish custody
citizen. on proper
This terms....
attorney “W
says he is hat is to
stateless. be done
The
with the
Governm
ent is petitioner
willing ? The
that he go governme
back to nt has had
the ship,
him in
but if he
were sent custody
back almost
aboard seven
months
and prac
 describe
him....
“I
CHAPTER 9 intend to
JURISDICTION OF STATES sustain
the writ of
tically habeas
admits it corpus
has no and order
place to the
send him release of
out of this the
country. petitioner
The on his
steamship own
company, recogniza
which nce. He
employed will be
him as required
one of a to inform
group the
sent to immigrati
the ship on
by the officials
Union, at Ellis
with Island by
proper mail on
seaman’s the 15th
papers of each
issued by month,
the stating
United where he
States is
Coast employed
Guard, is and where
paying $3 he can be
a day for reached
petitioner by mail. If
’s board the
at Ellis governme
Island. It nt does
is no fault succeed in
of the arranging
steamship for
company petitioner’
that s
petitioner deportatio
is an n to a
inadmissi country
ble alien that will
as the be ready
immigrati to receive
on him as a
officials resident,
 it may prevailing
then conditions of
advise the peace and order
petitioner in the
to that Philippines.
effect and
arrange
Premises
for his
considered, the
deportatio
writ will issue
n in the
commanding
manner
the respondents
provided
to release the
by law.”
petitioner from
Although custody upon
not binding these terms:
upon this Court The petitioner
as a precedent, shall be placed
the case under the
aforecited surveillance of
affords a happy the immigration
solution to the authorities or
quandary in their agents in
which the such form and
parties here find manner as may
themselves, be deemed
solution which adequate to
we think is insure that he
sensible, sound keep peace and
and compatible be available
with law and when the
the Government is
Constitution. ready to deport
For this reason, him. The
and since the surveillance
Philippine law shall be
on immigration reasonable and
was patterned the question of
after or copied reasonableness
from the shall be
American law submitted to
and practice, this Court or to
we choose to the Court of
follow and First Instance of
adopt the Manila for
reasoning and decision in case
conclusions in of abuse. He
the Stanisze- shall also put
wski decision up a bond for
with some the above
modifications purpose in the
which, it is amount of
P5,000 with
believed, are in
sufficient surety
consonance
or sureties,
with the
which bond the
Commissioner
of Immigration
is authorized to
exact by
Section 40 of
Commonwealth
Act No. 613.
 crime, whether they commit
it within or without the
realm should be amenable
to its laws.”1
156 INTRODUCTION TO PUBLIC
INTERNATIONAL LAW The limitations on the
protective principle are
The Protective Principle. found in United States v.

This principle says Yunis?

that a state may exercise [. . .
jurisdiction over conduct Because this
outside its territory that principle gives
threatens its security, as states wide
long as that conduct is latitude in
generally recognized as defining the
criminal by states in the parameters of
their
international community.
jurisdiction, the
(Restatement 402[3]) This
international
conditional clause excludes
community has
acts committed in exercise
strictly
of the liberty guaranteed an
construed the
alien by the law of the place
reach of this
where the act was
doctrine to
committed.
those offenses
The examples given posing a direct,
of acts covered by the specific threat
protective principle are to national
plots to overthrow the
security. See
government, forging its
Blakesley,
currency, and plot to break
United States
its immigration regulations.
Jurisdiction over Extraterritorial
A sample case of this is that Crime,
of “Lord Haw Haw,” an 73 J.CrimL. &
American citizen who
Criminology at
broadcast messages from
1136;
Germany seeking to
Bassiouini, II
persuade the Allies to
International
surrender. Until 1940, he
Criminal Law
held a British passport.
ch. 2 at 21.
After the war, he was
Recently, some
convicted of high treason in
academicians
the United Kingdom. In
have urged a
upholding the principle,
Lord Jowwit of the House more liberal
of Lords said: “No principle interpretation of
of comity demands that a the protective
state should ignore the principle when
crime of treason committed applied to
against it outside its terroristic
territory. On the contrary, a activities. Given
proper regard for its own “the increase in
security requires that all the number of
those who commit that terroristic
threats against Acts of
United States Terrorism, 23
nationals VaJ. oflnt’l
abroad, there Law 191, 210
can be no doubt (1983). In this
that the United case, the
States has hijackers never
significant made any
security and demands upon
protective the United
interests at States
stake.” Paust, government nor
Federal directly
Jurisdiction threatened its
over security.
Extraterritorial

'Joyce v. Director of Public

Prosecutions, House of Lords
 seas or outside the
territorial control of any
state. Now the principle
covers not just piracy but
CHAPTER 9
JURISDICTION OF STATES also genocide, crimes
against humanity, war
Indeed, it was crimes, aircraft piracy and
almost terrorism. There is also a
happenstance growing support for
that three universal jurisdiction over
American
crimes against human
nationals were
rights.
on board the
aircraft. Given The Statute of the new International
Criminal Court defines these crimes,
the regional
focus of the thus:
hijacking, a
Article 6. Genocide
court would
have to adopt an For the
expansive view purpose of this
of the principle Statute,
to assert “genocide"
jurisdiction over means any of
Yunis. Since the following
jurisdiction is acts committed
available under with intent to
the universality destroy, in
and passive whole or in
personality
part, a national,
principle, there
ethnical, racial
is no reason to
or religious
reach out and
rely on the group, as such:
protective Killing members of the group;
principle as Causing serious bodily or mental
well.] harm to members of the
group;
The Universality Principle.
Deliberat
The universality
ely inflicting on
principle recognizes that
the group
certain activities,
conditions of
universally dangerous to
life calculated
states and their subjects,
require authority in all to bring about
community members to its physical
punish such acts wherever destruction in
they may occur, even whole or in
absent a link between the part;
state and the parties or the Imposing measures intended to
acts in question. This prevent births within the
group;
principle started with
piracy. Piracy in Forcibly transferring children of
the group to another
international law means
group.
any illegal act of violence
or depredation committed Article 7. Crimes against humanity
for private ends on the high
 For the
purpose of this
Statute, “crime
against human-
ity” means any
of the following
acts when
committed as
part of
 e group or
collectivit
y on
political,
INTRODUCTION TO PUBLIC INTERNATIONAL LAW racial,
national,
a wide-spread ethnic,
cultural,
or systematic
religious,
attack directed
gender as
against any defined in
civilian paragraph
population, with 3, or other
knowledge of grounds
the attack: that are
universall
Murder;
y
Extermination; recognize
Enslavement; d as
Deportation or forcible impermiss
transfer of population; ible under
Imp internatio
risonment nal law, in
or other connectio
severe n with
deprivatio any act
n of referred to
physical in this
liberty in paragraph
violation or any
of crime
fundamen within the
tal rules jurisdictio
of interna- n of the
tional Court;
law; ← Enforced disappearance
Torture; of persons;
Rap ← The crime of apartheid;
e, sexual ←
slavery, Oth
enforced er
prostitutio inhumane
n, forced acts of a
pregnancy similar
, enforced character
sterilizati in
on, or any tentionall
other
y causing
form of
great
sexual
violence suffering,
of or serious
comparab injury to
le gravity; body or to
Pers mental or
ecution physical
against health.
any
For the purpose of paragraph 1:
identifiabl
 ← to bring
“At about the
tack destructio
directed n of part
against of a
any populatio
civilian
n;
populatio
n" means ←
a course “E
of nslaveme
conduct nt” means
involving the
the exercise
multiple of any or
commissi all of the
on of acts powers
referred to
attaching
in
to the
paragraph
right of
1 against
any ownership
civilian over a
populatio person
n, and
pursuant includes
to or in the
furtheranc exercise
e of a of such
State or power in
organizati the course
onal of
policy to
traffickin
commit
g in
such
persons,
attack;
← in
“Ex particular
terminati women
on ” and
includes children;
the
intentiona
l infliction
of
conditions
of life,
inter alia
the
deprivatio
n of
access to
food and
medicine,
calculated
 that
torture
shall not
include
CHAPTER 9 pain or
JURISDICTION OF STATES suffering
arising
←
only from,
“De
inherent
portation
in or
or
incidental
forcible
to, lawful
transfer of
sanctions;
populatio
←
n" means
“Fo
forced
rced
displacem
pregnanc
ent of the
y" means
persons
the
concerned
unlawful
by
con-
expulsion
finement
or other
of a
coercive
woman
acts from
forcibly
the area in
made
which
pregnant,
they are
with the
lawfully
intent of
present,
affecting
without
the ethnic
grounds
compositi
permitted
on of any
under
populatio
internatio
n or
nal law;
carrying
←
out other
“To
grave
rture"
violations
means the
of
intentional
internatio
infliction
nal law.
of severe
This
pain or
definition
suffering,
shall not
whether
in any
physical
way be
or mental,
interprete
upon a
d as
person in
affecting
the
national
custody or
laws
under the
relating to
control of
pregnancy
the
;
accused;
except
 ← groups
“Pe and
rsecution committe
” means d with the
the intention
intentiona of
l and maintaini
severe ng that
deprivatio regime;
n of ←
fundamen “En
tal rights forced
disappear
contrary
ance of
to
persons”
internatio
means the
nal law by
arrest,
reason of detention
the or
identity of abduction
the group of persons
or by, or with
collectivit the
y; authorizati
← on,
“Th support or
e crime of acquiesce
apartheid nce of, a
" means State or a
inhumane political
acts of a organizati
character on,
similar to followed
those by a
referred to refusal to
in acknowle
paragraph dge that
1, deprivatio
committe n of
d in the freedom
context of or to give
an informatio
institution n on the
alized fate or
regime of whereabo
systemati uts of
c those
oppressio persons,
n and with the
dominatio intention
n by one of
racial removing
group them from
over any the
other protection
racial of the law
group or for a
 prolonged
period of
time.
For the
purpose of this
Statute, it is
understood that
the term
“gender” refers
to the two
sexes, male and
female, within
the context of
society. The
term “gender”
does not
indicate any
meaning
different from
the above.
Article 8. War crimes
The Court
shall have
jurisdiction in
respect of war
crimes in
particular when
committed as
part of a plan or
policy or as part
of a large-scale
commission of
such crimes.
 Pena-Irala who
at the time was
Inspector-
General of the
INTRODUCTION TO PUBLIC
INTERNATIONAL LAW police.
Jurisdiction was
claimed
← For the purpose of this
principally on
Statute, “war crimes” means:
the basis of the
← G Alien Tort
rave Statute (28
breaches
U.S.C. & 1350).
of the
The Court held
Geneva
that deliberate
Conventio
torture under the
ns of 12
color of official
August
1949, authority
namely, violated the
any of the universal rules
following of international
acts law regardless
against of the
persons or nationality of
property the parties. In
protected reaching the
under the conclusion that
provisions the prohibition
of the of torture has
relevant become part of
Geneva customary
Conventio international
n. ... law, the Court
Article 8 enumerates in detail the war referred as
crimes under the Geneva Convention. evidence to the
The following are a number of cases Universal
illustrative of the universality principle: Declaration of
Human Rights
F1LARTIGA V. PENA-IRALA 630 FJD 876. (1980) and as
[This was particularly
a wrongful relevant, the
death action 1975
which was Declaration on
brought by two the Protection of
nationals of all Persons from
Paraguay, the Torture.
father and sister [The relevant portions of the
of a 17-year old Court’s opinion read as follows:]
Paraguayan, The
who, it was Declaration
alleged, was goes on to
tortured to death provide that
in Paraguay by “[w]here it is
the defendant proved that an
 act of torture or
other cruel,
inhuman or
degrading
treatment or
punishment has
been committed
by or at the
instigation of a
public official,
the victim shall
be afforded
redress and
compensation,
in accordance
with national
law.” This
Declaration, like
the Declaration
of Human
Rights before it,
was adopted
without dissent
by the General
Assembly.
Nayar,
“Human
Rights: The
United Nations
and
United States
Foreign
Policy,” 19
Harv. Int’l LJ.
813, 816 n. 18
(1978).

These U.N.
declarations are
significant because
they specify with great
precision the
obligations of member
nations under the
Charter.
 binding, customary
international law. Nayar,
supra, at 816-17; Waldock,
CHAPTER 9 “Human Rights in
JURISDICTION OF STATES Contemporary
Since their adoption, International Law and the
“[m]embers can no longer Significance of the
contend that they do not European Convention, ”
know what human rights I.C.L.Q., Supp.Publ. No. 11
they promised in the at 15 (1965).
Charter to promote.” Sohn, Turning to the act of
“A Short History of United torture, we have little
Nations Documents on difficulty discerning its
Human Rights," in the The universal renunciation in
United Nations and Human the modern usage and
Rights, 18th Report of the practice of nations. Smith,
Commission (Commission supra, 18 US. (5 Wheat.) at
to Study the Organization 160-61,5 L.Ed. 57. The
of Peace [Ed., 1968]).... international consensus
Accordingly, it has been surrounding torture has
observed found expression in
that the Universal numerous international
Declaration of Human treaties and accords.... The
Rights “no longer fits into substance of these
the dichotomy of ‘binding international agreements is
treaty’ against ‘non-binding reflected in modem
pronouncement,’ but is municipal — i.e., national
rather an authori-tative — law as well. Although
statement of the torture was once a routine
international community.” concomitant with criminal
interrogations in many
E. Schwelb, Human Rights
nations, during the modem
and the International
and hopefully more
Community 70 (1964).
enlightened era it has been
Thus, a Declaration creates
universally renounced.
an expectation of
According to one survey,
adherence, and “insofar as
torture is prohibited,
the expectation is gradually expressly or implicitly, by
justified by State practice, a the constitutions of over
declaration, may by custom fifty-five nations, including
become recognized as both the United States and
laying down rules binding Paraguay. Our State
upon the States.” 34 UN. Department reports a
ESCOR, supra. Indeed, general recognition of this
several commentators have principle:
concluded that the There now exists an
Universal Declaration has international consensus that
become, in toto, a part of recognizes basic human
rights and obligations owed
by all governments to their
citizens. ... There is no
doubt that these rights are
often violated; but virtually
all governments
acknowledge their validity.
 “acts such as
that under
consideration
[the kidnapping
INTRODUCTION TO PUBLIC of Eichmann]
INTERNATIONAL LAW
which affect the
sovereignty of a
ATTORNEY GENERAL OF ISRAEL v. EICHMANN Trial Court Member State
Decision and therefore
36 Intl. L. Rep. 5 (Israel, Dist. Ct. Jerusalem 1961) cause
Adolf international
Eichmann was friction, may, if
a high ranking repeated,
SS officer who endanger
played a central international
role in the peace and
planning and security.” The
implementation Security
of the Council
persecution of requested the
Jews in Government of
Germany, Israel “to make
Poland, appropriate
Hungary and reparation in
several other accordance
countries before with the Charter
and during of the United
World War II. Nations and the
At the end of rules of
the war, he international
escaped to law.” Argentina
Argentina did not demand
where he lived the return of
and worked Eichmann, and
under an alias in August,
until May, 1960, the
1960 when he Argentine and
was kidnapped Israeli
by Israeli governments
agents. resolved in a
Argentina com- joint
plained to the communique
Security “to regard as
Council about closed the
this clear incident which
violation of arose out of the
Argentine action taken by
sovereignty. citizens of
The Security Israel, which
Council, while infringed the
making it clear
fundamental
that it did not
rights of the
condone
State of
Eichmann’s
Argentina.”
crimes,
declared that,
 Eichmann jurisdiction of the
was then tried Court....
in Israel under
Israel’s Nazi
Col-laborators
Law (a law
enacted after
Israel became a
state in 1948).
He was found
guilty and the
conviction was
subsequently
upheld by the
Supreme Court
of Israel. On
May 31,1962,
Eichmann went
to the gallows,
the only person
ever formally
executed by the
State of Israel.

Learned defence counsel... submits:

that the Israel
Law, by imposing
punishment for acts
done outside the
boundaries of the
State and before its
establishment, against
persons who were not
Israel citizens, and by
a person who acted in
the course of duty on
behalf of a foreign
country (“Act of
State”), conflicts with
international law and
exceeds the powers of
the Israel Legislature;
that the
prosecution of the
accused in Israel
following his
abduction from a
foreign country
conflicts with
international law and
exceeds the
 of every country to
give effect to its
criminal interdictions
CHAPTER 9 and to bring the
JURISDICTION OF criminals to trial. The
STATES jurisdiction to try
crimes under
international law is
From the point universal....
of view of
international law, the 26. ... It is
power of the State of superfluous to add
Israel to enact the that the “crime
Law in question or against the Jewish
Israel’s “right to people,” which
punish” is based, with constitutes the crime
respect to the offences of “genocide”, is
in question, on a dual nothing but the
foundation: the gravest type of “crime
universal character of against humanity”
the crimes in question (and all the more so
and their specific because both under
character as intended Israel law and under
to exterminate the the Convention a
Jewish people.... special intention is
requisite for its
The abhorrent commission, an
crimes defined in this intention that is not
Law are not crimes required for the
under Israel law commission of a
alone. These crimes, “crime against
which struck at the humanity”).
whole of mankind and Therefore, all that has
shocked the been said in the
conscience of nations, Nuremberg principles
are grave offenses about “crimes against
against the law of humanity” applies a
nations itself (delicta fortiori to crime
juris gentium). against the Jewish
Therefore, so far from people.” ...
international law 27. ... It is
negating or limiting indeed difficult to
the jurisdiction of find a more
countries with respect convincing instance
to such crimes, of a just retroactive
international law is, in law than the
the absence of an legislation providing
International Court, in for the punishment of
need of the judicial war criminals and
and legislative organs perpetrators of crimes
against humanity and
against the Jewish
people, and all the
reasons justifying the
Nuremberg judgments
justify eo ipse the
retroactive legislation
of the Israel legislator.
... The accused in this
case is charged with
the implementation of
the plan for the “final
solution of the
problem of the Jews.”
Can anyone in his
right mind doubt the
absolute criminality
of such acts? ...
 law and
entailing
individual
criminal
INTRODUCTION TO PUBLIC liability. It is the
INTERNATIONAL LAW
particular
universal
28. ... The contention of learned counsel for the defense character of
that it is not the these crimes
accused but the State that vests in
on whose behalf he each State the
had acted, who is power to try and
punish any who
responsible for his
assisted in their
criminal acts is only
commission. . . .
true as to its second [Reference the
part. It is true that Genocide
under international Convention and
law Germany bears the Nuremberg
not only moral, but judgment]..
also legal, ... As is
responsibility for all well known, the
the crimes that were rules of the law
committed as its own of nations are
“acts of State,” not derived
including the crimes solely from
attributed to the international
treaties and
accused. But that
crystallized
responsibility does
international
not detract one iota usage. In the
from the personal absence of a
responsibility of the supreme
accused for his acts.... legislative
authority and
international
codes, the
process of its
EICHMANN V. ATTORNEY-GENERAL OF ISRAEL Supreme evolution
Court of Israel (1962) 136 IIJl. 277 resembles that
Judgment Per Curiam: of the common
law;... its rules
are established
The from case to
crimes created case, by
by the Law and analogy with
of which the the rules
appellant was embodied in
convicted must treaties and in
be deemed intentional
today to have custom, on the
always borne basis of the
the stamps of “general”
international principles of
crimes, banned law recognized
by international by civilized
nations,” and in
the light of the
vital
international
needs that impel
an immediate
solution. A
principle which
constitutes a
common
denominator for
the judicial
systems of
numerous
countries must
clearly be
regarded as a
“general
principle of law
recognized by
civilized
nations.” ...
[C]ustomary
international
law is never
stagnant, but is
rather in a
process of
constant
growth....
... [As to]
the features
which identify
crimes that have
long been
recognized by
customary
international
law[,] ... they
constitute acts
which damage
vital
international
interests ... they
impair
 of punishment.
But, for the
time being,
intentional law
CHAPTER 9 surmounts these
JURISDICTION OF STATES difficulties ... by
authorizing the
the foundations countries of the
and security of world to mete
the international out punishment
community; for the violation
they violate of its
universal moral provisions. This
values and they do by
humanitarian enforcing these
principles provisions
which are at the either directly
root of the or by virtue of
systems of the municipal
criminal law legislation
adopted by which has
civilized adopted and
nations. The integrated
underlying them....
principle in
The
intentional law
classic example
that governs
of a
such crimes is
“customary”
that the
international
individual who
crime ... is that
has committed
of piracy jure
any of them and
gentium. ...
who, at the time
[Another]
of his act, may
be presumed to example ... is
have had a that of a “ war
thorough crime “ in the
understanding conventional
of its heinous sense. ... the
nature must group of acts
account in law committed by
for his behavior. members of the
It is true that armed forces of
intentional law the enemy
does not which are
establish contrary to the
explicit and “’laws and
graduated customs of
criminal war.” individual
sanctions; that criminal
there is not as responsibility
yet in existence because they
either an undermine the
intentional foundations of
Criminal Court, intentional
or intentional society and are
machinery for repugnant to the
the imposition conscience of
civilized Charter of the
nations. When Nuremburg
the belligerent International
State punishes Military
for such acts, it Tribunal was
does so not only signed and the
because persons categories of
who were its “war crimes”
nationals ... and “crimes
suffered bodily against
harm or humanity” were
material defined in it,
damage, but this merely
also, and amounted to an
principally, act of
because they legislation by
involve the the victorious
perpetration of countries....
an intentional ... [The
crime in the interest in
avoidance of preventing and
which all the imposing
nations of the punishment for
world are acts comprised
interested....
in the category
In view of in question
the especially when
characteristic
they are
traits of
perpetrated on a
international
very large scale
crimes and the
— must
organic
development of necessarily
the law of extend beyond
nations — a the borders of
development the State to
that advances which the
from case to perpetrators
case under the belong
impact of the
humane
sentiments
common to
civilized
nations, and
under the
pressure of the
needs that are
vital for the
survival of
mankind and
for ensuring the
stability of the
world order it
definitely
cannot be said
that when the
 as to this
appraisal of the
‘“Nuremberg
Principles’ as
INTRODUCTION TO PUBLIC INTERNATIONAL LAW principles that
have formed
and which part of
evinced customary
tolerance or international
encouragement law since time
of their immemorial,”
outrages; for such doubt has
been removed
such acts can
by ... the United
undermine the
Nations
foundations of
Resolution on
the international
the Affirmation
community as a
of the Principles
whole and
of International
impair its very
Law
stability.... Recognized by
If we are the Charter and
to regard Judgment of the
customary Nuremberg
international Tribunal and
law as a that affirming
developing that Genocide is
progressive a crime under
system, the intentional
criticism law ... and as [is
becomes devoid seen] in the
of value.... advisory
[E]ver opinion of 1951
since the ... the principles
Nuremberg inherent in the
Tribunal [Genocide]
decided this Convention —
question, that as distinct from
very decision the contractual
must be seen as obligations
a judicial act embodied
which therein — had
establishes a already been
part of
“precedent”
customary
defining the
intentional law
rule of
at the time of
international
the shocking
law. In any
crimes which
event, it would
led to the
be unseemly for
Resolution and
any other court
the
to disregard
Convention....
such a rule and
... [T]he
not to follow
it. ... crimes
If there established in
was any doubt the Law of 1950
... must be seen degree or
today as acts another, the
that have power to try and
always been punish a person
forbidden by for an offence
customary he has
international committed is
the principle of
law — acts
universality. Its
which are of a
meaning is, in
“universal”
essence, that
criminal that power is
character and vested in every
entail individual State regardless
criminal of the fact that
responsibility. .. the offence was
. [T]he committed
enactment of outside its
the Law was territory by a
not, from the person who did
point of view of not belong to it,
international provided he is
law, a in its custody at
the time he is
legislative act
brought to trial.
that conflicted
This principle
with the
has wide
principle nulla
support and is
poena or the universally
operation of acknowledged
which was with respect to
retroactive, but the offence of
rather one by piracy jure
which the
Knesset gave
effect to
intentional law
and its
objectives....
... [I]t is
the universal
character of the
crimes in
question which
vests in every
State the power
to try those who
participated in
the preparation
of such crimes,
and to punish
them therefor....
One of
the principles
whereby States
assume, in one
 Jordanian
Airlines
(“ALIA”) Flight
CHAPTER 9 402, on June 11,
JURISDICTION OF STATES and 12, 1985.
There is no
gentium.... [One view] holds that it
dispute that the
cannot be applied to any other
only nexus to
offence, lest this
the United
entail excessive
States was the
interference presence of
with the several
competence of American
the State in nationals on
which the board the flight.
offence was The airplane
committed. was registered
in Jordan, flew
The Passive Personality Principle. the Jordanian
The Comment on § flag and never
landed on
402 of Third Restatement
American soil
says: “The passive
or flew over
personality principle asserts American
that a state may apply law airspace.
— particularly criminal law On the
— to an act committed morning of June
outside its territory by a 11, the aircraft
person not its national was positioned
at the Beirut
where the victim of the act
International
was its national. The Airport, Beirut,
principle has not been Lebanon, for a
ordinarily accepted for scheduled
ordinary torts or crimes, but departure to
it is increasingly accepted Amman,
Jordan. As the
as applied to terrorist and
50-60
other organized attacks on a passengers
state’s nationals by reason boarded, several
of their nationality, or to Arab men, one
assassination of a state’s allegedly the
defendant,
diplomatic representatives
stormed the
or other officials.” plane and
ordered the
UNITED STATES v. FAWAZ YUNIS 681 FJSupp. 8961 (1988) pilot to fly to
This Tunis, Tunisia
criminal where a
proceeding and meeting of the
indictment arise Arab League
from the Conference was
underway. The
hijacking of a
airplane
Jordanian civil
departed from
aircraft, Royal
Beirut with all
passengers,
including the
Americans, held
hostage. The
plane made a
short landing in
Lamaco,
Cyprus where
additional fuel
was obtained. It
then proceeded
to Tunis where
landing
privileges were
denied. The
airplane flew to
Palermo, Sicily,
where it was
allowed to
replenish its
fuel and food
supply.
Thereafter, it
lifted off,
destined once
more for Tunis.
Again, entry
was denied and
the pilot
returned to
Beirut. On the
morning of June
12th, it took off
for Damascus,
Syria. However,
the Syrian
authorities also
denied landing
privileges.
Thus, after
criss-crossing
the
Mediterranean
Sea area for
more than 30
hours, the
hijackers were
forced to return
to Beirut, their
point of initial
departure.
 has moved to
dismiss the
entire
168 INTRODUCTION TO PUBLIC indictment,
INTERNATIONAL LAW arguing that no
United States
federal court
After
has jurisdiction
landing, the
to prosecute a
hostages were
foreign national
directed to exit
for crimes
the aircraft. The
committed in
hijackers then
foreign airspace
called an
and on foreign
impromptu
soil. He further
press
claims that the
conference and
presence of the
the defendant
American
Yunis allegedly
nationals on
read a speech,
board the
which he
aircraft is an
originally
insufficient
intended to give
basis for
to the delegates
exercising
of the Arab jurisdiction
League under principles
Conference of international
then meeting in law.
Tunis.
Defendan
Following the
t’s motion
speech, the
raises several
hijackers blew
threshold
up the
inquiries:
Jordanian
whether or not
aircraft, quickly
there is a basis
left the scene
for jurisdiction
and vanished
under
into the Beirut
landscape. international
law, and if so,
Between
whether
June 11 and 12,
Congress
1985, ALIA
intended to and
Flight 402
never landed on had authority to
or flew over extend
American jurisdiction of
space. Its our federal
flightpath was courts over
limited to an criminal
area within and offenses and
around the events which
Mediterranean were committed
Sea. Based on and occurred
the absence of overseas and
any nexus to out of the
United States territorial
territory, Yunis
 jurisdiction of
such courts.

II.
ANALYSIS
A. JURISDICTION UNDER
INTERNATIONAL LAW
The parties agree that
there are five traditional
bases of jurisdiction over
extraterritorial crimes under
international law:
Territorial, wherein
jurisdiction is based on the
place where the offense is
committed; National,
wherein jurisdiction is
based on the nationality of
the offender; Protective,
wherein jurisdiction is
based on whether the
national interest is injured;
Universal, wherein
jurisdiction is conferred in
any forum that obtains
physical custody of the
perpetuator of certain
offenses considered
particularly heinous and
harmful to humanity.
Passive personal, wherein
jurisdiction is based on the
nationality of the victim.
These general
principles were developed
in 1935 by a Harvard
Research Project in an
effort to codify principles of
jurisdiction under
 heinous and so widely
condemned that “any state
if it captures the offender
CHAPTER 9
may prosecute and punish
JURISDICTION OF STATES
that person on behalf of the
international law. See world community
Harvard Research in regardless of the nationality
International Law, of the offender or victim or
Jurisdiction with Respect to where the crime was
Crime, 29 AmJlnt’l L. 435, committed.” M. Bassiouini,
445 (Supp.1935). Most II International Criminal
courts, including our Court Law, Ch. 6 at 298 (Ed.
of Appeals, have adopted 1986). The crucial question
the Harvard Research for purposes of defendant’s
designations on jurisdiction. motion is how crimes are
... Several reputable treatises classified as “heinous” and
have also recognized the whether aircraft piracy and
principles: L. Henkin, hostage taking fit into this
International Law Cases category.
and Materials 447 (1980); Those crimes that are
A. D’Amato, International condemned by the world
Law and World Order 564 community and subject to
(1980). prosecution under the
The Universal and the Universal principal are
Passive Personal principle often a matter of
appear to offer potential international conventions or
bases for asserting treaties. See Demjanjuk v.
jurisdiction over the Petrovsky, 776 F.2d 571,
hostage-taking and aircraft 582 (6th Cir. 1985). (Treaty
piracy charges against against genocide signed by
Yunis. However, his counsel a significant number of
argues that the Universal states made that crime
principle is not applicable heinous; therefore, Israel
because neither hostage- had proper jurisdiction over
taking nor aircraft piracy nazi war criminal under the
are heinous crimes Universal principle.)
encompassed by the Both offenses are the
doctrine. He urges further, subject of international
that the United States does agreements. A majority of
not recognize Passive states ii\ the world
Personal as a legitimate community including
source of jurisdiction. The Lebanon, have signed three
government flatly disagrees treaties condemning aircraft
and maintains that piracy: The Tokyo
jurisdiction is appropriate Convention, The Hague
under both. Convention, and The
Montreal Convention. The
Universal Principle
Hague and Montreal
The Universal
Conventions explicitly rely
principle recognizes that
on the princ^le of Universal
certain offenses are so
jurisdiction in mandating
that all states “take such
measures as may
 In light of the global
efforts to punish aircraft
piracy and hostage taking,
170 INTRODUCTION TO PUBLIC international legal scholars
INTERNATIONAL LAW
unanimously agree that
these crimes fit within the
be necessary to establish its category of heinous crimes
jurisdiction over the for purposes of asserting
offences ... where the universal jurisdiction. See
alleged offender is present M. Bassiouini, II
in its territory.” Hague International Criminal Law
Convention Art. 4 s 2; Ch. 2 at 31-32; McCredie,
Montreal Convention Art. 5 Contemporary Uses of
s 2. Further, those treaties Force Against Terrorism,
direct that all “contracting 1986 GaJ. oflnt’l &
states ... of which the Comp.L. 435,439 (1986);
alleged offender is found,... Bazyler, Capturing the
shall, be obliged, without Terrorist in the Wild Blue
exception whatsoever and Yonder, 8 Whittier L.Rev.
whether or not the offense 685,687 (1986); Blakesley,
was committed in its United States Jurisdiction
territory, to submit the case over Extraterritorial Crime,
to its competent authorities 73 J. ofCrim.L. &
for the purpose of
Criminology 1109,1140
prosecution.” Hague
(1982). In The Restatement
Convention, Art. 7;
(Revised) of Foreign
Montreal Convention, Art.
Relations Law of the United
7. (emphasis added) These
States, a source heavily
two provisions together
relied upon by the
demonstrate the
defendant, aircraft hijacking
international community’s
is specifically identified as a
strong commitment to
universal crime over which
punish aircraft hijackers
all states should exercise
irrespective of where the
jurisdiction.
hijacking occurred.
Our Circuit has cited
The global
the Restatement with
community has also joined
approval and determined
together and adopted the
that the Universal principle,
International Convention
standing alone, provides
for the Taking of Hostages,
sufficient basis for asserting
an agreement which
jurisdiction over an alleged
condemns and criminalizes
offender. See Tel-Oren v.
the offense of hostage
Libyan Arab Republic, 726
taking. Like the conventions
F.2d at 781, n. 7. (“The
denouncing aircraft piracy,
premise of universal
this treaty requires
jurisdiction is that a state
signatory states to prosecute
‘may exercise jurisdiction
any alleged offenders
to define and punish certain
“present in its territory.”
offenses recognized by the
community of nations as of
universal concern,’... even
where no other recognized
basis of jurisdiction is
present.”) Therefore, under
recognized principles of
international law, and the
law of thip Circuit, there is
clear authority to assert
jurisdiction over Yunis for
the offenses of aircraft
piracy and hostage taking.
 explicitly approved of the
principle as a basis for
asserting jurisdiction over
CHAPTER 9 hostage takers. As noted
JURISDICTION OF STATES
above, supra p. 9, the
Passive Personality Principle Hostage Taking Convention
set forth certain mandatory
This principle sources of jurisdiction. But
authorizes states to assert it also gave each signatory
jurisdiction over offenses country discretion to
committed against their exercise extraterritorial
citizens abroad. It jurisdiction when the
recognizes that each state offense was committed
has a legitimate interest in “with respect to a hostage
protecting the safety of its who is a national of that
citizens when they journey state if that state considers it
outside national boundaries. appropriate.” Art. 5(a)(d).
Because American nationals Therefore, even if there are
were on board the Jordanian doubts regarding the
aircraft, the government international community’s
contends that the Court may acceptance, there can be no
exercise jurisdiction over doubt concerning the
Yunis under this principle. application of this principle
Defendant argues that this to the offense of hostage
theory of jurisdiction is taking, an offense for which
neither recognized by the Yunis is charged. See M.
international community Bassiouni, II International
nor the United States and is Criminal Law ch. 4 at 120.
an insufficient basis for Defendant’s counsel
sustaining jurisdiction over correctly notes that the
Yunis. Passive Personal principle
Although many traditionally has been an
international legal scholars anathema to United States
agree that the principle is lawmakers. But his reliance
the most controversial of on the Restatement
the five sources of (Revised) of Foreign
jurisdiction, they also agree Relations Laws for the
that the international claim that the United States
community recognizes its can never invoke the
legitimacy. Most accept that principle is misplaced. In
“the extraterritorial reach of the past, the United States
a law premised upon the ... has protested any assertion
principle would not be in of such jurisdiction for fear
doubt as a matter of that it could lead to
international law.” Paust, indefinite criminal liability
Jurisdiction and for its own citizens. This
Nonimmunity, 23 Va. J. objection was based on the
oflnt’l Law, 191, 203 belief that foreigners
(1983). More importantly, visiting the United States
the international community should comply with our
laws and should not be
permitted to carry their laws
with them. Otherwise
Americans would face
criminal prosecutions for
actions unknown to
 very principle when it
sought extradition of
Muhammed Abbas Zaiden,
172 INTRODUCTION TO PUBLIC the leader of the terrorists
INTERNATIONAL LAW
who hijacked the Achillo
Lauro vessel in Egyptian
them as illegal. However, in
waters and subsequently
the most recent draft of the
killed Leon Klinghoffer, an
Restatement, the authors
American citizen. As here,
noted that the theory “has
the only connection to the
been increasingly accepted
when applied to terrorist United States was
and other organized attacks Klinghoffer’s American
on a state’s nationals by citizenship. Based on that
reason of their nationality, link, an arrest warrant was
or to assassinations of a issued charging Abbas with
state’s ambassadors, or hostage taking, conspiracy
government officials.” and piracy. Id. at 719; See
Restatement (Revised) s also N.Y. Times, Oct.
402, comment g (Tent. 16,1985 s 1 at 1 col. 6.
Draft No. 6). See also
Thus, the Universal
McGinley, The Achillo
and Passive Personality
Lauro Affair-Implications
principles, together, provide
for International Law, 52
ample grounds for this
TennLRev. 691, 713 (1985).
Court to assert jurisdiction
The authors retreated from
over Yunis. In fact, reliance
their wholesale rejection of
on both strengthens the
the principle, recognizing
basis for asserting
that perpetrators of crimes
unanimously condemned by jurisdiction. Not only is the
members of the United States acting on
international community, behalf of the world
should be aware of the community to punish
illegality of their actions.] alleged offenders of crimes
Therefore, qualified that threaten the very
application of the doctrine foundations of world order,
to serious and universally but the United States has its
condemned crimes will not own interest in protecting
raise the specter of its nationals.
unlimited and unexpected Conflicts of jurisdiction.
criminal liability.
Since there are
Finally, this case does
various accepted principles
not present the first time
for assuming jurisdiction,
that the United States has
more than one state may
invoked the principle to
have a valid claim to
assert jurisdiction over a
jurisdiction. U.S. courts
hijacker who seized an
have attempted to develop
American hostage on
more sophisticated modes
foreign soil. The of resolving conflict of
government relied on this
jurisdiction. Three modes
are given below.
 various factors, such as the
link of the activity to the
territory of the regulating
CHAPTER 9 state, the connection, such
JURISDICTION OF STATES
as nationality, residence, or
economic activity, between
The Balancing Test
the regulating state and the
In Timberlane person principally
Lumber Co. v. Bank of responsible for the activity
America? the question was to be regulated, the
whether to assume character of the activity to
jurisdiction in a Sherman be regulated, the existence
Act case involving acts of justified expectations that
emanating from Honduras. might be protected or hurt
The court employed a by the regulation, the
tripartite analysis to likelihood of conflict with
determine whether to regulation by another state.
assume jurisdiction or not.
Forum non conveniens
First, was there an actual or
intended effect on American The principle of
foreign commerce. Second, forum non conveniens is
is the effect sufficiently well-stated in the following
large to present a excerpt from a Scottish
cognizable injury to the decision:
plaintiffs and, therefore, a
civil violation of the anti- If in the whole
trust laws. Third, are the circumstances of the
interests of, and link to, the case it be discovered
United States . . . including that there is a real
effects on American foreign unfairness to one of
commerce sufficiently the suitors in
strong, vis-d-vis those of permitting the choice
other nations, to justify an of a forum which is
assertion of extraordinary not the natural or
authority. If the answer is proper forum, either
yes to all these, then the on the ground of
court will assume convenience of trial
jurisdiction. or the residence or
domicile of parties or
International Comity
of its being the locus
Even when a state has contractus, or locus
basis for exercising
solutionis, then the
jurisdiction, it will refrain
doctrine of forum non
from doing so if its exercise
conveniens is properly
will be unreasonable. This
applied.
is treated in Hartford Fire
Insurance Co. v.
California,4 but the
principle involved is
summed up in Third
Restatement §§ 403. 3
549 F2d 597.
4
Unreasonableness is 509 US
determined by evaluating 764(1993)
 A treaty may cover specific
crimes only or all offenses
considered criminal by both
states. Today most treaties
174 INTRODUCTION TO PUBLIC
INTERNATIONAL LAW exclude religious and
political offenses, although
political offenses have
The application is never been precisely
discretionary with the court. defined. But a state may
Some of the interests which
surrender a fugitive if
the court needs to weigh are
surrendering him is not
divided into private interest
contrary to the state’s
factors and public interest
constitution.
factors. The private interest
The following
factors are access to sources
of proof, availability of principles govern
compulsory process for extradition: (1) No state is
unwilling witnesses and obliged to extradite unless
other personal problems there is a treaty; (2)
which make trial easy, Differences in legal system
expeditious and can be an obstacle to
inexpensive. Public interest interpretation of what the
factors include congestion, crime is; (3) Religious and
desire to settle local political offenses are not
controversies at home, and extraditable.
having the case tried in a The procedure for
forum at home with the
extradition is normally
applicable law. Forum non
through diplomatic
conveniens presumption is
channels. The following
with the plaintiff. Piper
Aircraft Co. v. Reyno,5 is a case of United States v.
leading application of the Alvarez-Chain is an
principle. example of how extradition
rules can be bypassed.
Extradition.
Extradition is the UNITED STATES v. ALVAREZ-
surrender of an individual MACHAIN 504UJS.655 (1992)
by the state within whose CHIEF JUSTICE REHNQUIST
territory he is found to the delivered the opinion of the
state under whose laws he Court.
is alleged to have The issue
committed a crime or to in this case is
have been convicted of a whether a
crime. It is a process that is criminal
governed by treaty. The defendant,
legal right to demand abducted to the
extradition and the United States
correlative duty to from a nation
surrender a fugitive exist with which it
only when created by treaty. has an

454U.S. 235 (1981).

 forcibly
kidnapped from
his medical
office in
CHAPTER 9 Guadalajara,
JURISDICTION OF STATES Mexico, to be
flown by private
extradition
plane to El
treaty, thereby
Paso, Texas,
acquires a
where he was
defense to the
arrested by DEA
jurisdiction of
officials. The
this country’s
District Court
courts. We hold
concluded that
that he does not, DEA agents
and that he may were
be tried in responsible for
federal district respondent’s
court for abduction,
violations of the although they
criminal law of were not
the United personally
States. involved in it.
Accused United States v.
was indicted for Caro-Quintero,
participating in 745 FSupp.
the kidnap and 599, 602-604,
murder of 609 (CD Cal.
United States 1990).
Drug Responde
Enforcement nt moved to
Administration dismiss the
(DEA) special indictment,
agent Enrique claiming that his
Camarena- abduction
Salazar and a constituted
Mexican pilot outrageous
working with governmental
Camarena, conduct, and
Alfredo Zavala-
that the District
Avelar. The
Court lacked
DEA believes
jurisdiction to
that respondent,
try him because
a medical
he was abducted
doctor,
in violation of
participated in
the extradition
the murder by
treaty between
pro-longing
agent the United
Camarena’s life States and
so that others Mexico. ... The
could further District Court
torture and rejected the
interrogate him. outrageous
On April 2, governmental
1990, conduct claim,
respondent was but held that it
lacked treaty between
jurisdiction to Peru and the
try respondent United States.
because his The messenger,
abduction however,
violated the disdained
Extradition reliance on the
Treaty. The treaty processes,
District Court and instead
discharged forcibly
respondent and kidnapped Ker
ordered that he and brought him
be repatriated to to the United
Mexico. Caro- States. We ...
Quintero, supra, rejected Ker’s
at 614. due process
The Court argument more
of Appeals broadly, holding
in line with “the
affirmed the
highest
dismissal of the
authorities,” that
indictment and such forcible
the repatriation abduction is no
of respondent... sufficient reason
why the party
In Ker v. should not
Illinois, 119
U.S. 436 (1886)
... written by
Justice Miller ...
we addressed
the issue of a
defendant
brought before
the court by way
of a forcible
abduction.
Frederick Ker
had been tried
and convicted in
an Illinois court
for larceny; his
presence before
the court was
procured by
means of
forcible
abduction from
Peru. A
messenger was
sent to Lima
with the proper
warrant to
demand Ker by
virtue of the
extradition
 try a
person for
crime is
not
INTRODUCTION TO PUBLIC impaired
INTERNATIONAL LAW by the
fact that
answer when he had
brought within been
the jurisdiction brought
of the court within the
which has the court’s
right to try him jurisdictio
n by
for such an
reason of
offence, and
a ‘forcible
presents no
abduction.
valid objection
’ No
to his trial in persuasiv
such court. Ker, e reasons
supra, at 444. are now
In Frisbie presented
v. Collins, 342 to justify
US. 519, overruling
rehearing this line
denied, 343 U.S. of cases.
937 (1952), we They [504
applied the rule U.S.
in Ker to a case 655,662]
in which the rest on the
defendant had sound
been kidnaped basis that
in Chicago by due
Michigan process of
officers and law is
brought to trial satisfied
in Michigan. We when one
upheld the present in
conviction over court is
objec-tions convicted
based on the of crime
Due Process after
Clause and the having
Federal been
Kidnapping Act, fairly
and stated: apprized
of the
“Th
charges
is Court
against
has never
him and
departed
after a fair
from the
trial in
rule
accordanc
announce
e with
d in [Ker]
constituti
that the
onal
power of
procedura
a court to
 l More critical to respondent’s
safeguard argument is Article 9 of the
s. There is Treaty, which provides:
nothing in “1.
the Neither
Constituti
Contracti
on that
ng Party
requires a
shall be
court to
bound to
permit a
guilty deliver up
person its own
rightfully nationals,
convicted but the
to escape executive
justice authority
because of the
he was requested
brought to Party
trial shall, if
against not
his will.” prevented
Frisbie, by the
supra, at laws of
522 that Party,
(citation have the
and power to
footnote
deliver
omitted).
them up
if, in its
In discretion
construing a , it be
treaty, as in deemed
construing a proper to
statute, we first do so.
look to its terms “2.
to determine its If
meaning. ... The extraditio
Treaty says n is not
nothing about granted
the obligations pursuant
of the United to
States and paragraph
Mexico to 1 of this
refrain from
Article,
forcible
the
abductions of
requested
people from the
Party
territory of the
shall
other nation, or
submit the
the
case to its
consequences
under the Treaty competent
if such an authoritie
abduction s for the
occurs.... purpose
of
prosecu-
 prosecution.
More broadly,
respondent
reasons, as did
CHAPTER 9 the Court of
JURISDICTION OF STATES Appeals, that all
the processes
tion, provided that Party has
and restrictions
jurisdiction over the offense.”
Id., at 5065. [504 US. 655, 664] on the
obligation to
Accordin extradite
g to respondent, established by
Article 9 the Treaty
embodies the would make no
terms of the sense if either
bargain which nation were free
the United to resort to
States struck: If forcible
the United kidnapping to
States wishes to gain the
prosecute a presence of an
Mexican individual for
national, it may prosecution in a
request that manner not
individual’s contemplated
extradition. by the Treaty.
Upon a request Verdugo, supra,
from the United at 1350.
States, Mexico
We do not
may either
read the Treaty
extradite the
in such a
individual or
fashion. Article
submit the case
9 does not
to the proper
purport to
authorities for
specify the only
prosecution in
way in which
Mexico. In this
one country
way, respondent
may gain
reasons, each
custody of a
nation
national of the
preserved its
other country
right to choose
for the purposes
whether its
of prosecution.
nationals would
In the absence
be tried in its
of an
own courts or
extradition
by the courts of
treaty, nations
the other nation.
are under no
This
obligation to
preservation of
surrender those
rights would be
in their country
frustrated if
to foreign
either nation
authorities for
were free to
prosecution.
abduct nationals
Rauscher, 119
of the other
US., at 411-
nation for the
412; Factor v.
purposes of
Laubenheimer, practice under
290 US. the Treaty also
276,287(1933); fails to show
cf. Valentine v. that abductions
United States ex outside of the
rel. Neidecker, Treaty
supra, at 8-9. constitute a
(United States violation of the
may not Treaty. As the
extradite a Solicitor
citizen in the General notes,
absence of a the Mexican
statute or treaty
Government
obligation).
was made
Extradition
aware, as early
treaties exist so
as 1906, of the
as to impose
Ker doctrine,
mutual
obligations to and the United
surrender States’ position
individuals in that it applied to
certain defined forcible
sets of abductions
circumstances, made outside of
following the terms of the
established United States-
procedures. See Mexico
1 J. Moore, A
Treatise on
Extradition and
Interstate
Rendition 72
(1891). The
Treaty thus
provides a
mechanism
which would
not otherwise
exist, requiring,
under certain
circumstances,
the United
States and
Mexico to
extradite
individuals to
the [504 U.S.
655, 665] other
country and
establishing the
procedures to
be followed
when the Treaty
is invoked.
The
history of
negotiation and
 be interpreted
so as to include
an implied term
INTRODUCTION TO PUBLIC prohibiting
INTERNATIONAL LAW prosecution
where the
defendant’s
Extradition presence is
Treaty. obtained by
Nonetheless, means other
the current than those
version of the established by
Treaty, signed the Treaty. See
in 1978, does Valentine, 299
not attempt to US., at 17
establish a rule (“Strictly, the
that would in question is not
any way curtail whether there
the effect of had been a
Ker. Moreover, uniform
although practical
language which construction
would grant denying the
individuals power, but
exactly the right whether the
sought by power had been
respondent had so clearly
been considered recognized that
and drafted as the grant should
early as 1935 by be implied.”)
a prominent Responde
group of legal nt contends that
scholars the Treaty must
sponsored by be interpreted
the faculty of against the
Harvard Law backdrop of
School, no such customary
clause appears international
in the current law, and that
Treaty. international
Thus, the abductions are
language of the “so clearly
Treaty, in the prohibited in
context of its international
history, does not
law” that there
support the
was no reason
proposition that
to include such
the Treaty
a clause in the
prohibits
Treaty itself.
abductions
outside of its Brief for
terms. The Respondent 11.
remaining The
question, international
therefore, is censure of
whether the international
Treaty should abductions is
further kidnapping”).
evidenced, Respondent
according to agrees that the
respondent, by right exercised
the United by the
Nations Charter individual is
and the Charter derivative of the
of the nation’s right
Organization of under the
American Treaty, since
States. Id., at nations are
Respondent authorized,
does not argue
notwithstanding
that these
the terms of an
sources of
extradition
international
treaty, to
law provide an
voluntarily
independent
basis for the render an
right respondent individual to the
asserts not to be other country
tried in the on terms
United States, completely
but rather that outside of those
they should provided in the
inform the treaty. The
interpretation of formal protest,
the Treaty therefore,
terms. [504 US. ensures that the
655, 667] “offended”
The Court nation actually
of Appeals objects to the
deemed it abduction, and
essential, in has not in some
order for the way voluntarily
individual rendered the
defendant to individual for
assert a right prosecution.
under the Thus, the
Treaty, that the Extradition
affected foreign
government had
registered a
protest.
Verdugo, 939
F.2d, at 1357
(“In the
kidnapping
case, there must
be a formal
protest from the
offended
government
after the
 specialty, but no
importance was
attached to
CHAPTER 9 whether or not
JURISDICTION OF STATES Great Britain
had protested
Treaty only the prosecution
prohibits of Rauscher for
gaining the the crime of
defendant’s cruel and
presence by unusual
means other punishment, as
than those set opposed to
murder.
forth in the
Treaty when the More
fundamentally,
nation from
the difficulty
which the
with the support
defendant was
respondent
abducted
gamers from
objects.
international
This
law is that none
argument seems
of it relates to
to us
the practice of
inconsistent
with the nations in
remainder of relation to
respondent’s extradition
argument. The treaties. In
Extradition Rauscher, we
Treaty has the implied a term
force of law, in the Webster-
and if, as Ashburton
respondent Treaty because
asserts, it is of the practice
self-executing, of nations with
it would appear regard to
that a court extradition
must enforce it treaties. In the
on behalf of an
instant case,
individual
respondent [504
regardless of
U.S. 655, 668]
the
would imply
offensiveness of
the practice of terms in the
one nation to Extradition
the other nation. Treaty from the
In Rauscher, the practice of
Court noted that nations with
Great Britain regards to
had taken the international
position in other law more
cases that the generally.
Webster- Respondent
Ashburton would have us
Treaty included find that the
the doctrine of Treaty acts as a
prohibition the terms of the
against a Webster-
violation of the Ashburton
general Treaty which,
principle of by its terms,
international required the
law that one presentation of
government evidence
establishing
may not
probable cause
“exercise its
of the crime of
police power in
extradition
the territory of before
another state.” extradition was
Brief for required, was a
Respondent 16. small step to
There are many take. By
actions which contrast, to
could be taken imply from the
by a nation that terms of this
would violate Treaty that it
this principle, prohibits
including obtaining the
waging war, but presence of an
it cannot individual by
seriously be means outside
contended that of the
procedures the
an invasion of
Treaty
the United
establishes
States by
requires a much
Mexico would larger
violate the inferential leap,
terms of the with only the
Extradition most general of
Treaty between international
the two nations. law principles
In sum, to to support it.
infer from this The general
Treaty and its principles
terms that it
prohibits all
means of
gaining the
presence of an
individual [504
U.S. 655, 669]
outside of its
terms goes
beyond
established
precedent and
practice. In
Rauscher, the
implication of a
doctrine of
specialty into
 of the
Extradition
Treaty between
the United
180 INTRODUCTION TO PUBLIC
States and
INTERNATIONAL LAW
Mexico, and
therefore the
cited by rule of Ker v.
respondent Illinois is fully
simply fail to applicable to
persuade us that this case. The
we should imply fact of
in the United respondent’s
States-Mexico forcible
Extradition abduction does
Treaty a term not therefore
prohibiting prohibit his trial
international in a court in the
abductions. United States
Responde for violations of
nt and his amici the criminal
may be correct laws of the
that United States.
respondent’s The
abduction was judgment of the
“shocking,” Tr. Court of
of Oral Arg. 40, Appeals is
and that it may therefore
be in violation reversed, and
of general
the case is
international
remanded for
law principles.
Mexico has further
protested the proceedings
abduction of consistent with
respondent this opinion.
through So ordered.
diplomatic
notes, The following case
App. 33-38, and illustrates how the due
the decision of process requirements
whether
work in an extradition
respondent
should be case:
returned to
Mexico, as a SECRETARY OF JUSTICE vs. HON. RALPH C. LANTION
G.R. No. 139465.
matter outside
of the Treaty, is October 17,2000
a matter for the EN BANC (footnotes omitted)
Executive The
Branch. We jugular issue is
conclude, whether or not
however, that the private
respondent’s respondent is
abduction was
entitled to the
not in violation
due process
right to notice
and hearing
during the
evaluation stage
of the
extradition
process.
We now
hold that private
respondent is
bereft of the
right to notice
and hearing
during the
evaluation stage
of the
extradition
process.
First. RD.
No. 1069 which
implements the
RP-US
Extradition
Treaty provides
the time when
an extraditee
shall be
furnished a copy
of the petition
for extradition
as well as its
supporting
papers,
e„ after the
filing of the
petition for
extradition in
the extradition
court, viz.:
 within the
time
fixed, the
presiding
CHAPTER 9 judge
JURISDICTION OF STATES shall hear
the case or
“SE
set
CTION 6.
another
Issuance
date for
of
the
Summons;
hearing
Temporar
thereof.
y Arrest;
Hearing; The
Service of order and
Notices. notice as
— (1) well as a
Immediate copy of
ly upon the
receipt of warrant of
the
arrest, if
petition,
issued,
the
shall be
presiding
judge of promptly
the court served
shall, as each upon
soon as the
practicabl accused
e, and the
summon attorney
the having
accused to charge of
appear the case.”
and to
answer It is of
the judicial notice
petition that the
on the day summons
and hour includes the
fixed in petition for
the extradition
order. ...
which will be
Upon
receipt of answered by the
the extraditee.
answer, or There is
should the no provision in
accused the RP-US
after Extradition
having Treaty and in
received P.D. No. 1069
the which gives an
summons extraditee the
fail to right to demand
answer from the
petitioner Convention on
Secretary of the Law of
Justice copies of Treaties to
the extradition which the
request from the Philippines is a
US government signatory
and its provides that “a
supporting treaty shall be
documents and interpreted in
to comment good faith in
thereon while accordance with
the request is the ordinary
still undergoing meaning to be
evaluation. We given to the
cannot write a terms of the
provision in the treaty in their
treaty giving context and in
private light of its
respondent that object and
right where purpose.”
there is none. It (emphasis
is well-settled supplied) The
that a “court preambular
cannot alter, paragraphs of
amend, or add P.D. No. 1069
to a treaty by define its intent,
the insertion of viz.:
any clause,
“W
small or great,
HEREAS,
or dispense with
under the
any of its
conditions and Constituti
requirements or on^] the
take away any Philippine
qualification, or s adopts
integral part of the
any stipulation, generally
upon any accepted
motion of principles
equity, or of
general internatio
convenience, or nal law as
substantial part of the
justice.” law of the
land, and
Second.
adheres to
All treaties,
the policy
including the
of peace,
RP-US
equality,
Extradition
justice,
Treaty, should
freedom,
be interpreted in
light of their cooperatio
intent. Nothing n and
less than the amity
Vienna with all
nations;
 Philippin
es
recently
conclude
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
d an
extraditio
WH n treaty
EREAS, with the
the Republic
suppressi of
on of Indonesia
crime is , and
the intends to
concern conclude
not only similar
of the treaties
state with other
where it interested
is countries;
committe ...”
d but also (emphasis
of any supplied)
other
state to It cannot
which the be gainsaid that
criminal today, countries
may have like the
escaped, Philippines
because it forge
saps the extradition
foundatio treaties to arrest
n of the dramatic
social life rise of
and is an international
outrage and
upon
transnational
humanity
crimes like
at large,
terrorism and
and it is
in the drug
interest of trafficking.
civilized Extradition
communit treaties provide
ies that the assurance
crimes that the
should punishment of
not go these crimes
unpunish will not be
ed; frustrated by
WH the frontiers of
EREAS, territorial
in sovereignty.
recognitio Implicit in the
n of this treaties should
principle be the
the unbending
commitment notice to flee
that the must be deeply
perpetrators of rooted on the
these crimes experience of
will not be the executive
coddled by any branch of our
signatory state. government. As
it comes from
It ought
the branch of
to follow that
our government
the RP-US
in charge of the
Extradition
faithful
Treaty calls for
execution of
an
our laws, it
interpretation
deserves the
that will
careful
minimize if not
consideration of
prevent the
this Court. In
escape of
addition, it
extraditees
cannot be
from the long
gainsaid that
arm of the law
private
and expedite
respondent’s
their trial. The
demand for
submission of
advance notice
the private
can delay the
respondent, that
summary
as a probable
process of
extraditee under
executive
the RP-US
evaluation of
Extradition
the extradition
Treaty he
request and its
should be
accompanying
furnished a
papers. The
copy of the US
foresight of
government
Justice Oliver
request for his
Wendell
extradition and
Holmes did not
its supporting
miss this
documents even
danger. In 1911,
while they are
he held:
still under
evaluation by “It
petitioner is
Secretary of common
Justice, does in
not meet this extraditio
desideratum. n cases to
The fear of the attempt to
petitioner bring to
Secretary of bear all
Justice that the the
demanded factitious
notice is niceties
equivalent to a of a
criminal
trial at
common
law. But
it is a
waste of
time ... if
there is
presented,
even in
somewhat
untechnic
al form
according
to our
ideas,
 is accorded
great weight.
The reason for
the rule is laid
CHAPTER 9 down in Santos
JURISDICTION OF STATES III v. Northwest
Orient Airlines,
such reasonable ground to suppose
him guilty as to make it et al., where we
proper that he should be tried, good stressed that a
faith to the demanding treaty is a joint
government requires his surrender.” executive
(emphasis supplied) legislative act
which enjoys
We erode
the presumption
no right of an
that “it was first
extraditee when
carefully studied
we do not allow and determined
time to stand to be
still on his constitutional
prosecution. before it was
Justice is best adopted and
served when given the force
done without of law in the
delay. country.”
Third. An Our
equally executive
compelling department of
factor to government,
consider is the thru the
under-standing Department of
of the parties Foreign Affairs
themselves to (DFA) and the
the RP-US Department of
Extradition Justice (DOJ),
Treaty as well has steadfastly
as the general maintained that
interpretation of the RP-US
the issue in Extradition
question by Treaty and P.D.
other countries No. 1069 do not
with similar grant the private
treaties with the respondent a
Philippines. The right to notice
rule is and hearing
recognized that during the
while courts evaluation stage
have the power of an extradition
to interpret process. This
treaties, the understanding
meaning given of the treaty is
them by the shared by the
departments of US government,
government the other party
particularly to the treaty.
charged with This
their negotiation interpretation by
and enforcement the two
governments views unless it
cannot be given is manifestly
scant erroneous.
significance. It Fourth.
will be Private
presumptuous respondent,
for the Court to
however,
assume that
peddles the
both
governments did postulate that he
not understand must be
the terms of the afforded the
treaty they right to notice
concluded. and hearing as
Yet, this is required by our
not all. Other Constitution. He
countries with buttresses his
similar position by
extradition likening an
treaties with the
Philippines have
expressed the
same
interpretation
adopted by the
Philippine and
US
governments.
Canadian 11 and
Hongkong
authorities, thru
appropriate note
verbales
communicated
to our
Department of
Foreign Affairs,
stated in
unequivocal
language that it
is not an
international
practice to
afford a
potential
extraditee with a
copy of the
extradition
papers during
the evaluation
stage of the
extradition
process. We
cannot disregard
such a
convergence of
 extradition
papers are still
undergoing
evaluation. As
INTRODUCTION TO PUBLIC INTERNATIONAL LAW held by the US
Supreme Court
extradition in United States
proceeding to a v. Galanis:
criminal “An
proceeding and extraditio
the evaluation n
stage to a proceedin
preliminary g is not a
investigation. criminal
prosecuti
We are
on, and
not persuaded.
the
An extradition
proceeding is constituti
sui generis. It is onal
not a criminal safeguard
proceeding s that
which will call accompan
into operation y a
all the rights of criminal
an accused as trial in
guaranteed by this
the Bill of country
Rights. To do not
begin with, the shield an
process of accused
extradition does from
not involve the extraditio
determination n
of the guilt or pursuant
innocence of an
to a valid
accused. His
treaty.”
guilt or
innocence will There are
be adjudged in other
the court of the differences
state where he between an
will be extradition
extradited. proceeding and
Hence, as a a criminal
rule, proceeding. An
constitutional extradition
rights that are proceeding is
only relevant to summary in
determine the nature while
guilt or criminal
innocence of an proceedings
accused cannot involve a full-
be invoked by blown trial. In
an extraditee contradistinctio
especially by n to a criminal
one whose proceeding, the
rules of relations before
evidence in an making the
extradition ultimate
proceeding decision to
allow admission extradite.
of evidence As an
under less
extradition
stringent
proceeding is
standards. In
not criminal in
terms of the
character and
quantum of
the evaluation
evidence to be
stage in an
satisfied, a
extradition
criminal case
proceeding is
requires proof
not akin to a
beyond
preliminary
reasonable
investigation,
doubt for
the due process
conviction
safeguards in
while a fugitive
may be ordered the latter do not
extradited necessarily
“upon showing apply to the
of the existence former. This we
of a prima facie hold for the
case.” Finally, procedural due
unlike in a process required
criminal case by a given set
where judgment of
becomes circumstances
executory upon “must begin
being rendered with a
final, in an determination
extradition of the precise
proceeding, our nature of the
courts may government
adjudge an function
individual involved as well
extraditable but as the private
the President interest that has
has the final been affected by
discretion to governmental
extradite him. action.” The
The United concept of due
States adheres process is
to a similar
practice
whereby the
Secretary of
State exercises
wide discretion
in balancing the
equities of the
case and the
demands of the
nation’s foreign
 “PROVISIONAL ARREST
In
case of
CHAPTER 9 urgency, a
JURISDICTION OF STATES Contractin
g Party
flexible for “not may
all situations request
calling for the
procedural provisiona
l arrest of
safeguards call
the person
for the same
sought
kind of pending
procedure.” presentati
Fifth. on of the
Private request
respondent for
would also extraditio
impress upon n. A
the Court the request
urgency of his for
right to notice provisiona
and hearing l arrest
considering the may be
alleged threat to transmitte
his liberty d through
“which may be the
more priceless diplomatic
than life.” The channel or
supposed threat directly
to private between
respondent’s the
liberty is Philippine
perceived to Departme
come from nt of
several Justice
provisions of the and the
RP-US United
Extradition States
Treaty and P.D. Departme
No. 1069 which nt of
allow Justice.
provisional The application for
arrest and provisional arrest shall
temporary contain:
detention. ← a description of
We first the person
sought;
deal with
provisional ← the location of
the person
arrest. The RP- sought, if known;
US Extradition
←
Treaty provides
a
as follows:
brie
f on
state agai
men nst
t of the
pers
the
on
facts
soug
of ht;
the and
case ←
, a
incl
udin state
g, if men
poss t
ible, that
the a
time requ
and est
loca for
tion extr
of aditi
on
the
for
offe
the
nse;
pers
← a description of
the laws violated; on
soug
←
ht
a
will
stat
eme follo
nt of w.
the The
exist Requestin
ence g State
of a shall be
warr notified
ant without
of delay of
arre the
st or dispositio
findi n of its
ng applicatio
of n and the
guilt reasons
or for any
judg denial.
men A
t of person
con who is
victi provisiona
lly
arrested
may be
discharge
d from
custody
upon the
expiration
of sixty
(60)
 remains in
force,
request
for the
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
provision
al arrest
days from of the
the date accused,
of arrest pending
pursuant receipt of
to this the
Treaty if request
the for
executive extraditio
authority n made in
of the accordanc
Requested e with
State has Section 4
not of this
received Decree.
the formal A
request request
for
for
extraditio
provision
n and the
supportin al arrest
g shall be
document sent to the
s required Director
in Article of the
7.” National
(emphasis Bureau of
supplied) Investigat
In relation to the above, Section 20 ion,
of RD. No. 1069 provides: Manila,
“SE either
CTION through
20. the
Provision
diplomati
al Arrest.
c channels
— (a) In
case of or direct
urgency, by post or
the telegraph.
requesting The
state may, Director
pursuant of the
to the National
relevant Bureau of
treaty or Investi-
conventio gation or
n and any
while the official
same acting on
his behalf period of
shall upon 20 days
receipt of after the
the provision
request al arrest
immediat the
ely secure Secretary
a warrant of
for the Foreign
provision Affairs
al arrest has not
of the received
accused the
from the request
presiding for
judge of extraditio
the Court n and the
of First document
Instance s
of the mentione
province d in
or city Section 4
having of this
jurisdictio Decree,
n of the the
place, accused
who shall shall be
issue the released
warrant from
for the custody.”
provision (emphasis
al arrest supplied)
of the
accused. Both the
The RP-US
Director Extradition
of the Treaty and P.D.
National No. 1069 clearly
Bureau of provide that
Investigat private
ion respondent may
through be provisionally
the arrested only
Secretary pending receipt
of Foreign of the request
Affairs for extradition.
shall Our DFA has
inform the long received
requesting the extradition
state of request from the
the result United States
of its and has turned it
request. over to the DOJ.
If It is undisputed
within a that until today,
the United
States has not
requested for
private
respondent’s
provisional
arrest.
Therefore, the
threat to private
respondent’s
liberty has
passed. It is
more imagined
than real.
 anywhere
within the
Philippine
s if it
CHAPTER 9 appears to
JURISDICTION OF STATES the
presiding
Nor can the threat to private judge that
respondent’s liberty come from
the
Section 6 of P.D. No. 1069, which
immediate
provides:
arrest and
“SE temporary
CTION 6. detention
Issuance of the
of accused
Summons; will best
Temporar serve the
y Arrest; ends of
Hearing, justice.
Service of The
Notices.
order and
— (1)
notice as
Immediate
well as a
ly upon
copy of
receipt of
the
the
petition, warrant of
the arrest, if
presiding issued,
judge of shall be
the court promptly
shall, as served
soon as each upon
practicabl the
e, accused
summon and the
the attorney
accused to having
appear charge of
and to the case.”
answer (emphasis
the supplied)
petition
It is
on the day
evident from
and hour
the above
fixed in
provision that a
the order.
warrant of
[H]e may
arrest for the
issue a
temporary
warrant
detention of the
for the
accused
immediate
pending the
arrest of
extradition
the
accused hearing may
which only be issued
may be by the presiding
served judge of the
extradition requires that we
court upon “take conscious
filing of the and detailed
petition for consideration of
extradition. As the interplay of
the extradition interests
process is still observable in a
in the given situation
evaluation stage or type of
of pertinent situation.”
documents and These interests
there is no usually consist
certainty that a in the exercise
petition for by an individual
extradition will of his basic
be filed in the freedoms on the
appropriate one hand, and
extradition the
court, the threat government’s
to private promotion of
respondent’s fundamental
liberty is merely public interest
hypothetical. or policy
Sixth. To objectives on
be sure, private the other.
respondent’s In the case
plea for due at bar, on one
process end of the
deserves serious balancing pole
consideration is the private
involving as it respondent’s
does his claim to due
primordial right process
to liberty. His predicated on
plea to due Section
process, 1, Article III of
however, the
collides with Constitution,
important state which provides
interests which
that “No person
cannot also be
shall be
ignored for they
deprived of life,
serve the
interest of the liberty, or
greater majority. property
The clash of without due
rights demands process of
a delicate law ...” Without
balancing of a bubble of
interests doubt,
approach which procedural due
is a process of law
“fundamental
postulate of
constitutional
law.” The
approach
 case at bar, the
extradition
proceeding is
only at its
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
evaluation
stage, the nature
lies at the of the right
foundation of a being claimed
civilized by the private
society which respondent is
accords nebulous and
paramount the degree of
importance to prejudice he
justice and will allegedly
fairness. It has suffer is weak,
to be accorded we accord
the weight it greater weight
deserves. to the interests
This espoused by the
brings us to the government
other end of the thru the
balancing pole. petitioner
Petitioner avers Secretary of
that the Court Justice. In
should give Angara v.
more weight to Electoral
our national Commission,
commitment we held that the
under the RP- “Constitution
US Extradition has blocked out
Treaty to with deft
expedite the strokes and in
extradition to bold lines,
the United allotment of
States of power to the
persons charged executive, the
with violation legislative and
of some of its the judicial
departments of
laws. Petitioner
the
also emphasizes
government.”
the need to
Under our
defer to the
constitutional
judgment of the
scheme,
Executive on
executive power
matters relating
is vested in the
to foreign
President of the
affairs in order
Philippines.
not to weaken if Executive
not violate the power includes,
principle of among others,
separation of the power to
powers. contract or
Consideri guarantee
ng that in the
foreign loans deference we
and the power give to the
to enter into executive
treaties or department is
international dictated by the
agreements. The principle of
task of separation of
safeguarding powers. This
that these principle is one
treaties are duly of the
honored cornerstones of
devolves upon our democratic
the executive government. It
department cannot be
which has the eroded without
competence and endangering our
authority to so government.
act in the The
international Philippines also
arena. It is has a national
traditionally interest to help
held that the in suppressing
President has crimes and one
power and even way to do it is
supremacy over to facilitate the
the country’s extradition of
foreign persons covered
relations. The by treaties duly
executive entered by our
department is government.
aptly accorded More and more,
deference on crimes are
matters of becoming the
foreign relations concern of one
considering the world. Laws
President’s most involving
comprehensive crimes and
and most crime
confidential prevention are
information
about the
international
scene of which
he is regularly
briefed by our
diplomatic and
consular
officials. His
access to ultra-
sensitive
military
intelligence data
is also
unlimited. The
 is due. Stated
otherwise, a
prior
determination
CHAPTER 9
should be made
JURISDICTION OF STATES
as to whether
undergoing procedural
universalization. protections are
One manifest at all due and
purpose of this when they are
trend towards due, which in
globalization is turn depends on
to deny easy the extent to
refuge to a which an
criminal whose individual will
activities
be “condemned
threaten the
to suffer
peace and
grievous loss.”
progress of
We have
civilized
countries. It is explained why
to the great an extraditee
interest of the has no right to
Philippines to notice and
be part of this hearing during
irreversible the evaluation
movement in stage of the
light of its extradition
vulnerability to process. As
crimes, aforesaid, P.D.
especially No. 1069 which
transnational implements the
crimes. RP-US
In tilting Extradition
the balance in Treaty affords
favor of the an extraditee
interests of the sufficient
State, the Court opportunity to
stresses that it is meet the
not ruling that evidence against
the private him once the
respondent has petition is filed
no right to due in court. The
process at all time for the
throughout the extraditee to
length and know the basis
breadth of the of the request
extrajudicial for his
proceedings. extradition is
Procedural due merely moved
process requires to the filing in
a determination court of the
of what process formal petition
is due, when it for extradition.
is due, and the The extraditee’s
degree of what
right to know is stage to the
momentarily judicial stage
withheld during and to the
the evaluation execution stage
stage of the depending on
extradition factors that will
process to come into play.
accommodate In sum, we rule
the more that the
compelling temporary hold
interest of the on private
State to prevent respondent’s
escape of privilege of
potential notice and
extraditees hearing is a soft
which can be restraint on his
precipitated by right to due
premature process which
information of will not deprive
the basis of the him of
request for his fundamental
extradition. No fairness should
less compelling he decide to
at that stage of resist the
the extradition request for his
proceedings is extradition to
the need to be the United
more deferential States. There is
to the judgment no denial of due
of a co-equal process as long
branch of the as fundamental
government, the fairness is
Executive, assured a party.
which has been We end
endowed by our where we
Constitution began. A
with greater myopic
power over
interpretation of
matters
the due process
involving our
foreign clause would
relations. not suffice to
Needless to resolve the
state, this conflicting
balance of rights in
interests is not a
static but a
moving balance
which can be
adjusted as the
extradition
process moves
from the
administrative
 9, 1999 is SET
ASIDE.
The temporary
restraining
190 INTRODUCTION TO PUBLIC order issued by
INTERNATIONAL LAW
this Court on
August 17,
the case at bar. 1999 is made
With the global PERMANENT.
village The Regional
shrinking at a Trial Court of
rapid pace, Manila, Branch
propelled as it is 25 is enjoined
by from
technological conducting
leaps in further
transportation proceedings in
and com- Civil Case No.
munication, we 99-94684.
need to push
further back our Bail in extradition cases
horizons and If after his arrest and
work with the
if the trial court finds that
rest of the
an extraditee is not a flight
civilized nations
and move closer risk, the court may grant
to the universal him bail. (In this case the
goals of “peace, grant of bail presupposed
equality, justice, that a co-petitioner, the
freedom, wife, had already presented
cooperation and
evidence to prove her right
amity with all
nations.” In the to be on bail, that she was
end, it is the no flight risk, and the trial
individual who court had already exercised
will reap the its sound discretion and had
harvest of peace already determined that
and prosperity
under the Constitution and
from these
laws in force, co- petitioner
efforts.
WHEREF was entitled to provisional
ORE, the release.) The Court
Urgent Motion emphasized that bail may be
for granted to a possible
Reconsideration extraditee only upon a clear
is GRANTED.
and convincing showing
The Decision in
the case at bar that he will not be a flight
promulgated on risk or a danger to the
January 18, community, and (2) that
2000 is there exist special,
REVERSED. humanitarian and
The assailed compelling circumstances.6
Order issued by In a later case, the
the public
Court said that it could not
respondent
judge on August ignore the following trends
in international law: (1) the countries to observe these
growing importance of the universal human rights in
individual person in public fulfilling their treaty
international law who, in obligations; and (4) the duty
the 20th century, has of the Court to balance the
gradually attained global rights of the individual
recognition; (2) the higher under our fundamental law,
value now being given to on one hand, and the law on
human rights in the extradition, on the other. It
international sphere; (3) the added, “If bail can be
corresponding duty of granted in deportation

Rodriguez v. Judge, G.R. No. 157977,

February 27,2006.
 innocence or guilt of the
person detained is not in
CHAPTER 9 issue.”7
JURISDICTION OF STATES The decision departs
from the earlier case of
cases, we see no
Mark Jimenez (US v. Judge
justification why it should
Puruganan, September 24,
not also be allowed in
extradition cases. After all, 2002) which said that bail is
both are administrative not available in extradition
proceedings where the cases.

’Gov’t of Hongkong v. Olalia, GR

153675, April 19,2007.
 Mighell v. Sultan ofJohore.'
The Sultan of Johore was
sued for breach of promise
to marry in a British court.
The subject of the suit
therefore was a private
matter, not a state matter.
Upon verification of his
being a sitting foreign
sovereign, the case was
Chapter 10 IMMUNITY FROM JURISDICTION dismissed. The immunity
that is recognized here is
absolute for a sitting head
of state.

Immunity from jurisdiction. More recent is the

Pinochet Case which
The general rule is
that the jurisdiction of a involved one who no longer
state within its territory is was a head of state but
complete and absolute. whose immunity for official
However, there are two
or governmental acts was
categories of exceptions to
this rule. The first is recognized.
sovereign immunity and the The Pinochet Case: Background
second is the immunity of
General Augusto
the representative of states
Pinochet led a 1973 military
or diplomatic and consular
immunities. Sovereign coup that overthrew
immunity covers both a democratically-elected
head of state and the state Chilean President Salvador
itself. Allende. According to a
national truth and
Immunity of head of state.
reconciliation commission,
Immunity from at least 3,196 people
jurisdiction is enjoyed by
both the head of state and
by the state itself. The
example many authors give
of the immunity of a head
of state is the case of
'1 QB 148(1894).

192
 . . . [i]n
my judgment,
Senator
CHAPTER 10 Pinochet as
IMMUNITY FROM JURISDICTION former head of
state enjoys
were killed or forcibly
immunity
disappeared during
ratione
Pinochet’s subsequent 17- materiae in
year dictatorship. relation to acts
Thousands more were done by him as
tortured or exiled. head of state as
On October 16, 1998, part of his
while seeking medical help official
functions as
in London, British
head of state.
authorities detained
The
Augusto Pinochet on an
question then
arrest warrant issued by
which has to be
Spanish Magistrate Baltasar
answered is
Garzon. Garzon who had
whether the
charged Pinochet with alleged
genocide, terrorism, and organisation of
torture committed during state torture by
the Chilean dictatorship and Senator
was seeking his extradition. Pinochet (if
In November 1998, a proved) would
panel of British law lords constitute an act
ruled that Pinochet did not committed by
Senator
enjoy immunity from
Pinochet as part
prosecution as a former
of his official
head of state and could be functions as
extradited to Spain. This head of state....
decision, based largely on Can it be
customary international law, said that the
was set aside, however, commission of
a crime which
when one of the judges who
is an
heard the appeal was found international
to have ties to Amnesty crime against
International. A larger panel humanity and
of law lords heard the jus cogens is an
appeal again in March act done in an
official capacity
1999, and in a 6-1 decision,
on behalf of the
reaffirmed that Pinochet state? I believe
could be extradited. there to be
strong ground
REGINA v. BARTLE AND THE COMMISSIONER OF POLICE for saying that
ON 24 March 1999 House of Lords the
implementation
LORD BROWNE-WILKINSON of torture as
defined by the
Torture
Convention
cannot be a
state function.
This is the view
taken by Sir
Arthur Watts
(supra) who
said (at p. 82):
“Th
e idea that
individual
s who
commit
internatio
nal crimes
are
internatio
nally
accountab
le for
them has
now
become
an
accepted
part of
internatio
nal law.
Problems
in this
area —
such as
the non-
existence
of any
standing
 personall
y be
liable to
INTRODUCTION TO PUBLIC
be called
INTERNATIONAL LAW
to
account if
internatio
there is
nal
sufficient
tribunal to
have evidence
jurisdictio that he
n over authorize
such d or
crimes, perpetrate
and the d such
lack of serious
agreement internatio
as to what nal
acts are crimes.”
internatio
nally Finally, and to my
criminal mind decisively, if the
for this implementation of a torture
purpose— regime is a public function
have not
giving rise to immunity
affected
ratione materiae, this
the
general produces bizarre results.
acceptanc Immunity ratione materiae
e of the applies not only to ex-heads
principle of state and ex-ambassadors
of but to all state officials who
individual
have been involved in
responsibi
carrying out the functions of
lity for
internatio the state. Such immunity is
nal necessary in order to
criminal prevent state immunity
conduct.” being circumvented by
Later, at p. 84, he said: prosecuting or suing the
official who, for example,
“It
actually carried out the
can no
longer be torture when a claim against
doubted the head of state would be
that as a precluded by the doctrine of
matter of immunity. If that applied to
general the present case, and if the
customar implementation of the
y torture regime is to be
internatio treated as official business
nal law a sufficient to found an
head of immunity for the former
state will head of state, it must also be
official business sufficient
to justify immunity for his
inferiors who actually did
the torturing. Under the
[Torture] Convention the
international crime of
torture can only be
committed by an official or
someone in an official
capacity. They would all be
entitled to immunity....
Therefore, the whole
elaborate structure of
universal
jurisdiction over torture
committed by officials is
rendered abortive and one
of the main objectives of
the Torture Convention —
to provide a system under
which there is no safe haven
for torturers — will have
been frustrated. In my
judgment, all these factors
together demonstrate that
the notion of continued
immunity for ex-heads of
state is inconsistent with the
provisions of the Torture
Convention.
For these reasons in
my judgment if, as alleged,
Senator Pinochet organized
and authorized torture after
8 December 1988, he was
not acting in any capacity
which gives rise to
immunity ratione materiae
because such actions were
contrary to international law
...
 immunity. Chief Justice
Marshall noted that “the
nation within its own
CHAPTER 10 territory is necessarily
IMMUNITY FROM exclusive and absolute. It is
JURISDICTION susceptible of no limitation
not imposed by itself.”
[The However, he immediately
Chilean added that absolute
government and territorial jurisdiction
other “would not seem to
extradition contemplate foreign
opponents then sovereigns nor their
urged the sovereign rights as its
British objects. One sovereign
government to being in no respect
send the former amenable to another; and
dictator back to being bound by obligations
Chile on of the highest character not
medical to degrade the dignity of his
grounds. nation, by placing himself
Despite the or its sovereign rights
protests of legal within the jurisdiction of
another, can be supposed to
and medical
enter a foreign territory ... in
experts from
the confidence that the
several
immunities belonging to his
countries,
independent sovereign
British Home
station, though not
Secretary Jack
expressly stipulated, are
Straw released
reserved by implication, and
Pinochet on
will be extended to him.”
March 2,2000,
The immunity of the
ostensibly on
sovereign head is seen as
health grounds.]
also communicated to the
State immunity. sovereign state: “This
The principle that the perfect equality and
state may not be sued absolute independence of
without its consent found in sovereigns, and this
the Philippine Constitution common interest impelling
is both municipal law and them to mutual intercourse,
also international law and an interchange of good
applicable to foreign states. offices with each other,
This is based on the have given rise to a class of
principle of equality of cases in which every
states: par in parent non sovereign is understood to
habet imperium. waive the exercise of a part
An early case, The of that complete exclusive
Schooner Exchange v. territorial jurisdiction,
1
MacFaddon is usually
which has been stated to be
cited as authority for saying
that states enjoy absolute
the attribute of every the principle evolved over
nation.” the years. Immunity came
With the gradual to be reserved only for acts
expansion of state jure imperii (governmental
involvement in commerce, acts) but not for acts jure
gestionis

11 U.S. 116 [Cranch],

 sovereignty.
Today the
position is
196 INTRODUCTION TO entirely
PUBLIC INTERNATIONAL LAW different;
States engage in
commercial
(trading and commercial activities and,
acts). Dralle v. Republic of as the present
Czechoslovakia,3 after a case shows,
survey of various enter into
jurisdictions concluded: competition
The with their own
Supreme Court nationals and
therefore with foreigners.
reaches the Accordingly,
conclusion that the classic
it can no longer doctrine of
be said that by immunity has
international lost its meaning
law so-called and, ratione
acta gestionis cessante, can no
are exempt longer be
from municipal recognized as a
jurisdiction. rule of
This subjection international
of the acta law.
gestionis to the
This rule is also
jurisdiction of
followed in Philippine
States has its
basis in the jurisdiction as shown
development of especially by the numerous
the commercial cases involving U.S.
activity of military bases authorities.
States.
United States of America v.
The classic
doctrine of Hon. V.M. Ruiz*
immunity arose categorically said:
at a time when
The
all their
traditional rule
political
activities, either of State
by the purchase immunity
of commodities exempts a State
for their from being sued
diplomatic in the courts of
representatives another State
abroad, or by without its
the purchase of consent or
war material for
waiver. This
war purposes,
etc. Therefore, rule is a
there was no necessary
justification for consequence of
any distinction the principles of
between private independence
transactions and and equality of
acts of States.
However, the is now the rule
rules of in the United
International States, the
Law are not United
petrified; they Kingdom and
are constantly other states in
developing and western Europe.
evolving. And The
because the restrictive
activities of application of
states have State immunity
multiplied, it is proper only
has been when the
necessary to proceedings
distinguish them arise out of
— between commercial
sovereign and transactions of
governmental the foreign
acts (jure sovereign, its
imperii) and commercial
private, activities or
economic
commercial and
affairs. Stated
proprietary acts
differently, a
(jure gestionis).
State may be
The result is that
said to have
State immunity descended to
now extends the level of an
only to acts jure individual and
imperii. The can thus be
restrictive deemed to have
application of tacitly given
State immunity

’
S
 plaintiff. ...
‘Inasmuch as
the State
CHAPTER 10 authorizes only
IMMUNITY legal acts by its
FROM officers,
JURISDICTION unauthorized
acts of
its consent to be sued only when it government
enters into business contracts. officials or
It does not apply officers are not
where the acts of the State,
contract relates and an action
to the exercise against the
of its sovereign officials or
functions. In officers by one
this case, the whose rights
projects [repairs have been
of base invaded or
facilities] are an violated by such
integral part of acts, for the
the naval base protection of his
which is rights, is not a
devoted to the suit against the
defense of both State within the
the United rule of
States and the immunity of the
Philippines, State from suit.
indisputably a In the same
function of the tenor, it has
government of been said that an
the highest action at law or
order; they are suit in equity
not utilized for against a State
nor dedicated to officer or the
commercial or director of a
business State
purposes. department on
In United States v. the ground that,
Hon. Luis Reyes,5 the claim while claiming
of immunity was rejected to act for the
when it was shown that the State, he
acts of the American official violates or
were committed not only invades the
outside the scope of her personal and
property rights
authority but also contrary
or the plaintiff,
to law:
under an
It is a unconstitutional
different matter act or under an
where the public assumption of
official is made authority which
to account in his he does not
capacity as such have, is not a
for acts contrary suit against the
to law and State within the
injurious to the constitutional
rights of provision that
 the State may 6
G.R. No. 101949, December
not be sued
without its
consent.’
The rationale
for this ruling is
that the doctrine
of state
immunity
cannot be used
as an instrument
for perpetrating
an injustice.
In the Holy See v.
Eriberto Rosario, Jr., 6
where it was claimed that
the Holy See had waived its
sovereign immunity by
entering into a contract for
the sale of a piece of land,
the Court said:
In the
absence of
legislation
defining what
activities and
transactions
shall be
considered
“commercial”
and as
constituting acts
jure gestionis,
we have to
come out with
our own
guidelines,
tentative they
may be.
Certainly,
the mere
entering into a
contract by a
foreign state
with a private
party cannot be
the ultimate
test. Such an act
can

5
G.R. No. 79253, March 1,1993.
 5-A were made
for profit but
claimed that it
198 INTRODUCTION TO acquired said
PUBLIC INTERNATIONAL LAW property for the
site of its
mission or the
only be the start Apostolic
of the inquiry. Nunciature in
The logical the Philippines.
question is Private
whether the respondent
foreign state is failed to dispute
engaged in the said claim.
activity in the
regular course The Court also
of business. If indicated how a state
the foreign state claiming sovereign
is not engaged
immunity should proceed:
regularly in a
business or In Public
trade, the International
particular act or Law, when a
transaction state or
must then be international
tested by its agency wishes
nature. If the
to plead
act is in pursuit
sovereign or
of a sovereign
activity, or an diplomatic
incident immunity in a
thereof, then it foreign court, it
is an act jure requests the
imperii, Foreign Office
especially when of the state
it is not where it is sued
undertaken for to convey to the
gain or profit.
court that said
In the defendant is
case at bench, if entitled to
petitioner has immunity.
bought and sold
lands in the In the
ordinary course Philippines, the
of a real estate practice is for
business, surely the foreign
the said government or
transaction can the
be categorized international
as an act jure
organization to
gestionis.
first secure an
However,
petitioner has executive
denied that the endorsement of
acquisition and its claim of
subsequent sovereign or
disposal of Lot diplomatic
 immunity. But
how the
Philippine
Foreign Office
conveys its
endorsement to
the courts
varies.
By way of
consolation, however, the
Court added: “Private
respondent is not left
without any legal remedy
for the redress of its
grievances. Under both
Public International Law
and Transnational Law, a
person who feels aggrieved
by the acts of a foreign
sovereign can ask his own
government to espouse his
cause through diplomatic
channels.”
REPUBLIC OF INDONESIA V.
VINZON G S.. No. 154705, June
26,2003
AZCUNA, J.:
Petitioner,
Republic of
Indonesia,
represented by
its Counsellor,
Siti Partinah,
entered into a
Maintenance
Agreement in
August 1995
with respondent
James Vinzon,
sole proprietor
of
 to the date of
expiration of the
said agreement,
CHAPTER 10 or before
IMMUNITY FROM JURISDICTION August 1999,
they informed
Vinzon Trade respondent that
and Services.
the renewal of
The
the agreement
Maintenance
shall be at the
Agreement
stated that discretion of the
respondent incoming Chief
shall, for a of
consideration, Administration,
maintain Minister
specified Counsellor
equipment at the Azhari Kasim,
Embassy Main who was
Building, expected to
Embassy Annex arrive in
Building and the February 2000.
Wisma Duta,
When Minister
the official
Counsellor
residence of
Kasim assumed
petitioner
Ambassador the position of
Soeratmin. The Chief of
equipment Administration
covered by the in March 2000,
Maintenance he allegedly
Agreement are found
air conditioning respondent’s
units, generator work and
sets, electrical services
facilities, water unsatisfactory
heaters, and and not in
water motor
compliance with
pumps. It is
the standards set
likewise stated
therein that the in the
agreement shall Maintenance
be effective for Agreement.
a period of four Hence, the
years and will Indonesian
renew itself Embassy
automatically terminated the
unless cancelled agreement in a
by either party letter dated
by giving thirty August 31,
days prior 2000.
written notice Petitioners
from the date of
claim,
expiry.
moreover, that
Petitioners
they had earlier
claim that
verbally
sometime prior
informed
respondent of sponsoring a
their decision to prize and
terminate the expressed his
agreement. hope that the
On the cordial relations
other hand, happily existing
respondent between them
claims that the will continue to
aforesaid prosper and be
termination was strengthened in
arbitrary and the coming
unlawful. years.
Respondent Hence, on
cites various December
circumstances 15,2000,
which respondent filed
purportedly a complaint
negated against
petitioners’ petitioners
alleged docketed as
dissatisfaction Civil Case No.
over 18203 in the
respondent’s Regional Trial
services: (a) in Court (RTC) of
July 2000, Makati, Branch
Minister 145. On
Counsellor February 20,
Kasim still 2001,
requested petitioners filed
respondent to a Motion to
assign to the Dismiss,
embassy an alleging that the
additional full- Republic of
time worker to Indonesia, as a
assist one of his foreign
other workers;
sovereign State,
(b) in August
has sovereign
2000, Minister
immunity from
Counsellor
suit and cannot
Kasim asked
be sued as a
respondent to
party-defendant
donate a prize,
in the
which the latter
did, on the Philippines. The
occasion of the said motion
Indonesian further alleged
Independence that Ambassador
Day golf
tournament; and
(c) in a letter
dated August
22, 2000,
petitioner
Ambassador
Soeratmin
thanked
respondent for
 court of
Makati
City,
INTRODUCTION TO PUBLIC
Philippin
INTERNATIONAL LAW
es.”
Responde
Soeratmin and
nt’s Opposition
Minister
likewise alleged
Counsellor
that
Kasim are
Ambassador
diplomatic
Soeratmin and
agents as
Minister
defined under
Counsellor
the Vienna
Kasim can be
Convention on
sued and held
Diplomatic
liable in their
Relations and
private
therefore enjoy
capacities for
diplomatic
tortious acts
immunity. In
turn, respondent done with
filed on March malice and bad
20, 2001, an faith.
Opposition to On May
the said motion 17, 2001, the
alleging that the trial court
Republic of denied herein
Indonesia has petitioners’
expressly Motion to
waived its Dismiss. It
immunity from likewise denied
suit. He based the Motion for
this claim upon Reconsideration
the following subsequently
provision in the filed.
Maintenance The trial
Agreement: court’s denial of
“ the Motion to
Any legal Dismiss was
action brought up to
arising the Court of
out of this Appeals by
Maintena herein
petitioners in a
nce
petition for
Agreeme certiorari and
nt shall prohibition.
be settled Said petition,
according docketed as
to the CA-G.R. SP
laws of No. 66894,
the Phil- alleged that the
ippines trial court
gravely abused
and by
its discretion in
the proper ruling that the
Republic of Maintenance
Indonesia gave Agreement.
its consent to be The petition is impressed with
sued and merit.
voluntarily
Internatio
submitted itself
nal law is
to the laws and
founded largely
jurisdiction of
upon the
Philippine
courts and that principles of
petitioners reciprocity,
Ambassador comity,
Soeratmin and independence,
Minister and equality of
Counsellor States which
Kasim waived were adopted as
their immunity part of the law
from suit. of our land
On May under Article II,
30,2002, the Section 2 of the
Court of 1987
Appeals Constitution.
rendered its The rule that a
assailed State may not
decision be sued
denying the
petition for lack
of merit. On
August 16,
2002, it denied
herein
petitioners’
motion for
reconsideration.
Hence, this petition.
In the
case at bar,
petitioners raise
the sole issue of
whether or not
the Court of
Appeals erred
in sustaining
the trial court’s
decision that
petitioners have
waived their
immunity from
suit by using as
its basis the
above-
mentioned
provision in the
 contrary attitude
would “unduly
vex the peace of
CHAPTER 10 nations.”
IMMUNITY FROM JURISDICTION The rules
of International
without its Law, however,
consent is a are neither
necessary unyielding nor
consequence of impervious to
the principles of
change. The
independence
increasing need
and equality of
of sovereign
States. [United
States to enter
States of
into purely
America, et al.
commercial
v. Ruiz, 136
SCRA 487 activities
(1987).] As remotely
enunciated in connected with
Sanders v. the discharge of
Veridiano II, their
162 SCRA 88, governmental
96 (1988), the functions
practical brought about a
justification for new concept of
the doctrine of sovereign
sovereign immunity. This
immunity is that concept, the
there can be no restrictive
legal right theory, holds
against the that the
authority that immunity of the
makes the law sovereign is
on which the recognized only
right depends. with regard to
In the case of public acts or
foreign States, acts jure
the rule is imperii, but not
derived from with regard to
the principle of
private acts or
the sovereign
acts jure
equality of
gestionis. [The
States, as
Holy See v.
expressed in the
Rosario, et al.,
maxim par in
238 SCRA
parem non
habet 524 (1994)].
imperium. All In United
states are States v. Ruiz,
sovereign for instance, we
equals and held that the
cannot assert conduct of
jurisdiction over public bidding
one another. A for the repair of
a wharf at a business or
United States commercial
Naval Station is activity, and in
an act jure this case it has
imperii. On the not been shown
other hand, we to be so
considered as engaged, the
an act jure particular act or
gestionis the
transaction must
hiring of a cook
then be tested
in the recreation
by its nature. If
center catering
the act is in
to American
servicemen and pursuit of a
the general sovereign
public at the activity, or an
John Hay Air incident thereof,
Station in then it is an act
Baguio City, jure imperii.
United States v. Hence,
Rodrigo, 182 the existence
SCRA 644 alone, of a
(1990), as well paragraph in a
as the bidding contract stating
for the that any legal
operation of
action arising
barber shops in
out of the
Clark Air Base
agreement shall
in Angeles City.
be settled
Apropos
according to the
the present case,
laws of the
the mere
Philippines and
entering into a
by a specified
contract by a
court of
foreign State
with a private
party cannot be
construed as the
ultimate test of
whether or not
it is an act jure
imperii or jure
gestionis. Such
act is only the
start of the
inquiry. Is the
foreign State
engaged in the
regular conduct
of a business? If
the foreign
State is not
engaged
regularly in a
 Submissio
n by a foreign
state to local
INTRODUCTION TO PUBLIC jurisdiction
INTERNATIONAL LAW
must be clear
and
the Philippines unequivocal. It
is not must be given
necessarily a explicitly or by
waiver of necessary
sovereign implication. We
immunity from find no such
suit. The waiver in this
aforesaid case.
provision
Responde
contains
nt concedes that
language not the
necessarily establishment of
inconsistent a diplomatic
with sovereign mission is a
immunity. On sovereign
the other hand, function. On the
such provision other hand, he
may also be argues that the
meant to apply actual physical
where the maintenance of
sovereign party the premises of
elects to sue in the diplomatic
the local courts, mission, such as
or otherwise the upkeep of
waives its its furnishings
immunity by and equipment,
any subsequent is no longer a
act. The sovereign
applicability of function of the
Philippine laws State.
must be deemed We
to include disagree. There
Philippine laws is no dispute
in its totality, that the
including the establishment of
principle a diplomatic
recognizing mission is an
sovereign act jure imperii.
immunity. A sovereign
Hence, the State does not
merely establish
proper court
a diplomatic
may have no
mission and
proper action,
leave it at that;
by way of
the
settling the
establishment of
case, except to a diplomatic
dismiss it. mission
encompasses its such a case, it
maintenance cannot be
and upkeep. deemed to have
Hence, the State waived its
may enter into immunity from
contracts with suit.” As to the
private entities paragraph in the
to maintain the agreement
premises, relied upon by
furnishings and respondent, the
equipment of Solicitor
the embassy General states
and the living that it “was not
quarters of its a waiver of their
agents and immunity from
officials. It is suit but a mere
therefore clear stipulation that
that petitioner in the event
Republic of they do waive
Indonesia was their immunity,
acting in pursuit Philippine laws
of a sovereign shall govern the
activity when it resolution of
entered into a any legal action
contract with arising out of
respondent for the agreement
the upkeep or and the proper
maintenance of court in Makati
the air City shall be the
conditioning agreed venue
units, generator thereof.
sets, electrical
facilities, water
heaters, and
water motor
pumps of the
Indonesian
Embassy and
the official
residence of the
Indonesian
ambassador.
The
Solicitor
General, in his
Comment,
submits the
view that, “the
Maintenance
Agreement was
entered into by
the Republic of
Indonesia in the
discharge of its
governmental
functions. In
 State,
unless he
holds it
CHAPTER 10 on behalf
IMMUNITY of the
FROM sending
JURISDICTION
State for
On the the
matter of purposes
whether or not of the
petitioners mission;
Ambassador ←
Soeratmin and an
Minister action
Counsellor
relating to
Kasim may be
successio
sued herein in
n in
their private
which the
capacities,
diplomati
Article 31 of the
c agent is
Vienna
involved
Convention on
as
Diplomatic
executor,
Relations
administr
provides:
ator, heir
xxx xxx xxx
or legatee
A
as a
diplomatic
private
agent shall
person
enjoy immunity
and not
from the
on behalf
criminal
of the
jurisdiction of
sending
the receiving
State;
State. He shall
←
also enjoy im-
munity from its an
civil and action
administrative relating to
jurisdiction, any
except in the profession
case of: al or
← commerci
al activity
a
exercised
real action
by the
relating to diplomati
private c agent in
immovabl the
e property receiving
situated in State
the outside
territory his
of the official
functions.
receiving
 xxx xxx xxx the sense that they benefit
The act of the person. But the purpose
petitioners of the immunities given
Ambassador them is functional, that is,
Soeratmin and to enable
Minister
Counsellor
Kasim in
terminating the
Maintenance
Agreement is
not covered by
the exceptions
provided in the
abovementione
d provision.
The
Solicitor
General
believes that
said act may fall
under
subparagraph
(c) thereof, but
said provision
clearly applies
only to a
situation where
the diplomatic
agent engages
in any
professional or
commercial
activity outside
official
functions,
which is not the
case herein.
WHEREFORE, the petition is
hereby GRANTED.
Diplomatic and consular immunities.
The law governing
diplomatic relations dates
back to earliest intercourse
between nations. Much of it
is customary law. Official
representatives of a state are
given immunities and
privileges when they are
within the territory of
another state. The
immunities and privileges
they enjoy are personal in
 the
“members of
the mission”
204 INTRODUCTION TO are the head of
PUBLIC INTERNATIONAL LAW the mission and
the members of
the staff of the
them to perform their
mission;
functions properly. On the
the
part of the receiving state
“members of
there lie certain obligations
the staff of the
to protect the representative
mission ” are
and his property and office.
the mem-bers
The law on this subject is
of the
very important because of diplomatic
the reliance states place on staff, of the
their representatives in administrative
dealing with other states. and technical
staff and of the
Diplomatic immunities.
service staff of
Diplomats are
the mission;
concerned with the political
the
relations of states. The
“members of
codification of the law on
the diplomatic
the subject may be found in
staff" are the
the Vienna Convention on
members of the
Diplomatic Relations
staff of the
(1961). The diplomatic
mission having
representatives who can
diplomatic
enjoy immunities in
rank;
varying degrees are
a
enumerated in Article I;
“diplomatic
Article I
agent" is the
For the head of the
purpose of the mission or a
present member of the
Convention, the diplomatic staff
following of the mission;
expressions the
shall have the “members of
meanings the
hereunder administrative
assigned to and technical
them: staff" are the
the members of the
"head of the staff of the
mission ” is the mission
employed in the
person charged
administrative
by the sending
and technical
State with the
service of the
duty of acting
mission;
in that capacity;
 the
“members of
the service
staff" are the
members of the
staff of the
mission in the
domestic
service of the
mission;
a
“private
servant” is a
person who is
in the domestic
service of a
member of the
mission and
who is not an
employee of the
sending State;
the
“premises of
the mission"
are the
buildings or
parts of
buildings and
the land
ancillary
thereto,
irrespective of
ownership, used
for the purposes
of the mission
including the
residence of the
head of the
mission.
 the receiving state, an
agreement must first be
obtained. The receiving
CHAPTER 10 state is under no obligation
IMMUNITY to give reasons for refusing
FROM
JURISDICTION an agreement. (Art. 4)
Moreover, the “receiving
The functions of the diplomatic State may at any time, and
mission are enumerated in Article 3:
without having to explain its
← representing the sending decision, notify the sending
State in the receiving State; State that the head of the
protecting in the
mission or any member of
receiving State
the interests of the diplomatic staff of the
the sending mission is persona non
State and of its grata or that any other
nationals, member of the staff of the
within the limits
mission is not acceptable. In
permitted by
international any such case, the sending
law; (c) State shall, as appropriate,
negotiating with either recall the person
the Government concerned or terminate his
of the receiving
functions with the mission.
State;
A person may be declared
ascertaining by
all lawful means non grata or not acceptable
conditions and before arriving in the
developments in territory of the receiving
the receiving State.” (Art. 9).
State, and
The following are
reporting
some of the rights and
thereon to the
Government of privileges of the diplomatic
the sending mission:
State; (e)
Article 22
promoting
friendly The
relations premises of the
between the mission shall be
sending State inviolable. The
and the agents of the
receiving State, receiving State
and developing may not enter
their economic, them, except
cultural and with the consent
scientific of the head of
relations. the mission.
Diplomatic relations The
receiving State
between states are purely by
is under a
mutual consent. Before the
special duty to
head of mission is sent to take all
appropriate
steps to protect
the premises of
the mission
against any
intrusion or
damage and to
prevent any
disturbance of
the peace of the
mission or
impairment of
its dignity.
The
premises of the
mission, their
furnishings and
other property
thereon and the
means of
transport of the
mission shall be
immune from
search,
requisition,
attachment or
execution.
 wherever they
may be.
Article 27
206 INTRODUCTION TO The
PUBLIC INTERNATIONAL LAW receiving State
shall permit and
Article 23 protect free
The com-
sending State munication on
and the head of the part of the
the mission mission for all
shall be exempt official
from all purposes. In
national, communicating
regional or with the
municipal dues Government
and taxes in and the other
respect of the missions and
premises of the consulates of
mission,
the sending
whether owned
State, wherever
or leased, other
situated, the
than such as
mission may
represent
payment for employ all
specific appropriate
services means,
rendered. including
diplomatic
The
couriers and
exemption from
messages in
taxation
referred to in code or cipher.
this Article However, the
shall not apply mission may
to such dues install and use a
and taxes wireless
payable under transmitter only
the law of the with the
receiving State consent of the
by persons receiving State.
contracting The
with the official
sending State or
correspondence
the head of the
of the mission
mission.
shall be
Article 24 inviolable.
The Official
archives and correspondence
documents of means all
the mission correspondence
shall be relating to the
inviolable at mission and its
any time and functions.
 The diplomatic bag shall not be of this Article
opened or detained. shall also apply,
The except that the
packages immunities
constituting the therein
diplomatic bag
must bear
visible external
marks of their
character and
may contain
only dip-
lomatic
documents or
articles
intended for
official use.
The
diplomatic
courier, who
shall be
provided with
an official
document
indicating his
status and the
number of
packages
constituting the
diplomatic bag,
shall be
protected by the
receiving State
in the
performance of
his functions.
He shall enjoy
personal
inviolability
and shall not be
liable to any
form of arrest
or detention.
The
sending State or
the mission
may designate
diplomatic
couriers ad hoc.
In such cases
the provisions
of paragraph 5
 form of arrest or
detention. The
receiving State
shall treat him
CHAPTER 10
with due respect
IMMUNITY FROM JURISDICTION
and shall take
mentioned shall all appropriate
cease to apply steps to prevent
when such a any attack on
courier has his person,
freedom or
delivered to the
dignity.
consignee the
Article 30
diplomatic bag
The
in his charge.
private
A
residence of a
diplomatic bag
may be diplomatic agent
entrusted to the shall enjoy the
captain of a same
commercial inviolability and
aircraft protection as the
scheduled to premises of the
land at an mission.
authorized port
His
of entry. He
papers,
shall be
correspondence
provided with
an official and, except as
document provided in
indicating the paragraph 3 of
number of Article 31, his
packages property, shall
constituting the likewise enjoy
bag but he shall invio-lability.
not be Article 31
considered to be A
a diplomatic
diplomatic agent
courier. The
mission may shall enjoy
send one of its immunity from
members to take the criminal
possession of jurisdiction of
the diplomatic the receiving
bag directly and State. He shall
freely from the also enjoy
captain of the
immunity from
aircraft.
its civil and
Article 29
administrative
The
jurisdiction,
person of a
diplomatic agent except in the
shall be case of:
inviolable. He ←a
shall not be real action
liable to any relating to
private
immovabl A diplomatic agent is not obliged
e property to give evidence as a
situated in witness.
the No
territory measures of
of the
execution may
receiving
State, be taken in
unless he respect of a
holds it on diplomatic agent
behalf of except in the
the
cases coming
sending
State for under sub-
the paragraphs
purposes
of the
mission;
(b) an
action
relating to
succession
in which
the
diplomatic
agent is
involved
as
executor,
administra
tor, heir or
legatee as
a private
person
and not on
behalf of
the
sending
State; (c)
an action
relating to
any
profession
al or
commerci
al activity
exercised
by the
diplomatic
agent in
the
receiving
State
outside
his official
functions.
 under Article 37
shall preclude
him from
208 INTRODUCTION TO invoking
PUBLIC INTERNATIONAL LAW immunity from
jurisdiction in
(a), (b) and (c) respect of any
of paragraph 1 counter-claim
of this Article, directly
and provided connected with
that the the principal
measures claim.
concerned can Waiver of
be taken immunity from
without jurisdiction in
infringing the respect of civil
inviolability of or
his person or of administrative
his residence. proceedings
The shall not be
immunity of a held to imply
diplomatic waiver of
agent from the immunity in
jurisdiction of respect of the
the receiving execution of the
State does not judgment, for
exempt him which a
from the separate waiver
jurisdiction of shall be
the sending necessary.
State. Article 33
Article 32 Subject to
The the provisions
immunity from of paragraph 3
jurisdiction of of this Article, a
diplomatic diplomatic
agents and of agent shall with
persons respect to
enjoying services
immunity under rendered for the
Article 37 may sending State
be waived by be exempt from
the sending social security
State. provisions
Waiver must always be express. which may be
The in force in the
initiation of receiving State.
proceedings by The
a diplomatic exemption
agent or by a provided for in
person enjoying paragraph 1 of
immunity from this Article
jurisdiction shall also apply
to private A
servants who diplomatic
are in the sole agent who
employ of a employs
diplomatic persons to
agent, on whom the
condition: exemption
← provided for in
t paragraph 2 of
hat they this Article does
are not not apply shall
nationals observe the
of or obligations
permanen which the social
tly security
resident in provisions of
the the receiving
State impose
receiving
upon
State; and
employers.
(b) that
they are The
covered exemption
by provided for in
the paragraphs 1
soc and 2 of this
ial Article shall not
sec preclude
urit voluntary
y participation in
pro the social
visi
ons
whi
ch
ma
y
be
in
for
ce
in
the
sen
din
g
Stat
e or
a
thir
d
Stat
e.
 immovabl
e property
situated in
the
CHAPTER 10
territory
IMMUNITY FROM JURISDICTION
of the
security system receiving
of the receiving State,
State provided unless he
holds it on
that such
behalf of
participation is the
permitted by sending
that State. State for
The the
provisions of purposes
this Article shall of the
not affect mission;
bilateral or (c) estate,
multilateral succession
agreements or
concerning inheritanc
social security e duties
concluded levied by
previously and the
shall not prevent receiving
the conclusion State,
of such subject to
agreements in the
the future. provisions
Article 34 of
paragraph
A 4 of
diplomatic agent Article
shall be exempt 39;
from all dues dues and
and taxes, taxes on
personal or real, private
national, income
regional or having its
municipal, source in
the
except:
receiving
← i
State and
ndirect
capital
taxes of a
taxes on
kind
investmen
which are
ts made in
normally
commerci
incorporat
al
ed in the
price of undertakin
goods or gs in the
services; receiving
(b) dues State; (e)
and taxes charges
on private levied for
 specific family
services forming
rendered; part of his
(f) household
registratio , including
n, court or articles
record intended
fees, for his
mortgage establishm
dues and ent.
stamp The
duty, with personal
respect to baggage of a
immovabl diplomatic agent
e property, shall be exempt
subject to from inspection,
the unless there are
provisions serious grounds
of Article for presuming
23. that it contains
Article 36 articles not
The covered by the
receiving State exemptions
shall, in mentioned in
accordance with paragraph 1 of
such laws and this Article, or
regulations as it articles the
may adopt, import or export
permit entry of of which is
and grant prohibited by
exemption from the law or
controlled by
all customs
the quar-antine
duties, taxes,
regulations of
and related
the receiving
charges other
State. Such
than charges for
inspection shall
storage, cartage
be conducted
and similar
only in the
services, on:
presence of the
←a diplomatic agent
rticles for or of his
the authorized
official representative.
use of the
mission;
(b)
articles
for the
personal
use of a
diplomatic
agent or
members
of his
 to acts
performed
outside the
course of their
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
duties. They
shall also enjoy
Article 37 the privileges
The specified in
members of the Article 36,
family of a paragraph 1, in
respect of
diplomatic
articles
agent forming
imported at the
part of his
time of first
household shall,
installation.
if they are not
Members
nationals of the
receiving State, of the service
enjoy the staff of the
privileges and mission who are
immunities not nationals of
specified in or permanently
Articles 29 to resident in the
36. receiving State
Members shall enjoy
of the immunity in
administrative respect of acts
and technical
performed in
staff of the
the course of
mission,
together with their duties,
members of exemption from
their families dues and taxes
forming part of on the
their respective emoluments
households, they receive by
shall, if they are reason of their
not nationals of
employment
or permanently
and the
resident in the
receiving State, exemption
enjoy the contained in
privileges and Article 33.
immunities Private
specified in servants of
Articles 29 to members of the
35, except that mission shall, if
the immunity they are not
from civil and nationals of or
administrative permanently
jurisdiction of resident in the
the receiving receiving State,
State specified be exempt from
in paragraph 1 dues and taxes
of Article 31 on the
shall not extend emoluments
they receive by resident in the
reason of their receiving State
employment. In shall enjoy
other respects, privileges and
they may enjoy immunities
privileges and only to the
immunities only extent admitted
to the extent by the receiving
admitted by the State. However,
receiving State. the receiving
However, the
receiving State
must exercise
its jurisdiction
over those
persons in such
a manner as not
to interfere
unduly with the
performance of
the functions of
the mission.
Article 38
Except
insofar as
additional
privileges and
immunities may
be granted by
the receiving
State, a
diplomatic
agent who is a
national of or
permanently
resident in that
State shall
enjoy only
immunity from
jurisdiction, and
inviolability, in
respect of
official acts
performed in
the exercise of
his functions.
Other
members of the
staff of the
mission and
private servants
who are
nationals of or
permanently
 country, or on
expiry of a
reasonable
period in which
CHAPTER 10 to do so, but
IMMUNITY FROM JURISDICTION
shall subsist
State must until that time,
exercise its even in case of
jurisdiction over armed conflict.
those persons in However, with
such a manner respect to acts
performed by
as not to
such a person in
interfere unduly
the exercise of
with the
his functions as
performance of
a member of the
the functions of
mission,
the mission. immunity shall
Article 39 continue to
Every subsist.
person entitled
to privileges
and immunities
shall enjoy
them from the
Finally, “it is the duty
moment he
of all persons enjoying such
enters the
territory of the privileges and immunities to
receiving State respect the laws and
on proceeding regulations of the receiving
to take up his state.” (Art. 41) Nor may
post or, if they “practice for personal
already in its profit any professional or
territory, from
commercial activity” in the
the moment
receiving state. (Art. 42)
when his
appointment is Consuls and consular immunities.
notified to the
Ministry for Consuls are not
Foreign Affairs concerned with political
or such other matters. They attend rather
ministry as may to administrative and
be agreed.
economic issues such as the
When the
issuance of visas.
functions of a
person enjoying The codification of
privileges and the law on consular relations
immunities have may be found in the Vienna
come to an end, Convention on Consular
such privileges Relations which entered into
and immunities
force in 1967. Some of the
shall normally
more important provisions
cease at the
moment when are the following:
he leaves the
 Article 5. CONSULAR
FUNCTIONS
Consular functions consist in:
protecting
in the receiving
State the
interests of the
sending State
and of its
nationals, both
individuals and
bodies cor-
porate, within
the limits
permitted by
international
law;
 appropriate
documents to
persons wishing
to travel to the
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
sending State;
helping
furthering
and assisting
the
nationals, both
development of
individuals and
commercial,
economic, bodies
cultural and corporate, of
scientific the sending
relations State;
between the (0 acting
sending State as notary and
and the civil registrar
receiving State and in
and otherwise capacities of a
promoting similar kind,
friendly and performing
relations certain
between them functions of an
in accordance administrative
with the nature,
provisions of provided that
the present
there is nothing
Convention;
contrary thereto
ascertaini in the laws and
ng by all lawful regulations of
means the receiving
conditions and State;
devel-opments
safeguard
in the
ing the interests
commercial,
of nationals,
economic,
both individuals
cultural and
and bodies
scientific life of
corporate, of
the receiving
the sending
State, reporting
State in cases of
thereon to the
succession
Government of
mortis causa in
the sending
the territory of
State and giving
information to the receiving
persons State, in
interested; accordance
with the laws
issuing
and regulations
passports and
of the receiving
travel
State;
documents to
nationals of the safeguard
ing, within the
sending State,
limits imposed
and visas or
by the laws and
regulations of proper time to
the receiving assume the
State, the defence of their
interests of rights and
minors and interests;
other persons transmitti
lacking full ng judicial and
capacity who extrajudicial
are nationals of documents or
the sending executing
State, letters rogatory
particularly or commissions
where any to take evidence
guardianship or for the courts of
trusteeship is the sending
required with State in
respect to such accordance
persons; with
subject to international
the practices agree-
and procedures
obtaining in the
receiving State,
representing or
arranging
appropriate
representation
for nationals of
the sending
State before the
tribunals and
other
authorities of
the receiving
State, for the
purpose of
obtaining, in
accordance
with the laws
and regulations
of the receiving
State,
provisional
measures for
the preservation
of the rights
and interests of
these nationals,
where, because
of absence or
any other
reason, such
nationals are
unable at the
 and, without
prejudice to the
powers of the
authorities of
CHAPTER 10
IMMUNITY FROM JURISDICTION the receiving
State,
ments in force conducting
or, in the investigations
absence of such into any
international incidents which
agreements, in occurred during
any other
the voyage, and
manner
settling disputes
compatible with
of any kind
the laws and
between the
regulations of
master, the
the receiving
State; officers and the
seamen in so far
exercising
rights of as this may be
supervision and authorized by
inspection the laws and
provided for in regulations of
the laws and the sending
regulations of State;
the sending ← perfor
State in respect ming any other
of vessels functions
having the entrusted to a
nationality of consular post by
the sending the sending
State, and of State which are
aircraft not prohibited
registered in
by the laws and
that State, and
regulations of
in respect of
the receiving
their crews;
State or to
extending
which no
assistance to
objection is
vessels and
taken by the
aircraft
receiving State
mentioned in
or which are
sub-paragraph
(k) of this referred to in
Article and to the international
their crews, agreements in
taking force between
statements the sending
regarding the State and the
voyage of a receiving State.
vessel, The head of a
examining and consular post is admitted to
stamping the
the exercise of his functions
ship’s papers,
by an authorization from the
receiving State termed an
exequatur. There is no
prescribed form, but without
it, he may not enter upon his
duties. The receiving State
may at any time notify the
sending State that a consular
officer is persona non grata
or that any other member of
the consular staff is not
acceptable. In that event, the
sending State shall, as the
case may be, either recall
the person concerned or
terminate his functions with
the consular post.
The receiving state
has the duty to protect the
consular premises, archives
and interests of the sending
state. (Arts. 27, 31, 32, 33)
The receiving state must
insure the unimpeded
functioning of the consular
offices.

Article 34. FREEDOM OF

MOVEMENT
Subject to
its laws and
regulations
concerning
zones entry into
which is
prohibited or
regulated for
reasons of
national
 consent of the
receiving State.
The official correspondence of the
consular post shall be
INTRODUCTION TO PUBLIC INTERNATIONAL LAW inviolable.
Official
security, the correspondence
receiving State means all
shall ensure correspondence
freedom of relating to the
movement and consular post
travel in its
and its
territory to all
functions.
members of the
The
consular post.
consular bag
Article 35. FREEDOM OF shall be neither
COMMUNICATION
opened nor
The detained.
receiving State Nevertheless, if
shall permit and the competent
protect freedom authorities of
of the receiving
communication State have
on the part of serious reason
the consular to believe that
post for all the bag contains
official something other
purposes. In than the
communicating correspondence
with the
, documents or
Government,
articles referred
the diplomatic
to in paragraph
missions and
4 of this Article,
other consular
they may
posts, wherever
request that the
situated, of the
bag be opened
sending State,
the consular in their
post may presence by an
employ all authorized
appropriate representative
means, of the sending
including State. If this
diplomatic or request is
consular refused by the
couriers, authorities of
diplomatic or the sending
consular bags State, the bag
and messages in shall be
code or cipher. returned to its
However, the place of origin.
consular post The
may install and packages
use a wireless constituting the
transmitter only consular bag
with the
shall bear the same
visible external freedom
marks of their with
character and respect to
may contain communi
only official cation
correspondence with and
and documents access to
or articles consular
intended officers
exclusively for of the
official use. sending
State; (b)
if he so
Article requests,
36.
COMMUNICA
TION AND
CONTACT
WITH NA-
TIONALS OF
THE
SENDING
STATE
With a
view to
facilitating the
exercise of
consular func-
tions relating to
nationals of the
sending State:
←
cons
ular
officers
shall be
free to
communi
cate with
nationals
of the
sending
State and
to have
access to
them.
Nationals
of the
sending
State
shall have
 by the
said
authoritie
s without
CHAPTER 10 delay. The
IMMUNITY FROM JURISDICTION
said
the authoritie
competent s shall
authoritie inform the
s of the person
receiving concerned
State without
shall, delay of
without his rights
delay, under this
inform the sub-
consular paragraph
post of ; (c)
the consular
sending officers
State if, shall have
within its the right
consular to visit a
district, a national
national of the
of that sending
State is State who
arrested is in
or prison,
committe custody or
d to detention,
prison or to
to custody converse
pending and
trial or is correspon
detained d with
in any him and
other to arrange
manner. for his
Any legal
communi representa
cation tion. They
addressed shall also
to the have the
consular right to
post by visit any
the person national
arrested, of the
in prison, sending
custody or State who
detention is in
shall also prison,
be custody or
forwarded detention
 in their OR
district in PROSECUTIO
pursuance N
of a
In the
judgment.
event of the
Neverthel arrest or
ess, detention,
consular pending trial, of
officers a member of the
shall consular staff,
refrain or of criminal
from tak- proceedings
ing action being instituted
on behalf against him, the
of a receiving State
national shall promptly
who is in notify the head
prison, of the consular
custody or post.
detention
if he Article 43. IMMUNITY FROM
expressly JURISDICTION
opposes
Consular
such
officers and
action.
consular
employees shall
Article not be amenable
41. to the
PERSONAL jurisdiction of
INVIOLABILI the judicial or
administrative
TY OF
authorities of
CONSULAR
the receiving
OFFICERS State in respect
Consular officers shall not be liable of acts
to arrest or deten performed in the
tion pending exercise of
trial, except in consular
the case of a functions.
grave crime and The
pursuant to a provisions of
decision by the paragraph 1 of
competent this Article shall
judicial not, however,
authority. apply in respect
of a civil action
Article either:
42.
NOTIFICATIO
N OF
ARREST,
DETENTION
 judicial or
administrative
proceedings. A
consular
INTRODUCTION TO PUBLIC employee or a
INTERNATIONAL LAW
member of the
service staff
← shall not, except
arisi in the cases
ng out of mentioned in
a contract paragraph 3 of
conclude this Article,
d by a decline to give
consular evidence. If a
officer or consular officer
a consular should decline
employee to do so, no
in which coercive
he did not measure or
contract penalty may be
expressly applied to him.
or
impliedly
as an Article 45. WAIVER OF PRIVILEGES AND IMMUNITIES
agent of
the The
sending sending State
State; or may waive,
← by a with regard to a
third member of the
party consular post,
for any of the
damage privileges and
arising immunities
from an provided for in
acciden Articles 41,43
t in the and 44.
receivin Diplomatic and
g State
consular immunities
caused
were the subject in the
by a
vehicle, case of United States v.
vessel Tehran:
or
US DIPLOMATIC AND CONSULAR STAFF IN IRAN CASE
aircraft. United States v. Tehran ICJ Rep 1980 3
Article 44. LIABILITY TO GIVE On
EVIDENCE 4
Members Novembe
of a consular r 1979,
post may be Iranian
called upon to students
attend as seized the
witnesses in the US
course of Embassy
in Tehran
and a hostages
number and the
of vacation
consulate of the
s in Embassy
outlying and
cities. consulate
The s. The
Iranian Court
authoritie considere
s failed to d whether
protect the initial
the attack by
Embassy the
and later students
appeared could be
to adopt attributed
the to the
students’ Iranian
actions. Governm
Over 50 ent and
US whether
nationals Iran was
(mostly therefore
diplomati in
c and violation
consular of its
staff) internatio
were held nal
for 444 obligation
days. The s.
ICJ had
indicated
provision
al
measures
against
Iran (ICJ
Rep 1979
7), and in
this case
the US
sought a
declaratio
n, inter
alia, that
Iran had
violated
the two
Vienna
Conventi
ons, and
calling
for the
release of
the
 security
of such
other
persons as
CHAPTER 10 might be
IMMUNITY FROM JURISDICTION present on
the said
The Court
premises;
is therefore led
←
inevitably to
wer
conclude, in
e fully
regard to the
aware, as
first phase of
a result of
the events
the
which has so far
appeals
been
for help
considered, that
made by
on 4 November
the United
1979, the
States
Iranian
Embassy,
authorities:
of the
←
urgent
wer
need for
e fully
action on
aware of
their part;
their
obligation ← had the means at their
disposal to perform
s under
their
the
obligations;
conventio
ns in ← completely failed to
comply with these
force to
obligations.
take
appropriat Similarly,
e steps to the Court is led
protect to conclude that
the the Iranian
premises authorities were
of the equally aware
United of their
States obligations to
Embassy protect the
and its United States
diplomati Consulates at
c and Tabriz and
consular Shiraz, and of
staff from the need for
any attack action on their
and from part, and
any similarly failed
infringem to use the
ent of means which
their were at their
inviolabili disposal to
ty, and to comply with
ensure the
their the United
obligations. States Embassy
The to a speedy end,
second phase of to restore the
the events Consulates at
which are the Tabriz and
subject of the Shiraz to United
United States’ States control,
claims and in general
comprises the to re-establish
whole series of the status quo
facts which and to offer
occurred reparation for
following the the damage.
completion of The
the occupation Iranian
of the United authorities’
States Embassy decision to
by the militants, continue the
and the seizure subjection of the
of the
premises of the
Consulates at
United States
Tabriz and
Embassy to
Shiraz. The
occupation occupation by
having taken militants and of
place and the the Embassy
diplomatic and staff to
consular detention as
personnel of the hostages, clearly
United States’ gave rise to
mission having repeated and
been taken multiple
hostages, the breaches of the
action required applica
of the Iranian
Government by
the Vienna
Conventions
and by general
international
law manifest.
Its plain duty
was at once to
make every
effort, and to
take every
appropriate
step, to bring
these flagrant
infringements
of the
inviolability of
the premises,
archives and
diplomatic and
consular staff of
 employ the
remedies placed
at its disposal
by diplomatic
INTRODUCTION TO PUBLIC INTERNATIONAL LAW law specifically
for dealing with
ble provisions activities of the
of the Vienna kind of which it
Conventions now complains.
Instead, it
even more
allowed a group
serious than
of militants to
those which
attack and
arose from their
occupy the
failure to take United States
any steps to Embassy by
prevent the force, and to
attacks on the seize the
inviolability of diplomatic and
these premises consular staff as
and staff. hostages;
instead, it has
endorsed that
In the
action of those
present case, the
militants and
Iranian
has deliberately
Government did
maintained their
not break off
occupation of
diplomatic
the Embassy
relations with
and detention of
the United
its staff as a
States; and in
means of
response to a
coercing the
question put to
sending State. It
him by a
has, at the same
Member of the
time, refused
Court, the
altogether to
United States
discuss this
Agent informed
situation with
the Court that at
representatives
no time before
of the United
the events of 4
States. The
November 1979
Court,
had the Iranian
therefore, can
Government
only conclude
declared, or
that Iran did not
indicated any
have recourse to
intention to
the normal and
declare, any
efficacious
member of the
means at its
United States
disposal, but
diplomatic or
resorted to
consular staff in
coeicive action
Tehran persona
against the
non grata. The
United States
Iranian
Embassy and its
Government did
staff.
not, therefore,
 extreme
importance of
It is a
the principles of
matter of deep
law which it is
regret that the
called upon to
situation which
apply in the
occasioned
present case, the
those
Court considers
observations
it to be its duty
has not been
to draw the
rectified since
attention of the
they were made.
entire
Having regard
international
to their
community, of
importance the
which Iran itself
Court considers
has been a
it essential to
member since
reiterate them in
time
the present
immemorial, to
Judgment. The
the irreparable
frequency with
harm that may
which at the
be caused
present time the
principles of
international
law governing
diplomatic and
consular
relations are set
at naught by
individuals or
groups of
individuals is
already
deplorable. But
this case is
unique and of
very particular
gravity because
here it is not
only private
individuals or
groups of
individuals that
have
disregarded and
set at naught the
inviolability of
a foreign
embassy, but
the government
of the receiving
State itself.
Therefore, in
recalling yet
again the
 state alleged to be in
violation of international
law. The doctrine was
CHAPTER 10 first stated in Underhill v. Hernandez.1
IMMUNITY FROM JURISDICTION The background of
the case was a 1892
by events of the
revolution in Venezuela
kind now before
against the legitimate
the Court. Such
events cannot government. General
fail to Hernandez commanded the
undermine the anti-administration party
edifice of law and, after defeating the
carefully army of the administration,
constructed by he entered Bolivar to
mankind over a assume leadership of the
period of government. George F.
centuries, the
Underhill was a citizen of
maintenance of
the United States who had
which is vital
for the security constructed a waterworks
and well-being system for the city of
of the complex Bolivar, under a contract
international with the government, and
community of was engaged in supplying
the present day, the place with water. He
to which it is also carried on a machinery
more essential repair business. Some time
than ever that
after the entry of Gen.
the rules
Hernandez, Underhill
developed to
ensure the applied to him for a
ordered passport to leave the city.
progress of Hernandez refused this
relations request as well as requests
between its made by others in
members should Underhill’s behalf. The
be constantly purpose of Hernandez’s
and refusal was to coerce
scrupulously
Underhill to operate his
respected.
waterworks and his repair
Immunity of International works for the benefit of the
Organizations. community and the
The immunities of international revolutionary forces. After
organizations treated in Chapter 6. Underhill was finally
allowed to leave, he filed
The Act of State Doctrine. suit in the United States to
The act of state recover damages for the
doctrine arose from a series detention caused by reason
of cases in the United of the denial of his permit
States where the issue was to leave, for his alleged
whether United States confinement to his own
courts could consider the house, and for certain
validity of acts of a foreign alleged assaults and affronts
by the soldiers of ruled with what is now
Hernandez’s army. In known as the “act of state
denying the plea of doctrine”:
Underhill, the U.S. court

168 U.S. 250 (1897), November

29,1897.
INTRODUCTION TO PUBLIC It arises out of
INTERNATIONAL LAW the basic
relationships
between
Every
branches of
sovereign state
government in a
is bound to
system of
respect the
separation of
independence of
powers. It
every other
sovereign state, concerns the
and the courts competency of
of one country dissimilar
will not sit in institutions to
judgment on the make and
acts of the implement
government of particular kinds
another, done of decisions in
within its own the area of
territory. international
Redress of relations. The
grievances by doctrine as
reason of such formulated in
acts must be past decisions
obtained expresses the
through the strong sense of
means open to the Judicial
be availed of by Branch that its
sovereign engagement in
powers as the task of
between passing on the
themselves. validity of
foreign acts of
The doctrine is
state may
similar to but different from
hinder rather
the doctrine of sovereign than further this
immunity. What underlies it country’s
was explained later in pursuit of goals
Banco National de Cuba v. both for itself
Sabbatinos which and for the
characterized it as a rule not community of
of international law but of nations as a
judicial restraint in whole in the
domestic law whereby international
courts refrain from making sphere....
decisions in deference to the The act of state
executive who is the doctrine was again taken up
principal architect of in Alfred Dunhill of
foreign relations. The Court
London, Inc. v. Cuba.9 The
said:
issue in the case was
The act of whether the failure of Cuba
state doctrine to return to Dunhill funds
does, however, mistakenly paid by Dunhill
have for cigars that had been sold
“constitutional” to Dunhill by certain
underpinnings. expropriated Cuban cigar
businesses was an “act of
state” by Cuba precluding
an affirmative judgment
against respondents. The
decision of the Court
limited the scope of the act
of state doctrine:
If we
assume with the
Court of
Appeals that the
Cuban
Government
itself had
purported to
exercise
sovereign
power to
confiscate the
mistaken
payments
belonging to
three foreign
creditors and to
repudiate
interventors’
adjudicated
obligation to
return those
funds, we are
nevertheless
persuaded by
the arguments
of petitioner
and by those of
the United
States that the
concept of

*
3
 national policy
calls on us to
recognize as an
CHAPTER 10 act of state a
IMMUNITY FROM JURISDICTION repudiation by
Cuba of an
an act of state obligation
should not be adjudicated in
extended to our courts and
include the arising out of
repudiation of a the operation of
purely a commercial
commercial business by one
obligation owed of its
by a foreign instrumentalitie
sovereign or by s. ...
one of its
Further refinement was made in
commercial Kirkpatrick Co. v. Environmental
instrumentalitie Tectonics
s. Our cases Corp.'0 The case had for
have not yet
background a contract
gone so far, and
entered into between the
we decline to
expand their Nigerian government with
reach to the Kirkpatrick for the
extent necessary construction and equipment
to affirm the of an aeromedical center at
Court of Kaduna Air Force Base in
Appeals.
Nigeria. Environmental
sjc $ $ $ * Tectonics Corporation, an
unsuccessful bidder for the
Of course,
sovereign Kaduna contract, learned
immunity has that Kirkpatrick had bribed
not been Nigerian officals in winning
pleaded in this the contract. Environmental
case; but it is
Tectonics brought the
beyond cavil
matter to the attention of
that part of the
foreign relations the Nigerian Air Force and
law recognized to the United States
by the United Embassy in Lagos.
States is that the Following an investigation
commercial
by the Federal Bureau of
obligations of a
Investigation, the United
foreign
government States Attorney for the
may be District of New Jersey
adjudicated in brought charges against
those courts Kirkpatrick for violations
otherwise
of the Foreign Corrupt
having
Practices Act of 1977.
jurisdiction to
enter such Kirkpatrick pleaded guilty.
judgments. Whereupon, Environmental
Nothing in our Tectonics brought a civil
action against Kirkpatrick was barred by the act of
and other private parties state doctrine.
involved in the bribery to When the case
seek damages under the reached the Supreme Court,
Racketeer Influenced and the Court ruled that the act
Corrupt Organizations Act of state doctrine is not
and other statutes. The applicable where the
defendants moved to validity of a foreign
dismiss the complaint on government act is not in
the ground that the action issue:

493 U.S. 400,410 (1990).

 i
v
i
INTRODUCTION TO PUBLIC d
INTERNATIONAL LAW
u
a
The short Chapter 11 STATE l
of the matter is RESPONSIBILITY
this: Courts in s
the United
States have the a
power, and r
ordinarily the I
e
obligation, to n
decide cases
and g
controversies t
e
properly r
n
presented to a
e
them. The act of d
state doctrine r
i
does not a
establish an t
l
exception for i
l
cases and o
controversies y
n
that may
a
embarrass c
foreign l
o
governments,
n
but merely i
requires that, in s
n
the process of i
t
deciding, the d
acts of foreign e
e
sovereigns r
r
taken within n
their own e
a
jurisdictions d
shall be deemed t
valid. That i
“
doctrine has no o
o
application to n
the present case b
a
because the j
validity of a l
e
foreign
c
sovereign act is l
not at issue. t
a
s
w
”
,

a
i
n
n
d
d
 e e a
n s y y
o s
t c b
n o e
“ e u
s i l c
u t d o
b h m
j e a m
e r s i
c s t
t i e t
s n r e
” t t d
e
o r o a
f n n g
a a
i t t i
n i h n
t o e s
e n i t
r a r
n l t
a o h
t l w e
i e n m
o g .
n a c
a l W a
l h n
r a
l i t b
a g e e
w h v
. t e r
s r e
T d
h w w r
e h r e
y i o s
c n s
p h g e
o s d
s t
s h m o
n a o h
l l b i
y j s
p e
b e c s
y r t i
s s t
s o u
t n o a
a a f t
t l i
e i s o
s t t n
y a
o . t t
r e h
I e
o n v r
r d s e
g i .
a v h
n i s a
i d t v
z u a e
a a t
t l e a
i s r
o , l i
n i s
s t t e
h i n
w e g
i r a d
t e t o
h f i c
o o t
i r n r
n e . i
t , n
e O e
r c u s
n a t
a n r
t o e
i b f g
o e a
n t r
d o i r
i n n e
n s d a
g i i t
b v m
t i i e
h l d n
e i u t
t a
p y l o
r s f
o o .
t f a
e S l
c s t i
t t a e
i a t n
o t e s
n e
s r i
o e s
f f s
o p a
i r o
n n c
d i s o
i n i m
v j b m
i u i o
d r l n
u i i
a e t f
l s y o
s r
i f m
a n o
n f r o
d l f
i t
t c h r
h t e e
e e s
d i p
r l o
e o l n
s n - s
p t i
b h c c
i a t t
l p i
i t o o
t e n f
y r
o s
t w f t
h i a
a l a t
t l l e
i
a d e r
r e n e
i a s s
s l p
e a o
s w n n
i d s
i t i
n h o b
n i
i t l
n h t i
t e h t
e e y
r d .
n o s Protection
a c t of Aliens.
t t i N
i r l o
o i l
n n s
a e e t
l v a
o o t
l n l e
a v
w t i i
. h n s
e g
T o
h p s b
l
i r u
i
s o b
g
t j
e
c e e
d
 i p s
t s e
o c d
a t i
a f
d t o f
m r f i
i e c
t a s u
t o l
a y v t
l e
i r r t
e e e o
n q i
s u g d
i n e
i r t n
n i y y
t n .
o g a
R d
i i e m
t t a i
s . l s
i s
t T s i
e h t o
r i i n
r s c
i a t
t p l o
o r l
r i y a
y n , l
c l
u i h .
n p o
l l w T
e e e h
s v u
s i e s
s r ,
t ,
h a w
e n i h
r t a
e a t
s i
s f c t
t o r
a r a d
t t u
e a i e
s d c
m p
g i r r
e s e o
n s g c
e i i e
r o m s
a n e s
l . s .
l , F
y O r
n a o
d c l m
o e i
e t
i a n h
s d s e
m
t i m p
o t a e
t y r
i e s
m d n p
p , o e
o t c
s a t
e t b i
e v
l l e
e e e
g a x o
a s p f
l t e
l t
s u l h
t n e e
a d d
n e s
d r w t
a i a
r d t t
d e h e
s m o
o u o
f ” f n

t T t i
h h h n
e e e t
i y i e
r , r r
e
n t n s
a h a t
t e t
i r i i
o e o n
n f n
a o a t
l r l h
i e i e
t t
y r y p
, e . r
m o
a a H t
l i e e
i n n c
e c t
n i e i
s m , o
p n
a o s
r r t o
e t a f
a t
“ n e a
n t s l
a i
t f d e
i o o n
o r s
n h .
a t a
l h v T
s e e h
e
a s a
b t p
r a c r
o t o a
a e m c
d m t
. o o i
c h
e i w t
s i h
o t e
f c h i
o i r
t m n
h m o
e o t w
n h n
p a e
r l i n
o i r a
p t t
e y j i
r u o
o r n
t f i a
r s l
e i d s
a n i
t t c w
m e t i
e r i l
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t s n
t b
o . i e
f n
S p
a t t r
l a h o
i t e p
e e e
n s e r
s x l
p p y
i r e
s o c t
t t r
b e a e
a c t a
s t i t
e o e
d a n d
l
o i t w
n e h h
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t s t n
 e e b
r n s i
e t p l
s o i
i o n t
d f s y
i i .
n a
g l
i
o e
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s
223
s
o i
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o
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r
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i o
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o
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r c
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I o
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f i
a n
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r n
e a
a l
t
m r
 their nationals might have.
Moreover, as indicated in
the Nottebohm case in
224 INTRODUCTION TO Chapter 8, in the case of
PUBLIC INTERNATIONAL LAW
persons holding dual
nationality, an “effective
Ill-treatment of national link” with the
foreign nationals can come
person must exist for a
in various forms, e.g.,
state’s interest in an
mistreatment by judicial or
individual to be recognized
police authorities, unlawful
by other states.
expropriation of property,
failure to prosecute those Corporations and Shareholders
who attack foreign The doctrine of
nationals, or what is called “effective link” as applied
“denial of justice” or denial
to corporations received
of due process of law.
treatment in the Barcelona
There is a well-
Traction Case.' The claim,
developed customary law
which was brought before
for the protection of aliens.
the Court on 19 June 1962,
The instrument used for the
arose out of the adjudication
protection of aliens is
in bankruptcy in Spain of
“diplomatic protection.”
Barcelona Traction, a
This is still based on the
company incorporated in
traditional notion that the
Canada. The claim’s object
individual is an
was to seek reparation for
inappropriate subject of
damage alleged by Belgium
international law and hence
to have been sustained by
must have recourse to his or
Belgian nationals,
her state of nationality for
shareholders in the
protection. The theory
company, as a result of acts
underlying the system is
said to be contrary to
that injury to a national
international law committed
abroad is injury to the
towards the company by
individual’s state of
organs of the Spanish State.
nationality. The interest of
The Court found that
the state is in the redress of
the injury to itself and not Belgium lacked jus standi
of the injury to the to exercise diplomatic
individual. Individuals, protection of shareholders
therefore, are at the mercy in a Canadian company
of their own state. States with respect to measures
enjoy discretion whether or taken against that company
not to espouse claims raised in Spain. It observed that
by individuals in their own when a State admits into its
behalf. States might see territory foreign
their own sovereign investments or foreign
interests as overriding nationals it is bound to
whatever private interests extend to them the
protection of the law and to obligations are not absolute.
assume obligations In order to bring a claim in
concerning the treatment to respect
be afforded them. But such

'Belgium v. Spain, (1970) ICJ

Rep.
 Standard for the Protection of
Aliens
What is the
CHAPTER 11
international standard for
STATE
RESPON the protection of aliens?
SIBILIT International law has gone a
Y long way from ancient times
when aliens were treated as
of the breach of such an obligation, a
State must first establish its right to “outlaws” not deserving
do so. protection. Roman law
The breach, if any, progressed from this under
was committed in this case the concept of jus gentium,
against the company. Only which was applicable to
the company, which was both citizens and aliens, as
endowed with legal distinct from jus civile
personality, could take which was applicable only
action in respect of matters to Roman citizens. The
that were of a corporate advent of Christianity
character. It may be true that further improved the
a wrong done to the condition of aliens. The
company frequently causes
rights of aliens expanded
prejudice to its
further with the growth of
shareholders; but this does
international commerce in
not imply that both are
modem times leading to
entitled to claim
development of the concept
compensation. Whenever a
shareholder’s interests are of “denial of justice” as an
harmed by an act done to international concern.
the company, it is to the Two standards have
latter that he has to look to emerged in modem times to
institute appropriate action. compete for recognition as
An act infringing only the the acceptable standard. The
company’s rights do not first is what is called the
involve responsibility doctrine of “national
towards the shareholders, treatment” or “equality of
even if their interests are treatment.” Aliens are
affected. In order for the treated in the same manner
situation to be different, the as nationals of the state
act complained of must be where they reside. There is a
aimed at the direct rights of bright side and a dark side
the shareholder as such, to this doctrine. The bright
which was not the case here. side is that aliens would
As to who should have enjoy the same benefits as
the right to protect the local nationals. The dark
corporation, Barcelona side is that, if the state is
Traction says that it is the tyrannical and its municipal
state of nationality of the laws are harsh and violative
corporation, in this case of human rights even of its
Canada, which has the right, own citizens, then aliens
would likewise be subject to
and not Belgium.
such harsh laws.
 the tests of
international
standards, and
226 INTRODUCTION TO (second) that
PUBLIC INTERNATIONAL LAW the treatment of
an alien, in
order to
The other standard is constitute an
called the “minimum international
international standard” delinquency
which says that, however should amount
harsh the municipal laws to an outrage, to
might be against a state’s bad faith, to
own citizens, aliens should willful neglect
be protected by certain of duty, or to an
insufficiency of
minimum standards of
governmental
humane protection. This is
action so far
now the widely accepted short of
standard. international
The “minimum standards that
every
standard” is obviously
reasonable and
abstract and it is not easy to
impartial man
determine what its contents would readily
are. An elaboration of this recognize its
abstract standard may be insufficiency.
seen in a quotation from the Whether the
insufficiency
resolution of the Neer
proceeds from
Claim? Mr. Neer was a US deficient
national working in Mexico. execution of an
He was stopped by armed intelligent law
men and shot to death. It or from the fact
was claimed that the that the laws of
the country do
Mexican government had
not empower
been negligent in their the authorities
investigation of the murder. to measure up
This was rejected by the to international
Joint Claims Commission standards is
immaterial.
saying:
The Harvard Draft
. . .
[w]ithout Convention on the
attempting to Responsibility of States for
announce a Damages puts it in terms of
precise formula,
the more limited concept of
it is in the
opinion of the “denial of justice.”
Commission Article 9.
possible to hold Denial of
(first) that the justice exists
propriety of the when there is a
government acts denial,
should be put to unwarranted
delay or the proper
obstruction of administration
access to courts, of justice, or a
gross deficiency manifestly
in the unjust
administration judgment. An
of judicial or error of a
remedial national court
process, failure which does not
to provide those produce
guarantees manifest
which are injustice is not
generally denial of
considered justice.
indispensable to

2
United States v. Mexico, 4
RIAA (1926).
 obligation, it commits an
“internationally wrongful
act.” The International Law
CHAPTER 11
Commission for some years
STATE
RESPON now has been working on
SIBILIT the codification of the law
Y on the subject. At its fifty-
third session (2001), the
Enforcement Regimes
International Law
The International Commission adopted on
Court of Justice, when its second reading a complete
jurisdiction is appealed to text of the Articles on
by states in conflict, can
Responsibility of States for
resolve issues of violations
Internationally Wrongful
of the rights of aliens.
Acts. The Articles have
However, claims may also
been referred to the General
be settled by ad hoc
tribunals established for the Assembly for consideration.
purpose. Examples are the Although its work has
US-Iran Claims Tribunal not yet been finalized, much
established by the US and of what it has done so far
Iran to deal with claims of consists of principles which
either party arising from the are widely accepted. What
Islamic Revolution; the UN need to be understood are:
Compensation Commission the elements of an
established by the Security internationally wrongful
Council in 1991 to deal act; (2) the attributability of
with claims arising from the wrongful act to the
Iraq’s invasion of Kuwait. state; and (3) the
States may also enter into
enforcement of the
lump sum settlements such
obligation that arises from
as the US-Cambodia (1994)
the wrongful act. Excerpts
and US-Vietnam (1995)
from the 2001 Draft of the
Claims Settlement
International Law
Agreements.
Commission will be used as
Doctrine of State handy guide.
Responsibility.
Internationally wrongful act.
The customary law
doctrine on the protection of Article 1. Responsibility
of a State for its
aliens should be seen in internationally
relation to the doctrine on wrongful acts
“state responsibility.” When Every internationally
an injury has been inflicted, wrongful act of a State
there is need to determine entails the
whether the state can be international responsibility of
that State.
held responsible for it. One
of the principles most
strongly held by states is
that if a state violates a
customary rule of
international law or a treaty
 The
characterization
of an act of a
228 INTRODUCTION TO State as
PUBLIC INTERNATIONAL LAW internationally
wrongful is
States derive governed by
international
immense benefits from the
law. Such
international legal system. characterization
Accordingly, when a state is not affected
consents to be a part of that by the
system, it also accepts characterization
corresponding legal of the same act
obligations. Primarily, it as lawful by
internal law.
must accept responsibility
Article 12. Breach of an
for actions which have an
international obligation
effect on other international
There is a
legal persons. This is breach of an
basically what Article 1 international
says. No state can escape obligation by a
this responsibility when State when an
once it has committed an act of that State
act which satisfies the is not in
requirements of an conformity with
what is required
“internationally wrongful
of it by that
act.”
obligation,
Article 2. Elements of an regardless of its
internationally wrongful origin or
act of a
character.
State
There is Article 2 says that
an that the elements of an
internationally internationally wrongful act
wrongful act of consist of a subjective and
a State when an objective element. The
conduct subjective element is that
consisting of an the act must be attributable
action or not to the persons or
omission: agencies who performed it
Is attributable to the State but to the state itself. The
under international objective element is a
law; and violation of an international
Constitutes a breach of an obligation. It may consist of
international something either active
obligation of the
(action) or passive (an
State.
omission.)
Article 3.
Articles 3 and 12 say
Characterizatio
that what determines the
n of an act of a
wrongful character of the
State as
act is international law and
internationally
not internal law. The
wrongful
international law violated
can be customary or
conventional.

Attribution to the State.

The acts which can be
attributed to the state may
be acts of state organs, the
acts of other persons, or the
acts of revolutionaries.
 the State of the
conduct of
entities
CHAPTER 11 exercising
STATE
RESPONSIBI elements of the
LITY governmental
authority.
Acts of state organs The
Article 4. Attribution to the conduct of an
State of the conduct of its entity which is
organs not an organ of
For the the State under
purposes of the Article 4 but
present articles, which is
the conduct of empowered by
any State organ the law of that
acting in that State to exercise
capacity shall be elements of the
considered an governmental
act of that State authority shall
under be considered
international an act of the
law, whether the State under
organ exercises international
legislative, law, provided
executive, the entity was
judicial or any acting in that
other functions, capacity in the
whatever case in question.
position it holds Article 6.
in the Attribution to
organization of the State of
the State, and conduct in fact
whatever its carried out on
character as an its instructions
organ of the or under its
central direction or
government or control.
of a territorial
The
unit of the State.
conduct of a
For the person or group
purposes of of persons shall
paragraph 1, an be considered
organ includes an act of the
any person or State under
body which has international
that status in law if the person
accordance with or group of
the internal law persons was in
of the State. fact acting on
Article 5. the instructions
Attribution to of, or under the
direction or act of the former
control of, that State under
State in carrying
out the conduct.
Article 7.
Attribution to
the State of
certain conduct
carried out in
the absence of
the official
authorities
The
conduct of a
person or group
of persons shall
be considered
an act of the
State under
international
law if the person
or group of
persons was in
fact exercising
elements of the
governmental
authority in the
absence or
default of the
official
authorities and
in circumstances
such as to call
for the exercise
of those
elements of
authority.
Article 8.
Attribution to
the State of the
conduct of
organs placed at
its disposal by
another State
The
conduct of an
organ placed at
the disposal of a
State by another
State shall be
considered an
 France v. Mexico (1929)
French-Mexican Claims Commission
[Caire, a
230 INTRODUCTION TO
French
PUBLIC INTERNATIONAL LAW
national, was
killed in
international
law if the organ Mexico by
was acting in Mexican
the exercise of soldiers after
elements of the they had
governmental demanded
authority of the
money from
State at whose
disposal it had him.]
been placed. Verzijl, Presiding
Article 9. Commissioner
Attribution to Responsib
the State of the ility of Mexico
conduct of for actions of
individual
organs acting
military
outside their
personnel,
authority or acting without
contrary to orders or
instructions. against the
The wishes of their
conduct of an commanding
organ of a State officers and
or of an entity independently
empowered to of the needs and
exercise aims of the
elements of the revolution...
governmental In
authority, such
approaching the
organ or entity
examination of
having acted in
the questions
that capacity,
shall be indicated under
considered an 4 in the light of
act of the State the general
under principles I
international have just
law even if, in outlined, I
the particular should like to
case, the organ make clear first
or entity of all that I am
exceeded its interpreting the
authority or said principles
contravened in accordance
instructions with the
concerning its
doctrine of the
exercise.
“objective
responsibility”
CAIRE CLAIM
of the States, in that they tend
that is, the to impute to the
responsibility State, in
for the acts of international
the officials or affairs, the
organs of a responsibility
State, which for all the acts
may devolve committed by
upon it even in its officials or
the absence of organs which
any “fault” of constitute
its own. It is
widely known
that theoretical
conceptions in
this sphere have
advanced a
great deal in
recent times,
and that the
innovating work
of Dionisio
Anzilotti in
particular has
paved the way
for new ideas,
which no longer
rank the
responsibility of
the State for the
acts of its
officials as
subordinate to
the question of
the “fault”
attaching to the
State itself.
Without going
into the
question of
whether these
new ideas,
which are
perhaps too
absolute, may
require some
modifications in
the direction
proposed by Dr.
Karl Strupp, I
can say that I
regard them as
perfectly correct
 beyond this
competence is
not an act of
CHAPTER 11 State. It should
STATE RESPONSIBILITY not in principle,
therefore, affect
offences from the
the point of responsibility of
view of the law the State. If its
of nations, is accepted in
whether the international
official or organ law that the
in question has position is
acted within or different, it is
exceeded the for reasons
limits of his peculiar to the
competence. “It mechanism of
is generally international
agreed,” as M. life; it is
Bourquin has because it is felt
rightly said, that
“that acts international
committed by relations would
the officials and become too
agent of a State difficult, too
entail the complicated and
international too insecure if
responsibility of foreign States
that State, even were obliged to
if the take into
perpetrator did account the
not have often complex
specific judicial
authorization. arrangements
This that regulate
responsibility competence in
does not find its the international
justification in affairs of a
general State. From this
principles — I it is
mean those immediately
principles clear that in the
regulating the hypothesis
judicial under
organization of consideration
the State. The the international
act of an official responsibility of
is only the State is
judicially purely objective
established as in character, and
an act of State if that it rests on
such an act lies an idea of
within the guarantee, in
official’s sphere which the
of competence. subjective
The act of an notion of fault
official plays no part.”
operating
 But in themselves as
order to be able officers in the
to admit this so- brigade of the
called objective Villista general,
responsibility of Tomas Urbina;
the State for acts in this capacity
committed by they began by
its officials or exacting the
organs outside remittance of
their certain sums of
competence, money; they
they must have continued by
acted at least to having the
all appearances victim taken to a
as competent barracks of the
officials or occupying
organs, or they troops; and it
must have used was clearly
powers or because of the
methods refusal of M.
Caire to meet
appropriate to
their repeated
their official
demands that
capacity. ...
they finally shot
If the
him. Under
principles stated
these
above are
circumstances,
applied to the
there remains no
present case,
doubt that, even
and if it is taken
if they are to be
into account that
regarded as
the perpetrators
having acted
of the murder of
outside their
MJ.B. Caire
competence,
were military
which is by no
personnel
means certain,
occupying the
and even if their
ranks of
superior officers
“mayor” and
issued a
“capitan
primero” aided
by a few
privates, it is
found that the
conditions of
responsibility
formulated
above are
completely
fulfilled. The
officers in
question,
whatever their
previous record,
consistently
conducted
 The Corfu
Channel Case
(United
232 INTRODUCTION TO Kingdom of
PUBLIC INTERNATIONAL LAW Great Britain
and Northern
Ireland-
counter-order, Albania) arose
these two from incidents
officers have that occurred on
involved the October 22nd
responsibility 1946, in the
of the State, in Corfu Strait:
view of the fact two British
that they acted destroyers
in their capacity struck mines in
of officers and Albanian waters
used the means and suffered
placed at their damage,
disposition by including
virtue of that serious loss of
capacity. life. The two
On these Parties
grounds, I have concluded a
no hesitation in Special
stating that, in Agreement
accordance with asking the
the most Court to give
judgment on the
authoritative
following
doctrine
questions:
supported by
numerous ←
arbitral awards, Is
the events of 11 Albania
December responsibl
1914, which led e for the
to the death of explosion
M J.-B. Caire, s, and is
fall within the
there a
category of acts
duty to
for which
pay
international
responsibility compensa
devolves upon tion?
the State to ←
which the Has
perpetrators of the
the injury are United
amenable. Kingdom
violated
CORFU
internatio
CHANNEL CASE
UK nal law
v. Albania, [1949] by the
ICJ Rep. acts of its
 Navy in sent to her
Albanian assistance and,
waters, while towing
first on her, struck
the day another mine
on which and was also
the seriously
explosion damaged.
s Forty-five
occurred British officers
and sailors lost
and,
their lives, and
secondly,
forty-two others
on
were wounded.
Novembe
An
r 12th and
incident had
13th,
1946, already
when it occurred in
undertook these waters on
a sweep May 15th,
of the 1946: an
Strait? Albanian
* * * *
battery had
The facts fired in the
are as follows. direction of two
On October
22nd, 1946, two
British cruisers
and two
destroyers,
coming from
the south,
entered the
North Corfu
Strait. The
channel they
were following,
which was in
Albanian
waters, was
regarded as
safe: it had been
swept in 1944
and check-
swept in 1945.
One of the
destroyers, the
Saumarez,
when off
Saranda, struck
a mine and was
gravely
damaged. The
other destroyer,
the Volage, was
 Albania is again
under
consideration by
CHAPTER 11 His Majesty’s
STATE RESPONSIBILITY Government
who wish to
British cruisers. know whether
The United the Albanian
Kingdom Government
Government had have learnt to
protested, behave
stating that themselves.
innocent Information is
passage through requested
straits is a right whether any
recognized by ships under your
international command have
law; the passed through
Albanian the North Corfu
Government had Strait since
replied that August and, if
foreign warships not, whether
and merchant you intend them
vessels had no to do so
right to pass shortly.”
through After the
Albanian explosions on
territorial waters October 22nd,
without prior the United
authorization;
Kingdom
and on August
Government
2nd, 1946, the
sent a Note to
United
Tirana
Kingdom
announcing its
Government had
intention to
replied that if, in
sweep the Corfu
the future, fire
Channel shortly.
was opened on a
The reply was
British warship
that this consent
passing through
the channel, the would not be
fire would be given unless the
returned. operation in
Finally, on question took
September 21st, place outside
1946, the Albanian
Admiralty in territorial waters
London had and that any
cabled to the sweep
British undertaken in
Commander-in- those waters
Chief in the would be a
Mediterranean violation of
to the following Albania’s
x effect: sovereignty.
“Establishment The
of diplomatic sweep effected
relations with by the British
Navy took place nature of the
on November damage shows
12th/13th 1946, that it was due
in Albanian to mines of the
territorial same type as
waters and those swept on
within the limits November 13th;
of the channel finally, the
previously theory that the
swept. Twenty- mines
two moored discovered on
mines were cut; November 13th
they were mines
might have
of the German
been laid after
GY type.
the explosions
The first
on October
question put by
22nd is too
the Special
improbable to
Agreement is
be accepted.
that of
In these
Albania’s
responsibility, circumstances
under the question
international arises what is
law, for the the legal basis
explosions on of Albania’s
October 22nd, responsibility?
1946. The Court does
The Court not feel that it
finds, in the
first place, that
the explosions
were caused by
mines
belonging to the
minefield
discovered on
November 13th.
It is not, indeed,
contested that
this minefield
had been
recently laid; it
was in the
channel, which
had been
previously
swept and
check-swept
and could be
regarded as
safe, that the
explosions had
taken place. The
 reached here,
and the origin
of the mines
234 INTRODUCTION TO laid in Albanian
PUBLIC INTERNATIONAL LAW territorial
waters remains
need pay a matter for
serious attention conjecture.
to the The
suggestion that United
Albania herself Kingdom also
laid the mines: argued that,
whoever might
that suggestion
be the authors
was only put
of the mine
forward pro
laying, it could
memoria, not have been
without effected without
evidence in Albania’s
support, and knowledge.
could not be True, the mere
reconciled with fact that mines
the undisputed were laid in
fact that, on the Albanian waters
whole Albanian neither involves
littoral, there prima facie
are only a few responsibility
launches and nor does it shift
motor boats. the burden of
But the United proof. On the
Kingdom also other hand, the
exclusive
alleged the
control
connivance of
exercised by a
Albania: that
State within its
the mine laying frontiers may
had been make it
carried out by impossible to
two Yugoslav furnish direct
warships by the proof of facts
request of which would
Albania, or with involve its
her responsibility in
acquiescence. case of a
The Court finds violation of
that this international
collusion has law. The State
not been which is the
proved. A victim must, in
that ease, be
charge of such
allowed a more
exceptional
liberal recourse
gravity against
to inferences of
a State would
fact and
require a degree circumstantial
of certainty that evidence; such
has not been
indirect the existence of
evidence must a minefield, it
be regarded as protested
of especial strongly against
weight when the activity of
based on a the British
series of facts, Fleet, but not
linked together against the
and leading laying of the
logically to a mines, though
single this act, if
conclusion. effected without
In the her consent,
present case would have
been a very
two series of
serious
facts, which
violation of her
corroborate one sovereignty; she
another, have to did not notify
be considered. shipping of the
The first existence of the
relates to the minefield, as
Albanian would be
Government’s required by
attitude before international
and after the law; and she did
catastrophe. The not undertake
laying of the any of the
mines took measures of
place in a judicial
period in which investigation
it had shown its which would
intention to seem to be
keep a jealous incumbent on
watch on its her in such
territorial
waters and in
which it was
requiring prior
authorization
before they
were entered,
this vigilance
sometimes
going so far as
to involve the
use of force: all
of which render
the assertion of
ignorance a
priori
improbable.
Moreover, when
the Albanian
Government
had become
fully aware of
 Kiephali and the
St. George’s
Monastery. In
CHAPTER 11 regard to that
STATE RESPONSIBILITY point, the naval
experts
a case. Such an appointed by the
attitude could Court reported,
only be after enquiry
explained if the and
Albanian investigation on
Government, the spot, that
while knowing they considered
of the mine it to be
laying, desired indisputable
the that, if a normal
circumstances in look-out was
which it was kept at Cape
effected to Kiephali, Denta
remain secret. Point, and St.
The George’s
second series of Monastery, and
facts relates to if the lookouts
the possibility were equipped
of observing the with binoculars,
mine laying under normal
from the weather
Albanian coast. conditions for
Geographically, this area, the
the channel is mine-laying
easily watched: operations must
it is dominated have been
by heights noticed by these
offering coastguards.
excellent The existence of
observation a look-out post
points, and it at Denta Point
runs close to the was not
coast (the established; but
nearest mine the Court,
was 500 m. basing itself on
from the shore). the declarations
The methodical of the Albanian
and well- Government
thought-out that lock-out
laying of the posts were
mines stationed at
compelled the other points,
minelayers to refers to the
remain from following
two to two-and- conclusions in
a-half hours in the experts’
the waters report: that in
between Cape the case of mine
laying 1) from involve her
the North international
towards the responsibility.
South, the NICARAGUA V. US
minelayers [1986] ICJ Rep.
would have
VI.
been seen from
Establishment
Cape Kiephali;
of the facts:
if from South
towards the evidence and
North, they methods
would have employed by the
been seen from Court
Cape Kiephali The Court
and St. George’s has had to
Monastery. determine the
facts relevant to
From all the dispute. The
the facts and difficulty of its
observations task derived
mentioned from the marked
above, the Court disagreement
draws the
between the
conclusion that
Parties, the non-
the laying of the
minefield could appearance of
not have been the
accomplished
without the
knowledge of
Albania. As
regards the
obligations
resulting for her
from this
knowledge, they
are not disputed.
It was her duty
to notify
shipping and
especially to
warn the ships
proceeding
through the
Strait on
October 22nd of
the danger to
which they were
exposed. In fact,
nothing was
attempted by
Albania to
prevent the
disaster, and
these grave
omissions
 order an
enquiry under
Article 50 of the
236 INTRODUCTION TO Statute. With
PUBLIC INTERNATIONAL LAW regard to certain
documentary
material (press
Respondent, the
articles and
secrecy
various books),
surrounding
the Court has
certain conduct,
treated these
and the fact that
with caution. It
the conflict is
regards than not
continuing. On
as evidence
this last point,
capable of
the Court takes
proving facts,
the view, in
but as material
accordance with
which can
the general
nevertheless
principles as to
contribute to
the judicial
corroborating
process, that the
the existence of
facts to be taken
a fact and be
into account
taken into
should be those
account to show
occurring up to
whether certain
the close of the
facts are matters
oral
of public
proceedings on
knowledge.
the merits of the
With regard to
case (end of
statements by
September
representatives
1985).
of States,
With sometimes at
regard to the the highest
production of level, the Court
evidence, the takes the view
Court indicates that such
how the statements are
requirements of of particular
its Statute in probative value
particular when they
Article 53 and acknowledge
the Rules of facts or conduct
Court have to unfavourable to
be met in the the State
case, on the represented by
basis that the the person who
Court has made them.
freedom in With regard to
estimating the the evidence of
value of the witnesses
various presented by
elements of Nicaragua; five
evidence. It has witnesses gave
not seen fit to
oral evidence a publication of
and another a the United
written States State
affidavit-one Department
consequence of entitled
the absence of “Revolution
the Respondent Beyond Our
was that the Borders,
evidence of the Sandinista
witnesses was Intervention in
not tested by Central
cross- America” which
examination. was not
The Court has submitted to the
not treated as Court in any
evidence any form or manner
part of the contemplated
testimony by the Statute
which was a and Rules of
mere expression Court. The
of opinion as to Court considers
the probability
that, in view of
or otherwise of
the special
the existence of
circumstances
a fact not
of this case, it
directly known
may, within
to the witness.
limits, make use
With regard in
of information
particular to
in that
affidavits and
publication.
sworn
statements
made by
members of a
Government,
the Court
considers that it
can certainly
retain such parts
of this evidence
as may be
regarded as
contrary to the
interests or
contentions of
the State to
which the
witness has
allegiance; for
the rest such
evidence has to
be treated with
great reserve.
The Court
is also aware of
 that agency,
under the
supervision and
CHAPTER 11 with the logistic
STATE support of
RESPONSIBILITY United States
agents; that
VII. The facts imputable to the United neither before
States the laying of the
The Court mines, nor
examines the subsequently,
allegations of did the United
Nicaragua that States
the mining of Government
Nicaraguan issue any public
ports or waters and official
was carried out warning to
by United international
States military shipping of the
personnel or existence and
persons of the location of the
nationality of mines; and that
Latin American personal and
countries in the material injury
pay of the was caused by
United States. the explosion of
After examining the mines,
the facts, the which also
Court finds it created risks
established that, causing a rise in
on a date in late marine
1983 or early insurance rates.
1984, the Nicaragua
President of the attributes to the
United States direct action of
authorized a United States
United States personnel, or
Government persons in its
agency to lay pay, operations
mines in against oil
Nicaraguan
installations, a
ports, that in
naval base, etc.,
early 1984
mines were laid listed in
in or close to paragraph 81 of
the ports of El the Judgment.
Bluff, Corinto The Court finds
and Puerto all these
Sandino, either incidents,
in Nicaraguan except three, to
internal waters be established.
or in its Although it is
territorial sea or not proved that
both, by persons any United
in the pay and
States military
acting on the
personnel took
instructions of
a direct part in
the operations, they may be
United States treated as
agents public
participated in knowledge and
the planning, thus sufficiently
direction and established.
support. The The Court
imputability to then examines
the United the genesis,
States of these development
attacks appears and activities of
therefore to the the contra
Court to be force, and the
established. role of the
Nicaragua United States in
complains of relation to it.
infringement of According to
its air space by Nicaragua, the
United States United States
military aircraft. “con
After indicating
the evidence
available, the
Court finds that
the only
violations of
Nicaraguan air
space imputable
to the United
States on the
basis of the
evidence are
high altitude
reconnaissance
flights and low
altitude flights
on 7 to 11
November 1984
causing “sonic
booms.”
With
regard to joint
military
manoeuvres
with Honduras
carried out by
the United
States on
Honduran
territory near
the
Honduras/Nicar
agua frontier,
the Court
considers that
 satisfied that all
the operations
launched by the
INTRODUCTION TO PUBLIC INTERNATIONAL LAW contra force, at
every stage of
the conflict,
ceived, reflected
created and strategy and
organized a tactics solely
mercenary devised by the
army, the contra United States. It
therefore
force.” On the
cannot uphold
basis of the
the contention
available of Nicaragua on
information, the this point. The
Court is not Court however
able to satisfy finds it clear
itself that the that a number
Respondent of operations
were decided
State “created”
and planned, if
the contra force
not actually by
in Nicaragua, the United
but holds it States advisers,
established that then at least in
it largely close
financed, collaboration
trained, with them, and
equipped, on the basis of
the intelligence
armed and
and logistic
organized the support which
FDN, one the United
element of the States was able
force. to offer. It is
It is also established
claimed by in the Court’s
Nicaragua that view that the
the United support of the
States United States
Government for the activities
devised the of the contras
strategy and took various
directed the forms over the
tactics of the years, such as
contra force, logistic support
and provided the supply of
direct combat information on
support for its the location and
military movements of
operations. In the Sandinista
the light of the troops, the use
evidence and of sophisticated
material methods of
available to it, communication,
the Court is not etc. The
evidence does States, and
not however from other
warrant a factors such as
finding that the the
United States organization,
gave direct
training and
combat support,
equipping of
if that is taken
the force,
to mean direct
intervention by planning of
United States operations, the
combat forces. choosing of
The Court targets and the
has to operational
determine support
whether the provided. There
relationship of is no clear
the contras to evidence that
the United the United
States States actually
Government exercised such
was such that it a degree of
would be right control as to
to equate the justify treating
contras, for the contras as
legal purposes, acting on its
with an organ behalf.
of the United Having
States reached the
Government, or above
as acting on conclusion, the
behalf of that Court takes the
Government. view that the
The Court contras remain
considers that responsible for
the evidence their acts, in
available to it is par-ticular the
insufficient to alleged
demonstrate the violations by
total them of
dependence of humanitarian
the contras on law. For the
United States
aid. A partial
dependency, the
exact extent of
which the Court
cannot
establish, may
be inferred
from the fact
that the leaders
were selected
by the United
 another State
shall be
considered an
CHAPTER 11 act of the
STATE RESPONSIBILITY former State
under
United States to international
be legally law if the organ
responsible, it was acting in
would have to the exercise of
be proved that elements of the
that State had governmental
effective control authority of the
of the State at whose
operations in disposal it had
the course of been placed.
which the
alleged UNITED STATES V. IRAN
violations were [1980] ICJ Rep.
committed. In its
Judgment in the
Acts of Other Persons
case concerning
Article 7. United States
The conduct of Diplomatic and
a person or Consular Staff
group of in Tehran, the
persons shall be Court decided
considered an (1) that Iran has
act of the State violated and is
under skill violating
international obligations
law if the owed by it to
person or group the United
of persons was States; (2) that
in fact these violations
exercising engage Iran’s
elements of the responsibility;
governmental that the
authority in the Government of
absence or Iran must
default of the immediately
official release the
authorities and United States
in nationals held
circumstances as hostages and
such as to call place the
for the exercise premises of the
of those Embassy in the
elements of hands of the
authority. protecting
Article 8. power; (4) that
The conduct of no member of
an organ placed the United
at the disposal States
of a State by diplomatic or
consular staff seizure of its
may be kept in inmates as
Iran to be hostages,
subjected to any
form of judicial
proceedings or
to participate in
them as a
witness; (5) that
Iran is under an
obligation to
make reparation
for the injury
caused to the
United States,
and (6) that the
form and
amount of such
reparation,
failing
agreement
between the
parties, shall be
settled by the
Court. (The full
text of the
operative
paragraph is
reproduced
below.)
← The events of 4 November 1979
(paras. 56-68)
The first
phase of the
events
underlying the
Applicant’s
claims covers
the armed
attack on the
United States
Embassy
carried out on 4
November 1979
by Muslim
Student
Followers of the
Imam’s Policy
(further referred
to as “the
militants” in the
Judgment), the
overrunning of
its premises, the
 withdraw from
the premises
and release the
240 INTRODUCTION TO hostages. This
PUBLIC INTERNATIONAL LAW inaction was in
contrast with
the conduct of
the the Iranian
appropriation of authorities on
its property and several similar
archives, and occasions at the
the conduct of same period,
when they had
the Iranian
taken
authorities in
appropriate
the face of these steps. It
occurrences. constituted, the
The Court Court finds, a
points out that clear and
the conduct of serious
the militants on violation of
that occasion Iran’s
could be obligations to
directly the United
attributed to the States under
Iranian State Articles 22(2),
only if it were 24,25,26,27 and
established that 29 of the 1961
they were in Vienna
fact acting on Convention on
its behalf. The Diplomatic
information Relations, of
before the Court Articles 5 and
did not suffice 36 of the 1963
to establish this Vienna
with due Convention on
certainty. Consular
However, the Relations, and
Iranian State of Article 11(4)
which, as the of the 1955
State to which Treaty. Further
the mission was breaches of the
accredited, was 1963
under obligation Convention had
to take been involved
appropriate in failure to
steps to protect protect the
the United Consulates at
States Embassy Tabriz and
did nothing to Shiraz.
prevent the The Court
attack, stop it is therefore led
before it to conclude that
reached its on 4 November
completion or 1979 the Iranian
oblige the
authorities were
militants to
fully aware of
their obligations Ayatollah
under the Khomeini
conventions in himself
force, and also proclaimed the
of the urgent Iranian State’s
need for action endorsement of
on their part, both the seizure
that they had of the premises
the means at and the
their disposal to detention of the
perform their hostages. He
obligations, but described the
that they Embassy as a
completely “centre of
failed to do so. espionage,”
declared that
Events since 4 November 1979 the hostages
(paras. 69-79)
would (with
The some
second phase of exceptions)
the events remain “under
underlying the arrest” until the
United States’ United States
claims had returned the
comprises the former Shah
whole series of and his property
facts which to Iran, and
occurred forbade all
following the negotiation with
occupation of the United
the Embassy by
the militants.
Though it was
the duty of the
Iranian
Government to
take every
appropriate step
to end the
infringement of
the inviolability
of the Embassy
premises and
staff, and to
offer reparation
for the damage,
it did nothing of
the kind.
Instead,
expressions of
approval were
immediately
heard from
numerous
Iranian
authorities.
 decision to
continue the
subjection of
CHAPTER 11 the Embassy to
STATE RESPONSIBILITY occupation, and
of its staff to
States on the detention as
subject. Once hostages, gave
organs of the rise to repeated
Iranian State and multiple
had thus given breaches of
approval to the Iran’s treaty
acts complained obligations,
of and decided additional to
to perpetuate those already
them as a means committed at
of pressure on the time of the
the United seizure of the
States, those Embassy. (1961
acts were Convention:
transformed Arts. 22, 24, 25,
into acts of the 26, 27 and 29
Iranian State: 1963
the militants
Convention:
became agents
inter alia, Art.
of that State,
which itself 33; 1955
became Treaty, Art.
internationally 1114]).
responsible for With
their acts. regard to the
During the six Charge
months which d’affaires and
ensued, the the two other
situation mem-bers of the
underwent no United States
material mission who
change: the have been in the
Court’s Order Iranian Ministry
of 15 December
of Foreign
1979 was
Affairs since 4
publicly
November
rejected by Iran,
1979, the Court
while the
finds that the
Ayatollah
Iranian
declared that
authorities have
the detention of
the hostages withheld from
would continue them the
until the new protection and
Iranian facilities
parliament had necessary to
taken a decision allow them to
as to their fate. leave the
The Ministry in
Iranian safety.
authorities’ Accordingly, it
appears to the other, which
Court that in succeeds in
their respect establishing a
there have been new State in
breaches of part of the
Articles 26 and territory of a
29 of the 1961 pre-existing
Vienna State or in a
Convention. territory under
Taking its
note, administration
furthermore, shall be
that various considered an
Iranian act of the new
authorities have State under
threatened to international
have some of law.
the hostages
submitted to
trial before a
court, or to
compel them to
bear witness,
the Court
considers that,
if put into
effect, that
intention would
constitute a
breach of
Article 31 of the
same
Convention.

Acts of Revolutionaries
Article 10. Conduct of an insurrectional
or other movement
The
conduct of an
insurrectional
movement,
which becomes
the new
government of a
State, shall be
considered an
act of that State
under
international
law.
The
conduct of a
movement,
insurrectional or
 either destroyed
or damaged,
and some of the
INTRODUCTION TO PUBLIC missionaries
INTERNATIONAL LAW were
murdered....
← This The
article is contention of
the United
without
States
prejudice to the
Government
attribution to a
before this
State of any
Tribunal is that
conduct,
the revolt was
however related
the result of the
to that of the
imposition and
movement attempted
concerned, collection of the
which is to be “hut tax”; that it
considered an was within the
act of that State knowledge of
by virtue of the British
articles 4 to 9. Government
that this tax was
HOME MISSIONARY SOCIETY the object of
CLAIM UJS. v. Great Britain deep native
(1920) resentment; that
American and British in the face of
Claims Arbitration Tribunal
the native
In 1898, danger the
the collection of British
a tax newly Government
imposed [by wholly failed to
Great Britain] take proper
on the natives steps for the
of the maintenance of
Protectorate [of order and the
Sierra Leone] protection of
and known as life and
the “hut tax” property; that
was the signal the loss of life
for a serious and damage to
and widespread property was
revolt in the the result of this
Ronietta neglect and
district. The failure of duty,
revolt broke out and therefore
on April 27 and that it is liable
lasted for to pay
several days.... compensation.
In the Now,
course of the even assuming
rebellion all that the “hut
[the tax” was the
effective cause
claimant’s]...
of the native
Missions were
rebellion, it was
attacked, and
in itself a fiscal the act of
measure in rebellious
accordance not bodies of men
only with committed in
general usage in violation of its
colonial authority, where
administration, it
but also with
the usual
practice in
African
countries....
It was a
measure to
which the
British
Government
was per-fectly
entitled to resort
in the legitimate
exercise of its
sovereignty, if it
was required....
Further,
though it may
be true that
some difficulty
might have
been foreseen,
there was
nothing to
suggest that it
would be more
serious than is
usual and
inevitable in a
semi-barbarous
and only
partially
colonized
protectorate,
and certainly
nothing to lead
to any
apprehension of
widespread
revolt.
It is well
-established
principle of
international
law that no
government can
be held
responsible for
 Iran. On
February 8,
1979, three days
CHAPTER 11 before the
STATE RESPONSIBILITY Islamic
Revolutionary
is itself guilty of Government
no breach of took office, the
good faith, or of claimant was
no negligence in evacuated from
suppressing Iran on
insurrection. company orders
(Moore’s because of the
INTERNATION deteriorating
AL LAW situation. The
DIGEST, Vol. claimant sought
VI, p. 956; VII, compensation
p. 957; Moore’s for salary and
ARBITRATION other losses
S, pp. 2991-92; resulting from
British answer, his alleged
p. 1) expulsion
contrary to
The good
international
faith of the
law.
British
Where a
Government
revolution leads
cannot be
to the
questioned, and
establishment of
as to the
a new
conditions
government the
prevailing in the
State is held
Protectorate
responsible for
there is no
the acts of the
evidence to
overthrown
support the
government
contention that
insofar as the
it failed in its
latter
duty to afford to
maintained
adequate
control of the
protection for
situation. The
life and
successor
property. ...
government is
The Tribunal decides that this claim must be dismissed. also held
responsible for
SHORT v. IRAN the acts
UJS. v. Iran (1987) imputable to the
Iran-U.S. Claims Tribunal revolutionary
The movement
claimant, an which
American established it,
national, was even if those
employed by acts occurred
Lock-heed, an prior to its
American establishment,
company, in as a
consequence of Diplomatic and
the continuity Consular Staff
existing in Tehran
between the (United States
new v. Iran),
organization of 19801.CJ. 3,29,
the State and para. 58 [above,
the organization p. 358]....
of the
revolutionary
movement. See
Draft Articles
on State
Responsibility,
supra,
Commentary on
Articuel 15,
paras. 3 and
4....
The
Claimant relies
on acts
committed by
revolu-tionaries.
... He is unable,
however, to
identify any
agent of the
revolutionary
movement, the
actions of
which
compelled him
to leave Iran.
The acts of
supporters of a
revolution [as
opposed to its
agents] cannot
be attributed to
the government
following the
success of the
revolution just
as the acts of
supporters of an
existing
government are
not attributable
to the
government.
This was clearly
recalled by the
International
Court of Justice
in United States
 leave Iran
forthwith. Nor
is there any
evidence that
INTRODUCTION TO PUBLIC any action
INTERNATIONAL LAW
prompted by
such statements
← The was the caused
Claimant.... of the
[relies] on the Claimant’s
declarations decision to
made by the leave Iran. In
leader of the these
Revolution, circumstances,
Ayatollah the Tribunal is
Khomeini... of the view that
While these the Claimant
statements are has failed to
of anti-foreign prove that his
and in particular departure from
anti-American Iran can be
sentiments, the imputed to the
Tribunal notes wrongful
that these conduct of Iran.
pronouncement The claim is
s were of a therefore
general nature dismissed.
and did not
specify that Preliminary Objections.
Americans When brought before
should be an international tribunal,
expelled en
the claim of denial of
masse. On this
justice may be lost due to
issue also, it is
worthwhile to failure to answer some
quote the preliminary objections. One
International objection already seen is
Court of Justice, the lack of nationality link.
in the judgment
Another is the failure
[para. 59] just
referred to to exhaust national
[above, p. remedies. The obvious
359], ... purpose of this rule is to
Similarly, it protect international courts
cannot be said from being swamped with
that the cases which are better
declarations
handled locally. However,
referred to by
the Claimant this rule applies only to
amounted to an cases founded on
authorization to diplomatic protection or on
revolutionaries injury to aliens. Where the
to act in such a case is one involving a
way that the treaty that touches on state
Claimant should
rights which should be
be forced to
resolved on the
international plain.
Similarly, where a case
involves a treaty which
establishes a Claims
Commission, it
immediately goes to the
Commission.

Reparation.
Article 31. Reparation
The
responsible
State is under
an obligation to
make full
reparation for
the injury
caused by the
internationally
wrongful act.
Injury
consists of any
damage,
whether
material or
moral, arising in
consequence of
the
internationally
wrongful act of
a State.
 indemnity
for the
damage
caused by
CHAPTER 11 the illegal
STATE
expropriat
RESPONSIBILITY
ion.]
Article 32. Irrelevance of internal law The action
of Poland which
The
the Court has
responsible
judged to be
State may not contrary to the
rely on the Geneva
provisions of its Convention is
internal law as not an
justification for expropriation —
failure to to render which
comply with its lawful only the
obligations payment of fair
under this Part. compensation
would have
CHORZOW FACTORY
been wanting; it
CASE
Germany v. Poland [1928] is a seizure of
PCIJ property, rights
and interests
[The
which could not
case
be expropriated
concerned
even against
the
compensation,
expropriat
save under the
ion by
exceptional
Poland of conditions fixed
a factory by Article 7 of
at the said
Chorzow Convention....
contrary,
If follows
as the
that the
Court had compensation
held, to due to the
the German
Geneva Government is
Conventio not necessarily
n of 1922 limited to the
between value of the
Germany undertaking at
and the moment of
Poland on dispossession,
Upper plus interest to
Silesia. In the day of
this payment. This
judgment limitation would
the Court only be
ruled admissible if the
upon a Polish
claim by Government had
Germany the right to
for an expropriate, and
if its wrongful
act consisted since it would
merely in not be tantamount
having paid to to rendering
the two lawful
Companies the liquidation and
just price of unlawful
what was dispossession
expropriated; in indistinguishabl
the present case, e in so far as
such a limitation their financial
might result in results are
placing concerned.
Germany and
The
the interests
protected by the essential
Geneva principle
Convention, on contained in the
behalf of which actual notion of
interests the
an illegal act —
German
Government is a principle
acting, in a which seems to
situation more be established
unfavourable by interna-
than that in
which Germany
and these
interest would
have been if
Poland had
respected the
said
Convention.
Such a
consequence
would not only
be unjust, but
also and above
all incompatible
with the aim of
Article 6 and
following
articles of the
Convention
— that is to say,
the prohibition,
in principle, of
the liquidation
of the property,
rights and
interests of
German
nationals and of
companies
controlled by
German
nationals in
Upper Silesia —
 This
conclusion
particularly
246 INTRODUCTION TO PUBLIC applies as
INTERNATIONAL LAW regards the
Geneva
Convention, the
tional practice and in particular by the object of which
decisions of arbitral tribunals it to provide for
— is that the
reparation must, maintenance of
as far as economic life in
possible, wipe Upper Silesia
out all the on the basis of
consequences respect for the
of the illegal act
status quo. The
and re-establish
dispossession
the situation
of an industrial
which would, in
undertaking —
all probability,
the
have exited if
expropriation of
that act had not
which is
been com-
prohibited by
mitted.
the Geneva
Restitution in
Convention
kind, or, if this
— then
is not possible,
involves the
payment of a
obligation to
sum
restore the
corresponding
undertaking
to the value
and, if this be
which a
not possible, to
restitution in
pay its value at
kind would
bear; the award, the time of the
if need be, of indemnification
damages for , which value is
loss sustained designed to take
which would the place of
not be covered restitution
by restitution in which has
kind or become
payment in impossible. To
place of it this obligation,
— such are the in virtue of the
principles general
principles of
which should
international
serve to
law, must be
determine the added that of
amount of compensating
compensation loss sustained
due for an act as the result of
contrary to the seizure. The
international impossibility,
law. on which the
Parties are
 agreed, of prerogative of a state and a
restoring the private individual has no
Chorzow right to waive the state’s
factory could
right.
therefore have
no other effect
but that of
substituting
payment of the
value of the
undertaking for
restitution; it
would not be in
conformity
either with the
principles of
law or with the
wish of the
Parties to infer
from that
agreement that
the question of
compensation
must henceforth
be dealt with as
though an
expropriation
properly so-
called was
involved.

Calvo Clause Rejected.

In the past, there were
attempts to limit the ability
of a state to give diplomatic
protection to its nationals.
An example of this is the
“Calvo clause, ” a
provision in a contract to
the effect that “under no
condition shall the
intervention of foreign
diplomatic agents in any
matter related to the
contract” be resorted to.
This was rejected in North
American Dredging
Company Claim (1926) by
the
Mexico-United States
General Claims
Commission. The right to
seek redress is a sovereign
 public use and just
compensation. But
international case law on
CHAPTER 11
the subject, generally
STATE
RESPONSIBIL between developed and
ITY developing countries, is not
without disputations.
Expropriation of Alien Property.
Expropriation is the
taking of property by the
state. The property can be
tangible or intangible as in
the case of valuable
contractual rights.
Expropriation can be an
international wrong if it is
done contrary to the
principles of international
law. What are these
principles?
The principles may be
drawn from a 1962 UN
General Assembly
Resolution on the
Sovereignty over Natural
Resources which states,
among others, that the
expropriation “shall be
based on grounds or reasons
of public utility, security or
the national inters which are
recognized as overriding
purely individual or private
interests, both domestic and
foreign. In such cases the
owner shall be paid
appropriate compensation in
accordance with the rules in
force in the state taking
such measures in the
exercise of its sovereignty
and in accordance with
international law.”
The rule thus
recognizes the power of
eminent domain as an
inherent power of
sovereignty. The rule
conforms with the
constitutional principles of
 there are those who are of
the view that the very
widespread offences against
human integrity and dignity
are evidence that argue
against the existence of
human rights principles in
international law. This is a
profoundly negative view
Chapter 12 that must be rejected as a
INTERNATIONAL HUMAN RIGHTS justification for barbarity.
LAW There is a connection
between human rights on
the one hand and ethics and
From Alien Rights to Human Rights.
morality on the other. A
Early concern about distinction can perhaps be
human rights was about made between what are
specific classes of peoples, considered human rights
e.g., slaves, minorities, and precepts and the differing
certain nationalities. It was justification for the
not until the birth of the existence of such precepts.
United Nations that human As Jacques Maritain wrote
rights of all people became in 1949, “I am quite certain
the subject of legislation. that my way of justifying
Thus, the developing belief in the rights of man
doctrine on the subject is and the ideal of liberty,
antedated by the doctrines equality, fraternity is the
on humanitarian only way with a firm
intervention, state foundation in truth. This
responsibility for injury to does not prevent me from
aliens, protection of being in agreement on these
minorities, League of practical convictions with
Nation’s Mandates and people who are certain that
Minorities Systems, and their way of justifying
international humanitarian them, entirely different
law (which is the human from mine or opposed to
rights law in time of war). mine,... is equally the only
Human rights, in way founded upon truth.”
general terms, are those Asian thinkers claim
inalienable and that much of what are
fundamental rights which called human rights are
are essential for life as
Western concepts alien to
human beings. But there is
Asian culture. Nevertheless
no agreement as to what
these rights are. In fact, the common

248
 generation, right to peace,
clean environment, self-
determination, common
CHAPTER 12 heritage of mankind,
INTERNATIONAL HUMAN RIGHTS LAW development, minority
rights. However, there is
denominator between Asian
dispute about the cultural in
and Western view so far is
human rights.
the belief that the individual
must be protected and that An Emerging International Bill of
Human Rights.
the international
community must contribute The immediate
to the protection, even if impetus for this
between the two views development was the
there might be differing atrocities committed by the
emphases: emphasis on the regime under Adolf Hitler.
individual in the western What distinguishes post-
(read American) outlook World War II developments
and emphasis on the from earlier human rights
community in what is tradition is the growing
called “Confucian.” acceptance of the view that
the way nations treat people
In general the Western
under their jurisdiction is no
tradition has developed
longer just a domestic
from the Natural Law view
concern but also one that
that certain rights exist as a
calls for the attention of the
result of a law higher than
international community.
positive or man-made law.
This view represents a
And this higher law itself
chipping away at the old
flows from the nature of
concept of sovereignty. It
man which demands certain
recognizes that individuals
immunities or liberties. This
can be subjects of
view flourished in the
international law and that
seventeenth century and
they can find protection and
provided a recourse against
remedies within the
arbitrary power. Much of
international community
what the Natural Law view
against abuses by their own
held has already become
government.
part of customary or
conventional law and has The United Nations
served as a counterforce became the cradle for the
against a positivist development of the new
emphasis on the importance international law on human
of the state. rights. But the U.N.
Literature now speaks Charter’s own provisions on
of three generations of human rights were
human rights. The first preliminary. They did not
generation consists of the make human rights law but
traditional civil and they represented a
fundamental rights; the beginning which later
second generation, social would develop into
and economic rights; third international law.
 well being
which are
necessary for
250 INTRODUCTION TO peaceful and
PUBLIC INTERNATIONAL LAW friendly
relations among
nations based
The Charter’s on respect for
Preamble set down a the principles of
fundamental premise: “faith equal rights and
in fundamental human self-
rights, in the dignity and determination
worth of the human person, of peoples, the
in the equal rights of men United Nations
and women.” Its human shall promote:
rights goal was set down in Higher
Article 1(3): standards of
To living, full
achieve employment,
international co- and conditions
operation in of economic and
solving social progress
international and
problems of an development;
economic, Solutions
social, cultural, of international
or humanitarian economic,
character, and in
social, health,
promoting and
and related
encouraging
problems; and
respect for
international
human rights
and for cultural and
fundamental educational
freedoms for all cooperation; and
without Universal
distinction as to respect for, and
race, sex, observance of,
language, or human rights
religion. and fundamental
freedoms for all
The achievement of these purposes was something to be worked
for. without
distinction as to
The obligations race, sex,
assumed by the language, or
Organization and its religion.
Members are listed in two Article 56
key articles:
All
Article 55 Members pledge
With a themselves to
view to the take joint and
creation of separate action
conditions of in co-operation
stability and with the
 Organization for
the achievement
of the purposes
set forth in
Article 55.

As is obvious, there
are here no definitions of
human rights, there is no
clear commitment of
Members to avoid
violations, and there is set
down no instrument for the
correction or vindication of
violations of human rights
that might occur. In fact, the
sensitivity of nations to
their sovereignty is
reflected in Article 2(7) of
the U.N. Charter:
 to “set up commissions in
economic and social fields
and for the promotion of
CHAPTER 12 human rights.”1
INTERNATIONAL HUMAN RIGHTS LAW
Vague as all these
Nothing were, however, they not
contained in the only marked the inter-
present Charter nationalization of human
shall authorize rights but they also set in
the United
motion the gradual process
Nations to
of legislating international
intervene in
matters which human rights law. The first
are essentially significant milestone in this
within the process was the
domestic promulgation of the
jurisdiction of Universal Declaration of
any state or
Human Rights.
shall require the
The Universal
Members to
submit such Declaration, after many
matters to intricate delays,2 was
settlement adopted and proclaimed by
under the the General Assembly on
present Charter; December 10, 1948. It was,
but this however, not seen as law
principle shall but only as “a common
not prejudice standard” for nations to
the application
attempt to reach. Its
of enforcement
authority was primarily
measures under
Chapter VII. moral and political.3 It
would take another eighteen
It is also clear, years before the United
however, that the Charter Nations could convert the
itself recognized the aspirations of the
inadequacy of the Declaration into
document; hence, through conventional international
Article 62(2) it authorized law embodied in the
the UN Social and International Covenant on
Economic Council Civil and Political Rights,
(ECOSOC) to “make the International Covenant
recommendations for the on Economic, Social and
purpose of promoting Cultural Rights and the
respect for, and the Optional Protocol to the
observance of, human rights Covenant on Civil and
and fundamental freedoms Political Rights.4
for all” and commanded it,
through Article 68, largely
through the intervention of
American non-
governmental organizations,
 'John P. Humphrey,
“THE UNIVERSAL
DECLARATION OF
HUMAN RIGHTS: ITS
HISTORY, IMPACT AND
JURIDICAL
CHARACTER," in B.D.
RAMCHARAN, Ed.,
HUMAN RIGHTS:
THIRTY YEARS AFTER
THE UNIVERSAL
DECLARATION 21 (1979).
2
See id. 21-28.
See id. 28-37.
4
For a detailed history of the
formulation of these Covenants, SEE
Vratislav Pechota, "THE
DEVELOPMENT OF THE
COVENANT ON CIVIL AND POLITICAL RIGHTS" in L. Hbnkin,
Ed., THE INTERNATIONAL BILL OF RIGHTS 32-71 (1981).
 absent from a
declaration,
places a duty on
252 INTRODUCTION TO the contracting
PUBLIC INTERNATIONAL LAW parties to bring
their laws and
practices into
There is an important
accord with the
distinction between a mere
accepted
declaration and a covenant. international
As Vratislav Pechota puts obligations and
it:5 not to introduce
... [a]t the new laws or
core of an practices which
international would be at
covenant lies a variance with
meeting of such
minds of the obligations.
contracting The Covenant on Civil and Political
parties on the Rights.6
specific duties The substantive rights
and obligations
that are treated in the
they intend to
assume, and the Covenant on Civil and
agreement that Political Rights are found in
the Articles 1, and 6 to 27.
undertakings
must be Life, liberty and property, and equality.
effectively The Covenant’s basic
performed. A provision on the right to life
declaration by in Article 6(1) and its
contrast admits provision on genocide
the presumption Article 6(4) and the general
that something
guarantee of liberty in
less than full
Article 9( 1) do not go
effectiveness in
beyond what Article III,
terms of law is
Section 1 of the Philippine
intended. A
covenant leaves Bill of Rights guarantees.
no doubt about The Covenant, moreover,
the legal nature does not say when protected
of the life begins, whereas the
provisions it Philippines protects “the
contains, life of the unborn from
whereas a conception.”7
declaration is Significantly, too,
often deemed to there is no provision on the
enunciate moral right to property in the
rules only. Covenant, this in spite of
Moreover, the
the fact that a provision
vinculum juris
exists in Article 17(1) in the
created by a
Universal Declaration.
covenant
generally Pechota explains the
absence from the Covenant much of their previous
thus: “While no one in the sanctity, it was inevitable
Commission questioned the that the
right itself, there were
considerable differences of
opinion as to the restrictions
to which it should be
subject. At a time when
Id. at 35.
property rights had lost
6
Adopted December 16,1966;
entered into force March 23,1976.
’Supra,note 27 at 44.
 death for “heinous crimes.”8
Congress first restored the
death penalty for heinous
CHAPTER 12 crimes but Republic Act
INTERNATIONAL HUMAN RIGHTS LAW No. 9346 has since
disallowed it.
Commission would find it
On the more detailed
difficult to draft a text that
aspects of physical liberty,
would command general
and arrests and detention
acceptance.” found in Articles 8,9 and 11
On the right to life, of the Covenant, these are
the Covenant’s Article 6(2) more than adequately
expresses a bias for the covered by corresponding
abolition of the death provisions of the Bill of
penalty and allows its Rights.9
imposition, in countries Similarly, the rights of
which still have a death an accused detailed in
penalty, only after Articles 14 and 15 of the
conviction for the most Covenant have long been
serious crimes. But the parts of the Philippine
Covenant does not stop accusatory system as found
there. In Article 6(6) it says: in the Constitution.10 But
“Nothing in this article shall the Covenant, in Article 14,
be invoked to delay or to is more restrictive in the
prevent the abolition of matter of publicity of
capital punishment by any criminal proceedings
State Party to the present “where the interest of
Covenant.” In fact, in the juvenile persons otherwise
Second Optional Protocol to requires or the proceedings
the Covenant, which was concern matrimonial
signed at the General disputes or the guardianship
Assembly meeting on of children.” Such standards
December 15, 1989, but would not easily pass the
which has not yet come into Philippine tests for publicity
force, Article 1 says: “(1) and free press."
No one within the
jurisdiction of a State Party
to the present Protocol shall
be executed. (2) Each State
Party shall take all
necessary measures to
abolish the death penalty
8
within its jurisdiction.” Article III, Section 19(1).
’Article III, Sections 2,12,15 and
The Philippines is not
‘“Article III, Sections 14 to 17.
yet party to the Second
"Article III, Section 4.
Protocol although it signed
on September 20,2006. The
1987 Constitution
prohibited the imposition of
the death penalty unless a
new law is passed imposing
 Torture, ill-treatment and prison
conditions

254 INTRODUCTION TO The Covenant’s

PUBLIC INTERNATIONAL LAW proscription of torture and
other forms of ill- treatment
There are, however, that offend not only against
two provisions on bodily integrity but also
compensation in the against personal dignity and
Covenant which should be the requirement of humane
looked into. Article 9(5) prison conditions are found
says: “Anyone who has in Articles 7 and 10.
been a victim of unlawful While adequate
arrest or detention shall prison conditions are
have an enforceable right to guaranteed by Section
compensation,” and Article
19(2) of the Bill of Rights,
14(6) says that a person
the fact, however, is that
who has been a victim of
prison conditions in the
miscarriage of justice “shall
be compensated according Philippines today are far
to law, unless it is proved from adequate. It should be
that the non-disclosure of noted that the UN Human
the unknown fact in time is Rights Commission has
wholly or partly attributable expressed the view that
to him.” The only place imprisonment “in
where the Philippine conditions seriously
Constitution asks for detrimental to a prisoner’s
compensation is in Section
health” constitutes violation
12(4) of the Bill of Rights
of Articles 7 and 10(1) of
where the legislature is
the Covenant.12
asked to compensate
violations of rights of a Freedom of Movement
person under investigation. The Covenant in its
The guarantee of Article 12(1) and (2) group
equality is found in Article together the rights to travel
26 of the Covenant. It is the within the country, the right
Bill of Rights’ more terse to leave the country and the
“equal protection” clause in right to change one’s
Article III, Section 1. The residence. The limitations
guarantee is of legal on these three rights are
equality. It does not enumerated in Article
embody the aspiration 12(3): “those which are
towards lesser material provided by law, are
inequality. The latter is necessary to protect
material found in the national security, public
Covenant on Economic, order (ordre public), public
Social and Cultural Rights.

l2
Ambrosini, et al.
v. Uruguay, (R. 1/15)
HRC 34, 124, cited in P.
Sieghart, THE
INTERNATIONAL LAW
OF HUMAN RIGHTS
171 (1983).
 which prevent exiled
individuals from returning
to their country run counter
CHAPTER 12 to Article 12 of the
INTERNATIONAL HUMAN RIGHTS LAW
Covenant.'3
health or morals or the The Philippine
Supreme Court, however, in
rights and freedoms of
the case on the return of
others, and are consistent
Ferdinand Marcos after his
with the other rights in the
involuntary exile, arrived at
present Covenant.” They
a different conclusion. The
are similar to the limitations
Court argued that since the
found in the Philippine Bill
Declaration of Human
of Rights except for the fact
Rights and the Covenant on
that, unlike the Philippine
Human Rights separate the
provision, it does not
right to leave the country
require a court order for
from the right to return to
impairment of liberty of
one’s country, the two rights
abode.
are distinct and the right to
Unlike the Philippine return to one’s country is
provision, which speaks
not guaranteed by the
only of the right to travel
specific guarantees for the
without distinction as to
right to travel and liberty of
whether it is travel within
abode and that therefore
the country or travel from
President Marcos could not
or to the country, the
appeal to Section 6 of the
Covenant in Article 12(4)
Bill of Rights. The vote,
separates the right to return
however, was a reluctant
to one’s country from the
and embarrassed 8 to 7, and
right to leave one’s country.
the decision was prefaced
The limit to the right to
thus: “This case is unique. It
return to one’s country in
should not create a
the Covenant is implied in
precedent, for the case of a
the word “arbitrarily:” “No
dictator forced out of office
one shall be arbitrarily
and into exile after causing
deprived of the right to
twenty years of political,
enter his own country.” The
economic and social havoc
intention of the Covenant in
in the country and who
separating this right would
within the short space of
seem to be to make the
three years seeks to return,
limitation more narrow than
is in a class by itself.”14
for the right to leave the
country especially since
exile is now prohibited by
customary law and the
prohibition of exile may
even be jus cogens. It is
also noteworthy that the
Inter-American Paul Sieghart, THE
Commission of Human INTERNATIONAL LAW OF HUMAN
Rights has expressed the RIGHTS 184-185 (1983).
opinion that domestic laws
 l4
Marcos v.
Manglapus,et al.,G.R. No.
88211, September 15,1989.
Justice Cortes said that “the
right to return to one’s
country, a totally distinct
right under international law,
independent from although
related to the right to travel”
was “not among the rights
specifically guaranteed in
the Bill of Rights.” Human
rights advocates would
normally appeal to the
Universal Declaration
 But when does one
become a person? The
Covenant does not say. The
256 INTRODUCTION TO Philippine Constitution
PUBLIC INTERNATIONAL LAW protects “the life of the
unborn from conception;”16
but it does not say that the
Related to freedom of
unborn is a person. The
movement is the right of
Civil Code, however, says
aliens not to be expelled
that for purposes beneficial
without due process from a to him the unborn is
territory. This is guaranteed considered a person.
in Article 13 of the Article 17 of the
Covenant.
Covenant protects “privacy,
Legal personality, privacy and the family, home or
family correspondence” as well as
The right to be honour and reputation.”
recognized as a person Articles 23 and 24 of
before the law is guaranteed the Covenant contain
in Article 16 of the
detailed provisions on the
Covenant. One must
rights of the family and of
distinguish, however,
children. These either are
between “having a legal
covered by Article XV on
personality” and “having a
the Family in the
capacity to act.” The first
belongs to all, whether Constitution or are so
citizens or aliens; the fundamental that Philippine
second may not be available law takes them for granted.
to some by reason, for
instance of infancy,
minority, or insanity. The
guarantee in its fullness
means that state parties
must “treat every human
being everywhere, male or
female, young or old, alien
or citizen, as a person of Human Rights and to the
before the law, enjoying the International Covenant on
protection of the law and of Civil and Political Rights in
the forces of the law, with order to seek additional
power to have rights and support for the protection
assume obligations: to own, given by a specific
acquire, and dispose of country’s constitution.
property; to make contracts; Justice Cortes does the
to sue and be sued; and to opposite. She uses the
invoke other legal Declaration and the
15
remedies.” There is no Covenant to weaken the
similar specific guarantee in Philippine Bill of Rights.
the Constitution; but that it ’’Fernando Volio,
is presumed to exist runs “LEGAL
through the entire PERSONALITY,
PRIVACY, AND
document.
THE FAMILY" in
 HENKIN, supra,
note
4, at 187-188.
'‘Article II, Section 12.
 subject. However, the
Covenant’s Article 20
which prohibits
CHAPTER 12
“propaganda for war” can
INTERNATIONAL HUMAN RIGHTS LAW
come into conflict with our
Thought, conscience, religion, Constitution’s freedom of
expression and political freedoms expression.
Article 18 of the The guarantee of
Covenant guarantees political freedom in the
“freedom of thought, Covenant’s Article 25 is
conscience, and religion.” also written all over the
The limits on external
Philippine Constitution.
exercise found in the
Covenant — “to protect Associations and unions
public safety, order, health, Article 22 of the
or morals or the Covenant has a detailed set
fundamental rights of of provisions protecting the
others” — if interpreted
right to form associations
broadly can dilute the
and unions. The Covenant
freedom and thus come into
is silent about the right of
conflict with the very
government employees to
narrow limits allowed by
form unions; the
the preferred position
Constitution is explicit in
which free exercise
the assertion of the right.
occupies in the Bill of
Rights. The Covenant Minorities
contains explicit protection Article 27 guarantees
of the right of parents in the “ethnic, religious or
matter of religion for their linguistic minorities” the
children. right “to enjoy their own
Notably, however, an culture, to profess and
established religion is not practice their own religion,
incompatible with the or to use their own
language.” This is one of
Covenant.
the few rights which was
Article 19 of the
already the subject of
Covenant guarantees
earlier treaties such as the
freedom of expression and
Treaty of Versailles of 1919
Article 21 protects the right and the Polish-German
of assembly and petition. Upper Silesia Treaty of
They do not go beyond our 1922.17 It is a right which is
Constitution’s own very central to the current
guarantees on the same conflicts in Eastern Europe.

'’Sieohart, supra, note 14, at 377.

 pushed for the inclusion of
self-determination “for
peoples oppressed by
258 INTRODUCTION TO despotic governments,
PUBLIC INTERNATIONAL LAW
peoples under alien
domination, and peoples of
The concern for multi-national states
minorities has a two-fold deprived of self-
aspect. The first is the fear determination by the central
of “a secessionist authorities.”19 Article 1 now
movement by minorities, covers all of the above.
threatening territorial Self-determination
integrity of the state, or covers two important rights:
about the danger of the right “freely to
interference by other states determine their political
with which the minorities status and freely pursue
are connected by ties of their economic, social and
race, national origin, cultural development” and
language, or religion.” The the right “for their own
second is a genuine ends, [to] freely dispose of
“concern for the human the natural wealth and
rights of minorities” and the resources without prejudice
desire “that minorities will to any obligations arising
flourish so as to preserve out of international
that diversity of the human cooperation, based upon the
race, which, since the principle of mutual benefit,
beginning of mankind, has and international law.”
provided a motive power
Since the adoption of
for the development of
the Covenant, there have
civilization and culture by
been at least two significant
weaving many strands into
developments. On
a single multi-colored
18 December 14, 1960, the
tapestry.”
General Assembly adopted
Self-determination of peoples the Declaration on the
Related to but broader Granting of Independence
than the right of minorities to Colonial Countries and
is the right of self- Peoples, and on December
determination of peoples. 14,1962, it adopted the
This is treated in Article 1 Resolution on Permanent
of the Covenant. It has an Sovereignty over Natural
interesting history and is of Resources. But two
continuing relevance to questions remain: Who are
dramatic developments that “peoples” within the
have happened within the meaning of the
past decade.
The proposal made by
the USSR on the subject
was to recognize the right
of self-determination of "Louis B. Sohn, “THE
peoples under colonial RIGHTS OF
domination. But others MINORITIES" in L.
 Henkin, Ed. supra, note
4, at 270-271.
Antonio Cassese, “THE
SELF-
DETERMINATION OF
PEOPLES" in L. Henkin,
id., at 92.
 of Article 1: the right
“freely to determine their
political status and freely
CHAPTER 12 pursue their economic,
INTERNATIONAL HUMAN RIGHTS LAW
social and cultural
Covenant? And, since self- development” and the right,
“for their own ends, [to]
determination is now a legal
freely dispose of the natural
right, what does the legal
wealth and resources
right include?
without prejudice to any
Certainly “peoples” obligations arising out of
include those ruled by international cooperation,
colonial powers; but under based upon the principle of
present circumstances this mutual benefit, and
is now of limited international law.” These
significance. “Peoples” also also necessarily include the
mean those who form a other related political rights.
component part of a The external right of
multinational state. self-determination belongs
On the other hand, to colonies and to those
minorities as such, for enumerated in the third
which the Covenant has paragraph: “non-self-
Article 27, does not have a
governing and Trust
right of self-determination
Territories.”
in the sense of the right to
secede. Even the Optional Protocol on the Covenant on
penultimate article of the Civil and Political Rights.
1960 Declaration on the
As a supplement to
Granting of Independence
the Covenant on Civil and
says: “Any attempt aimed at
Political Rights, the United
the partial or total
disruption of the national Nations adopted the
unity and territorial Protocol to the Covenant on
integrity of a country is December 16, 1966. The
incompatible with purposes Protocol entered into force
and principles of the on March 23,1976. The
Charter of the United Philippines has ratified the
Nations.”20 Protocol.
Self-determination has This separate treaty is
an internal and an external designed to enable private
aspect. The internal right of
parties who are victims of
self determination consists
human rights violations. But
of the elements enumerated
in the first two paragraphs complaints may be filed
only

”W. at 96;
John P. Humphrey,
"POLITICAL AND
RELATED
RIGHTS” in T.
Meron, Ed.,
HUMAN RIGHTS
IN
INTERNATIONAL
LAW 195-196
(1985).
 classical “Thou shalt nots”
of the Western tradition,
could be done immediately;
260 INTRODUCTION TO whereas the implementation
PUBLIC INTERNATIONAL LAW
of economic, social and
cultural rights could only be
against states which have done gradually and
ratified the Protocol. An dependently on
eighteen-member Human development conditions. In
the end, the decision to
Rights Committee created
divide, which would at least
by the Covenant receives
assure approval of a
and handles the document on civil and
21
complaints. political rights, prevailed.
The Covenant on Economic, Social But significantly, Article 1
and Cultural Rights.22 of both Covenants say
The Covenant on exactly the same thing
Civil and Political Rights about the right of self-
and the Covenant on determination of people.
Economic and Social and Moreover, there are
Cultural Rights were substantial overlappings on
adopted on the same day. other subjects of the
But why two separate Covenants.
documents? The rights specific to
The reasons for the the Covenant on Economic,
division are both Social and Cultural Rights
ideological and practical. are social welfare rights
Ideologically, the contest stated in detail. They
was between Western include: the right to work
countries on the one hand (Article 6), to favorable
and socialist and Third
conditions of work (Article
World countries on the
7),
other. The American
delegation, for instance,
argued that its government
would find difficulty in
accepting a treaty
containing economic and 2l
For a discussion of
cultural rights beyond those the Protocol, the United
guaranteed by the H. Hannum
Nations 1503 Procedure and
Constitution. For the other related implementing
socialist and Third World instruments, see Dinah L.
Shelton, “Individual
countries, on the other hand, Complaint Machinery under
the absence of economic, the United Nations 1503
Procedure and the Optional
social and cultural Protocol to the International
Covenant on Civil and
guarantees could render Political Rights” in
civil and political
guarantees meaningless. On INTERNATIONAL HUMAN RIGHTS
the practical level, however, PRACTICE (1984) 59- 73; Louis B. Sohn ,
“HUMAN RIGHTS: THEIR
it became obvious that
IMPLEMENTATION AND SUPERVISION
implementing civil and BY THE
political guarantees, the
 UNITED NATIONS ” in T. meron, supra,
note 60 at 369-394; A.H. Robertson, “THE
IMPLEMENTATION SYSTEM:
INTERNATIONAL MEASURES”
in L. Henkin, supra, note 27, at 3322-370. Adopted December 16,
1966; entered into force January 1976.

“Adopted December
16, 1966; entered into force
January 1976.4 Pechota,
supra, note 27, at 41-43;
David M. Trubek,
“Economic, Social, and
Cultural Rights in the Third
World” in T. MERON, Ed.,
supra, note 22, at 210-212.
 would be at variance with
such obligations.” As
Article 2 of the Covenant
CHAPTER 12 on Civil and Political Rights
INTERNATIONAL HUMAN RIGHTS LAW
says:
to form free trade unions Each State Party
(Articles 8), to social to this present
security and insurance Covenant undertakes
(Article 9), to special to respect and to
assistance for families ensure to all
(Article 10), to adequate individuals within its
standard of living (Article territory and subject to
11), to the highest standard its jurisdiction the
of physical and mental rights recognized in
the present Covenant,
health (Article 12), to
without distinction of
education including
any kind, such as race,
compulsory primary
colour, sex, language,
education (Articles 13 and
religious, political or
14), and to the enjoyment of
other opinion, national
cultural and scientific
or social origin,
benefits and international
property, birth or other
contacts (Article 15).
status.
These correspond to
Where not
the economic, social and
already provided for
cultural rights that are also
by existing legislative
found in the Constitution,
or other measure, each
principally Article XIII
State Party to the
(Social Justice), Article XIV
present Covenant
(Education, Science and
undertakes to take the
Technology, Arts, Culture,
necessary steps, in
and Sports), and Article XV
accordance with its
(The Family).
constitutional
The Duty to Implement. processes and with the
The Philippines is a provisions of the
party not only to the United present Covenant, to
Nations Charter and the adopt such legislative
Universal Declaration of or other measures as
Human Rights but also to may be necessary to
the two Covenants as well give effect recognized
as to the Optional Protocol in the present
to the Covenant on Civil Covenant.
and Political Rights. The Each State Party to the present
nation is therefore bound, Covenant undertakes:
both internally and in its ← To
foreign relations, “to bring ensure that any
[its] laws and practices into person whose
accord with the accepted rights or
international obligations freedoms as
and not to introduce new
herein
laws or practices which
recognized are
violated shall
have an
effective
remedy,
notwithstanding
that the
violation has
been committed
by any person
acting in an
official
capacity;
 may be either by legislative
or by executive measures.
The implementation
INTRODUCTION TO PUBLIC of the provisions of the
INTERNATIONAL LAW
Covenant on Economic,
Social and Cultural rights
← To
follows a pattern of its own.
ensure that any
Article 2 says in part:
person
Each State
claiming such a
Party to the present
remedy shall
Covenant undertakes
have his right
thereto to take steps,
determined by individually and
competent through international
judicial, assistance and
administrative cooperation,
or legislative especially economic
authorities, or and technical, to the
by any other maximum of its
competent available resources,
authority with a view to
provided for by achieving
the legal progressively the full
system of the realization of the
State, and to rights recognized in
develop the the present Covenant
possibilities of by all appropriate
judicial means, including
remedy; particularly the
← To adoption of
ensure that the legislative measures.
competent What governs
authorities shall therefore is the principle of
enforce such “progressive realization”
remedies when which means “that a state is
obligated to undertake a
granted.
program of activities . . .
As already noted,
and to realize those rights
treaty commitments
which are ‘recognized’ by
become part of domestic
the Economic Covenant.
law. The self-executing
While the obligation of
provisions of the Covenants
progressive realization is
therefore must be
implemented in domestic limited by resource
law. Those which are not constraints, the Economic
self-executing must be Covenant indicates that
attended to by “necessary priority should be given to
steps, in accordance with its social welfare and that the
constitutional processes and level of effort should
with the provisions of the increase over time. These
present Covenant.” This obligations apply to any
state that has ratified the
Economic Covenant,
regardless of that state’s
economic resources.”
Beyond the domestic
obligations, however, and
more relevantly for this
essay, is the international
obligation. In the economic
and social fields, the key
words are “cooperation”
and “assistance.” “The
effort to provide
international protection for
economic/social rights on
the global level proceeds
along many lines and
involves actions of various
kinds
 principles have become
customary law in the light
of state practice. This would
CHAPTER 12
include the prohibition of
INTERNATIONAL HUMAN RIGHTS LAW
torture, genocide, slavery
on behalf of these rights. and the prohibition of
The framework for this discrimination.
effort is the United Nations
International Implementation of
system, with its central Human Rights Law.
organization, loosely
Each country has the
coordinated network of
specialized agencies, and obligation to implement
growing body of covenants human rights law within its
and conventions relevant to jurisdiction. It can be done,
this area of human where proper, through
experience.”23 In the civil municipal courts such as
and political field, this what happened in the Pena
involves participation in the Irala case. There now exist
implementation measures also regional courts with
of the United Nations jurisdiction over human
system.24 rights violations. In addition
Other Conventions on Human Rights. to these, the United Nations
There have been other itself has a system for
conventions intended for implementation.
the protection of human An important UN
rights. Among these are the body is the Human Rights
1948 Genocide Convention, Commission, a subsidiary
the 1966 Convention on the
organ of ECOSOC. There
Elimination of All Forms of
are two different procedures
Racial Discrimination, the
used
1979 Convention on the
Elimination of All Forms of
Discrimination Against
Women, the 1984
Convention Against Torture
and Other Cruel, Inhuman,
or Degrading Treatment or
Punishment, the 1989 23
AGLEN MOWER, JR., International Cooperation for Social Justice 7
Convention on the Rights of
(1985).
the Child, and the 1990 24
See Pedro Roman Ariston, “TAKING
Convention on Migrants THE MOST SERIOUS CRIMES OF
Workers. INTERNATIONAL CONCERN
The different regional SERIOUSLY, ” Unpublished Juris Doctor
Thesis
conventions on human presented
rights have their own to the
procedure for Ateneo de
Manila
implementation. Law
Customary human rights law. School,
2002.
It can also be said that
some human rights
 Human Rights in turn is
expected to submit its report
and recommendation to the
264 INTRODUCTION TO Economic and Social
PUBLIC INTERNATIONAL LAW
Council. The procedure is
kept confidential until such
by the Commission for time as the Commission on
responding to violations of Human Rights decides to
human rights. These are (1) make recommendation to
confidential consideration the ECOSOC.
under ECOSOC Resolution
Although the
1503 and (2) public debate
procedure is kept
procedure under ECOSOC
confidential, findings
Resolution 1235. Both of
invariably find their way
these may be supplemented
by the designation of a into media. Reports have
“thematic rapporteur” or touched such countries as
Working Group to study Uruguay, Argentina, the
violations of a specific Philippines and other
character, e.g., torture, countries.
disappearance or arbitrary
The 1235 Procedure
detention. There is
overlapping between the This Commission on
two procedures. Human Rights was
established in 1946 as a
The 1503 Procedure or confidential subsidiary organ of
procedure ECOSOC. For its first
Resolution 1503 twenty years, it took the
authorizes the Sub- view that it had no authority
Commission on Prevention to take any action with
of Discrimination and regard to reported violations
Protection of Minorities to of human rights. A
appoint a working group significant change took
place in 1967 through
consisting of not more than
ECOSOC Resolution 1235,
five members to meet once
antedating Resolution 1503.
a year in private meetings to
The Resolution authorized
consider all
the Commission and its
communications, including Subsidiary Commission on
replies of the governments Prevention of
concerned, with a view to Discrimination and
bringing to the attention of Protection of Minorities to
the Sub-Commission those examine reports relevant to
communications which gross violations of human
appear to reveal a pattern of rights and to examine
gross and reliably attested whether the violations
violations of human rights. revealed a consistent pattern
The confidential findings of and thereafter make
the Sub-Commission are recommendations to
ECOSOC. Originally, the
brought to the attention of
function referred to
the Commission on Human
situation in South Africa,
rights. The Commission on
but it soon included
situations in Chile,
Afghanistan, Cuba, El
Salvador, Guatemala, Iran
and Iraq.
 there are other specialized
agencies which attend to
specific human rights
CHAPTER 12
INTERNATIONAL HUMAN RIGHTS LAW problems.
The International Criminal Court.23
As the procedure now
A significant
operates, it carries out two
development in the
types of activities. First, it
protection of human rights
holds annual public debates
is the International Criminal
in which governments and
Court created by the 1998
NGOs are given the
opportunity to identify Rome Statute. The treaty
publicly country specific came into force in April
situations which deserve 2002 when the 60th country
attention. This is thus needed to establish the
different from the International Criminal
confidential process under Court submitted its
1503. In fact, subjects taken ratification. However,
up under 1503 can find their although nearly all the
way to 1235. Second, it world’s democracy support
engages in studies and the court, the United States
investigations of particular continues to refuse
situations through the use of ratification. Nor has the
various techniques the Philippine government
Commission might deem ratified the Rome Treaty as
appropriate. of this writing.
What can result from What is the
these procedures? Various significance of the
things can follow: establishment of the
embarrassment of countries International Criminal
referred that might generate Court? Hitherto,
change in policy; pressure international crimes were
on governments to take the prosecuted in ad hoc
issue on a bilateral or criminal courts. Such were
multilateral level; the Nuremberg and the
statements of exhortation Tokyo tribunals after World
from the Commission or War II, and more recently,
call from the Commission the tribunals for Rwanda
for all available and the former Yugoslavia.
information; the These earlier tribunals were
Commission might appoint undermined and weakened
a Special Rapporteur to by the charges of politically
examine and submit a report motivated investigations
on the issue; the and
Commission might ask the
Security Council to take up
the issue with a view to
promulgating sanctions.
Aside from the
procedures under
Resolutions 1503 and 1235,
 a
See A. H. Robertson, “THE INTERNATIONAL MEASURES” in L.
IMPLEMENTATION SYSTEM: HENKIN, supra, note 4, at 332-
369.
 court is meant to be a court
of last resort. It normally
must await referral of a
266 INTRODUCTION TO crime either by a state party
PUBLIC INTERNATIONAL LAW
or by the Security Council.
The court is not allowed to
selective justice. Unlike the act when the local judicial
temporary tribunals, the new system is able and willing
court will has been to prosecute. Once a state
established without any has taken the initiative to
specific country in mind. investigate a crime, even if
Thus, besides enjoying it ultimately decides that
permanency, it will begin there is no reason to
with the virtue of neutrality proceed, the international
so necessary for fairness. court cannot intervene. The
Gradually too, the court will international court is not
be able to establish intended to supplant the
precedents. functioning of military and
The goal of the court, civilian tribunals in national
moreover, is to demand judicial systems. However,
individual and not if a state intentionally tries
collective accountability. It to avoid its international
will therefore shift the obligation by shielding a
stigma of guilt away from criminal from
the collectivity and will responsibility, the court
thereby help facilitate may come in.
reconciliation by avoiding As can be seen,
condemnation of entire because of the principle of
societies. For these and complementarity, the
other reasons some have effective functioning of the
considered its establishment court will depend very
“the single most important much on the cooperation of
international institutional state parties. The domestic
advance since the founding criminalization of the acts
of the United Nations more enumerated as serious
than a half century ago.” crimes in the treaty will still
How will the court have to be made by the
work? It will not function state. In our jurisdiction,
as an all purpose court. Its customary international law
jurisdiction will be limited becomes domestic law by
to the most serious incorporation. Incorportion
international crimes: is achieved either through
genocide, crimes against the constitutional provision
humanity, war crimes, and which says that the general
principles of international
the crime of aggression.
law are part of the law of
These crimes are carefully
the land or by treaty
defined in the treaty.
ratification. However, there
An important feature
is persuasive authority
of the court is the principle
saying that treaties which
of complementarity. The
criminalize certain acts are
not self-executing.
 except perhaps those which
according to Article 33,
might endanger peace and
security. But if a decision is
made to settle disputes, the
obligation is to settle them
by peaceful means.
Chapter 13
Peaceful methods of settling disputes.
PEACEFUL SETTLEMENT OF INTERNATIONAL
The key provisions in the UN
DISPUTES Charter are the following:

The meaning of international Article 33.

“dispute.” The
Not every parties to any
disagreement is a dispute, the
continuance of
“dispute.” A dispute in
which is likely
international law is a to endanger the
technical term which means maintenance of
“a disagreement on a point international
of law or fact, a conflict of peace and
legal views or interests security, shall,
first of all, seek
between two persons.” A
a solution by
disagreement does not negotiation,
amount to a dispute if its enquiry,
resolution would have no mediation,
practical effect on the conciliation,
arbitration,
relationship between the
judicial
parties. Examples of a
settlement,
dispute are: disagreements resort to
over the interpretation of a regional
treaty or about state agencies or
boundaries or about state arrangements,
or other
responsibility.
peaceful means
Article 2, paragraph 3 of their own
of the UN. Charter says: choice.
“All members shall settle The
their international disputes Security
by peaceful means in such a Council shall,
manner that international when it deems
peace and security, and necessary, call
justice, are not upon the parties
endangered.” to settle their
There is no general dispute by such
obligation to settle disputes, means.
267
 the Statute of
the Court.
Article 37
268 INTRODUCTION TO Should
PUBLIC INTERNATIONAL LAW the parties to a
dispute of the
Article 36 nature referred
The to in Article 33
Security fail to settle it
Council may, at by the means
any stage of a indicated in that
dispute of the Article, they
nature referred shall refer it to
to in Article 33 the Security
or of a situation Council.
of like nature, If the
recommend Security
appropriate Council deems
procedures or that the
methods of continuance of
adjustment. the dispute is in
The fact likely to
Security endanger the
Council should maintenance of
take into international
consideration peace and
any procedures security, it shall
for the decide whether
settlement of to take action
the dispute under Article 36
which have or to
already been recommend
such terms of
adopted by the
settlement as it
parties.
may consider
In making appropriate.
recommendatio
Article 38
ns under this
Article the Without
Security prejudice to the
Council should provisions of
also take into Articles 33 to
consideration 37, the Security
that legal Council may, if
disputes should all the parties to
as a general rule any dispute so
be referred by request, make
the parties to recommendatio
the International ns to the parties
Court of Justice with a view to a
in accordance pacific
with the settlement of
provisions of the dispute.
 The peaceful means
of settling disputes
mentioned in the Charter
may be classified into: (a)
non-judicial methods
[negotiation, enquiry,
mediation, conciliation]; (b)
quasi-judicial method
[arbitration]; and (c)
judicial method. Another
way of classifying them is
into diplomatic and judicial
methods.

Non-judicial or diplomatic methods.

Negotiation

States are generally

hesitant to submit their
disputes to an adjudicatory
body. For this reason,
negotiation is a preferred
vehicle. There
 of individuals or an
institution. When
undertaken with the consent
CHAPTER 13 of the parties, it frequently
PEACEFUL SETTLEMENT OF resolves disputes based
INTERNATIONAL DISPUTES
solely on questions of fact.
are no set rules for Conciliation
negotiation. It may take
Conciliation is a more
place at arm’s length or face
formal technique whereby
to face. But for a negotiated
the parties agree to refer
settlement to be legally
controversies to an
binding, the parties must
individual, a group of
agree to it. The agreement to
individuals or an institution
negotiate may be formalized
to make findings of fact and
in a treaty or in a simple
recommendations. As a
exchange of notes.
rule, parties do not agree to
A preliminary step to be bound by
negotiation might be “good recommendations. But this
offices" when a neutral third clears the air.
party tries to bring two
disputants together. Having Quasi-judicial method.
been brought together, the Arbitration
usual first step, often Arbitration is the
required before judicial binding settlement of a
settlement, is negotiation. It dispute on the basis of law
may be carried out by by a non-permanent body
diplomatic correspondence, designated by the parties.
face-to-face dialogue The composition, the
between permanent envoys jurisdiction and the rules of
or by designated procedure to be applied are
negotiators. Essentially, agreed upon by the parties
negotiation is a give-and- in a compromis d’arbitrage.
take process of looking for States cannot be required to
a win-win solution. submit to arbitration unless
Mediation there is a previous
agreement making
Mediation involves
arbitration compulsory.
assistance by third parties
who either act as bridge
between parties, who do not
meet, or who may sit with
the disputants to chair
meetings, suggest solutions,
cajole, etc. The mediator
must be approved by both
parties.

Inquiry
Inquiry is fact-finding
done by a designated group
 Arbitral decisions
Arbitral tribunals
apply international law
270 INTRODUCTION TO unless the parties specify
PUBLIC INTERNATIONAL LAW
that some other law should
be applied.
What mainly
distinguishes arbitration Under certain
circumstances, arbitral
from judicial settlement is
decisions may be
that parties have a greater
challenged. The four most
say in deciding, for
commonly accepted bases
instance, the law to be
are: that the arbitral body
applied and the composition
exceeded its powers; that
of the arbitral tribunal. The
there was corruption on the
process thereby becomes
part of a member of the
more flexible.
body; that there was failure
There are at least to state the reasons for the
three types of arbitral awards or a serious
agreements. The first is an departure from a
arbitration clause that is fundamental rule of
incorporated as part of a procedure; that the
treaty. This is commonly undertaking to arbitrate or
found in commercial the compromis is a nullity.
treaties. The second type of
Domestic courts,
agreement are treaties
however, may refuse to give
whose sole function is to
establish methods for the recognition to awards given
arbitration of disputes. E.g., by foreign arbitral tribunals
The Hague Convention for under grounds found in the
the Pacific Settlement of Convention on the
Disputes. The third type are Recognition and
ad-hoc arbitral agreements. Enforcement of Foreign
E.g., the agreement for the Arbitral Awards which
settlement of claims says:
between the US and Iran
a
(1981).
court in a
Arbitral awards have state party
made significant to the
contribution to the Conventio
development of
n may
international law. For
deny
instance, the arbitral award
recognitio
in the Las Palmas case
n or
established an important
enforcem
precedent involving
acquisition of territory and ent to a
decisions of the US- foreign
Mexican Claims arbitral
Commission clarified award if:
various points on state ← the agreement to
responsibility. arbitrate was not
 valid under
applicable
law;
← the
party against
which the
award was
rendered did
not receive
proper notice of
the proceedings
or was
otherwise not
afforded an
opportunity to
present its case;
 of the
controversy is
not capable of
CHAPTER 13 settlement by
PEACEFUL SETTLEMENT OF arbitration; or
INTERNATIONAL DISPUTES
← reco
← the gnition or
award deals enforcement
with matters would be
outside the contrary to
terms of the public policy.
agreement to (§488, Third
arbitrate; Restatement.)
← the Judicial method: the International
constitution of Court of Justice (ICJ).
the arbitral
The UN’s principal
tribunal or the
judicial organ is the
arbitral International Court of
procedure was Justice. It is the successor to
contrary to the the Permanent Court of
agreement of International Justice
the parties or to established by the League
the law of the of Nations. It came into
state where the being in 1945 through the
arbitration took Statute of the Court. All
place; or members of the UN are
← the ipso facto parties to the
award has not Statute of the International
yet become Court of Justice. Being
binding on the party to the Statute,
parties, or has however, does not mean
been suspended acceptance of the
or set aside by a jurisdiction of the Court. It
competent court simply means that the state
in the state may accept the jurisdiction
where it was of the court. The Statute
made. opens the court’s door to
member states. Only states
A court of a
may be parties in the court.
state party to the
The cardinal rule in
Convention may also
international courts is that
deny recognition or
states cannot be compelled
enforcement to a
to submit disputes to
foreign arbitral award
international adjudication
that meets the
unless they have consented
requirements of § 487
to it either before a dispute
if, under the law of
has arisen or thereafter.
that state:
States are also free to limit
← the
their acceptance to certain
subject matter
 types of disputes and to
attach various conditions or
reservations to their
acceptance.
Composition of the
Court.
Article 2.
The Court shall be
composed of a body
of independent
judges, elected
regardless of their
nationality from
among persons
 composed of
three or more
judges as the
Court may
272 INTRODUCTION TO
PUBLIC INTERNATIONAL LAW determine, for
dealing with
particular
of high moral categories of
character, who cases; for
possess the example, labour
qualifications cases and cases
required in their relating to
respective transit and
countries for communication
appointment to s.
the highest
The Court
judicial offices,
may at any time
or are
form a chamber
jurisconsults of
for dealing with
recognized
a particular
competence in
case. The
international
number of
law.
judges to
Article 3.
constitute such
The Court a chamber shall
shall consist of be determined
fifteen by the Court
members, no with the
two of whom approval of the
may be parties.
nationals of the Cases
same state. shall be heard
A person and determined
who for the by the chambers
purposes of provided for in
membership in this article if the
the Court could
parties so
be regarded as a
request.
national of
Article 27.
more than one
state shall be A
deemed to be a judgment given
national of the by any of the
one in which he chambers
ordinarily
provided for in
exercises civil
Articles 26 and
and political
rights. 29 shall be
Article 26. considered as
rendered by the
The Court
Court.
may from time
to time form Article 31.
one or more Judges of
chambers, the nationality
of each of the
parties shall
retain their right
to sit in the case
before the
Court.
If the
Court includes
upon the Bench
a judge of the
nationality of
one of the
parties, any
other party may
choose a person
to sit as judge.
Such person
shall be chosen
preferably from
among those
persons who
have been
nominated as
candidates as
provided in
Articles 4 and
5.
If the
Court includes
upon the Bench
no judge of the
nationality of
the parties, each
of these parties
may proceed to
choose a judge
as provided in
paragraph 2 of
this Article.
 conditions
required by
Articles 2,
17 (paragraph
CHAPTER 13 2), 20, and 24
PEACEFUL SETTLEMENT OF INTERNATIONAL
of the present
DISPUTES
Statute. They
The shall take part
provisions of in the decision
this Article shall on terms of
apply to the complete
case of Articles equality with
26 and 29. In their colleagues.
such cases, the
President shall Jurisdiction of the ICJ: Contentious
request one or, jurisdiction.
if necessary, The Court exercises
two of the two types of jurisdiction:
members of the
contentious jurisdiction and
Court forming
advisory jurisdiction. The
the chamber to
give place to the principal rules on
members of the contentious jurisdiction are
Court of the the following:
nationality of Article 36.
the parties
concerned, and, The
failing such, or jurisdiction of
if they are the Court
unable to be comprises all
present, to the cases which the
judges specially parties refer to
chosen by the it and all
parties. matters
Should specially
there be several provided for in
parties in the the Charter of
same interest, the United
they shall, for Nations or in
the purpose of treaties and
the preceding conventions in
provisions, be force.
reckoned as one The states
party only. Any parties to the
doubt upon this present Statute
point shall be may at any time
settled by the declare that
decision of the they recognize
Court. as compulsory
Judges ipso facto and
chosen as laid without special
down in agreement, in
paragraphs 2, 3, relation to any
and 4 of this other state
Article shall accepting the
fulfill the same
obligation, the made
jurisdiction of unconditionally
the Court in all or on condition
legal disputes of reciprocity
concerning: on the part of
← the interpretation of a several or
treaty; certain states, or
← any question of for a certain
international law; time.
←
t
he
exist
ence
of
any
fact
whic
h, if
estab
lishe
d,
woul
d
const
itute
a
breac
h of
an
inter
natio
nal
oblig
ation
;
←
t
he
nature
or
extent
of the
reparat
ion to
be
made
for the
breach
of an
interna
tional
obligat
ion.
The
declarations
referred to
above may be
 with their
terms.
← In
INTRODUCTION TO PUBLIC the event of a
INTERNATIONAL LAW dispute as to
whether the
← Such Court has
declarations jurisdiction,
shall be the matter
deposited with
shall be settled
the Secretary-
by the decision
General of the
of the Court.
United Nations,
who shall From Article 36, the
transmit copies following should be noted:
thereof to the jurisdiction of the ICJ is
parties to the applicable only to disputes
Statute and to between states and disputes
are settled by international
the Registrar
law and not by domestic
of the Court.
law. But the Court has
← Decla
jurisdiction only when a
rations made
case is referred to it by the
under Article parties.
36 of the There are three ways
Statute of the through which states may
Permanent accept jurisdiction of the
Court of court. The first comes about
International on an ad hoc basis. This can
Justice and happen when one party
which are still applies unilaterally to the
in force shall Court and this application is
followed by consent by the
be deemed, as
other state. A second way is
between the
when parties adhere to a
parties to the
treaty which accepts the
present jurisdiction of the court on
Statute, to be matters of interpretation or
acceptances of application of the treaty.
the compulsory Finally, acceptance of
jurisdiction of jurisdiction can take place
the by a unilateral declaration
International that recognition of
Court of jurisdiction in relation to
any other state accepting the
Justice for the
same jurisdiction in all legal
period which
disputes. This last creates
they still have
the optional system of
to run and in
submitting to the
accordance jurisdiction of the Court.
 The optional system is
operative only for states that
“at any time declare that
they recognize as
compulsory ipso facto and
without special agreement,
in relation to any other state
accepting the same
obligation, the jurisdiction
of the Court in all legal
disputes concerning: a. the
interpretation of a treaty; b.
any question of international
law; c. the existence of any
fact which, if established,
would constitute a breach of
an international obligation;
d. the nature or extent of the
reparation to be made for
the breach of an
international obligation.”
The Declaration is deposited
with the Secretary General.
The Declaration in the
optional system “may be
made unconditionally or on
condition of reciprocity on
the part of several or certain
states, or for a certain time.”
States therefore can limit the
extent to which they are
subjecting themselves to the
jurisdiction of
 Connally added
a critical phrase
to a U.S.
reservation
including
CHAPTER 13 “disputes with
PEACEFUL regard to
SETTLEMENT OF matters which
INTERNATIONAL are essentially
DISPUTES within the
domestic
the court. The significance jurisdiction of
of reciprocity in the matter the United
of limitations was States of
enunciated by the Court in America as
Interhandel Case:' determined by
“Reciprocity in the case of the United
Declarations accepting the States of
America.”
compulsory jurisdiction of
On July
the Court enables a Party to
27, 1955, an El
invoke a reservation to that
Al Israel
acceptance which it has not airliner was
expressed in its own driven off
Declaration but which the course by
other Party has expressed in strong winds in
its Declaration.” Thus, if a very bad
party that has made a weather. The
Declaration unconditionally plane
is brought to court by innocently
another that has made a crossed over
into Bulgarian
Declaration with
air space. While
conditions, the former can
trying to return
invoke the conditions in the to its authorized
latter’s Declaration. course, the
The following are three cases illustrate the optional system. plane was shot
down by
AERIAL INCIDENCE Bulgarian
CASE U.S. v. Bulgaria, military fighter
ICJ 1959 planes. All fifty-
The U.S. one passengers
acceded to the and seven crew
optional clause, members
thereby aboard were
accepting the killed, including
compulsory six American
jurisdiction of nationals.
the ICJ, in Investigat
August 1946. ors argued that
During the the Bulgarian
ratification military failed
process for that to take actions
accession, required by
however, international
Senator civil aviation
agreements jurisdiction on
involving the grounds that
appropriate Bulgaria’s
interception and acceptance of
identification of the optional
intruding clause in the
aircraft. Statute of the
The case Permanent
was first Court of
brought to the International
ICJ by Israel. In Justice (the
that famous PCU, precursor
case — the to the ICJ) did
Aerial Incident not carry over
of July 27,1955 to acceptance of
(Israel v. the optional
Bulgaria, 1959 clause for the
CJ. Rep. 127) ICJ when
— the Court Bulgaria joined
ruled that it did the UN in
not have

'Switzerland v. U.S., (1959) ICJ

Rep.
 exempting from
ICJ jurisdiction
matters within
its internal
competence.
276 INTRODUCTION TO Bulgaria
PUBLIC INTERNATIONAL LAW
contended that
its airspace
December security and
1955, since anti-aircraft
Bulgaria had defenses were
within its
not been an
domestic
original party to
jurisdiction. The
the UN Charter Bulgarian
and the Statute government
of the ICJ. argued further
The United States, however, that it “cannot
pressed ahead with its claim. admit that
On matters which it
October 24, rightfully
1957, the U.S. determines as
applied to the being
ICJ for action essentially
against Bulgaria within its
based on the domestic
violations of jurisdiction
international should be
law and the considered,
injuries to U.S. directly or
nationals. The indirectly,
U.S. asked before the
Bulgaria for an Court. It
award of requests,
$257,875 in accordingly,
damages, plus that the Court
interest. declare itself
without
Bulgaria then went on to make
competence to
four objections.
adjudicate upon
Objection the application
Two: of the
Reciprocal Government of
invocation of the United
the Connally States.”
Amendment. The
On the United States
grounds of withdrew its
reciprocity and application
the consensual from the
basis of ICJ Court’s
jurisdiction, consideration.
Bulgaria On May
invoked the 30,1960, just
Connally one day before
Amendment oral hearings
reservation were to begin,
 the Court
formally
accepted that
withdrawal,
ending the
dispute.

NICARAGUA V. US
ICJ 1984
[The
United States,
made a
Declaration in
April 1984
limiting its
Optional Clause
Declaration and
claimed thereby
that the Court
had no
jurisdiction.]
On 14
August 1946,
the United
States made an
Optional Clause
Declaration
with a
reservation
which said that:
“this declaration shall remain in
force for a period of five
years and thereafter until the
expiration of six months after
notice may be given to terminate
this declaration.”
On 6
April 1984,
when it became
clear that its
dispute with
Nicaragua
would be placed
before the
Court, the
Government
 “No
twithstand
ing the
terms of
CHAPTER 13 the
PEACEFUL SETTLEMENT OF aforesaid
INTERNATIONAL DISPUTES declaratio
n, this
of the United proviso
States deposited shall take
with the effect
Secretary- immediat
General of the ely and
United Nations shall
a notification remain in
signed by the force for
Secretary of two years,
State, Mr. so as to
George Shultz foster the
(hereinafter continuin
referred to as g regional
“the 1984 dispute
notification”), settlement
referring to the process
declaration of which
1946, and seeks a
stating that: negotiated
“the solution
aforesaid to the
declaratio interrelate
n shall not d
apply to political,
disputes economic
with any and
Central security
American problems
State or of Central
arising America.”
out of or In order
related to to be able to
events in rely upon the
Central United States
America, declaration of
any of 1946 to found
which jurisdiction in
disputes the present case,
shall be Nicaragua has
settled in to show that it
such was a “State
manner as accepting the
the parties same
to them obligation” as
may the United
agree. States within
the meaning of
Article 36, The
paragraph 2, of acceptance of
the Statute. The the jurisdiction
Court found of the Court by
Nicaragua that the United
it was a state States on which
accepting the Nicaragua relies
same obligation is the result of
but on the basis the United
of a declaration States
it made under declaration of
the Statute of 14 August 1946.
the Permanent However, the
Court of United States
International argues that
Justice. effect should be
[Arguments given to the
towards this letter sent to the
conclusion Secretary-
omitted.] General of the
United Nations
Finding: on 6 April 1984
the Court (see p. 4 above).
therefore finds It is clear that if
that the this notification
Nicaraguan were valid as
declaration of against
1929 is valid Nicaragua at the
and that date of filing of
Nicaragua the Application,
accordingly the Court would
was, for the not have
purposes of jurisdiction
Article 36, under Article 36
paragraph 2, of of the Statute.
the Statute of After outlining
the Court, a the
“State accepting
the same
obligation” as
the United
States at the
date of filing of
the Application
and could
therefore rely
on the United
States
declaration of
1946.
B. The declaration of the United
States (paras. 52-76)
The notification of 1984 (Paras.
52-66)
 duration, is
liable to
immediate
termination,
INTRODUCTION TO and that
PUBLIC
Nicaragua has
INTERNATIONAL LAW
not accepted
“the same
arguments of obligation” as
the Parties in itself and may
this not rely on the
connection, the time-limit
Court points proviso against
out that the it. The Court
most does not
important consider that
question this argument
relating to the entitles the
effect of the United States
1984 validly to
notification is derogate from
whether the the time-limit
United States proviso
was free to included in its
disregard the 1946
six months’ declaration. In
notice clause the Court’s
which, freely opinion, the
and by its own notion of
choice, it has reciprocity is
appended to its concerned with
declaration, in the scope and
spite of the substance of
obligation it the
has entered commitments
into vis-a-vis entered into,
other States including
which have reservations,
made such a and not with
declaration. the formal
The Court conditions of
notes that the their creation,
United States duration or
has argued extinction.
that the Reciprocity
Nicaraguan cannot be
declaration, invoked in
being of order to excuse
undefined
 departure (Summa
from the terms ry)
of a State’s In its
own Judgment the
declaration. Court recalls
The United that on 22
States cannot February 1991
rely on Portugal
reciprocity instituted
since the proceedings
Nicaraguan against
declaration Australia
contains no concerning
express “certain
restriction at activities of
all. On the Australia with
contrary,
respect to East
Nicaragua can
Timor.”
invoke the six
According to
months’ notice
the Application
against it, not
Australia had,
on the basis of
by its conduct,
reciprocity, but
“failed to
because it is an
observe — the
undertaking
obligation to
which is an
respect the
integral part of
the instrument duties and
that contains powers of
it. The 1984 [Portugal as]
notification the
cannot administering
therefore Power [of East
override the Timor] ...
obligation of and ... the right
the United of the people of
States to East Timor to
submit to the self-
jurisdiction of determination
the Court vis- and the related
a-vis rights.” In
Nicaragua. consequence,
according to
CASE
the
CONCERNING EAST
TIMOR Application,
Portugal v. Australia Australia had
ICJ 1995 “incurred
international
responsibility
vis-a-vis both
the people of
East Timor
and Portugal.”
As the
basis for the
jurisdiction of
the Court, the
Application
refers to the
declarations by
which the two
States have
accepted
 created a “Zone
of Cooperation
... in an area
between the
CHAPTER 13 Indonesian
PEACEFUL SETTLEMENT Province of
OF INTERNATIONAL East Timor and
DISPUTES
Northern
Australia.”
the compulsory
The Court then summarizes the
jurisdiction of
contentions of both Parties.
the Court under
Article 36, The Court
paragraph 2, of goes on to
its Statute. In its consider
Australia’s
Counter-
objection that
Memorial,
there is in
Australia raised
reality no
questions dispute between
concerning the itself and
jurisdiction of Portugal.
the Court and Australia
the contends that
admissibility of the case as
the presented by
Application.... Portugal is
The Court artificially
then gives a limited to the
short question of the
lawfulness of
description of
Australia’s
the history of
conduct, and
the involvement
that the true
of Portugal and
respondent is
Indonesia in the Indonesia, not
Territory of East Australia.
Timor and of a Australia
number of maintains that it
Security is being sued in
Council and place of
General Indonesia. In
Assembly this connection,
resolutions it points out that
concerning the Portugal and
question of East Australia have
Timor. It further accepted the
describes the compulsory
negotiations jurisdiction of
the Court under
between
Article 36,
Australia and
paragraph
Indonesia
2, of its Statute, but that Indonesia has
leading to the not.
Treaty of 11
The Court
December
finds in this
1989, which
respect that for
the purpose of rule on the
verifying the lawfulness of
existence of a Indonesia’s
legal dispute in entry into and
the present case, continuing
it is not relevant presence in East
whether the Timor, on the
“real dispute” is validity of the
between 1989 Treaty
Portugal and between
Indonesia rather Australia and
than Portugal Indonesia, or on
and Australia. the rights and
Portugal has, obligations of
rightly or Indonesia under
wrongly, that Treaty,
formulated even if the
complaints of Court did not
fact and law have to
against determine its
Australia which validity. In
the latter has support of its
denied. By argument, it
virtue of this refers to the
denial, there is a Court’s
legal dispute. Judgment in the
The Court case of the
then considers Monetary Gold
Australia’s Removed
principal
objection, to the
effect that
Portugal’s
Application
would require
the Court to
determine the
rights and
obligations of
Indonesia.
Australia
contends that
the jurisdiction
conferred upon
the Court by the
Parties’
declarations
under Article
36, paragraph 2,
of the Statute
would not
enable the
Court to act if,
in order to do
so, the Court
were required to
 considered the
argument
advanced by
Portugal which
seeks to
280 INTRODUCTION TO separate
PUBLIC INTERNATIONAL LAW
Australia’s
behaviour from
from Rome in that of the
1943. Portugal Indonesia, the
agrees that if its Court concludes
Application that Australia’s
required the behavior cannot
Court to decide be assessed
any of these without first
questions, the entering into the
Court could not question why it
entertain it. The is that Indonesia
Parties disagree, could not
however, as to lawfully have
whether the concluded the
Court is 1989 Treaty,
required to while Portugal
decide any of allegedly could
these questions have done so;
in order to the very
resolve the subject-matter
dispute referred of the Court’s
to it. decision would
Portugal necessarily be a
contends first determination
that its whether, having
Application is regard to the
concerned circumstances
exclusively with in which
the objective Indonesia
conduct of entered and
Australia, remained in
which consists East Timor, it
in having could or could
negotiated, not have
concluded and acquired the
initiated power to enter
performance of into treaties on
the 1989 Treaty behalf of East
with Indonesia, Timor relating
and that this to the resources
question is of its
perfectly continental
separable from shelf. The Court
any question could not make
relating to the such a
lawfulness of determination in
the conduct of the absence of
Indonesia. the consent of
Having Indonesia.
carefully
 The Court the Court
rejects considers that
Portugal’s the erga omnes
additional character of a
argument that norm and the
the rights which rule of consent
Australia to jurisdiction
allegedly are two
breached were different things.
rights erga Whatever the
omnes and that nature of the
accordingly obligations
Portugal could invoked, the
require it, Court could not
individually, to rule on the
respect them lawfulness of
regardless of the conduct of a
whether or not State when its
another State judgment would
had conducted imply an
evaluation of
itself in a
the lawfulness
similarly
of the conduct
unlawful
of another State
manner.
which is not a
In the
party to the
Court’s view,
case.
Portugal’s
assertion that
the right of
peoples to self-
determination,
as it evolved
from the
Charter and
from United
Nations
practice, has an
erga omnes
character, is
irreproachable.
The principle of
self-
determination
of peoples has
been recognized
by the United
Nations Charter
and in the
jurisprudence of
the Court; it is
one of the
essential
principles of
contemporary
international
law. However,
 people has the
right to self-
determination,
and that the
CHAPTER 13 express
PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES
reference to
Portugal as the
The Court
“administering
goes on to
Power” in a
consider number of the
another above-
argument of mentioned
Portugal which, resolutions is
the Court not at issue
observes, rests between them.
on the premise The Court finds,
that the United however, that it
Nations cannot be
resolutions, and inferred from
in particular
the sole fact that
those of the
a number of
Security
resolutions of
Council, can be
the General
read as
imposing an Assembly and
obligation on the Security
States not to Council refer to
recognize any Portugal as the
authority on the administering
part of Power of East
Indonesia over Timor that they
East Timor and, intended to
where the latter establish an
is concerned, to obligation on
deal only with third States to
Portugal. treat exclusively
Portugal with Portugal as
maintains that regards the
those continental
resolutions
shelf of East
would
Timor. Without
constitute
prejudice to the
“givens” on the
question
content of
which the whether the
<tourt would resolutions
not have to under
decide de novo. discussion
The Court could be
takes note of the binding in
fact that, for the nature, the
two Parties, the Court considers
Territory of East as a result that
Timor remains a they cannot be
non-self regarded as
governing “givens” which
territory and its constitute a
sufficient basis principle of
for determining international
the dispute law embodied
between the in the Court’s
Parties. Statute, namely,
It follows that the Court
from this that can only
the Court would exercise
necessarily have jurisdiction over
to rule upon the a State with its
lawfulness of consent.”
Indonesia’s (Monetary Gold
conduct as a Removed from
prerequisite for Rome in
deciding on 1943,1.CJ.
Portugal’s Reports 1954,
contention that p. 32).
Australia
The Court
violated its
accordingly finds that it is
obligation to
not required to consider
respect
Portugal’s status Australia’s other objections
as administering and that it cannot rule on
Power, East Portugal’s claims on the
Timor’s status merits, whatever the
as a non-self importance of the questions
governing raised by those claims and
territory and the of the rules of international
right of the law which they bring into
people of the play.
Territory to self-
determination
and to
permanent
sovereignty
over its wealth
and natural
resources.
Indonesia’s
rights and
obligations
would thus
constitute the
very subject
matter of such a
judgment made
in the absence
of that State’s
consent. Such a
judgment would
run directly
counter to the
“well-
established
 provided by
Article 41 of the
Statute, in order
to preserve the
282 INTRODUCTION TO
PUBLIC INTERNATIONAL LAW rights claimed.
It emphasizes
that its decision
The Court recalls in in no way
any event that it has taken prejudges the
note in the Judgment that, question of its
for the two Parties, the jurisdiction to
Territory of East Timor deal with the
remains a non-self merits of the
governing territory and its case and leaves
people has the right to self- unaffected the
determination. right of the
Government of
Provisional measures. the United
Article 41 States and of
The Court the Government
shall have the of Nicaragua to
submit
power to
arguments in
indicate, if it
respect of such
considers that
jurisdiction or
circumstances
such merits.
so require, any
For these
provisional
reasons, the
measures which
Court gives the
ought to be
decision of
taken to
which the
preserve the
complete text is
respective rights
reproduced
of either party.
below:
Pending
OPERATIVE PART OF THE
the final
ORDER
decision, notice
of the measures THE COURT,
suggested shall Unanimously,
forthwith be Rejects
given to the the request
parties and to made by the
the Security United States of
Council America that
the proceedings
NICARAGUA V. UNITED STATES ICJ 1984
on the
(Summary)
Application
The Court filed by the
finds that the Republic of
circumstances Nicaragua on
require that it April 9,1984,
should indicate and on the
provisional request filed the
measures, as same day by the
Republic of
Nicaragua for
the indication of
provisional
measures, be
terminated by
the removal of
the case from
the list;
pending
its final
decision in the
proceedings
instituted on 9
April 1984 by
the Republic of
Nicaragua
against the
United States of
America, the
following
provisional
measures:
 should not
in any
way be
CHAPTER 13 jeopardize
PEACEFUL SETTLEMENT OF d by any
INTERNATIONAL DISPUTES military
and
Unanimously, paramilita
The ry
United activities
States of which are
America prohibited
should by the
immediate principles
ly cease of
and internatio
refrain nal law, in
from any
particular
action
the
restricting
principle
, blocking
that States
or
should
endangeri
refrain in
ng access
their
to or from
internatio
Nicaragua
nal
n ports,
relations
and, in
from the
particular,
threat or
the laying
use of
of mines;
force
By fourteen votes to one,
against
The
the
right to
territorial
sovereignt
integrity
y and to
or the
political
political
independe
independe
nce
nce of any
possessed
State, and
by the
the
Republic
principle
of
concernin
Nicaragua
g the duty
, like any
not to
other
intervene
State of
in matters
the region
within the
or of the
domestic
world,
jurisdictio
should be
n of a
fully
State,
respected
principles
and
embodied them
in the ensure
United that no
Nations action is
Charter taken
and the which
Charter of might
the prejudice
Organizati the rights
on of of the
American other
Party in
States.
respect of
Unanimously,
the
The
carrying
Governme
out of
nts of the whatever
United decision
States of the Court
America may
and the render in
Republic the case.
of Unanimously,
Nicaragua Decides
should
further that,
each of
until the Court
them
delivers its final
ensure
judgment in the
that no
present case, it
action of
will keep the
any kind
matters covered
is taken
by this Order
which
continuously
might
under review.
aggravate
or extend Unanimously,
the Decides
dispute that the written
submitted proceedings
to the shall first be
Court . addressed to the
Unanimously, questions of the
The jurisdiction of
Governme the Court to
nts of the entertain the
United dispute and of
States of the admissibility
America of the
and the Application;
Republic
of
Nicaragua
should
each of
 Kosovo which
form the
background of
the present
284 INTRODUCTION TO dispute, and
PUBLIC INTERNATIONAL LAW with the
continuing loss
And of life and
reserves the human suffering
fixing of the in all parts of
Yugoslavia;
time-limits for
Whereas,
the said written
the Court is
proceedings,
profoundly
and the
concerned with
subsequent
the use of force
procedure, for
in Yugoslavia;
further decision.
whereas under
CASE the present
CONCERNING circumstances
LEGALITY OF such use raises
USE OF very serious
FORCE issues of
Yugoslavia v. international
United States of law;
America, Whereas,
[1999] ICJ Rep. the Court is
[This mindful of the
case was a purposes and
request by the principles of the
Federal United Nations
Republic of Charter and of
Yugoslavia its own
against the responsi-bilities
NATO states in the
(Belgium, maintenance of
Canada, France, peace and
Germany, Italy, security under
Netherlands, the Charter and
Portugal, Spain, the Statute of
United
the Court;
Kingdom and
Whereas,
United States)
the Court deems
in relation to the
it necessary to
bombings being
carried out by emphasize that
the NA 8:00 all parties
AM forces] appearing
Whereas, before it must
the Court is act in
deeply conformity with
concerned with their obligations
the human under the
tragedy, the loss United Nations
of life, and the Charter and
enormous other rules of
suffering in international
law, including form or for the
humanitarian individual
law; dispute
← ** concerned;
Whereas,
Whereas,
the Court, under on a request for
its Statute, does provisional
not measures the
automatically Court need not,
have before deciding
jurisdiction over whether or not
legal disputes to indicate
between States them,
parties to that
Statute or
between other
States to whom
access to the
Court has been
granted;
whereas the
Court has
repeatedly
stated “that one
of the
fundamental
principles of its
Statute is that it
cannot decide a
dispute between
States without
the consent of
those States to
its jurisdiction”
(East Timor,
Judgment, I.CJ.
Reports 1995,
p. 101, para.
26); and
whereas, the
Court can
therefore
exercise
jurisdiction only
between States
parties to a
dispute who not
only have
access to the
Court but also
have accepted
the jurisdiction
of the Court,
either in general
 those
relating to
the
responsibi
CHAPTER 13
lity of a
PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES
State for
genocide
finally satisfy
or for any
itself that it has
of the
jurisdiction on
other acts
the merits of the
enumerate
case, yet it
d in
ought not to
Article
indicate such
III, shall
measures unless
be
the provisions
submitted
invoked by the
to the
applicant
Internatio
appear,prima
nal Court
facie, to afford a
of Justice
basis on which
at the
the jurisdiction
request of
of the Court
any of the
might be
parties to
established;
the
Whereas,
dispute”;
in its
Wh
Application
ereas, it is
Yugoslavia
not
claims, in the disputed
first place, to that both
found the Yugoslavi
jurisdiction of a and the
the Court upon United
Article IX of States are
the Genocide parties to
Convention, the
which provides: Genocide
“Di Conventio
sputes n; but
between whereas,
the when the
Contracti United
ng Parties States
relating to ratified
the the
interpretat Conventio
ion, n on 25
applicatio Novembe
n or r 1988, it
fulfillmen made the
t of the following
present reservatio
Conventio n: “That
n, with
including reference
to Article
 IX of the that reservations
Conventio to the Genocide
n, before Convention are
any generally
dispute to permitted; that
which the its reservation
United to Article IX is
States is a not contrary to
party may the
be Convention’s
submitted object and
to the
purpose; and
jurisdictio
that, “[s]ince ...
n of the
Yugoslavia did
Internatio
not object to the
nal Court
...
of Justice
under this reservation, [it]
Article, is bound by it”;
the and whereas the
specific United States
consent of further contends
the United that there is no
States is “legally
required sufficient ...
in each connection
case”; between the
charges against
Whereas,
the United
the United
States contained
States contends
in the
that “[its] reser-
Application and
vation [to [the] supposed
Article IX] is jurisdictional
clear and basis under the
unambiguous”; Genocide
that “[t]he Convention”;
United States and whereas the
has not given United States
the specific further asserts
consent [that that Yugoslavia
reservation] has failed to
requires [and]... make any
will not do so”; credible
and that Article allegation of
IX of the violation of the
Convention Genocide
cannot in Convention, by
consequence failing to
found the demonstrate the
jurisdiction of existence of the
the Court in this specific intent
required by the
case, even
Convention to
prima facie;
“destroy, in
whereas, the
whole or in
United States
part, a national,
also observed
ethnical, racial
or religious
group, as such,”
which intent
could not be
inferred from
the conduct of
conventional
military
operations
against another
State.
 fall within its
provisions; and
whereas, that
Article
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
manifestly does
not constitute a
Whereas, basis of
Yugoslavia
jurisdiction in
disputed the
the present case,
United States
even prima
interpretation of
facie;
the Genocide
Convention, but * *
submitted no Whereas,
argument in its
concerning the Application
United States Yugoslavia
reservation to claims, in the
Article IX of
second place, to
the Convention;
found the
Whereas,
jurisdiction of
the Genocide
the Court on
Convention
Article 38,
does not
paragraph 5, of
prohibit
reservations; the Rules of
whereas, Court, which
Yugoslavia did reads as
not object to the follows:
United States “5.
reservation to When the
Article IX; and applicant
whereas, the State
said reservation proposes
had the effect of to found
excluding that the
Article from the jurisdictio
provisions of n of the
the Convention Court
in force upon a
between the consent
Parties; thereto
yet to be
Whereas,
given or
in consequence
manifeste
Article IX of
d by the
the Genocide State
Convention against
cannot found which
the jurisdiction such
of the Court to applicatio
entertain a n is made,
dispute between the
Yugoslavia and applicatio
the United n shall be
transmitte
States alleged to
 d to that * *
State. It Whereas,
shall not it follows from
however what has been
be entered
said above that
in the
the Court
General
manifestly lacks
List, nor
any action jurisdiction to
be taken entertain
in the Yugoslavia’s
proceedin Application;
gs, unless whereas it
and until cannot therefore
the State indicate any
against provisional
which measure
such whatsoever in
applicatio order to protect
n is made the rights
consents invoked therein;
to the
Court’s
jurisdictio
n for the
purposes
of the
case”;
Whereas,
the United
States observes
that it “has not
consented to
jurisdiction
under Article
38, paragraph 5
[of the Rules of
Court] and will
not do so”;
Whereas,
it is quite clear
that, in the
absence of
consent by the
United States,
given pursuant
to Article 38,
paragraph 5, of
the Rules, the
Court cannot
exercise
jurisdiction in
the present case,
even prima
facie\
 arguments by
both parties;
Whereas,
CHAPTER 13 whether or not
PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES States accept
the jurisdiction
and whereas, of the Court,
within a system they remain in
of consensual any event
jurisdiction, to responsible for
maintain on the acts attributable
General List a to them that
case upon violate
which it appears international
certain that the law, including
Court will not humanitarian
be able to law; whereas
adjudicate on any disputes
the merits relating to the
would most legality of such
assuredly not acts are
contribute to the required to be
sound resolved by
administration
peaceful means,
of justice;
the choice of
* *
which, pursuant
Whereas, to Article 33 of
there is a the Charter, is
fundamental left to the
distinction parties;
between the Whereas,
question of the in this context
acceptance by a the parties
State of the
should take care
Court’s
not to aggravate
jurisdiction and
the or extend the
compatibility of dispute;
particular acts Whereas,
with when such a
international dispute gives
law; the former rise to a threat
requires to the peace,
consent; the breach of the
latter question peace or act of
can only be aggression, the
reached when Security
the Court deals Council has
with the merits special
after having
responsibilities
established its
under Chapter
jurisdiction and
VII of the
having heard
Charter;
full legal
* *
 F Intervention.

o Article 62.
r Should a
state consider
that it has an
t interest of a
h legal nature
which may be
e
affected by the
s decision in the
case, it may
e
submit a request
to the Court to
r be permitted to
intervene.
e
It shall be for the Court to
a decide upon this request.

s
o
n
s
,

T
h
e

C
o
u
r
t
,
(1) By twelve votes to three,
Rejects
the request for
the indication of
provisional
measures
submitted by
the Federal
Republic of
Yugoslavia on
29 April 1999;
 the Court has
made clear in
previous cases,
in order to
288 INTRODUCTION TO
obtain
PUBLIC INTERNATIONAL LAW
permission to
intervene under
Article 63. Article 62 of
Whenever the Statute, a
the construction State has to
of a convention show an interest
to which states of a legal nature
other than those which may be
concerned in affected by the
the case are Court’s
parties is in decision in the
question, the case
Registrar shall ...
notify all such
states forthwith.
Object of the intervention
Every
state so notified The
has the right to Chamber turns
intervene in the to the question
proceedings; of the object of
but if it uses Nicaragua’s
this right, the Application for
construction permission to
given by the intervene in the
judgment will case. A
be equally statement of the
binding upon it. “precise object
of the
EL SALVADOR V. HONDURAS intervention” is
Nicaragua Intervention [1992] ICJ Rep. required by
Article 81,
In its
paragraph 2(b),
Application for
of the Rules of
permission to
Court.
intervene, filed
Nicaragu
on 17
a’s indication,
November
in its
1989,
Application for
Nicaragua
permission to
stated that the
intervene, of
Application
the object of its
was made by
intervention in
virtue of Article
the present
36, paragraph 1,
case, is as
and Article 62
follows:
of the Statute.
“Th
* * * * e
The Chamber interventi
observes that as on for
which
permissio
n is
requested
has the
following
objects:
“Fir
st,
generally
to protect
the legal
rights of
the Re-
public of
Nicaragu
a in the
Gulf of
Fonseca
and the
adjacent
maritime
areas by
all legal
means
available.
“Se
condly, to
intervene
in the
proceedin
gs in
order to
inform
the Court
of the
nature of
the legal
rights of
Nicaragu
a which
are in
issue in
the
dispute.
This form
of inter
 intervention “to
protect its
claims by all
legal means”
CHAPTER 13
PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES necessarily
involves the
vention inclusion in
would such means of
have the “that of seeking
conservati a favourable
ve judicial
purpose pronouncement
of seeking ” on its own
claims. The
to ensure
“legal means
that the
available” must
determina
be those
tion of the
afforded by the
Chamber
institution of
did not
intervention for
trench
the protection
upon the
of a third State’s
legal
legal interests.
rights and
So understood,
interests
that object
of the cannot be
Republic regarded as
of Nica- improper.
ragua.”
* * * * *
* * * * *
The
So far as Chamber has
the object of now further to
Nicaragua’s consider the
intervention is argument of El
“to inform the Salvador that
Court of the
for Nicaragua to
nature of the
intervene it
legal rights of
must in addition
Nicaragua
show a “valid
which are in
link of
issue in the
jurisdiction”
dispute,” it
between
cannot be said
Nicaragua and
that this object
the Parties. In
is not a proper
its Application,
one: it seems
Nicaragua does
indeed to
not assert the
accord with the
existence of any
function of
basis of
intervention. ...
jurisdiction
Secondly, it
other than the
does not seem
Statute itself,
to the Chamber
and expresses
that for a State
the view that
to seek by
Article 62 does
not require a the Court shall
separate title of hear and
jurisdiction. determine a
The particular
question is dispute. Such
whether the agreement may
existence of a be given ad hoc,
valid link of by Special
jurisdiction with Agreement or
the parties to otherwise, or
the case — in may result from
the sense of a the invocation,
basis of in relation to the
jurisdiction particular
which could be dispute, of a
invoked, by a compromissory
State seeking to clause of a
intervene, in treaty or of the
order to mechanism of
institute Article 36,
proceedings paragraph 2, of
against either or the Court’s
both of the Statute. Those
parties — is an States are the
essential “parties” to the
condition for proceedings,
the granting of and are bound
permission to by the Court’s
intervene under eventual
Article 62 of the decision
Statute. In order
to decide the
point, the
Chamber must
consider the
general
principle of
consensual
jurisdiction in
its relation with
the institution
of intervention.
There can
be no doubt of
the importance
of this general
principle. The
pattern of
international
judicial
settlement
under the
Statute is that
two or more
States agree that
 exercise of its
powers
conferred by the
Statute. Thus,
290 INTRODUCTION TO the Court has
PUBLIC INTERNATIONAL LAW the competence
to permit an
because they intervention
have agreed to even though it
confer be opposed by
jurisdiction on one or both of
the Court to the parties to
decide the case, the case. The
the decision of nature of the
the Court competence
having binding thus created by
force as Article 62 of the
provided for in Statute is
Article 59 of the definable by
Statute. reference to the
Normally object and
therefore, no purpose of
other State may intervention, as
involve itself in this appears
the proceedings from Article 62
without the of the Statute.
consent of the Interventi
original parties. on under Article
Nevertheless, 62 of the Statute
procedures for a is for the
“third” State to purpose of
intervene in a
protecting a
case are
State’s “interest
provided in
of a legal
Articles 62 and
63 of the nature” that
Court’s Statute. might be
The competence affected by a
of the Court in decision in an
this matter of existing case
intervention is already
not, like its established
competence to between other
hear and States, namely
determine the
the parties to
dispute referred
the case. It is
to it, derived
from the not intended to
consent of the enable a third
parties to the State to tack on
case, but from a new case, to
the consent become a new
given by them, party, and so
in becoming have its own
parties to the claims
Court’s Statute, adjudicated by
to the Court’s the Court.
Intervention jurisdiction
cannot have between the
been intended would-be
to be employed intervener and
as a substitute the parties is not
for contentious a requirement
proceedings. for the success
Acceptance of of the
application. On
the Statute by a
the contrary, the
State does not
procedure of
of itself create
intervention is
jurisdiction to
to ensure that a
entertain a State with
particular case: possibly
the specific affected
consent of the interests may be
parties is permitted to
necessary for intervene even
that. If an though there is
intervener were no jurisdictional
held to become link and it
a party to a case therefore cannot
merely as a become a party.
consequence of The Chamber
being permitted therefore
to intervene in concludes that
the absence of a
it, this would be
jurisdictional
a very
link between
considerable
Nicaragua and
departure from
the Parties to
the principle of this case is no
consensual bar to
jurisdiction. It is permission
therefore clear being given for
that a State, intervention.
which is
allowed to
intervene in a
case, does not,
by reason only
of being an
intervener,
become also a
party to the
case.
It thus
follows from
the juridical
nature and from
the purposes of
intervention that
the existence of
a valid link of
 Nicaragua, as an
intervener, has
of course a right
to be heard by
CHAPTE
R 13 the Chamber.
PEACEFUL SETTLEMENT That right is
OF INTERNATIONAL regulated by
DISPUTES Article 85 of the
Rules of Court,
IV. Procedural Rights of State which provides
permitted to intervene for submission
Since this of a written
is the first case statement, and
in the history of participation in
the two Courts the hearings.
in which a State The scope
will have been of the
accorded intervention in
permission to this particular
intervene under case, in relation
Article 62 of the to the scope of
Statute, it the case as a
appears whole,
appropriate to necessarily
give some involves
indication of the limitations of
extent of the the right of the
procedural intervener to be
rights acquired heard. An initial
by the limitation is that
intervening it is not for the
State as a result intervener to
of that address
permission. In argument to the
the first place, as Chamber on the
has been interpretation of
explained above, the Special
the intervening Agreement
State does not concluded
become party to between the
the proceedings, Parties on 24
and does not May 1986,
acquire the because the
rights, or Special
become subject Agreement is,
to the for Nicaragua,
obligations, res inter alios
which attach to acta; and
the status of a Nicaragua has
party, under the disclaimed any
Statute and intention of
Rules of Court, involving itself
or the general in the dispute
principles of over the land
procedural law. boundary. The
 Chamber then such a nature as
summarizes the to be a decisive
aspects of the factor, which
case in respect fact was, when
of which the
Nicaragua has
shown the
existence of an
interest of a
legal nature and
those in respect
of which it has
not, with the
consequent
limitations on
the scope of the
intervention
permitted.
Obligation to comply with decisions.
Article 59 (ICJ Statute)
The
decision of the
Court has no
binding force
except between
the parties and
in respect of that
particular case.
Article 60
The
judgment is
final and
without appeal.
In the event of
dispute as to the
meaning or
scope of the
judgment, the
Court shall
construe it upon
the request of
any party.
Article 61
An
application for
revision of a
judgment may
be made only
when it is based
upon the
discovery of
some fact of
 No
application for
revision may be
292 INTRODUCTION TO made after the
PUBLIC INTERNATIONAL LAW lapse of ten
years from the
judgment was date of the
given, unknown judgment.
to the Court and Article 94 (UN Charter)
also to the party Each
claiming Member of the
revision, always United Nations
provided that undertakes to
such ignorance comply with the
was not due to decision of the
negligence. International
The Court of Justice
proceedings for in any case to
revision shall be which it is a
opened by a party.
judgment of the If any
Court expressly party to a case
recording the fails to perform
existence of the the obligations
new fact, incumbent upon
recognizing that it under a
it has such a judgment
character as to rendered by the
lay the case Court, the other
open to party may have
revision, and recourse to the
declaring the Security
application Council, which
admissible on may, if it deems
this ground. necessary, make
The Court recommendatio
may require ns or decide
previous upon measures
compliance to be taken to
with the terms give to the
of the judgment judgment.
before it admits ICJ judgments are
proceedings in binding on the parties (Art.
revision.
59) and are deemed “final
The
and without appeal.” (Art.
application for
revision must 60).
be made at Enforcement is
latest within six governed by Article 94 of
months of the the UN Charter. Member
discovery of the states must comply with the
new fact. judgment. If a party does
not comply, the aggrieved
party may appeal to the UN
Security Council “which
may, if it deems necessary,
make recommendations or
decide upon measures to be
taken to give effect to the
judgment.” This may give
rise to enforcement
measures, which, however,
is subject to the veto powers
of the permanent members.
But the winning state might
make use of alternative
methods of enforcement
such as diplomatic or
economic pressure.

Advisory jurisdiction.
Under Article 65 of
the Statute, the advisory
jurisdiction may “in
accordance with the Charter
of the United Nations.”
Article 96 of the
 The
Registrar shall
forthwith give
CHAPTER 13 notice of the
PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES request for an
advisory
UN Charter empowers the opinion to all
General Assembly and the states entitled to
Security Council to make appear before
requests for advisory the Court.
opinion. At the same time The
Registrar shall
the General Assembly may
also, by means
authorize other UN
of a special and
agencies to seek advisory direct
opinion. The provisions of communication,
the ICJ Statute say: notify any state
entitled to
Article 65. appear before
The Court the Court or
may give an international
advisory organization
opinion on any considered by
legal question at the Court, or,
the request of should it not be
whatever body sitting, by the
may be President, as
authorized by or likely to be able
in accordance to furnish
with the Charter information on
of the United the question,
that the Court
Nations to make
will be prepared
such a request.
to receive,
Questions
within a time
upon which the
limit to be fixed
advisory
by the
opinion of the President,
Court is asked written
shall be laid statements, or to
before the Court hear, at a public
by means of a sitting to be
written request held for the
containing an purpose, oral
exact statement statements
of the question relating to the
upon which an question.
opinion is Should
required, and any such state
accompanied by entitled to
all documents appear before
likely to throw the Court have
light upon the failed to receive
question. the special
Article 66. communication
referred to in
paragraph 2 of
this Article,
such state may
express a desire
to submit a
written
statement or to
be heard; and
the Court will
decide.
States and
organizations
having
presented
written or oral
statements or
both shall be
permitted to
comment on the
statements
made by other
states or
organizations in
the form, to the
extent, and
within the time
limits which the
Court, or,
should it not be
sitting, the
President, shall
decide in each
particular case.
Accordingly,
the Registrar
shall in due
time
communicate
any such
written
statements to
states and
organizations
having
submitted
similar
statements.
 The more active are
the Court of Justice of the
European Communities, the
294 INTRODUCTION TO European Court of Human
PUBLIC INTERNATIONAL LAW Rights, the Benelux Court
of Justice and the Inter-
For its part the UN Charter says: American Court of Human
Rights. The International
Article 96.
Criminal Court entered into
The
force only in 2002.
General
Assembly or
the Security
Council may
request the
International
Court of
Justice to give
an advisory
opinion on any
legal question.
Other
organs of the
United Nations
and specialized
agencies,
which may at
any time be so
authorized by
the General
Assembly, may
also request
advisory
opinions of the
Court on legal
questions
arising within
the scope of
their activities.

By definition
advisory opinions are non-
binding. Acceptance or
non-acceptance of the
advisory opinion is
determined by the internal
law of the institution.

Other more active International

Courts.
 that the text
does not merely
prohibit the use
of force
“against the
territorial
integrity or
political
independence
Chapter 14 of any state.”
THE USE OF FORCE SHORT OF WAR The text
broadly
prohibits the
The Use of Force. use of force “in
The general principle any other
is that international law manner
recognizes the autonomy of inconsistent
individual states and their with the
right to freedom from Purposes of the
coercion and to the integrity United
of their territory. The basic Nations.” It
principle is found in Article does yield the
2(4) of the UN Charter: “All meaning of a
Members shall refrain in very broad
their international relations prohibition of
from the threat or use of the use of force
force against the territorial because the
integrity or political purposes of the
independence of any state, United Nations,
or in any other manner as found in
inconsistent with the Article 1 of the
Purposes of the United Charter, go
Nations.” beyond merely
the protection
It is noteworthy that the text does of the
not use the word “war.”
territorial
The word war
integrity and
is a technical
political
term which
independence
does not
of states.
include some
uses of force. It will be recalled that
The prohibition the Corfu Channel case1
in the Charter dealt with British warships
which had been struck by
therefore
mines while exercising the
broader than
right of innocent passage in
the prohibition
Albanian territory. Britain
of war.
sent additional warships to
Similarly, it
sweep the minefields within
should be noted
Albanian territory. The
Court used language in
support of a broad
prohibition of force:
'(1949) ICJ Rep.

295
 incorporated in
the United
Nations Charter
correspond, in
296 INTRODUCTION TO
essentials, to
PUBLIC INTERNATIONAL LAW
those found in
customary
The United Kingdom international
has stated that its object was law. They
to secure the mines as therefore accept
a treaty-law
quickly as possible for fear
obligation to
lest they should be taken
refrain in their
away by the authors of the
international
mine laying or by the relations from
Albanian authorities: this the threat or use
was presented either as a of force against
new and special application the territorial
of the theory of integrity or
intervention, by means of political
which the intervening State independence of
was acting to facilitate the any State, or in
any other
task of the international
manner
tribunal, or as a method of
inconsistent
selfprotection or self-help.
with the
The Court cannot accept purposes of the
these lines of defence. It can United Nations
only regard the alleged right (Art. 2, para. 4,
of intervention as the of the Charter).
manifestation of a policy of The Court has
force which cannot find a however to be
place in international law. satisfied that
As regards the notion of there exists in
customary law
self-help, the Court is also
an opinio juris
unable to accept it: between
as to the
independent States the
binding
respect for territorial character of
sovereignty is an essential such abstention.
foundation for international It considers that
relations.... this opinio juris
The prohibition of the may be deduced
from, inter alia,
use of force, however, is not
the attitude of
just conventional law. It is
the Parties and
customary international law.
of States
In Nicaragua v. US,2 the
towards certain
Court made this
General
pronouncement:
Assembly
The Court resolutions, and
finds that both particularly
Parties take the resolution 2625
view that the (XXV) entitled
principles as to “Declaration on
the use of force Principles of
International nonuse of force,
Law concerning regarded as a
Friendly principle of
Relations and customary
Co-operation international
among States in law,
Accordance independently
with the Charter of the
of the United provisions,
Nations.” especially those
Consent to such of an
resolutions is institutional
one of the forms kind, to which it
of expression of is subject on the
an opinio juris treaty-law plane
with regard to of the Charter.
the principle of

( 1986) ICJ Rep.

 the demands, war will be
declared on it or certain
coercive measures such as a
CHAPTER 14 naval blockade,
THE USE OF bombardment, or
FORCE SHORT OF occupation of a given
WAR
territory, will be taken.
However, the threat to use
A separate opinion was filed by Judge
Sette-Camara: force is not always made in
so crude and open a form.
Judge There are sometimes veiled
Sette-Camara
threats that may be very
fully concurs
effective, but are difficult to
with the
Judgment detect.
because he Threat of force was discussed by the
firmly believes ICJ in an advisory opinion on the
that “the non- Legality of the Threat or Use of Nuclear
use of force as Weapons3 in the light of the provisions of
well as non- the Charter:
intervention —
the latter as a In Article
corollary of 2, paragraph 4,
equality of of the Charter
States and self- the use of force
determination against the
— are not only territorial
cardinal integrity or
principles of political
customary independence of
international another State or
law but could in in any other
addition be manner
recognized as inconsistent
peremptory with the
rules of purposes of the
customary
United Nations
international
is prohibited.
law which
impose This
obligations on prohibition of
all States.” the use of force
is to be
The Threat of Force. considered in
The Charter prohibits the light of other
not just the use of force but relevant
also the threat of force. The provisions of
the Charter. In
most typical form of this
Article 51, the
threat is the ultimatum in
Charter
which the State to which it
recognizes the
is addressed is given a time- inherent right of
limit within which to accept individual or
the demands made upon it collective self-
and is told that, if it rejects defence if an
armed attack
occurs. A further Chapter VII of
lawful use of the Charter.
force is These
envisaged in
provisions do
Article 42,
not refer to
whereby the
Security specific
Council may weapons. They
take military apply to any use
enforcement of force,
measures in regardless of the
conformity with weapons
employed.

(1996) ICJ Rep.

 The
proportionality
298 INTRODUCTION TO principle may
PUBLIC INTERNATIONAL LAW thus not in itself
exclude the use
of nuclear
The Charter weapons in
neither self-defence in
expressly all
prohibits, nor circumstances.
permits, the use But at the same
of any specific time, a use of
weapon, force that is
including proportionate
nuclear under the law
weapons. of self -defence,
The must, in order
entitlement to to be lawful,
resort to self- also meet the
defence under re-quirements
Article 51 is
of the law
subject to the
applicable in
conditions of
armed conflict
necessity and
which comprise
proportionality.
As the Court in particular the
stated in the principles and
case concerning rules of
Military and humanitarian
Paramilitary law. And the
Ac-tivities in Court notes that
and against the very nature
Nicaragua of all nuclear
(Nicaragua v. weapons and
United States of the profound
America) (I.CJ. risks associated
Reports 1986,p. therewith are
94,para. 176):
further
“there is a
considerations
specific rule
to be borne in
whereby self-
mind by States
defence would
warrant only believing they
measures which can exercise a
are proportional nuclear
to the armed response in
attack and self-defence in
necessary to accordance
respond to it, a with the
rule well- requirements of
established in proportionality.
customary In order
international to lessen or
law.” eliminate the
risk of unlawful it defended the
attack, States policy of
sometimes deterrence —
signal that they suggested to the
possess certain Court that it
weapons to use would be lawful
in self-defence to threaten to
against any use force if the
State violating use of force
their territorial contemplated
integrity or would be
political illegal.
independence.
Whether a Individual and Collective Self-defense.
signaled The
intention to use general prohibition of the
force if certain use of force does not
events occur is preclude the right to self-
or is not a defense. This is the subject
“threat” within of Article 51:
Article 2,
paragraph 4, of
the Charter
depends upon
various factors.
The notions of
“threat” and
“use” of force
under Article 2,
paragraph 4, of
the Charter
stand together
in the sense that
if the use of
force itself in a
given case is
illegal — for
whatever
reason — the
threat to use
such force will
likewise be
illegal. In short,
if it is to be
lawful, the
declared
readiness of a
State to use
force must be a
use of force that
is in conformity
with the
Charter. For the
rest, no State —
whether or not
 The subject was discussed at some length
in Nicaragua v. USA*

The Court
CHAPTER 14 finds that both
THE USE OF FORCE SHORT OF WAR Parties take the
view that the
Nothing principles as to
in the present the use of force
Charter shall incorporated in
impair the the United
inherent right of Nations Charter
individual or correspond, in
collective self- essentials, to
defence if an those found in
armed attack customary
occurs against a international
Member of the law. They
United Nations, therefore accept
until the a treaty-law
Security obligation to
Council has refrain in their
taken measures international
necessary to relations from
maintain the threat or use
international of force against
peace and the territorial
security. integrity or
Measures taken political
by Members in independence of
the exercise of any State, or in
this right of self- any other
defence shall be manner
immediately inconsistent
reported to the with the
Security purposes of the
Council and United Nations
shall not in any (Art. 2, para. 4,
way affect the of the Charter).
authority and The Court has
responsibility of however to be
the Security satisfied that
Council under there exists in
the present customary law
Charter to take an opinio juris
at any time such as to the binding
action as it character of
deems necessary such abstention.
in order to It considers that
maintain or this opinio juris
restore may be deduced
international from, inter alia,
peace and the attitude of
security. the Parties and
of States
towards certain
General institutional
Assembly kind, to which it
resolutions, and is subject on the
particularly treaty-law plane
resolution 2625 of the Charter.
(XXV) entitled The
“Declaration on general rule
Principles of prohibiting
International force
Law concerning established in
Friendly customary law
Relations and allows for
Co-operation certain
among States in exceptions. The
Accordance
exception of the
with the Charter
right of
of the United
individual or
Nations.”
collective self-
Consent to such
defence is also,
resolutions is
in the view of
one of the forms
States,
of expression of
established in
an opinio juris
with regard to customary law,
the principle of as is apparent
nonuse of force, for example
regarded as a from the terms
principle of of Article 51 of
customary the United
international Nations Charter,
law, which refers to
independently an “inherent
of the right,” and from
provisions, the declaration
especially those in resolution
of an 2625

‘(1986) ICJ Rep.

 scale and
effects, would
300 INTRODUCTION TO have been
PUBLIC INTERNATIONAL LAW classified as an
armed attack
had it been
(XXV). The carried out by
Parties, who regular armed
consider the forces. The
existence of this Court quotes
right to be the definition of
established as a aggression
matter of annexed to
customary General
international Assembly
law, agree in resolution 3314
holding that (XXIX) as
whether the expressing
response to an customary law
attack is lawful in this respect.
depends on the
The Court
observance of
does not believe
the criteria of
that the concept
the necessity
of “armed
and the
attack” includes
proportionality
assistance to
of the measures
rebels in the
taken in self-
form of the
defence.
provision of
Whether
weapons or
self-defence be
logistical or
individual or
other support.
collective, it can
Furthermore,
only be
the Court finds
exercised in
that in
response to an
customary
“armed attack.”
international
In the view of
law, whether of
the Court, this
a general kind
is to be
or that
understood as
particular to the
meaning not
inter-American
merely action
legal system,
by regular
there is no rule
armed forces
permitting the
across an
exercise of
international
collective self
border, but also
-defence in the
the sending by a
absence of a
State of armed
request by the
bands on to the
State which is a
territory of
victim of the
another State, if
alleged attack,
such an
this being
operation,
additional to the
because of its
requirement that
 the State in
question should
have declared
itself to have
been attacked.

The question has also

been raised whether
“anticipatory self-
defense” is allowed. ... The
question is valid because of
the possibility of instant
attacks under present
circumstances. Opinion on
the subject is divided.
Those who claim the
existence of the right say
that the phrase “if an armed
attack occurs” is not
exclusive. This is
reminiscent of the view that
protection of “vital
interests” justifies the use
of force. In practical terms,
however, states do not
invoke the right because
they are afraid that it might
be used against them too.
Practice on the subject is
inconclusive. It will be
recalled that Israel launched
a preemptive strike against
its Arab neighbors in 1967
but the United Nations did
not condemn the act. The
Nicaragua case, even with
its extensive discussion of
self defense, did not
mention anticipatory self-
defense.
In the case of the Gulf
War against Iraq, the Allied
forces came on invitation of
Kuwait which was under
invasion. The right to use
force to defend claimed
territory was rejected in the
Falkland war.
 by treaty, or the display of
naval forces near the waters
of an unfriendly state.
CHAPTER 14 Reprisal denotes any
THE USE OF FORCE SHORT OF WAR kind of forcible or coercive
An interesting measures whereby one State
development in the wake of seeks to exercise a deterrent
the September 21 attack on effect or obtain redress or
the World Trade Center is satisfaction, directly or
that Article 51 seems to indirectly, for the
have been used to justify a consequences of the illegal
response against a non-state at of another state which has
aggressor. The coalition of refused to make amends for
forces which joined the such illegal acts. Unlike
United States in the attacks retorsion, the acts, standing
on Afghanistan had the by themselves, would
blessing of the General normally be illegal.
Assembly, the Security Moreover, reprisal must be
Council, and of NATO. preceded by an unsatisfied
demand for reparation.
Traditionally Allowable Coercive
Under the Charter,
Measures.
however, reprisals have
Under international been narrowed down
law, certain forms of
especially since situations
coercive measures or “self
likely to cause disruption of
help” have been
peace should be brought to
traditionally allowed. These
the Security Council.
include: Since there is no
Embargo is another
obligation to maintain
diplomatic relations, lawful measure. This can
severance of diplomatic consist of seizure of vessels
relations is not prohibited. even in the high seas.
However, this should not be Embargo might also be
resorted to unless truly pacific, as when a state
necessary because severance keeps its own vessels for
might endanger peace. fear that it might find their
Moreover, severance should way in foreign territory.
be distinguished from Their can also be collective
suspension of diplomatic embargo, e.g., on import of
relations. Suspension drugs or of oil.
involves withdrawal of Boycott is a form of
diplomatic representation reprisal which consists of
but not of consular suspension of trade or
representation. business relations with the
Retorsion is any of the
nationals of an offending
forms of counter-measures
state.
in response to an unfriendly
act. Forms of retorsion
include shutting of ports to
vessels of an unfriendly
state, revocation of tariff
concessions not guaranteed
 population is an essential
element of statehood.
Others argue that Article
302 INTRODUCTION TO 2(4) does not prohibit it
PUBLIC INTERNATIONAL LAW because it does not
compromise the “territorial
integrity or political
Some claim that this is a
independence” of a state.
form of economic
Examples of forcible
aggression which should be
rescue of nationals are the
prohibited by law.
raid of Entebee in Uganda
Non-intercourse consists of
and the US intrusion into
suspension of all commercial
intercourse with a Stanleyville to rescue
state. American students. But the
Pacific blockade is a legitimacy of such
naval operation carried out intervention is not firmly
in time of peace whereby a established in international
state prevents access to or law.
exit from particular ports or Humanitarian Intervention.
portions of the coast of Discussion of armed
another state for the humanitarian intervention
purpose of compelling the by states in response to
latter to yield to demands massive violation of human
made by the blockading rights in another state
state. begins with the prohibition
It is essentially a of force in Article 2(4). The
warlike act and therefore prohibition is now
frowned upon by the UN considered jus cogens. The
Charter. prevailing opinion is that
These measures, to intervention without the
the extent that they have authorization of the
not been outlawed by the Security Council violates
Charter, may be employed international law. One
by individual states or by author describes the
collective action under the circumstances allowing
UN. humanitarian intervention
thus:5
Protection of Nationals Abroad.
Those who assert the
right to defend nationals
abroad argue that the right
to protect nationals abroad
can be defended as an
aspect of the right to self- 5
Bruno Simma, NATO, The UN and the Use of
defense in Article 51 since Force: Legal Aspects, 10 Eur. J InT’l L,
No. 1.
 against other
states, recourse
to Article 51 is
CHAPTER 14 not available.
THE USE OF FORCE SHORT OF WAR For instance, a
mass exodus of
The refugees does
question of the not qualify as
legality versus an armed attack.
the illegality of In the absence
so-called of any
“humanitarian justification
intervention” unequivocally
must be provided by the
answered in Charter “the use
light of the fore- of force could
going. Thus, if not be the
the Security appropriate
Council method to
determines that monitor or
massive viola- ensure ...
tions of human respect [for
rights occurring human rights],”
within a country to use the words
constitute a of the
threat to the International
peace, and then Court of Justice
calls for or in its 1986
authorizes an Nicaragua
enforcement judgment. In the
action to put an same year, the
end to these United
violations, a Kingdom
“humanitarian Foreign Office
intervention” by summed up the
military means problems of
is permissible. unilateral, that
In the absence is,
of such unauthorized,
authorization, humanitarian
military intervention as
coercion follows:
employed to the
have the target overwhel
state return to a ming
respect for
majority
human rights
of
constitutes a
breach of contempo
Article 2(4) of rary legal
the Charter. opinion
Further, as long comes
as humanitarian down
crises do not against
transcend the
borders, as it existence
were, and lead of a right
to armed attacks
of right
humanitar argues
ian strongly
interventi against its
on, for creation...
three . In
main essence,
reasons: therefore,
firstly, the the
UN case
Charter against
and the making
corpus of humanitar
modem ian
internatio interventi
nal law do on an
not seem exception
to to the
specificall principle
y of non-
incorporat interventi
e such a on is that
right; its
secondly, doubtful
State benefits
practice in would be
the past heavily
two outweighe
centuries, d by its
and costs in
especially terms of
since respect
1945, at for
best internatio
provides nal law.
only a The same author,
handful of however, asks whether
genuine
perhaps the law on the
cases of
humanitar subject has changed under
ian the shock of genocide and
interventi crimes against humanity. He
on, and, concludes:
on most By way of
assessmen conclusion to
ts, none at this section:
all; and whether we
finally, on regard the
prudential NATO threat
grounds, employed in the
that the Kosovo crisis as
scope for an ersatz
abusing Chapter VII
such a
measure,
“humanitarian
intervention,”
or as a threat of
collective
countermeasure
s involving
armed force,
any attempt at
 should not set
new standards
only to do the
304 INTRODUCTION TO right thing in a
PUBLIC INTERNATIONAL LAW single case. The
legal issues
legal presented by
justification the Kosovo
will ultimately crisis are
remain particularly
unsatisfactory. impressive
Hence, we proof that hard
would be well cases make bad
advised to law.
adhere to the Another author, while
view basically adhering to the
emphasized legal conclusion above,
and affirmed so does not stop there. He
strongly in the
says:6
German debate,
Be that as
and regard the
it may, any
Kosovo crisis
person of
as a singular
common sense
case in which
is justified in
NATO decided
asking him or
to act without herself the
Security following
Council dramatic
authorization question: Faced
out of with such an
overwhelming enormous
humanitarian human-made
necessity, but tragedy and
from which no given the
general inaction of the
conclusion UN Security
ought to be Council due to
drawn. What is the refusal of
involved here is Russia and
not legalistic China to
hair-splitting countenance
versus the any significant
pursuit of involvement by
humanitarian the international
imperatives. community to
stop the
Rather, the
massacres and
decisive point
expulsions,
is that we
should one sit
should not
idly by and
change the
watch
rules simply to thousands of
follow our human beings
humanitarian being
impulses; we slaughtered or
brutally some
persecuted? parameters set,
Should one in this particular
remain silent instance of use
and inactive of force, that
only because might lead to a
the existing gradual
body of legitimation of
international forcible
law proves humanitarian
incapable of countermeasure
remedying such s by a group of
a situation? Or, states outside
rather, should any
respect for the authorization by
Rule of Law be the Security
sacrificed on Council?
the altar of
human
compassion?
My '’Antonio Cassese,
answer is that
EX INJURIA
from an ethical
viewpoint resort ORITUR JUS:
to armed force ARE We
was justified.
MOVING
Nevertheless, as
a legal scholar I TOWARDS
cannot avoid INTERNATIONA
observing in the
L
same breath that
this moral LEGITIMATION
action is OF FORCIBLE
contrary to
HUMANITARIAN
current
international COUNTERMEAS
law. URES IN THE
contend, WORLD
however, that as
legal scholars COMMUNITY. 10
we must stretch Eur. J Int’l L, No.
our minds 1.
further and ask
ourselves two
questions. First,
was the NATO
armed
intervention at
least rooted in
and partially
justified by
contemporary
trends of the
international
community?
Second, were
 state,
either by
the central
CHAPTER 14 governme
THE USE OF FORCE SHORT OF WAR ntal
authoritie
s or with
Based on their
these nascent connivanc
trends in the e and
world support,
community, I or
submit that because
under certain the total
strict conditions collapse
resort to armed of such
force may authoritie
gradually s cannot
become impede
justified, even those
absent any atrocities;
authorization by (ii) if the
the Security crimes
Council. These against
conditions may humanity
be enumerated result
as follows: from
gros anarchy in
s and a
egregious sovereign
breaches state,
of human proof is
rights necessary
involving that the
loss of central
life of authoritie
hundreds s are
or utterly
thousands unable to
of put an end
innocent to those
people, crimes,
and while at
amountin the same
g to time
crimes refusing
against to call
humanity, upon or to
are allow
carried other
out on the states or
territory internatio
of a nal
sovereign organizati
ons to action to
enter the stop the
territory massacres
to assist because
in of
terminatin disagreem
g the ent among
crimes. If, the
on the Permanen
contrary, t
such Members
crimes are or
the work because
of the one or
central more of
authoritie them
s, it must exercises
be shown its veto
that those power.
authoritie Conseque
s have ntly, the
consistent Security
ly Council
withheld either
their refrains
cooperati from any
on from action or
the United only
Nations or confines
other itself to
internatio deploring
nal or
organizati condemni
ons, or ng the
have massacres
systemati , plus
cally possibly
refused to terming
comply the
with situation a
appeals, threat to
recomme the peace;
ndations (iv) all
or peaceful
decisions avenues
of such which
organizati may be
ons; (iii) explored
the consistent
Security with the
Council is urgency
unable to of the
take any situation
coercive to achieve
a solution of
based on Member
negotiatio States of
n, the UN;
discussion (vi) armed
and any force is
other exclusivel
means y used for
short of the
force have limited
been purpose
exhausted of
, stopping
notwithsta the
nding atrocities
which, no and
solution restoring
can be respect
agreed for human
upon by
the parties
to the
conflict;
(v) a
group of
states (not
a single
hegemoni
c Power,
however
strong its
military,
political
and
economic
authority,
nor such a
Power
with the
support of
a client
state or an
ally)
decides to
try to halt
the
atrocities,
with the
support or
at least
the
nonopposi
tion of the
majority
 thereto.
Conversel
y, military
INTRODUCTION TO PUBLIC action
INTERNATIONAL LAW would not
306 be
warranted
rights, not in the
for any case of a
goal crisis
going which is
beyond slowly
this unfolding
limited and
purpose. which
Conseque still
ntly, the presents
use of avenues
force for
must be diplomati
discontin c
ued as resolution
soon as aside
this from
purpose is armed
attained. confronta
Moreover tion.
, it is
axiomatic
that use Despite
of force all these
should be possible
commens shortcomings, I
urate with believe that it is
and our task as
proportio international
nate to lawyers to
the pinpoint the
human evolving trends
rights as they emerge
exigencie in the world
s on the community,
ground.
while at the
The more
same time
urgent the
keeping a
situation
watchful eye on
of killings
the actual
and
behaviour of
atrocities,
states.
the more
Standards of
intensive
conduct
and
designed to
immediat
e may be channel the
the action of states
military are necessary in
response the world
community as
in any human
society. And it
is not an
exceptional
occurrence that
new standards
emerge as a
result of a
breach of lex
lata. To suggest
realistic but
prudent
parameters in
line with the
present trends
in the world
community
might serve the
purpose of
restraining as
much as
possible
recourse to
armed violence
in a community
that is
increasingly
bent on conflict
and bloodshed.
 There were early
attempts to outlaw war such
as in the Hague Convention
II (1907), in the Covenant
of the League of Nations
(1919), and in the Kellog-
Briand Pact for the
Renunciation of War
(1928). But these did not
Chapter 15
prevent the horrors of World
THE LAW OF WAR (INTERNATIONAL War II. It was after World
HUMANITARIAN LAW) War II that a more effective
law on preventing war was
International Humanitarian Law. formulated.
What used to be Article 2(4) of the UN
known as the Laws of War Charter says: “All Members
now come under what is shall refrain in their
called International international relations from
Humanitarian Law. It the threat or use of force
provides for instances when against the territorial
the use of armed force is integrity or political
justifiable (jus ad be Hum) independence of any state,
and it regulates the conduct or in any other manner
of armed conflict (jus in
inconsistent with the
bello).
Purposes of the United
Hyde, writing in 1922,
Nations.” In effect, this
said: “It always lies within
provision outlaws war.
the power of a State ... to
The paradox,
gain political or other
however, is that side by side
advantages over another,
not merely by the with the prohibition of
employment of force, but armed conflict is the
also by direct recourse to proliferation of laws of war.
war.” Early international Three facts can explain the
law did not consider as paradox: first, those who
illegal a war admittedly resort to the use of arms do
waged for such purposes. It not give up until they have
rejected, to that extent, the achieved victory; second,
distinction between just and given the first fact,
unjust wars. War was in law humanitarian considerations
a natural function of the dictate the need for rules
State and a prerogative of which curtail
its uncontrolled sovereignty.

307
 governing the conduct of air
warfare were to follow later.

308 INTRODUCTION TO The Geneva Conventions of 1949.

PUBLIC INTERNATIONAL LAW One of the most
significant developments in
violence beyond what is the law of armed conflicts
necessary to achieve a was the adoption in 1949 of
state’s goal; third, there still four Geneva “Red Cross”
remains in the hearts of the Conventions governing: I
soldiery an acceptance of — Wounded and Sick in the
chivalry as a value. Field; II — Wounded, Sick
and Shipwrecked at Sea; III
On the assumption
that wars can always occur — Prisoners of War; IV —
there arose the need to Civilians. The Convention
formulate laws that can on civilians is completely
humanize the conduct of new and is the result of the
war. From the middle of the experience of civilians in
last century the law on the occupied territory during
area developed as a result World War II.
of the pioneering effort of The essence of the
Henry Dunant who had Geneva conventions is that
been appalled by the persons not actively
brutality of the battle of engaged in warfare should
Solferino. His book “A
be treated humanely. The
Memory of Solferino”
rules apply to any
inspired the cretion of the
international armed
International Red Cross in
conflict, whether a declared
1863 and his ideas found
their way into the 1864 war or not.
Geneva Convention. Customary and Conventional Law.
The Hague Law. Much of what is
Early laws of war embodied in the Hague and
were customary. At present Geneva Conventions are
the laws are largely customary law. Thus, non-
conventional. In 1899, parties to the Convention
twenty-six countries met at are covered by the
The Hague and customary law of armed
promulgated Conventions conflict. It has in fact
and Declaration. More become common practice,
conferences were held in when one of the parties to
1907. The principles the conflict is not a party to
adopted in these the conventions, for such
conferences constitute that party to make a declaration
part of the law of armed that it will abide
conflict still known as the
Law of the Hague
governing land and naval
warfare. Principles
 shape it presented itself,
without waiting for
Congress to baptize it with
CHAPTER 15
THE LAW OF WAR a name; and no name given
to it by him or them could
by the terms of the change the fact.”1 For that
Convention. Japan, for matter, as far as the UN
Charter is concerned, there
instance, did just that at the
is no provision requiring a
outbreak of the Pacific War.
declaration of war or an
Commencement and Termination of ultimatum. Normally,
Hostilities however, the victims of the
Under the Hague attack respond with a
Convention III, for an declaration of war.
armed conflict to be The commencement
considered a war in a legal of hostilities result in the
sense, the hostilities should severance of all normal
be preceded by a relations. Political and
declaration of war or an economic treaties are
ultimatum with a fixed terminated. However,
limit. Since 1939, however, treaties of a humanitarian
most armed conflicts have
character remain in force.
commenced without a
Nationals of a
declaration or ultimatum.
combatant state residing in
With the exception of the
attack on Poland, enemy territory become
Germany’s attack on other subject to restrictions which
states was done without the enemy might impose
benefit of declaration. So subject to limitations found
was Japan’s attack on Pearl in customary or treaty law.
harbor. Thus, while the Merchant vessels found in
Constitution gives to the enemy territory are given a
legislature the power to period of grace to depart.
declare the existence of a The laws of armed
state of war and to enact all conflict remain in effect
measures to support the until the conflict is
war, the actual power to terminated. There is some
make war is lodged conflict as to when armed
elsewhere, that is, in the conflict actually ends. But
executive power which the clearest method of
holds the sword of the termination is by means of
nation. The executive a peace treaty.
power, when necessary,
Nevertheless, even in the
may make war even in the
absence of a peace treaty,
absence of a declaration of
once the combatant states
war. In the words of the
have made a declaration
American Supreme Court,
that hostilities have come to
war being a question of
an end, the armed forces are
actualities, “the President
was bound to meet it in the bound by such declaration.
'See Prize Cases, 2 Bl. 635 (U.S.
1863).
 Those engaged in
such a conflict receive
310 INTRODUCTION TO combatant status and are
PUBLIC INTERNATIONAL LAW entitled to combatant rights
and duties. For instance,
Armistice, however, when captured, they are not
which is an agreement to to be treated as ordinary
suspend hostilities, whether criminals but as prisoners
local or general, does not of war.
end the conflict. But it puts
an end to active fighting in Methods of Warfare: Jus in Bello.
accordance with the terms The purpose of the
of the agreement. laws on armed conflict is

Protocol I well expressed by the

nineteenth century
Protocol I to the 1949
Declaration of St.
Geneva Convention created
Petersburg which said:
a new category of
international armed conflict. The
It includes within the progress of
definition of international civilization
armed conflict should have the
effect of allevi-
armed conflicts ating as much
in which as possible the
peoples are calamities of
fighting against war: the only
colonial legitimate
domination and object which
alien occupation states should
and against endeavour to
racist regimes accomplish
in the exercise during war is to
of their right of weaken the
self- military forces
determination, of the enemy;
for this purpose
as enshrined in
it is sufficient to
the Charter of
disable the
the United
greatest
Nations and the
possible number
Declaration on
of men; this
Principles of
object would be
International
exceeded by the
Law concerning
employment of
Friendly arms which
Relations and uselessly
Co-operation aggravate the
among States in sufferings of
accordance with disabled men,
the Charter of or render their
the United death
Nations. inevitable; the
 employment of
such arms
would,
therefore, be
contrary to the
laws of
humanity.

Thus, it is that the

Hague Convention prohibits
the employment of “arms,
projectiles or material
calculated to cause
unnecessary suffering.”
There is a need to balance
military necessity and
humanitarian consideration.
This is also expressed in the
advisory opinion on the
Legality of the Threat or
Use of Nuclear Weapons
(ICJ 1996):
 In
application
of that
CHAPTER 15 second
THE LAW OF WAR principle,
states do not
The
have
cardinal
principles unlimited
contained in the freedom of
texts choice of
constituting the means in the
fabric of weapons
humanitarian they use.
law are the
following. The The International
first is aimed at Commission of the Red
the protection Cross published three
of the civilian
statements which sum up
population and
civilian objects the basic rules governing
and establishes armed conflicts:2
the distinction
←The Soldier’s
between
Rules
combatants and
non- Be a
combatants; disciplined
states much soldier.
never make Disobedience of
civilians the
the laws of war
object of attack
and must dishonours your
consequently army and
never use yourself and
weapons that causes
are incapable of unnecessary
distinguishing
suffering; far
between civilian
and military from weakening
targets. the enemy’s to
According to fight, it often
the second strengthens it.
principle, it is
Fight only enemy combatants and
prohibited to attack only military
cause
objectives.
unnecessary
suffering to Destroy no more than your
mission requires.
combatants; its
is accordingly Do not
prohibited to fight enemies
use weapons who are ‘out of
causing them combat’ [hors
such harm or de combat] or
uselessly
surrender.
aggravating
Disarm them
their suffering.
and hand them
 over to your physical or
superior. mental torture
Collect and care for the wounded of prisoners of
and sick, be they friend war is
or foe. permitted.
Treat all civilians and all enemies Do not take hostages.
in your power with
Abstain from all acts of
humanity.
vengeance.
Prisoners
of war must be
treated
humanely and
are bound to 2
See L.C. Green, THE
give only CONTEMPORARY LAW
information OF ARMED CONFUCT,
about their Manchester University
identity. No Press,
(1993).
 those who do
not take a direct
part in
INTRODUCTION TO PUBLIC hostilities are
INTERNATIONAL LAW entitled to
respect for their
← Res lives and moral
pect all persons and physical
objects bearing integrity. They
the emblem of shall in all
the red cross, circumstances
red crescent, red be protected
lion and sun, and treated
the white flag of humanely
truce or without any
emblems adverse
designating distinctions.
cultural ← It is
property. forbidden to kill
11. or injure an
espect other people’s property.
Looting is prohibited. enemy who
12. surrenders or is
ndeavour to hors de combat.
prevent any 3.
breach of the he wounded and
above rules. sick shall be
Report any collected and
violation to cared for by the
your superior. party to the
Any breach of conflict which
the law of war has them in its
is punishable. power.
Protection also
Fundamental covers medical
Rule personnel,
s of establishments,
Inter transports and
natio equipment. The
nal emblem of the
red cross or the
Hum
red crescent is
anita
the sign of such
rian
protection and
Law must be
Appl protected.
icabl Captured
e to combatants and
Arm civilians under
ed the authority of
Conf an adverse party
licts are entitled to
← Pers respect for their
ons hors de lives, dignity,
combat and personal rights
and convictions. distinguish
They shall be between the
protected civilian
against all acts population and
of violence and combatants in
reprisals. They order to spare
shall have the civilian
rights to corre- population and
spond with their property.
families and Neither the
receive relief. civilian
Everyone population as
shall be entitled such nor
to benefit from civilian persons
fundamental shall be the
judicial object of attack.
guarantees. No Attacks shall be
one shall be directed only
responsible for against military
an act he has objectives.
not committed.
No one shall be
subjected to
physical and
mental torture,
corporal
punishment or
cruel or
degrading
treatment.
Parties to
a conflict and
members of
their armed
forces do not
have an
unlimited
choice of
methods and
means of
warfare. It is
prohibited to
employ
weapons or
methods of
warfare of a
nature to cause
unnecessary
losses or
excessive
suffering.
Parties to
a conflict shall
at all times
 n
e
r
CHAPTER 15
THE LAW OF WAR a
l
← N
o R
n u
- l
I e
n s
t The
e obligation to
r distinguish
between
n
combatants and
a civilians is a
t general rule
i applicable in
non-
o
international
n armed conflicts.
a It prohibits
l indiscriminate
attacks.
The
A
prohibition of
r attacks against
m the civilian
population as
e
such or against
d individual
civilians is a
C general rule
applicable in
o
non-
n international
f conflicts. Acts
l of violence in
tended
i
primarily to
c spread terror
t among the
civilian
s
population are
also prohibited.
A The
. probation of
superfluous
injury or
G unnecessary
e suffering is a
general rule personnel and
applicable in medical units
non- and transports
international in the conduct
conflicts. It of military
prohibits, in operations is a
particular, the general rule
use of means of applicable in
warfare which non-
uselessly international
aggravate the armed conflicts.
sufferings of The
disabled men or general rule
render their prohibiting
death attacks against
inevitable. the civilian
The population
prohibition to implies, as a
kill, injure or corollary, the
capture an prohibition of
adversary by attacks on
resort to perfidy dwellings and
is a general rule other
applicable in installations
non- which are used
international only by the
armed conflicts; civilian
in a non- population.
international The
armed conflict, general rule
acts inviting the prohibiting
confidence of attacks upon the
an adversary to civilian
lead him to population
believe that he implies, as a
is entitled to, or corollary, the
is obliged to prohibition to
accord attack, destroy,
protection under remove or
the rules of render useless
international objects
law applicable indispensable to
in non- the survival of
international the civilian
armed conflicts, population.
with intent to The
betray that general rule to
confidence, distinguish
shall constitute between
perfidy. combatants and
The civilians and the
obligation to prohibition of
respect and attacks against
protect medical the civilian
and reli-gious population as
such or against
individual
civilians
implies, in order
to be effective,
that all feasible
precautions
have to be taken
to avoid injury,
loss or damage
to the civilian
population.
 especially those
on the
distinction
INTRODUCTION TO PUBLIC between
INTERNATIONAL LAW combatants and
civilians and on
the immunity of
← Prohibitions and Restrictions on the the civilian
Use of Certain Weapons population,
← The mines, booby-
customary rule traps and other
prohibiting the devices within
use of chemical the meaning of
weapons, such Protocol
as those II to the 1980
containing Convention on
asphyxiating or conventional
vesicant agents, weapons may
and the use of not be directed
bacteriological against the
(bacterial) civilian
weapons is population as
applicable in such or against
non- individual
international civilians, nor
armed conflicts. used
← The indiscriminately
customary rule .
prohibiting The
bullets which prohibition of
expand or booby-traps
flatten easily in listed in Article
the human 6 of the
body, such as Protocol
Dum-Dum extends to their
bullets, is use in non-
applicable in international
non- armed conflicts,
international in application of
armed conflicts. the general
← The rules on the
distinction
customary rule
between
prohibiting the
combatants and
use of poison as
civilians, the
a means of immunity of the
warfare is civilian
applicable in population, the
non- prohibition of
international superfluous
armed conflicts. injury or
← In unnecessary
application of suffering, and
the general the prohibition
rules listed in of perfidy.
section A above,
 To ensure
the protection
of the civilian
population
referred to in
the previous
paragraphs,
precaution must
be taken to
protect it from
attacks in the
form of mines,
booby-traps and
other devices.
In
application of
the general
rules listed in
section A above,
especially those
on the
distinction
between
combatants and
civilians and on
the immunity of
the civilian
population,
incendiary
weapons may
not be directed
against the
civilian
population as
such, against
individual
civilians or
civilian objects,
nor used
indiscriminately
.
Neutrality.
In a conflict among
various powers, there are
always some who prefer to
stay out of the fray. They
adopt an attitude of
impartiality towards the
belligerents. Such an
attitude must be recognized
by belligerents and creates
both rights and duties in the
neutral states. The
 subversive, terrorist or
armed activities directed
towards the violent
CHAPTER 15 overthrow of the regime of
THE LAW OF WAR
another state, or interfere in
decision to adopt or not to civil strife in another state.”
adopt a neutral stance is not Common Article 3
governed by international
Traditionally,
law. It is a dictated by
international law on armed
politics. For that reason,
conflict does not apply to
there is no special mode of
internal conflicts such as
assertion required.
civil wars or rebellions. In
Belligerents must
1949, however, it was
respect the rights of neutral
decided that minimum
states. For their part,
humanitarian protection
neutrals must not engage in
should also be promulgated
activities which interfere
to cover internal conflict.
with the activities of the
For this reason, each of the
belligerents. The detailed
four Geneva Conventions
rules concerning the rights
contains a common Article
and duties of neutrals and
belligerents are found in 3 which says:
Hague Convention V, 1907. Art. 3. In
Non-international conflicts. the case of
armed conflict
Civil wars
not of an
Civil wars or international
rebellion do not violate character
international law. Article occurring in the
territory of one
2(4) of the Charter does not
of the High
apply to internal conflicts.
Contracting
Outside help for Parties, each
governments experiencing Party to the
rebellion is generally conflict shall be
considered legitimate bound to apply,
provided requested by the as a minimum,
government. However, the following
there is no total clarity in provisions:
this matter especially in Persons
situations were the rebels taking no active
part in the
may be on the verge of
hostilities,
gaining victory.
including
Aid to rebels is members of
contrary to international armed forces
law. The 1970 Declaration who have laid
on Principles of down their arms
international law says that and those
“no state shall organize, placed hors de
assist, foment, finance, combat by
incite or tolerate sickness,
wounds,
detention, or
any other cause,
shall in all
circumstances
be treated
humanely,
 hu-
miliating
and
3)6 INTRODUCTION TO PUBLIC degrading
INTERNATIONAL LAW treatment;
←
without any the
adverse passing of
distinction sentences
founded on and the
race, colour, carrying
religion or out of
faith, sex, execution
s without
birth or
previous
wealth, or
judgment
any other
pronounc
similar
ed by a
criteria. regu-larly
To this constitute
end, the d court,
following acts affording
are and shall all the
remain judicial
prohibited at guarantee
any time and in s which
any place are
whatsoever with recognize
respect to the d as
above- indispens
mentioned able by
persons: civilized
← peoples.
viol The wounded and sick shall be
ence to collected and cared for.
life and An
person, in impartial
particular humanitarian
murder of body, such as
all kinds, the International
mutilation Committee of
, cruel the Red Cross,
treatment may offer its
services to the
and
Parties to the
torture;
conflict.
← taking of hostages;
The
← Parties to the
outr conflict should
ages upon further
personal endeavour to
dignity, in bring into force,
particular by means of
 special
agreements, all
or part of the
other provisions
of the present
Convention.
The
application of
the preceding
provisions shall
not affect the
legal status of
the Parties to
the conflict.

The last sentence

means that the application
does not convert the
conflict into an
international one and
therefore does not preclude
the possibility that any
participant in the conflict
may be prosecuted for
treason.

Protocol II
The first and only
international agreement
exclusively regulating the
conduct of parties in a non-
international armed conflict
is the 1977 Protocol II to
the 1949 Geneva
Conventions. It “develops
and supplements Article 3
common to the Geneva
Conventions of 12 August
1949 without modifying its
existing conditions or
application.” A non-
international armed conflict
covered by this expanded
guarantee is defined in
Article I. They are armed
conflicts —
 must “exercise such control
over a part of its territory as
to enable them to carry out
CHAPTER 15 sustained and concerted
THE LAW OF WAR
military operations and to
which take implement this Protocol.”
place in the The Protocol thus sets a
territory of a very high threshold for
High applicability, higher than
Contracting the threshold for the
Party between
applicability of Protocol I
its armed forces
which does not require
and dissident
armed forces or control over territory. For
other organized this reason, in the conflict
armed groups between the Philippine
which, under government and the
responsible National Democratic Front,
command, the Philippine government
exercise such
has been able to maintain
control over a
consistently that the NDF
part of its
territory as to and its New People’s Army
enable them to have not crossed this
carry out threshold and that therefore
sustained and what applies to them is
concerted Common Article 3.
military
operations and International Terrorism.
to implement There is no crime
this Protocol. named terrorism in
Article I further adds Philippine statute books,
that the “Protocol shall not although some acts which
apply to situations of are considered terroristic
internal disturbances and are independently punished
tensions, such as riots, by the Revised Penal Code.
isolated and sporadic acts The U.S. has its municipal
of violence and other acts Anti- Terrorism Law
of a similar nature, as not (International Crime
being armed conflicts.” Control Act of 1998) and
This is true even if the the UK has the Terrorism
armed forces of the territory Act of 2000. In the British
may have been called upon law, what come under the
to suppress the disorder. Terrorism Act are violent
It will thus be seen moves against person or
that Protocol II sets down property or against public
requirements for what it health and safety which
calls “material field of have for their purpose to
application.” First, the influence the government
armed dissidents must be or to intimidate a section of
under responsible the public or to advance a
command; second, they political, religious or
ideological cause. The
taking of hostages, indis-
criminate killings or
destruction of property for
the enumerated purposes
come under the law. But
these can also be
prosecuted as individual
crimes in domestic law.
 when the
purpose of such
act, by its
318 INTRODUCTION TO PUBLIC nature or
INTERNATIONAL LAW context, is to
intimidate a
population, or
In international law, to compel a
part of the problem in Government or
criminalizing terrorism is an international
the difficulty in defining the organization to
prohibited act. A draft of an do or abstain
from doing any
International Convention
act.
for the Suppression of the
Financing of Terrorism Can it be said,
adopted by the General however, that even now
Assembly terrorism is already a crime
against humanity covered
of the United Nations on
by universal jurisdiction?
December 9, 1999 makes
The attack on the World
an attempt at a definition. It
Trade Center on September
says:
11, 2001, was characterized
Any as a crime against humanity
person commits by the French jurist and
an offense [of Minister of Justice, Robert
terrorism]
Badinter, and likewise by
within the
Kofi Annan of the UN
meaning of this
Convention if Secretariat and by Mary
that person, by Robinson, the UN High
any means, Commissioner on Human
unlawfully and Rights. They were followed
intentionally, in this by a number of
does an act distinguished jurists like
intended to
Alain Pellet of Le Monde
cause (a) death
and the British lawyer G.
or serious
bodily injury to Robinson. What led them to
any person, or arrive at this conclusion
(b) serious was the atrocious character
damage to a exhibited by the act: its
State or magnitude, its gravity, the
Government targeting of civilians seen
facility with the as part of a well-planned
intent to cause
operation.
extensive
destruction of A time may come
such a place, when other states will
facility or follow in characterizing the
system, or act as a crime against
where such
humanity. But it would be
destruction
results or is necessary to determine
likely to result what the specific conditions
in major should be for considering
economic loss, an act as one against
humanity. Obviously not
every act of terrorism
would have the magnitude
and gravity of the
September 11 attack.
The importance of the
characterization of the
September 11 attack as a
crime against humanity is
that it led to what seems to
be a development in the
international law of self-
defense. Under traditional
international law as now
embodied in the UN
Charter, self-defense is a
legitimate response to an
armed attack by a state. But
the magnitude of the attack
of September 11 was such
that it persuaded the
Security Council and the
North Atlantic Treaty
Organization to issue
resolutions
 duration, and the
admissible means."
The issue of target
CHAPTER 15 necessarily brings in the
THE LAW OF WAR
issue of sovereignty
which in effect justified because presumably the
resort to Art. 51 of the UN targets would be found in
Charter on collective self- some state territory.
defense without waiting for Furthermore, at what point
action by the Security would justifiable self-
Council. A NATO press defense end? In traditional
release agreed that an armed wars, this is more easily
attack against one or more determined. Not so in the
of the Allies in Europe or fight against terrorism.
North America shall be Finally, one would have to
considered an attack against ask what means are
them all. Thus the action of justifiable. These questions
the various states which are central to the conflict
have joined the coalition between Israel and Hamas
against the forces of Bin of Palestine.
Laden has assimilated the
terrorist attack on the WTC
to an attack by a state
sufficient to trigger resort to
collective self-defense.
If this means a
development in the
international law on self
defense, it would still be
necessary to deal with some
problems that need
clarification. For one, of
what magnitude should the
attack be to merit
assimilation with an attack
by a state? This is relevant
for determining whether the
activities, for instance, of
the Abu Sayyaf, even if
internationally connected,
are of a magnitude to
qualify as an “armed attack”
under the terms of the
Mutual Defense Treaty
between the Philippines and
the United States.
Moreover, as one writer put
it with regard to fighting
terrorism, “Problems arise
with regard to the target of
self defense, its timing, its
 16, as also bolstered by the
right to health in Section
15 as well as by the
Universal Declaration of
Human Rights and the Alma
Conference Declaration of
1978, upheld the authority
of LLDA to protect the
inhabitants of the Laguna
Lake Area from the
Chapter 16
deleterious effects of
INTERNATIONAL ENVIRONMENTAL LAW pollutants coming from
garbage dumping and the
discharge of wastes in the
Environmental concerns.1 area.6 Laguna Lake upheld
Concern about the the exclusive authority of
environment is expressed the Laguna Lake
by the Philippine Development Authority to
Constitution in Article II, regulate the exploitation of
Section 16 thus: “The State Laguna Lake, as against the
shall protect and advance claim of municipalities
the right of the people to a around the lake, in order to
balanced and healthful effectively address the
ecology in accord with the environmental and
rhythm and harmony of ecological stress on Laguna
nature.” The discussions in Lake.
the 1986 Constitutional
Commission manifested a
clear desire to make
environmental protection
and ecological balance 'For more extensive
conscious objects of police materials on environmental
power.2 Oposa v. Factoran,
concerns, see Martin Dixon
Jr.,3 on the basis of Section
16 linked with the right to and Robert McCorquadale,
health, recognized a CASES AND MATERIALS
constitutional “right to a ON INTERNATIONAL LAW
balanced and healthful
485-524 Blackstone Press
ecology” and “the
correlative duty to refrain Limited, 1991.
from impairing the 2
environment.”4 Oposa was 4 RECORD OF THE
CONSTITUTIONAL COMMISSION
followed by Laguna Lake
912-916.
Development Authority 5
224 SCRA 792 (1993).
(LLDA) v. Court of 4
Id. at 307-308.
5
Appeals? The Supreme 231 SCRA292 (1994).
6
Court, relying on Section Id. at 307-308.

320
 protectionists is the rational
use of the elements that
make up the environment
CHAPTER 16 through control, reduction
INTERNATIONAL ENVIRONMENTAL LAW and, wherever possible,
Along a similar vein, elimination of the causes of
in 2007, the Supreme Court environmental degradation.
upheld the validity of an Inseparably related
ordinance of the City of with environmental
Manila requiring the oil concerns are human rights
companies to close and
issues. Thus the long delay
transfer the Pandacan
of Gorbachev before issuing
Terminals to another
location within a specified a statement about the
period.7 The latest on this danger posed by the
subject was Metropolitan Chernobyl nuclear disaster
Manila Development was a violation of the
Authority v. Residents of human rights of those
Manila Bay8 where the affected by the leak. To a
Supreme Court ordered lesser degree it can be said
various government
that the failure of the
agencies to clean up Manila
government to prevent
Bay.
pollution of the Pasig and
The protection of the
the failure of the Traffic
environment is now also a
Bureau to check offending
concern of international
vehicles and factories are a
law. It is in fact a challenge
violations of the the
to the development of
people’s right to a healthy
international law because its
environment. As the ICJ
demands cannot be met
pronounced in the Danube
without intrusion into the
Dam Case (ICJ Rep. 1997):
domestic jurisdiction and
“The protection of the
sovereignty of states. The
environment is a ... vital
nature and magnitude of the
part of contemporary
challenge are such that they
human rights doctrine, for it
require not only the joint
is a sine qua non for
action of states but also the
numerous human rights
involvement of non-state
such as the right to health,
actors. and the right to life itself.”
Environmental concerns What make the task
The concern of difficult are various
environmental protection is competing interests. In a
not just about the world of so much poverty
atmosphere, the sea, the and exploding population, it
land, flora and fauna. It is is not possible
also about the preservation
of the cultural heritage of
mankind as found in
archeological and artistic
remains. The goal of
environmental
’Social Justice Society vs. Atienza,
G.R. No. 156052,13 February
2008.
8
G.R. Nos. 171947-48, December
18,2008.
 The Supreme Court
recognized the existence of
the right. Although Oposa,
Jr. did not order the
322 INTRODUCTION TO PUBUC Secretary outright to cancel
INTERNATIONAL LAW licenses and desist from
issuing new ones, the Court
to ignore the need for affirmed the justiciability of
poverty alleviation. Added the issue raised and
remanded the case to the
to these are the issues of
lower court for further
sovereignty and the still
proceedings.
controversial issue of state
Earlier, in the Trail
responsibility.
Smelter Case (see Chapter
Who have environmental rights? 8, supra) the Arbitral
In protecting the Tribunal also said that “no
environment, the real state has the right to use or
objects of protection are permit the use of its
persons capable of having territory in such manner as
rights. Trees and others can
to cause injury by fumes in
be said to have rights only
or to the territory of another
in a metaphorical sense.
or the properties or persons
Thus the approach in
Oposa v. Factoran, Jr.9 was therein ...” The Nuclear
to have minors plead for Test Cases, supra, was
“intergenerational based on the claim that
protection,” and the right atmospheric nuclear testing
asserted was not of the was a breach of customary
inanimate world but of international law and would
generations of people. The also infringe Australia’s
case involved thirty-four
sovereignty over its
minors who went to Court
territory.
represented by their parents
pleading the cause of “Sustainable Development.”
“intergenerational An important concept
responsibility” and “inter- in the field both of
generational justice” and
economics and
asking the Supreme Court
environmental rights is the
to order the Secretary of
concept of sustainable
Natural Resources to cancel
development. It is a concept
all existing timber license
adopted by the World
agreements and to “cease
Commission on
and desist from receiving,
accepting, processing, Environment and
renewing or approving new Development in recognition
timber license agreements.” of competing claims of
The minors filed the action states in the areas of the
for themselves as preservation of the
representing “their environment and the right
generation as well as to development. The
generations yet unborn.” concept
*225 SCRA 792 (1993).
 Emerging principles.
Stockholm Declaration
Various principles of
CHAPTER 16 environmental protection
INTERNATIONAL ENVIRONMENTAL LAW
are gradually being
encourages development in developed and are coming
a manner and according to out from various
methods which do not conferences. Notable is the
compromise the ability of Stockholm Declaration of
future generation and other 1972 formulated in a UN
states to meet their needs. Conference on the Human
The eloquent words of Environment by 113 states.
Justice Douglas in Sierra The Conference calls
Club v. MortonX0 are often
upon Governments and
quoted:
peoples to exert common
The voice
efforts for the preservation
of the inanimate
object, and improvement of the
therefore, human environment, for the
should not be benefit of all the people and
stilled. That for their posterity.
does not mean
that the Principles
judiciary takes States the common conviction that:
over the
Principle 1
management
functions from Man has the
the federal fundamental right to
agency. It freedom, equality and
merely means adequate conditions
that before of life, in an
these priceless environment of a
bits of
quality that permits a
Americana
life of dignity and
(such as a
valley, an alpine well-being, and he
meadow, a river bears a solemn
or a lake) are responsibility to
forever lost or protect and improve
are so the environment for
transformed as present and future
to be reduced to generations. In this
the eventual respect, policies
rubble of our
promoting or
urban
perpetuating
environment,
the voice of the apartheid, racial
existing segregation,
beneficiaries of discrimination,
these colonial and other
environmental forms of oppression
wonders should and foreign
be heard. domination stand
condemned and must
be eliminated.

405 US 727 (1972).

 Principle 5
The non-
renewable resources
INTRODUCTION TO PUBLIC
INTERNATIONAL LAW of the earth must be
employed in such a
way as to guard
Principle 2
against the danger of
The natural
their future
resources of the earth,
exhaustion and to
including the air,
ensure that benefits
water, land, flora and
from such
fauna and especially
employment are
representative
samples of natural shared by all
ecosystems, must be mankind.
safeguarded for the Principle 6
benefit of present and
The discharge
future generations
of toxic substances or
through careful
of other substances
planning or
and the release of
management, as
heat, in such
appropriate.
quantities or
Principle 3 concentrations as to
The capacity of exceed the capacity of
the earth to produce the environment to
render them harmless,
vital renewable
must be halted in
resources must be
order to ensure that
maintained and,
serious or irreversible
wherever practicable, damage is not
restored or improved. inflicted upon
Principle 4 ecosystems. The just
struggle of the
Man has a
peoples of ill
special responsibility
countries against
to safeguard and
pollution should be
wisely manage the supported.
heritage of wildlife
and its habitat, which Principle 7
are now gravely States shall take
imperilled by a all possible steps to
combination of prevent pollution of
adverse factors. the seas by substances
Nature conservation, that are liable to
including wildlife, create hazards to
must therefore receive human health, to harm
importance in living resources and
planning for marine life, to damage
economic amenities or to
development. interfere with other
legitimate uses of the
sea.
 management, since
economic factors as
well as ecological
CHAPTER 16 processes must be
INTERNATIONAL ENVIRONMENTAL LAW
taken into account.
Principle 8 Principle 11
Economic and The
social development is environmental
essential for ensuring policies of all States
a favorable living and should enhance and
not adversely affect
working environment
the present or future
for man and for
development potential
creating conditions on of developing
earth that are countries, nor should
necessary for the they hamper the
improvement of the attainment of better
quality of life. living conditions for
all, and appropriate
Principle 9 steps should be taken
Environmental by States and
deficiencies generated international
by the conditions of organizations with a
under-development view to reaching
and natural disasters agreement on meeting
pose grave problems the possible national
and can best be and international
remedied by economic
accelerated consequences
development through resulting from the
the transfer of application of
substantial quantities environmental
of financial and measures.
technological
Principle 12
assistance as a
supplement to the Resources
domestic effort of the should be made
developing countries available to preserve
and such timely and improve the
assistance as may be environment, taking
required. into account the
circumstances and
Principle 10 particular
For the requirements of
developing countries, developing countries
stability of prices and and any costs which
adequate earnings for may emanate from
primary commodities their incorporating
and raw materials are environmental
essential to safeguards into their
environmental development planning
and the need for
making available to
them, upon their
request, additional
international technical
and financial
assistance for this
purpose.
 for colonialist and
racist domination
must be abandoned.
326 INTRODUCTION TO
PUBLIC INTERNATIONAL LAW Principle 16
Demographic
Principle 13 policies which are
without prejudice to
In order to
basic human rights
achieve a more
and which are
rational management
deemed appropriate
of resources and thus
to improve the by Governments
environment, States concerned should be
should adopt an applied in those
integrated and regions where the rate
coordinated approach of population growth
to their development or excessive
planning so as to population
ensure that concentrations are
development is likely to have adverse
compatible with the effects on the
need to protect and environment of the
improve environment human environment
for the benefit of their and impede
population. development.

Principle 14 Principle 17

Rational Appropriate
planning constitutes national institutions
an essential tool for must be entrusted
reconciling any with the task of
conflict between the planning, managing
needs of development or controlling the
and the need to environmental
protect and improve resources of States
the environment. with a view to
enhancing
Principle 15
environmental
Planning must quality.
be applied to human
settlements and Principle 18
urbanization with a Science and
view to avoiding technology, as part of
adverse effects on the their contribution to
environment and economic and social
obtaining maximum development, must be
social, economic and applied to the
environmental identification,
benefits for all. In this avoidance and control
respect, projects of environmental
which are designed risks and the solution
of environmental
problems and for the
common good of
mankind.
 promoted in all
countries, especially
CHAPTER 16 the developing
INTERNATIONAL ENVIRONMENTAL LAW countries. In this
connection, the free
Principle 19 flow of up-to-date
Education in scientific information
environmental and transfer of
matters, for the experience must be
younger generation as supported and
well as adults, giving
assisted, to facilitate
due consideration to
the solution of
the underprivileged, is
environmental
essential in order to
broaden the basis for problems;
an enlightened environmental
opinion and technologies should
responsible conduct be made available to
by individuals, developing countries
enterprises and on terms which would
communities in encourage their wide
protecting and dissemination without
improving the constituting an
environment in its full
economic burden on
human dimension. It
the developing
is also essential that
countries.
mass media of
communications Principle 21
avoid contributing to
States have, in
the deterioration of
accordance with the
the environment, but,
Charter of the United
on the contrary,
Nations and the
disseminates
principles of
information of an
international law, the
educational nature on
sovereign right to
the need to project
exploit their own
and improve the
resources pursuant to
environment in order
to enable man to their own
develop in every environmental
respect. policies, and the
responsibility to
Principle 20 ensure that activities
Scientific within their
research and jurisdiction or control
development in the do not cause damage
context of to the environment of
environmental other States or of
problems, both areas beyond the
limits of national
national and
jurisdiction.
multinational, must be
 Principle 22
States shall
cooperate to develop
further the
international law
regarding liability and
compensation for the
victims of pollution
and other
environmental
damage caused by
activities within the
jurisdiction or control
of such States to areas
beyond their
jurisdiction.
 prevent, reduce and
eliminate adverse
environmental effects
328 INTRODUCTION TO resulting from
PUBLIC INTERNATIONAL LAW
activities conducted
in all spheres, in such
Principle 23 a way that due
Without account is taken of
prejudice to such the sovereignty and
criteria as may be interests of all States.
agreed upon by the
Principle 25
international
community, or to States shall
standards which will ensure that
have to be determined international
nationally, it will be organizations play a
essential in all cases coordinated, efficient
to consider the and dynamic role for
systems of values the protection and
prevailing in each improvement of the
country, and the environment.
extent of the
Principle 26
applicability of
standards which are Man and his
valid for the most environment must be
advanced countries spared the effects of
but which may be nuclear weapons and
inappropriate and of all other means of
unwarranted social mass destruction.
cost for the States must strive to
developing countries. reach prompt
agreement, in the
Principle 24 relevant international
International organs, on the
matters concerning elimination and
the protection and complete destruction
improvement of the of such weapons.
environment should 21st plenary meeting
be handled in a 16 June 1972
cooperative spirit by
all countries, big and Rio Declaration
small, on an equal In 1992, the United
footing.
Nations Conference
Cooperation
on Environment and
through multilateral
Development
or bilateral
sponsored another
arrangements or other
appropriate means is conference in Brazil
essential to It was attended
effectively control,
 equitably meet
developmental and
CHAPTER 16 environmental needs
INTERNATIONAL ENVIRONMENTAL LAW of present and future
generations.
by 170 states. The
Conference came out with Principle 4
the Rio Declaration. The In order to
following principles were achieve sustainable
enunciated: development,
environmental
Principle I
protection shall
Human beings constitute an integral
are at the centre of part of the
concerns for development process
sustainable and cannot be
development. They considered in
are entitled to a isolation from it.
healthy and
productive life in Principle 5
harmony with nature. All States and
all people shall
Principle 2
cooperate in the
States have, in essential task of
accordance with the eradicating poverty as
Charter of the United an indispensable
Nations and the requirement for
principles of sustainable
international law, the
development, in order
sovereign right to
to decrease the
exploit their own
disparities in
resources pursuant to
standards of living
their own
and better meet the
environmental and
needs of the majority
developmental
of the people of the
policies, and the
world.
responsibility to
ensure that activities Principle 6
within their The special
jurisdiction or control situation and needs of
do not cause damage developing countries,
to the environment of
particularly the least
other States or of
developed and those
areas beyond the
most environmentally
limits of national
vulnerable, shall be
jurisdiction.
given special priority.
Principle 3 International actions
The right to in
development must be
fulfilled so as to
 of production and
consumption and
promote appropriate
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
demographic policies.

the field of Principle 9

environment and States should
development should cooperate to
also address the strengthen
interests and needs of endogenous capacity
all countries. building for
sustainable
Principle 7 development by
States shall improving scientific
cooperate in a spirit of understanding
global partnership to through exchanges of
conserve, protect and scientific and
restore the health and technological
integrity of the knowledge, and by
Earth’s ecosystem. In enhancing the
view of the different development,
contributions to adaptation, diffusion
global environmental and transfer of
degradation, States technologies,
have common but including new and
differentiated innovative
responsibilities. The technologies.
developed countries
acknowledge the Principle 10
responsibility that Environmental
they bear in the issues are best
international pursuit handled with the
of sustainable participation of all
development in view concerned citizens, at
of the pressures their the relevant level. At
societies place on the
the national level,
global environment
each individual shall
and of the
have appropriate
technologies and
access to information
financial resources
concerning the
they command.
environment that is
Principle 8 held by public
To achieve authorities, including
sustainable information on
development and a hazardous materials
higher quality of life and activities in their
for all people, States communities, and the
should reduce and opportunity to
participate in
eliminate
decisionmaking
unsustainable patterns
processes. States shall
facilitate and
encourage public
awareness and
participation by
making information
widely available.
Effective access to
judicial and
administrative
proceedings,
including redress and
remedy, shall be
provided.
 discrimination or a
disguised restriction
CHAPTER 16 on international trade.
INTERNATIONAL Unilateral actions to
ENVIRONMENTAL deal with
LAW environmental
challenges outside the
Principle 11
jurisdiction of the
States shall importing country
enact effective should be avoided.
environmental Environmental
legislation. measures addressing
Environmental trans-boundary or
standards, global environmental
management problems should, as
objectives and far as possible, be
priorities should based on an
reflect the international
environmental and consensus.
developmental
context to which they Principle 13
apply. Standards States shall
applied by some develop national law
countries may be regarding liability and
inappropriate and of compensation for the
unwarranted victims of pollution
economic and social
and other
cost to other
environmental
countries, in
damage. States shall
particular developing
countries. also cooperate in an
expeditious and more
Principle 12 determined manner to
States should develop further
cooperate to promote international law
a supportive and open regarding liability and
in-ternational compensation for
economic system that adverse effects of
would lead to
environmental
economic growth and
damage caused by
sustainable
activities within their
development in all
jurisdiction or control
countries, to better
address the problems to areas beyond their
of environmental jurisdiction.
degradation. Trade Principle 14
policy measures for
States should
environmental
effectively cooperate
purposes should not
to discourage or
constitute a means of
prevent the relocation
arbitrary or
and transfer to other
unjustifiable
States of any
activities and
substances that cause
severe environmental
degradation or are
found to be harmful
to human health.

Principle 15
In order to
protect the
environment, the
precautionary
approach shall be
widely applied by
States according to
their
 of a competent
national authority.

332 INTRODUCTION TO Principle 18

PUBLIC INTERNATIONAL LAW
States shall
immediately notify
capabilities. Where other States of any
there are threats of natural disasters or
serious or irreversible other emergencies
damage, lack of full that are likely to
scientific certainty produce sudden
shall not be used as a harmful effects on the
reason for postponing environment of those
cost-effective States. Every effort
measures to prevent shall be made by the
environmental international
degradation. community to help
States so afflicted.
Principle 16
National Principle 19
authorities should States shall
endeavour to promote provide prior and
the internalization of timely notification
environmental costs and relevant
and the use of information to
economic potentially affected
instruments, taking States on activities
into account the that may have a
approach that the significant adverse
polluter should, in trans-boundary
principle, bear the
environmental effect
cost of pollution, with
and shall consult with
due regard to the
those States at an
public interest and
early stage and in
without distorting
good faith.
international trade and
investment. Principle 20

Principle 17 Women have a

vital role in
Environmental
environmental
impact assessment, as
management and
a national instrument,
development. Their
shall be undertaken
full participation is
for proposed
therefore essential to
activities that are
achieve sustainable
likely to have a
development.
significant adverse
impact on the
environment and are
subject to a decision
 occupation shall be
protected.

CHAPTER 16 Principle 24
INTERNATIONAL
ENVIRONMENTAL Warfare is
LAW inherently destructive
of sustainable
Principle 21 development. States
The creativity, shall therefore respect
ideals and courage of international law
the youth of the world providing protection
should be mobilized for the environment in
to forge a global times of armed
partnership in order to conflict and cooperate
achieve sustainable in its further
development and development, as
ensure a better future necessary.
for all. Principle 25
Principle 22 Peace,
Indigenous development and
people and their environmental
communities and protection are
other local interdependent and
communities have a indivisible.
vital role in
environmental Principle 26
management and States shall
development because resolve all their
of their knowledge environmental
and traditional disputes peacefully
practices. States
and by appropriate
should recognize and
means in accordance
duly support their
with the Charter of
identity, culture and
the United Nations.
interests and enable
their effective Principle 27
participation in the
States and
achievement of
people shall cooperate
sustainable
in good faith and in a
development.
spirit of partnership in
Principle 23 the fulfillment of the
The principles embodied
environment and in this Declaration
natural resources of and in the further
development of
people under
international law in
oppression,
the field of
domination and
sustainable
development.
 Wild Fauna and Flora,
1973, and also a
Convention on Biological
334 INTRODUCTION TO
PUBLIC INTERNATIONAL LAW Diversity, 1992.
There are also
Some treaties regional conventions
involving environmental
The Stockholm and
matters such as the Treaty
the Rio Declarations are
of Rome of 1957 (European
just that, declarations. They
Union), a 1994 North
do not have the force of
American Agreement on
law. There exist, however,
Environmental
some conventions which
Cooperation, a 1991
are legally binding on the
Protocol on Environmental
parties. Some of these are: Protection to the Antarctic
In Articles 192-194 of Treaty of 1991, and the
the 1982 LOS there are Amazon Declaration of
prohibitions on marine 1989.
pollution.
The Vienna
Convention for the
Protection of the Ozone
Layer of 1985 adopt
various measures for the
protection of the “ozone
layer,” the layer of
atmospheric ozone above
the planetary boundary
layer.
The United Nations
Conference on Environment
and Development, 1992,
seeks to achieve
“stabilization of greenhouse
gas concentration in the
atmosphere at a level that
would prevent dangerous
anthropogenic interference
with the climate system.”
The Kyoto Protocol,
already ratified by 84 States
as of 1 November 1999,
also seeks to protect the
atmosphere.
There is also a
Convention on
International Trade in
Endangered Species of
 noted, ninety percent of
international law activity is
economic international law
although it does not have
the glamour of such
subjects as use of force,
Chapter 17 INTERNATIONAL ECONOMIC LAW human rights, or
intervention. The (Third)
restatement of Foreign
Relations Law has this
statement: “The law of
What is international economic law? international economic
Recent developments relations in its broadest
have made international sense includes all the
economic law a distinct part international law and
of international law. Beyond international agreements
the regulation of interstate governing economic
trade, the law has moved transactions that cross state
into the creation of boundaries or that otherwise
international institutions, have implications for more
formulation of definite rules than one state, such as those
governing a wide range of involving the movement of
economic matters, and the goods, funds, persons,
establishment of methods of intangibles, technology,
dispute resolution. vessels or aircraft.”
Moreover, international Because of this broad
economic law affects not range, four characteristics
only states but also multi- can be pointed out. First,
national corporations. IEL is obviously part of
Likewise, globalization of public international law.
economic matters have Treaties alone make this so.
affected traditional notions Second, IEL is intertwined
of sovereignty. with muncipal law. The
It can thus be seen balancing of economic
that international economic treaty law with municipal
law can involve a broad law is important. Third, IEL
range of transactions, requires multi-disciplinary
regulations and litigation thinking involving as it does
which cannot be adequately not only economics but also
reflected in one definitional political science, history,
formula. As one writer has anthropology, geography,

335
 Agreement on Tariff and
Trade (GATT) and its
successor the World Trade
336 INTRODUCTION TO PUBLIC Organization (WTO). The
INTERNATIONAL LAW GATT and the WTO are the
most important trade
etc. Fourth, empirical research is very oriented institutions. They
important for understanding its operation.’ shape domestic import and
export laws which impact
Important economic institutions.
on international trade on
After the Second goods and services.
World War, the economic
GATT went through a
advisers of the United
series of modifications
States and of England led
Rounds with the Uruguay
an effort to establish
Round of 1994 as the final
mechanisms which could
one. The final agreement
avoid the repetition of the
proposed the establishment
protectionist policies of the
of a World Trade
1930s. The effort led to the
Organization (WTO) which
Bretton Woods Conference
would oversee the
of 1944. The conference
operation of GATT and a
had two main objectives:
new General Agreement on
first, to advance the
reduction of tariffs and Trade and Services.
other trade barriers, and Key Principles of International Trade
second, to create a global Law.
framework designed to Agreed tariff levels.
minimize economic The GATT contains
conflicts. Out of this specified tariff levels for
conference were bom the each state. Each state
International Monetary agrees not to raise tariff
Fund (IMF) whose function
levels above those
was to provide short-term
contained in the schedule.
financing to countries in
But these can be
balance of payments
renegotiated.
difficulties; the
International Bank for
Reconstruction and
Development (World Bank)
designed to provide long-
term capital to support
growth and development;
and the International Trade
Organization (ITO) which
'See Martin Dixon and Robert
was intended to promote a
McCorquadale, CASES AND
liberal trading system by MATERIALS ON INTERNATIONAL
proscribing certain LAW 485-524 Blackstone Press
protectionist trade rules. Limited, 1991.
The intended function
of the ITO was eventually
taken over by the General
 The GATT itself
contains many exceptions
to the key principles. Some
CHAPTER 17 of the exceptions are
INTERNATIONAL ECONOMIC LAW general in nature such as
those referring to public
The most favored
morals, public health,
nation principle (MFN).
currency protection,
The MFN clause embodies
products of prison labor,
the principle of non-
national treasures of
discrimination. The
historic, artistic or
principle means that any
archeological value, and
special treatment given to a
protection of exhaustible
product from one trading
natural resources. There are
partner must be made
also security exceptions and
available for like products
regional trade exceptions.
originating from or destined
Of special significance for
for other contracting
the Philippines are the
partners. In practice, this
exceptions for developing
generally refers to tariff
nations.
concessions.
Principle of national TANADAV. ANGARA
treatment. This prohibits G.R. 118295, May 2,1997
discrimination between WTO Recognizes Need to Protect
domestic producers and Weak Economies
foreign producers. In Upon the
practice, this means that other hand,
once foreign producers respondents
maintain that
have paid the proper border
the WTO itself
charges, no additional
has some built-
burdens may be imposed on in advantages to
foreign products. protect weak
Principle of and developing
tariffication. This principle economies,
prohibits the use of quotas which comprise
on imports or exports and the vast
majority of its
the use of licenses on
members.
importation or exportation.
Unlike in the
The purpose of the UN where
principle is to prevent the major states
imposition of non-tariff have permanent
barriers. But GATT seats and veto
provides for exceptions on powers in the
a quantitative and Security
temporary basis for balance Council, in the
WTO, decisions
of payments or infant
are made on the
industry reasons in favor of
basis of
developing states. sovereign
Exceptions to key principles. equality, with
each member’s
vote equal in
weight to that of
any other. There
is no WTO
equivalent of
the UN Security
Council.
 interests more
effectively
through the
WTO than
INTRODUCTION TO PUBLIC INTERNATIONAL LAW through one-on-
one
“WTO negotiations
decides by with developed
consensus countries.
whenever Within the
possible, WTO,
otherwise, developing
decisions of the countries can
Ministerial form powerful
Conference and blocs to push
the General their economic
Council shall be agenda more
taken by the decisively than
majority of the outside the
votes cast, Organization.
except in cases This is not
of interpretation merely a matter
of the of practical
Agreement or alliances but a
waiver of the negotiating
obligation of a strategy rooted
member which in law. Thus,
would require the basic
three fourths principles
vote. underlying the
Amendments WTO
would require Agreement
two thirds vote recognize the
in general. need of
Amendments to developing
MFN countries like
provisions and the Philippines
the to “share in the
Amendments growth in
provision will international
require assent trade
of all members. commensurate
Any member with the needs
may withdraw of their
from the economic
Agreement development.”
upon the These basic
expiration of principles are
six months found in the
from the date of preamble of the
notice of WTO
withdrawals.” Agreement as
Hence, follows:
poor countries “The Parties to this Agreement,
can protect their
common
 Recognizi developing
ng that their countries, and
relations in the especially the
field of trade least developed
and economic among them,
endeavor secure a share
should be in the growth in
conducted with international
a view to trade
raising commensurate
standards of
with the needs
living, ensuring
of their
full
economic
employment
development.
and a large and
steadily Being
growing desirous of
volume of real contributing to
income and these objectives
effective by entering into
demand, and reciprocal and
expanding the mutually
production of advantageous
and trade in arrangements
goods and directed to the
services, while substantial
allowing for the reduction of
optimal use of tariffs and other
the world’s barriers to trade
resources in
accordance
with the
objective of
sustainable
development,
seeking both to
protect and
preserve the
environment
and to enhance
the means for
doing so in a
manner
consistent with
their respective
needs and
concerns at
different levels
of economic
development.
Recognizi
ng further that
there is need for
positive efforts
designed to
ensure that
 pursuant to and
consistent with
the foregoing
basic principles,
CHAPTER 17 the WTO
INTERNATIONAL ECONOMIC LAW
Agreement
and to the grants
elimination of developing
countries a
discriminatory
more lenient
treatment in
treatment,
international giving their
trade relations. domestic
Resolved, industries some
therefore, to protection from
develop an the rush of
integrated, more foreign
viable and competition.
durable Thus, with
multilateral respect to tariffs
trading system in general,
encompassing preferential
the General treatment is
Agreement on given to
Tariffs and developing
Trade, the countries in
results of past terms of the
trade liberaliza- amount of tariff
tion efforts, and reduction and
the period
all of the results
within which
of the Uruguay
the reduction is
Round of Multi-
to be spread
lateral Trade
out.
Negotiations.
Specifically,
Determ GATT requires
ined to an average tariff
preserve the reduction rate
basic of 36% for
principles developed
and to further countries to be
the objectives effected within
underlying a period of six
this (6) years while
multilateral developing
trading countries —
including the
system, . .
Philippines
(emphasis
— are required
supplied.)
to effect an
Specific WTO Provisos Protect
Developing Countries average tariff
reduction of
So too,
only 24%
the Solicitor
General points within ten (10)
out that years.
 In respect foreign
to domestic competition and
subsidy, GATT trade practices
requires including
developed antidumping
countries to measures,
reduce domestic countervailing
support to measures and
agricultural safeguards
products by against import
20% over six surges. Where
(6) years, as local businesses
compared to are jeopardized
only 13% for by unfair
developing foreign
countries to be competition, the
effected within Philippines can
ten (10) years. avail of these
In regard measures.
to export
subsidy for
agricultural
products, GATT
requires
developed
countries to
reduce their
budgetary
outlays for
export subsidy
by 36% and
export volumes
receiving export
subsidy by 21%
within a period
of six (6) years.
For developing
countries,
however, the
reduction rate is
only two-thirds
of that
prescribed for
developed
countries and a
longer period of
ten (10) years
within which to
effect such
reduction.
Moreover,
GATT itself has
provided built-
in protection
from unfair
 in other
economic
policies. As
earlier stated,
the Court in
taking
340 INTRODUCTION TO PUBLIC
jurisdiction of
INTERNATIONAL LAW
this case will
not pass upon
There is hardly the advantages
therefore any and
basis for the disadvantages
statement that of trade
under the WTO, liberalization as
local industries an economic
and enterprises policy. It will
will all be only perform its
wiped out and constitutional
that Filipinos duty of
will be deprived determining
of control of the whether the
economy. Quite Senate
the contrary, the committed
weaker grave abuse of
situations of discretion.
developing
nations like the Dispute Resolution.
Philippines A Dispute Settlement
have been taken Body (DSB) has been
into account;
established by the WTO
thus, there
Agreement. It consists of
would be no
basis to say that the General Council of the
in joining the WTO and operates under
WTO, the the Understanding on Rules
respondents and Procedures Governing
have gravely the Settlement of Disputes
abused their
1994 (DSU). Each state has
discretion. True,
a right to the establishment
they have made
a bold decision of a Panel. The DSU has
to steer the ship also provided for a
of state into the permanent Appellate Body,
yet uncharted consisting of persons with
sea of economic recognized expertise in law,
liberalization. to handle appeals from a
But such
Panel decision.
decision cannot
be set aside on Expanding Scope of International
the ground of Economic Law.
grave abuse of
discretion, The Uruguay Round
simply because of 1994 has expanded the
we disagree scope of the multilateral
with it or trade regime. It now
simply because
includes intellectual
we believe only
property, services, sanitary
and physiosanitary
measures and investment,
as well as the strengthening
of the rules on subsidies,
countervailing duties and
antidumping.
As can readily be
seen, IEL has become a
very specialized field. Most
significantly too, it is
affecting the sovereignty of
states and their capacity to
give force to national
policy objectives.
I
 brief
passages
in books,
articles,
reviews,
Philippine Copyright, 2009
legal
by papers,
and
judicial
JOAQUIN G. BERNAS, S.J. or other
official
ISBN 978-971-23-5351-2 proceedi
ngs with
proper
N
citation.
o portion
of this A
book may ny copy
be copied of this
or book
reproduc
without
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s, nding
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author
except ALL RIGHTS RESERVED BY THE AUTHOR

3491
No.
 Reprinted: September 2012
ISBN 978-971-23-5351-2

Q5-PO-00032
9789712353512

Printed by
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 INTRODUCTION
TO
PUBLIC INTERNATIONAL
LAW

JOAQUIN G. BERNAS, S J.
Jesuit Residence Ateneo de Manila University Loyola Heights,
Quezon City Philippines
 about
international
law..............................
3
Public and
private
international
law..............................
4
Brief
CONTENTS historical
developmen
C t of
h international
a law..............................
pt 4
er From
1 Ancie
— nt law
to the
T Leagu
H e of
E Natio
N ns......................
A 4
T From
U the
R end of
E World
O War II
F to the
I end of
N the
T Cold
E War...................
R 5
N The
A end of
T the
I Cold
O War...................
N 6
A
L C
L ha
A pt
W er
2
What is
—
international
T
Law?................................................................................
H
1
E
Scope of
S
international O
law....................................................................................
U
1 R
Is C
international E
law a law?........................................................................
S
2 O
Some F
theories I
 N Usu Bahra 1994..................
T and in, 23
E opinio ICJ
R juris
N in
A Huma
TI nitari iii
O an
N Law:
A The Martens
L Clause 15
L Treaties...........................................................................................................
A 15
W Treati
What es and
custo
sources are........................................................................................................
8 m...........................................................................................................
Custom or 16
customary General
principles of
law..................................................................................................................
10 law
The recognized
mater by civilized
ial nations............................................................................................................
factor 17
: Judicial
Practi decisions.........................................................................................................
ce of 19
states The
or teachings of
highly
usus.......................................................................................................
10 qualified
Opini writers and
“Publicists.”....................................................................................................
o juris....................................................................................................
12 19
Disse Equity.............................................................................................................
nting 20
states Other
; supplementa
subse ry evidence.....................................................................................................
quent 21
contr UN
ary Resol
practi utions.....................................................................................................
ce...........................................................................................................
21
13 “Soft
Evide Law"......................................................................................................
nce of 21
state
practi Chapte
ce r3—
and THE
opinio LAW
OF
juris.......................................................................................................
14 TREA
“Insta TIES
nt Definition
custo of treaties........................................................................................................
m ”........................................................................................................
22
14 Quata
r v.
 Authority to Terminate................................................
55
Succession to treaties...........................................................
56
Function of treaties........................................................................................
27 Chapter 4 — INTERNATIONAL LAW
The making of treaties...................................................................................AND MUNICIPAL LAW
28
Dualism vs. Monism............................................................
Negotiation...........................................................................................
28 58
Municipal Law in International Law....................................
Power to negotiate................................................................................
28 59
International Law in Domestic Law.....................................
Authentication of text............................................................................
29 60
Consent to be bound............................................................................. Conflict between International Law and
29 Domestic Law:
Accession to a treaty............................................................................. International Rule
31 ...........................................................
Reservations.......................................................................................... 62
32 Conflict between International Law and
The Philippines and the 1982 Convention Domestic Law:
on the Municipal Rule
Law of the Sea ...........................................................
........................................................... 63
35 Head Money Cases: Edye v. Robertson......................
Reservations in Human Rights Treaties................................................ 66
36 Whitney v. Robertson..................................................
Entry into force of treaties.................................................................... 68
37
Application of treaties...........................................................................Chapter 5 — SUBJECTS OF
38 INTERNATIONAL LAW: STATES
Interpretation of treaties.......................................................................
Subjects of International Law..............................................
38 71
Air France v. Saks, 470 US 392............................................................
40
Invalidity of Treaties......................................................................................
42
Amendment and Modification of Treaties.....................................................
44
Amendment...........................................................................................
45
Modification..........................................................................................
46
Termination of Treaties..................................................................................
46
Material breach....................................................................................
46
Supervening impossibility of performance...........................................
47
Rebus sic stantibus................................................................................
48
Fisheries Jurisdiction Case (United
Kingdom v. Iceland)..............................................................................
49
Namibia Case........................................................................................
50
Danube Dam Case (Hungary v. Slovakia)............................................
52
Procedure for the Termination of Treaties............................................
54
 Trusteeship Council................................................
95
Secretariat..............................................................
95
States: Commencement of their Existence....................................................
International Court of Justice................................
72
96
People or Population............................................................................
72 Other Agencies.......................................................
96
Territory................................................................................................
72 Regional Organizations: ASEAN............................
96
Government...........................................................................................
73 Insurgents.........................................................................
98
Sovereignty............................................................................................
73 Protocol II...............................................................
98
Self-Determination................................................................................
73 Common Article 3...................................................
99
Recognition of States.....................................................................................
74 National Liberations Movements....................................
100
Recognition of Government...........................................................................
77 Individuals.......................................................................
101
The Tinoco Arbitration.........................................................................
78 Chapter 7 — TERRITORY:
Upright v. Mercury Business Machines LAND, AIR, OUTER SPACE
Co..........................................................................................................
79 Territory in International Law.........................................
Consequences of Recognition or Non- 103
Modes of Acquisition of Sovereignty over
recognition.....................................................................................................
80 Territory...........................................................................
103
Succession of States.......................................................................................
81 Discovery and Occupation
Succession or Continuity...................................................................... .................................................................
81 103
Succession of States.............................................................................. The Island of Palmas
82 .................................................................
Fundamental Rights of States........................................................................ 104
84
Independence........................................................................................
84
Equality.................................................................................................
84
Peaceful co-existence............................................................................
85
Some incomplete Subjects.............................................................................
85

Chapter 6 — OTHER SUBJECTS OF

INTERNATIONAL LAW
International Organizations............................................................................
87
Immunities.............................................................................................
89
The United Nations: Structure and
Powers..................................................................................................
93
General Assembly.................................................................................
94
Security Council....................................................................................
95
ECOSOC...............................................................................................
95
 The High Seas......................................................................
129
Hot Pursuit
.....................................................................
Prescription.........................................................................................
112 130
Cession Settlement of Disputes.........................................................
..................................................................... 131
112
Chapter 9 — JURISDICTION
Conquest OF STATES
.....................................................................
112 The Territoriality Principle...................................................
Accretion and Avulsion....................................................................... 133
113 Effects Doctrine
Is contiguity a mode of acquisition ?......................................................................................................................
113 133
Intertemporal Law..............................................................................The Lotus Case
113 .....................................................................
Airspace.................................................................................................... 134
114 Jurisdiction over foreign vessels in
Outer space................................................................................................ Philippine Territory....................................................
116 137
Trail Smelter Arbitration............................................
Chapter 8 — TERRITORY: 138
LAW OF THE SEA The Nationality Principle.....................................................
140
Territorial Sea............................................................................................
120 Blackmer v. United States
Baselines: “normal" or “straight" .....................................................................
..................................................................... 140
120 Effective Nationality Link
Sovereignty over Territorial Sea......................................................... .....................................................................
122 142
Internal waters........................................................................................... The Nottebohm Case
124 .....................................................................
Archipelagic waters.....................................................................................142
124 Decision
Bays........................................................................................................... .....................................................................
126 143
Contiguous zone........................................................................................ Stateless persons.........................................................
127 151
Exclusive economic zone or “patrimonial sea.”....................................... Mejoff v. Director of Prisons......................................
127 151
The Continental (Archipelagic) Shelf....................................................... The Protective Principle.......................................................
128 156
The Deep Seabed: “Common Heritage of The Universality Principle...................................................
157
Mankind.”.................................................................................................
128 Filartiga v. Pena-Irala................................................
Islands....................................................................................................... 160
129 Attorney General of Israel v. Eichmann
.....................................................................
162

vi
 US Diplomatic and Consular Staff in
Iran Case
................................................................
Eichmann v. Attorney-General of Israel.............................................216
164 Immunity of International Oiganizations.........................
The Passive Personality Principle................................................................ 219
167 The Act of State Doctrine................................................
United States v. Fawaz Yunis 219
................................................................
167 Chapter 11 — STATE
RESPONSIBILITY
Conflicts of Jurisdiction............................................................................
172 Protection of Aliens.........................................................
The Balancing Test 223
................................................................ Corporations and Shareholders
173 ................................................................
International Comity 224
................................................................ Standard for the Protection of Aliens
173 ................................................................
Forum non conveniens........................................................................225
173 Enforcement Regimes
Extradition................................................................................................. ................................................................
174 227
United States v. Alvarez-Machain....................................................... Doctrine of State Responsibility......................................
174 227
Secretary of Justice v. Hon. Ralph C. Internationally wrongful act............................................
Lantion................................................................................................
227
180 Attribution to the State.....................................................
Bail in extradition cases..................................................................... 228
190 Acts of state organs
................................................................
Chapter 10 — IMMUNITY
229
FROM JURISDICTION
Claire Claim
Immunity from jurisdiction....................................................................... ................................................................
192 230
Immunity of head of state......................................................................... Corfu Channel Case
192 ................................................................
The Pinochet Case: Background 232
................................................................ Nicaragua v. US
192 ................................................................
Regina v. Bartle and The Commissioner 235
of Police United States v. Iran
................................................................ ................................................................
193 239
State Immunity.......................................................................................... Acts of Revolutionaries
195 ................................................................
Republic of Indonesia v. Vinzon 241
................................................................ Home Missionary Society Claim
198 ................................................................
Diplomatic and consular immunities........................................................ 242
203 Short v. Iran
Diplomatic immunities.............................................................................. ................................................................
204 243
Consuls and consular communities...........................................................
211

vii
 Other Conventions on Human Rights..................................
263
Customary human rights law...............................................
263
Preliminary Objections.............................................................................
International Implementation of Human Rights
244
Law.......................................................................................
Reparation.................................................................................................
263
244
The 1503 procedure or confidential
Chorzow Factory Case procedure
..................................................................... .....................................................................
245 264
Calvo Clause Rejected.............................................................................. The 1235 procedure
246 .....................................................................
Expropriation of Alien Property................................................................ 264
247
The International Criminal Court.........................................
Chapter 12 — INTERNATIONAL 265
HUMAN RIGHTS LAW
Chapter 13 — PEACEFUL
From Alien Rights to Human Rights......................................................... SETTLEMENT OF INTERNATIONAL
248 DISPUTES
An Emerging International Bill of Human Rights.................................... The meaning of international “dispute.”..............................
249 267
The Covenant on Civil and Political Rights..............................................
Peaceful methods of settling disputes..................................
252
267
Torture, ill-treatment and prison
Non-judicial or diplomatic methods.....................................
conditions
268
.....................................................................
Negotiation
254
.....................................................................
Freedom of Movement
268
.....................................................................
Mediation
254
.....................................................................
Legal personality, privacy and the family
269
.....................................................................
Inquiry
256
.....................................................................
Thought, conscience, religion, expression
269
and political freedoms.. 257
Conciliation
Associations and unions
.....................................................................
.....................................................................
269
257
Quasi-judicial Method..........................................................
Minorities
269
.....................................................................
257 Arbitration
.....................................................................
Self-determination of peoples
269
.....................................................................
258 Arbitral decisions
.....................................................................
Optional Protocol on the Covenant on Civil and
270
Political Rights..........................................................................................
259 Judicial method: the International Court of
The Covenant on Economic, Social and Cultural Justice (ICJ)..........................................................................
271
Rights........................................................................................................
260 Composition of the Court.....................................................
The Duty to Implement............................................................................. 271
261 Jurisdiction of the ICJ: Contentious jurisdiction..................
273

viii
 International Humanitarian Law......................................
307
The Hague Law................................................................
308
Aerial Incidence Case
The Geneva Conventions of 1949...................................
................................................................
308
275
Customary and Conventional Law..................................
Nicaragua v. US
308
................................................................
Commencement and Termination of
276
Hostilities
Case Concerning East Timor
................................................................
................................................................
309
278
Protocol 1
Provisional Measure..................................................................................
................................................................
282
310
Nicaragua v. US
Methods of Warfare: Jus in Bello....................................
................................................................
310
282
Neutrality.........................................................................
Intervention................................................................................................
314
287
El Salvador v. Hounduras Non-international conflicts..............................................
315
................................................................
288 Civil wars
................................................................
Obligation to comply with decisions.........................................................
291 315
Advisory jurisdiction................................................................................. Common Article 3
292 ................................................................
Other more active International Courts..................................................... 315
294 Protocol II
................................................................
Chapter 14 — THE USE OF 316
FORCE SHORT OF WAR International Terrorism....................................................
317
The Use of Force.......................................................................................
295 Chapter 16 — INTERNATIONAL
The threat of force..................................................................................... ENVIRONMENTAL LAW
297
Individual and collective self-defense....................................................... Environmental concerns..................................................
298 320
Traditionally allowable coercive measures............................................... Environmental concerns
301 ................................................................
Protection of nationals abroad................................................................... 321
302 Who have environmental rights?.....................................
Humanitarian intervention......................................................................... 322
302 “Sustainable Development.”............................................
322
Chapter 15 — THE LAW OF WAR Emerging principles.........................................................
(INTERNATIONAL HUMANITARIAN 323
LAW) Stockholm Declaration
................................................................
323

ix
 Important economic institutions...........................................
336
Key principles of International Trade Law..........................
Principles 336
..................................................................... Exceptions to key principles................................................
323 337
Rio Declaration Tafiada v. Angara
..................................................................... .....................................................................
328 337
Dispute Resolution...............................................................
Chapter 17 — 340
INTERNATIONAL ECONOMIC Expanding Scope of International Economic
LAW Law.......................................................................................
340
What is international economic law?........................................................
335