Consensual Theory International law derives its binding force from the

consent of states
REVIEWER ON PUBLIC INTERNATIONAL LAW
Treaties—expression of consent
MAIN SOURCE: JOAQIN G. BERNAS
Summary by: Atty. Rae Reposar Custom—voluntary adherence to common practices,
is seen as expression of consent
Natural Law Theory Law is derived by reason from the nature of man
CHAPTER 1 :THE NATURE OF INTERNATIONAL LAW
International law—application of natural reason to
What is International Law? the nature of the state-person
Î A body of rules and principles of action which are binding upon civilized states in their
relation to one another
Î A law which deals with the conduct of the states and of international organizations and Customary law—what are regarded as generally
with their relations inter se, as well as with some of their relations with persons, whether accepted principles of law are in fact an expression
natural or juridical of what traditionally was call natural law
Some Dissenters International law—a combination of politics, morality
Scope of International Law and self-interest hidden under the smokescreen of
a. Regulation of space expeditions legal language
b. Division of the ocean floor Pragmatic Theory International law is law because it is seen as such by
c. Protection of human rights states and other subjects of international law
d. Management of international financial system
e. Regulation of the environment
f. Preservation of peace Public International Law v. Private International Law

Is International Law a Law? Public International Law Private International Law

Î Henkin: It is probably the case that almost all nations observe all principles of Referred to as International Law Referred to as Conflict of Laws
international law and almost all of their obligations almost all of the time Governs the relationship between and Domestic law which deals with cases
Î Brierly: The ultimate explanation of the binding force of all law is that man, whether he among states and also their relations where foreign law intrudes in the
is a single individual or whether he is associated with other men in a state, is constrained, with international organizations and domestic sphere where there are
in so far as he is reasonable being, to believe that order and not chaos is the governing individual persons questions of the applicability of foreign
principle of the world in which he lives law or the role of foreign courts

Some Theories about International Law

Command Theory Austin: Law consists of commands originating from a CHAPTER 2 SOURCES OF INTERNATIONAL LAW
sovereign and backed up by threats of sanction if
disobeyed
What Sources are
Domestic Laws—found in statute books and in collections of court decisions
International law is not law because it does not come
from a command of a sovereign
Classifications of Sources
1. Formal sources—various processes by which rules come into existence
a. Legislation
b. Treaty making
c. Judicial decision making

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 d. Practice of states Evidence of state practice and opinio juris a. Treaties
2. Material sources—identify what the obligations are b. Diplomatic correspondence
a. State practice d. Judicial decisions c. Statements of national leaders and political advisers
b. UN Resolutions e. Writings of jurists d. Conduct of states
c. Treaties
Instant Custom
Art. 38(1) of the Statute of the International Court of Justice o A spontaneous activity of a great number of states supporting a specific line of
1. International conventions—establishing rules expressly recognized by contesting states action
2. International custom—evidence of a general practice accepted as law
3. General principles of law recognized by civilized nations The Martens Clause
4. Subsidiary means for determination of rules of law Until a complete code of laws of war has been issued, inhabitants & belligerents are
a. Judicial decisions protected under the rule on the principles of the law of nations as they result from:
b. Teachings of the most highly qualified publicists usages of civilized people, laws of humanity & public conscience

2. Psychological or subjective factor—why they behave the way they do

Restatement of Foreign Relations Law of the US
1. Customary Law Treaties
2. International agreement Î Determine the rights and duties of states just as individual rights are determined by
3. General principles common to the major legal system contracts
Î Binding force comes from the voluntary decision of sovereign states to obligate
Sources of International Law themselves to a mode of behavior
1. Custom 4. Generally recognized principles of law
2. Treaties 5. Judicial decisions Treaties and Custom
3. International agreements 6. Teachings of highly qualified publicists Î If the treaty is intended to be declaratory of customary law, it may be seen as evidence
of customary law
Custom or Customary Law Î Adherence to treaties can be indicative also of adherence to practice as opinio juris
Î A general and consistent practice of states followed by them from a sense of legal obligation Î If treaty comes later than a particular custom, treaty should prevail
Î Elements: Î If a later treaty is contrary to a customary rile that has the status of jus cogens, custom
1. Material factor—how state behaves o Elements of Practice of sates or will prevail
usus Î The later custom, being the expression of a later will, should prevail
a. Duration—may be either short or long; not the most Î A treaty is void if, at the time of its conclusion, it conflicts with a preemptory norm of
important element general international law
Î Preemptory norm of general international law = a norm accepted and recognized by the
b. Consistency—continuity and repetition international community of States as a whole as a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of general international
c. Generality of the practice of states—uniformity and generality of practice law having the same character
need not be complete but it must be substantial
General Principles of Law Recognized by Civilized Nations
Opinio Juris—belief that a certain form of behavior is obligatory Î This has reference to principles of municipal law common to the legal systems of the world

Dissenting states: subsequent contrary practice Judicial Decisions

o Dissenting states are bound by custom unless they had consistently objected to Î Decisions of the court have no binding force except between the parties and in respect of
it while the custom was merely in the process of formation that particular case
o It is also possible that after a practice has been accepted as law, contrary Î Decisions do not constitute stare decisis
practice might arise

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 Î Decisions of the ICJ are not only regarded as highly persuasive in international circles but Definition of Treaties
they have also contributed to the formulation of principles that have become Î An international agreement concluded between States in written form and governed by
international law international law, whether embodied in a single instrument or in 2 or more related
instruments and whatever its particular designation
Teachings of Highly Qualified Writers and “Publicists” Î Even oral agreement can be binding, however, only written agreements that are new,
Î Publicists = institutions which write on international law come under the provisions of the Vienna Convention
a. The International Commission Î Characteristics to make it binding:
b. The Institut de Droit International 1. Commitment was very specific
c. International Law Association 2. There was a clear intent to be bound
d. Restatement of Foreign Relations Law of the US Functions of Treaties
e. Annual publication of the Hague Academy of International Law a. Sources of international law
Equity b. Charter of international organizations
Î When accepted, is an instrument whereby conventional or customary law may be c. Used to transfer territory, regulate commercial relations, settle disputes, protect human
supplemented or modified in order to achieve justice rights, guarantee investments
Î Where 2 parties have assumed an identical or a reciprocal obligation, one party which is
engaged in a continuing non-performance of that obligation should not be permitted to Different Kinds of Treaties
take advantage of a similar nonperformance of that obligation by the other party
Î The Court’s recognition of equity as part of international law is in no way restricted by Multilateral Treaties Open to all states of the world; Create the norms which
the special power conferred upon it to decide a case are the basis for a general rule of law
ex aequo et bono, if the parties agree thereto Î Kinds of Equity:
1. Intra legem—within the law; the law is adapted to the facts of the case 2. Praeter legem— Can either be Codification Treaties or ―Law Making
beyond the law; used to fill the gaps within the law Treatiesǁ, or both
3. Contra legem—against the law; refusal to apply the law which is seen as unjust Treaties that create Operate through the organs of the different states
Collaborative 1. Universal scope
Other Supplementary Evidence Mechanism 2. Regional
1. UN Resolutions—generally considered merely recommendatory but if they are supported Bilateral Treaties In the nature of contractual agreements which create
by all the states, they are an expression of opinio juris communis shared expectations such as trade agreements of
2. Soft Law—―Non-treaty Agreementsǁ; international agreements not concluded as treaties various forms; ―Contract Treatiesǁ
and therefore not covered by the Vienna
Convention on the Law of Treaties The Making of Treaties
o Administrative Rules—guide the practice of states in relation to international 1. Negotiation—foreign ministries, diplomatic conferences
organizations 2. Power to negotiate
3. Authentication of text—signing of the document; so that states will know the contents &
avoid misunderstanding
CHAPTER 3 THE LAW OF TREATIES 4. Consent to be bound:
a. Signature e. Approval
Various names of Treaties b. Exchange of Instruments f. Accession
a. Conventions c. Covenants e. Protocols g. Modus vivendi c. Ratification g. Other means if so agreed
b. Pacts d. Charters f. Concordat d. Acceptance
5. Accession to a treaty—states which did not participate in the initial negotiation may express
1969 Vienna Convention on the Law of Treaties Î Governs treaties their consent to be bound
between states 6. Reservations—unilateral statement, however phrased or named, made by a State, when
Î Entered into force in January 1980 signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to
exclude or to modify the legal effect of certain provisions of the treaty in their application
to the State

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 7. Entry into force of treaties—date agreed or once consent given (but provisional application
can also apply) Authority to Terminate
8. Application of treaties o PACTA SUNT SERVANTA—every treaty in force is BINDING upon the Î Belongs to the one who has authority to enter into the treaty
parties and must be PERFORMED by them in GOOD FAITH Î In the Philippines, authority to conclude treaties is shared between the Senate and the
o A party may NOT INVOKE INTERNAL LAW as justification for its failure to perform a President
treaty
o It is binding upon each party in respect of its entire territory unless a different intention
appears in the treaty or is otherwise established
9. Interpretation of Treaties Succession to Treaties
a. Objective approach—interpretation according to the ordinary meaning of the words Clean Slate Rule: newly independent state is not bound to maintain in force or to become a
b. Teleological approach—interpretation according to the telos or purpose of the treaty party to any treaty by reason only of the fact that at the date of the succession of states, the
c. Subjective approach—honors special meaning given by the parties treaty was in force in respect of the territory to which the succession of state relates

Invalidity of Treaties
1. Error—relates to a fact or situation which was assumed by that State to exist at the time CHAPTER 4 INTERNATIONAL LAW AND MUNICIPAL LAW
when the treaty was concluded and formed
2. Fraud—State has been induced to conclude a treaty Dualism v. Monism
3. Corruption of a Representative of a State
4. Coercion of a Representative of a State Municipal Law International Law
5. Coercion of a State by the threat or use of force
6. Violation of jus cogens—treaty is void if, at the time of its conclusion, it conflicts with a Dualist or As to Product of local Treaties and custom
preemptory norm of general international law Pluralist Theory source custom or of grown among states
legislation
Amendment and Modification of Treaties *when As to Regulates relations Regulates
Î Amendment—formal revision done with the participation, at least in its initial stage, by international and relations between individual relations
all the parties to the treaty municipal law are they persons under the between states
Î Modification—involves only some parties in conflict, regulate state
Municipal law As to their Law of sovereign Law between
Termination of Treaties must prevail substance over individuals sovereign states
Î Terminated or suspended according to the terms of the treaty or with the consent of the Monism or Two theories:
parties Monistic Theory A. Municipal law subsumes and is superior to
1. Material Breach international law
a. Repudiation of the treaty not sanctioned by the present *International and B. International law is superior to Domestic Law
Convention Municipal laws (supported by Kelsen)
b. Violation of a provision essential to the accomplishment of the object or purpose of the belong to only one
treaty
system of law
2. Supervening Impossibility of Performance o Results from the permanent disappearance or
destruction of an object indispensable for the execution of the treaty
Municipal Law in International Law
3. Rebus sic stantibus o Resulted in a radical transformation of the extent of the obligations
Î Follows the dualist tradition and blocks domestic law from entry into the international
imposed by it, may, under certain conditions, afford the party affected a ground for
arena
invoking the termination or suspension of the treaty
Î A state which has violated a provision of international law cannot justify itself by recourse
to its domestic law
Procedure for the Termination of Treaties Î A state which has entered into an international agreement must modify its law to make
1. Notify other parties of ground and measure proposed it conform to the agreement
2. If no objection, carry out the measure proposed
3. If there is an objection, follow Art. 33
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International Law in Domestic Law
Î How does international law become part of domestic law for dualists? Commencement of their Existence
1. Doctrine of Transformation o It must be expressly and specifically Î State, as a person of international law, should possess the following qualifications:
transformed into domestic law through the appropriate constitutional (Montevideo Convention of 1933 on Rights and Duties of States)
machinery such as an act of Congress or Parliament 1. Permanent population—PEOPLEÆa community of persons sufficient in number and
o Treaties do not become part of the law of a state unless it is consented to by the capable of maintain the permanent existence of the community and held together by
state a common bond of law
2. Doctrine of Incorporation o They become part of the law of the land
Î Philippines adheres to the dualist theory and at the same time adopts the incorporation 2. Defined territory—an entity may satisfy this requirement even if its boundaries have
theory and thereby makes international law part of domestic law not been finally settled, if one or more of its boundaries are disputed, or if some of
Î International law can be used by Philippine courts to settle domestic disputes its territory is claimed by another state
Î Art. 2, Sec. 2 of the Constitution: only customary law and treaties which have become ƒ An entity does not necessarily cease to be a state even if all its territory has been
part of customary law become part of Philippine law by incorporation occupied by a foreign power or if it has otherwise lost control of its territory
temporarily
Conflict between International Law and Domestic Law: International Rule
Î Before an international tribunal, a state may not plead its own law as an excuse for failure 3. Government—that institution or aggregate of institutions by which an independent
to comply with international law society makes and carries out those rules of action which are necessary to enable
Î Exception: Art. 46 of Vienna Convention = in cases where the constitutional violation was men to live in a social state
manifest and concerned a rule of its internal law of fundamental importance ƒ It is the National Government that has legal personality and it is such that is
Î Manifest = objectively evident to any State conducting itself in the matter in accordance internationally responsible for the actions of other agencies and instrumentalities
with normal practice and in good faith of the state
ƒ Temporary absence of government does not terminate the existence of a state
Conflict between International Law and Domestic Law: Municipal Rule
Î Domestic courts are bound to apply the local law 4. Capacity to enter into relations with other States— SOVEREIGNTYÆindependence
Î Should a conflict arise between an international agreement and the Constitution, the from outside control
treaty would not be valid and operative as domestic law
Î Art. 8, Sec. 5 of the Constitution explicitly recognizes the power of the Supreme Court to Î Principle of Self-determination—sovereignty as an element of a state is related but not
declare a treaty unconstitutional; however, even if declared unconstitutional, the treaty identical to this principleÆby virtue of this, people freely determine their political status
will not lose its character as an international law and freely pursue their economic, social and cultural development

Levels of claim to Self-determination

CHAPTER 5 SUBJECTS OF INTERNATIONAL LAW STATES 1. Establishment of New State—the claim by a group within an established state to break
away and form an new entity
2. Does not involve Establishment of New State—simply involves claims
Subjects of International Law—entities endowed with rights and obligations in the international
a. To be free from external coercion
order and possessing the capacity to take certain kinds of action on the international plane
b. To overthrow effective rulers and establish a new government—the assertion of the
Î Those with international personality
right of revolution
c. Of people within an entity to be given autonomy
Objects of International Law—those who indirectly have rights under or are beneficiaries of
Î International law has not recognized a right of secession from a legitimately existing state
international law through subjects of international law
Recognition of States—the act of acknowledging the capacity of an entity to
States—predominant actors; a community of persons more or less numerous, permanently
exercise rights belonging to statehood
occupying a definite portion of territory, independent of external control, and possession an
organized government to which the great body of inhabitants render habitual obedience
Can an entity claim to be a state before it is recognized by other states?
Declaratory Theory Constitutive Theory

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Recognition is merely ―declaratoryǁ of Recognition ―constitutesǁ a state b. When a state is absorbed by another state, international agreements of the absorbed
the existence of the state states are terminated
Its being a state depends upon its It is what makes a state a state and c. Clean Slate Theory—when part of a state becomes a new state, the new state does not
possession of the required elements confers legal personality on the entity succeed to the international agreements to which the predecessor state was a party
and not upon recognition unless, expressly or impliedly, it accepts such agreements
States may decide to recognize an d. Uti possidetis Rule—pre-existing boundary and other territorial agreements continue
entity as a state even if it does not to be binding notwithstanding
have all the elements of a state
Fundamental Rights of States
Recognition of Government—act of acknowledging the capacity of an entity to exercise powers 1. Independence—capacity of a state to provide for its own well-being and development free
of government of a state from the domination of other states
Î If a change in government in an existing state comes about through ordinary constitutional o Right to exercise within its portion of the globe, to the exclusion of others, the functions
procedure = recognition by others comes as a matter of course of a state
o Restrictions upon a state’s liberty either from customary law or from treaties do not
Consequence of Recognition or Non-Recognition deprive a state of independence
Î A government, once recognized, gains increased prestige and stability o There is duty not to interfere in the internal affairs of other states o Rights
a. Doors of funding agencies are opened flowing from independence:
b. Loans are facilitated a. Jurisdiction over its territory and permanent population
c. Access to foreign courts and immunity from suit are gained b. Right to self-defense
d. Military and financial assistance also come within reach c. Right of legation
Î Absence of formal recognition bars an entity from all these benefits or, at least, access 2. Equality—equality of legal rights irrespective of size or power of the state
to them may be suspended o Within the General Assembly, the doctrine means one state, one vote
Î Admission of a government to the UN does not mean recognition by all members but only
to the extent of the activities of the organization 3. Peaceful Co-Existence—mutual respect for each other’s territorial integrity and
Î Recognition of a regime is terminated when another regime is recognized sovereignty, mutual non-aggression, non-interference in
each other’s affairs and the principle of equality
Succession of States Î Views on Succession
A. The new state succeeds to no rights or obligations of the predecessor state but begins Some Incomplete Subjects
with a tabula rasa 1. Protectorates—dependent states which have control over their internal affairs but whose
B. Successor state assumes all obligations and enjoys all the rights of the predecessor external affairs are controlled by another state; referred to as
a. Autonomous states
Issues on Succession of States b. Vassal states
1. Succession to territory—when a state succeeds another state with particular territory, c. Semi-sovereign
the capacities, rights and duties of the predecessor state with respect to that territory d. Dependent sates
terminate and are assumed by the successor state
2. Succession to state property—this is subject to agreement between predecessor and 2. Federal state—a union of previously autonomous entities o The central organ will have
successor states personality in international law but the extent of international personality of the
3. Succession to contracts—this is subject to agreement between the states concerned component entities can be a problem
o Responsibility for the public debt of the predecessor, and rights and obligations under its
contracts remain with the predecessor state but is subject to certain exceptions 3. Mandated and Trust Territories—territories placed by the League of nations under one
or other of the victorious allies of WWI
4. Succession to treaties o After WWII, this was replaced by trusteeship system
a. Moving Treaty Rule / Moving Boundaries Rule—when part of the territory of a state
becomes territory of another state, the international agreements of the predecessor 4. Taiwan—a non-state territory which de jure is part of China
state cease to have effect in respect of the territory
o Relief from treaty obligation is rebus sic stantibus
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 5. The Sovereign Order of Malta—the Italian Court of Cassation in 1935 recognized its 1. General Assembly—it has plenary power in the sense that it may discuss any question
international personality or any matters within the scope of the
Charter o GA distinguishes between
6. The Holy See and Vatican City—recognized under Lateran Treaty; it has no permanent a. Important questions—decided by 2/3 majority of the
population members voting and present
b. Other questions—decided by the majority

CHAPTER 6: OTHER SUBJECTS OF INTERNATIONAL LAW 2. Security Council—has primary responsibility for the maintenance of international
peace and security
INTERNATIONAL ORGANIZATIONS o There are 15 member states, 5 permanent and the others are elected for 2 year
Î An organization that is set up by treaty among 2 or more states which have international terms in accordance with equitable
personality geographic representation
Î Constituent instruments of international organizations are multilateral treaties, to which o Distinguishes between
the well-established rules of treaty interpretation apply a. Procedural matters
Î Non-governmental organizations (NGO)—set up by private persons b. All other matters—requires 9 affirmative votes, including the concurring votes
Î Although international organizations have personality in international law, their powers of the permanent members
and privileges are by no means like those of states o The Charter does not specify what matters are procedural, hence, decision on
since it is limited by the constitutional instrument that created them whether a matter is procedural or not requires the concurrence of the permanent
members
Advisory Opinion on the Use of Nuclear Weapons o Abstention = veto
International organizations—governed by the Principle of SpecialtyÆthey are invested by the
States which create them with powers, the limits of which are a function of the common 3. Economic and Social Council (ECOSOC)—has 54 members elected for 3 year terms
interests whose promotion those States entrust to them.
Powers conferred on international organizations—normally the subject of an express 4. Trusteeship Council—supervises non-self governing territories o The Council
statement in their constituent instruments but in order to achieve their objectives, they suspended operations after Palau became independent on Oct. 1, 1994
possess subsidiary powers which are not expressly provided for in the basic instruments which
govern their activities. 5. International Court of Justice (ICJ)—principal judicial organ of the UN

Immunities—based on the need for the effective exercise of their functions and not from 6. Secretariat—comprises a Secretary General and such staff as the
sovereignty Organization may require
Î These immunities come from the conventional instrument creating them o Secretary General—elected to a 5 year term by General Assembly upon the
recommendation of the Security Council, subject to veto power
The United Nations: Structure and Powers
Î Came into being on Oct. 24, 1945 Î Other Agencies:
Î A universal organization charged with peacekeeping responsibilities, development of 1. United Nations Educational, Scientific and Cultural Organizations
friendly relations among nations, achievement of international cooperation in solving (UNESCO)
international problems of an economic, social, cultural and humanitarian character, and 2. International Civil Aviation Organization (ICAO)
the promotion of human rights and fundamental freedoms for all human beings without 3. World Health Organization (WHO)
discrimination 4. Food and Agricultural Organization (FAO)
Î UN is enjoined against intervening in matters which are essentially within the domestic 5. World Bank
jurisdiction of any state 6. International Monetary Fund (IMF)
Î International Constitutional Supremacy Clause—in the hierarchy of international
organizations, the UN occupies a position of preeminence so if there is a conflict with Regional Organizations—they are neither organs nor subsidiary organs of UN
other international agreement, obligations Î They are autonomous international organizations having an institutional affiliation with
under the UN Charter shall prevail Î Principal organs UN by concluding agreements with UN
of UN:

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 Î Created by international agreements for the purpose of dealing with regional problems in
general or with specific matters be they INDIVIDUALS
economic, military or political Î Possess limited rights and obligations (deriving from customary international law) in
international law
ASEAN—established on Aug. 8, 1967 in Bangkok, Thailand with the signing of the Bangkok Î Obligations of individuals are those arising from the regulation of armed conflicts
Declaration by the 5 original member countries: Indonesia, Malaysia, Philippines, Singapore and Î When individual rights are violated, however, individuals still have to rely on the
Thailand enforcement power of states; but some treaties have provided for the right of individuals
Î Brunei Darrusalam joined on Jan. 8, 1994; Vietnam on July 28, 1995; Laos and Myanmar to petition international bodies alleging that a contracting state has violated some of their
on July 23, 1997; Cambodia in 1999. human rights
Î 3 main objectives:
a. Promote economic, social and cultural development of the region through
cooperative programs CHAPTER 7: TERRITORY: LAND, AIR, OUTER SPACE
b. Safeguard the political and economic stability of the region against big power rivalry
c. Serve as a forum for the resolution of intra-regional differences Territory in International Law—an area over which a state has effective control
Î Exact boundaries might be uncertain but there should be a definitive core over which
INSURGENTS sovereignty is exercised
Î Protocol II—first and only international agreement exclusively regulating the conduct of Î Acquisition of territory—acquisition of sovereignty over territory
parties in a non-international armed conflict Î Requirements for Material Field of Î Includes land, maritime areas, airspace and outer space
Application:
a. Armed dissidents must be under responsible command
b. They must exercise such control over a part of its territory as to enable them to carry
out sustained and converted military operations and to implement this Protocol
Î Insurgent groups which satisfy the material field of application may be regarded as
―para-statal entities possessing definite if limited form of international personalityǁ
Modes of Acquisition of Sovereignty over Territory
a. They are recognized as having belligerent status against the de
1. Discovery and Occupation o Occupation—acquisition of terra nulliusÆterritory which prior
jure government
to occupation belonged to no state or which may have been abandoned by a prior occupant
b. They are seen as having treaty making capacity
o There is abandonment when occupant leave the territory with the intention of not
Î Common Article 3—for armed conflict not of an international character
returning
Î Prohibited acts under Article 3:
o Discovery of terra nullius is not enough to establish sovereignty; it must be
a. Violence to life and person, in particular, murder of all kinds, mutilation, cruel
accompanied by effective control
treatment and torture
b. Taking of hostages
WESTERN SAHARA CASE HELD:
c. Outrages upon personal dignity, in particular, humiliating and degrading treatment
Territories inhabited by tribes or peoples having a social and political organization were not
d. Passing of sentences and the carrying out of executions without
regarded as terra nullius.
previous judgment pronounced
The information furnished to the Court shows that at the time of colonization, Western
NATIONAL LIBERATION MOVEMENTS
Sahara was inhabited by peoples which, if nomadic, were socially and politically organized
Î Organized groups fighting in behalf of a whole people for freedom from colonial powers Î
into tribes and under chiefs competent to represent them.
Characteristics:
a. They can be based within the territory which they are seeking to liberate or they
THE ISLAND OF PALMAS HELD:
might find a base in a friendly country
Contiguity—US also argued that Palmas was US’ territory because the island was closer to
b. Their goal is self-determination—to free themselves from colonial domination, or a
the Philippines than to Indonesia which was then held by the Netherlands East Indies. The
racist regime or foreign occupation
arbitrator said there was no positive international law which favored the US’ approach of
c. There is the ultimate goal of controlling a definite territory terra firma, where the nearest continent or island of considerable size gives title to the
d. They must have an organization capable of coming into contract with other
land in dispute. The arbitrator held that mere proximity was not an adequate claim to land
international organizations

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 noted that if the international community followed the proposed United States approach, o Now, conquest is proscribed by international law o ―No territorial acquisition resulting
it would lead to arbitrary results. from the use or threat of force shall be recognized as legalǁ

Continuous and peaceful display of sovereignty—the Netherlands' primary contention was 5. Accretion and Avulsion—sovereignty by operation of nature o Accretion—gradual increase
that it held actual title because the Netherlands had exercised authority on the island since of territory by the action of nature o Avulsion—sudden change resulting for instance from
1677. The arbitrator noted that the US had failed to show documentation proving Spanish the action of a volcano
sovereignty on the island except those documents that specifically mentioned the island's
discovery. Additionally, there was no evidence that Palmas was a part of the judicial or
administrative organization of the Spanish government of the Philippines. However, the
Netherlands showed that the Dutch East India Company had negotiated treaties with the
Is Contiguity a Mode of Acquisition?
local princes of the island since the 17th century and had exercised sovereignty, including
Î It is impossible to show a rule of positive international law to the effect that islands
a requirement of Protestantism and the denial of other nationals on the island. The
situated outside the territorial waters should belong to a state from the fact that its
arbitrator pointed out that if Spain had actually exercised authority, than there would have
territory forms part of the terra firma
been conflicts between the two countries but none are provided in the evidence.
(Las Palmas Case)
In resolving island territorial disputes, the following 3 important rules must be followed:
Intertemporal Law
1. Title based on contiguity has no standing in international law
Î Rules in effect at the time of the acquisition should be applied
2. Title by discovery is only an inchoate title
3. If another sovereign begins to exercise continuous and actual sovereignty and the
discoverer does not contest this claim, the claim by the sovereign that exercises
authority is greater than a title based on mere discovery AIRSPACE
Î Each state has exclusive jurisdiction over the air space above its territory
EASTERN GREENLAND CASE HELD: Î Sovereignty over airspace extends only until where outer space begins
A claim to sovereignty based not upon some particular act or title such as treaty or cession Î Consent for transit must be obtained from the subjacent nation
but merely upon continued display of authority, involves 2 elements each of which must be Î State Aircraft—aircraft used in military, customs and police services Î ―No state aircraft
shown to exist: (a) intention and will to act as sovereign, and (b) some actual exercise or of a contracting State shall fly over the territory of another State or land thereon without
display of such authority. authorization by special agreement or otherwise, and in accordance with the terms
thereof.ǁ (Art. 3[a] of Chicago Convention on International Civil Aviation)
Î Aircraft must not only not be attacked unless there is reason to suspect that the aircraft
Another circumstance which must be taken into account is the extent to which the
is a real threat but also that a warning to land or change course must be given before it
sovereignty is also claimed by some other Power.
is attacked (Lissitzyn)
Î Civilian aircraft should never be attacked
One of the peculiar features of the present case is that up to 1931, there was no claim by
any Power other than Denmark to the sovereignty of Greenland.
OUTERSPACE
2. Prescription—requires effective control and the object is not terra nullius
Î Outer space, wherever that might be, and celestial bodies, are not susceptible to
o The required length of effective control is longer than in occupation o May be negated by
appropriation by any state
a demonstrated lack of acquiescence by the prior
Î ―The Moon and other celestial bodies shall be used by all State Parties to the Treaty
occupant
exclusively for peaceful purposes.ǁ (1967 Treaty on the Exploration and Use of Outer
Space)
3. Cession—acquisition of territory through treaty o A treaty of cession which is
imposed by a conqueror is invalid

4. Conquest and Subjugation o Conquest—taking possession of a territory through armed

force o It is necessary that the war had ended either by treaty or by indication that all
CHAPTER 9 JURISDICTION OF THE STATES
resistance had been abandoned

Page|9
Jurisdiction – authority to affect legal interests o The scope of a state’s jurisdiction over a person, Maritime vessels – state has jurisdiction over vessels flying its flag o Same
thing or event depends on the interest of the state in affecting the subject in question applies to aircraft and spacecraft
o Corresponding to the powers of the government, jurisdiction can be:
1. Legislative jurisdiction – prescribe norms of conduct Stateless Persons – persons who have no nationality
2. Executive jurisdiction – enforce the norms prescribed a. De jure stateless – persons who have lost their nationality, if they had one, and have not
3. Judicial jurisdiction – adjudicate o International law limits itself to criminal acquired a new one
rather than civil jurisdiction o Civil jurisdiction is subject for private international law b. De factor stateless – persons who have a nationality but to whom protection is denied by
or conflicts of law their state when out of the State
o Jurisdiction may also be acquired by treaty
o However, there are 5 popular principles on jurisdiction PROTECTIVE PRINCIPLE o This is generally supported in
customary law
TERRITORIALITY PRINCIPLE o This is generally supported in customary law o Fundamental source o State may exercise jurisdiction over conduct outside its territory that threatens its
of jurisdiction is sovereignty over territory o It is necessary that boundaries be determined security as long as that conduct is generally recognized as criminal by states in the
o To have jurisdiction, occupation is not enough; control must also be established (Las Palmas international community
Case) o However, this is strictly construed to those offenses posing a direct, specific threat to
national security
Boundary – separating the land areas of two states is determined by the acts of the states Examples of acts covered by Protective Principle:
expressing their consent to its location a. Plots to overthrow the government
o When the boundary between 2 states is a navigable river Æ its location is the middle of b. Forging its currency
the channel of navigation c. Plot to break its immigration regulations
o When boundary between 2 states is a non-navigable river or lake Æ its location is the
middle of the river or lake UNIVERSALITY PRINCIPLE o This recognizes that certain activities, universally dangerous to
states and their subjects, require authority in all community members to punish such acts
wherever they may occur, even absent a link between the state and the parties or the acts in
Effects Doctrine o State also has jurisdiction over acts occurring outside its territory but having question
effects within it
1. Subjective Territorial Principle – a state has jurisdiction to prosecute and punish for crime Examples of acts covered by Universality Principle:
commenced within the state but completed or consummated abroad a. Piracy – any illegal act of violence or depredation committed for private ends on the high
2. Objective Territorial Principle – state has jurisdiction to prosecute and punish for crime seas or outside the territorial control of any state
commenced without the state but consummate within its territory b. Genocide – acts committed with intent to destroy, in whole or in part, a national,
ethical, racial or religious group
Jurisdiction over Foreign Vessels in Philippine Territory – we follow the English Rule c. Crimes against humanity – acts committed as part of a widespread or systematic attack
1. French Rule – crimes committed abroad a foreign merchant vessel should not be directed against any civilian population 1. Attack directed against any civilian population
prosecuted in the courts of the country within whose territorial jurisdiction they were 2. Extermination – internal infliction of conditions of life
committed unless their commission affects the peace and security of the territory 3. Enslavement
2. English Rule – crimes perpetrated under such circumstances are in general triable in the 4. Deportation or forcible transfer of population
courts of the country within whose territory they were committed 5. Torture
6. Forced pregnancy
NATIONALITY PRINCIPLE o This is generally supported in customary law o Every state has 7. Persecution
jurisdiction over its nationals even when those nationals are outside the state 8. Crime of Apartheid
9. Enforced disappearance of persons
Effective Nationality Link – used to determine which 2 states of which a person is a national will d. War crimes – grave breaches of the Geneva Convention of 12 August 1949, namely, any
be recognized as having the right to give diplomatic protection to the holder of dual nationality of the following acts against persons or property protected under the provisions of the
relevant Geneva Convention
Corporations – state has jurisdiction over corporations organized under its laws e. Aircraft piracy f. Terrorism

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PASSIVE PERSONALITY PRINCIPLE
o This does not enjoy wide acceptance IMMUNITY FROM JURISDICTION
o State may apply law, criminal law, to an act committed outside its territory by a person
not its national where the victim of the act was its national * GR: Jurisdiction of a state within its territory is complete and absolute.
o Not accepted for ordinary torts or crimes but is increasingly accepted as applied to * Exceptions:
terrorist and other organized attacks on a state’s nationals by reason of their nationality, 1.) Sovereign immunity
or to assassination of a state’s diplomatic representatives or other officials
A. Immunity of Head of State
CONFLICTS OF JURISDICTION – modes of resolving conflict of jurisdiction - Applies to both the Head of State and to the State itself
1. Balancing Test – if the answer is yes to all the following questions, then the court will assume
jurisdiction Mighell v. Sultan of Johore
a. Was there an actual or intended effect on a state’s foreign commerce? The Sultan of Johore was sued for bread of a promise to marry in a British court. Despite the fact
b. Is the effect sufficiently large to present a cognizable injury to the plaintiffs, and, that it was a private suit, it was dismissed upon verification that the Sultan was a sitting foreign
therefore, a violation of the anti-trust law? sovereign.
c. Are the interests of the state sufficiently strong, vis-à-vis those of other nations, to justify
an assertion of extraordinary authority Pinochet Case: Regina v. Bartle and the Commissioner of Police (House of
Lords, 1999)
2. International Comity – state will refrain from exercising its jurisdiction is it is unreasonable General Augusto Pinochet led a military coup that overthrew the Chilean President Allende.
o Factors to consider in determining unreasonableness: According to a national truth and reconciliation mission, at least 3,196 people were killed or
a. Link or connection of the activity to the territory of the regulating state forcibly disappeared during his dictatorship. British authorities detained Pinochet on an arrest
b. Character of the activity to be regulated warrant issued by Spanish Magistrate Baltasar Garzon under the charges of genocide, terrorism,
c. Existence of justified expectations that might be protected or hurt by the regulation and torture.
d. Likelihood of conflict with regulation by another state
3. Forum non conveniens – application is discretionary with the court o If in the whole In affirming that Pinochet did not enjoy immunity from prosecution as a former head of state and
circumstances of the case it be discovered that there is real unfairness to one of the suitors could thus be extradited, the House of Lords explained:
in permitting the choice of a forum which is not the natural or proper forum, either on the a.) Senator Pinochet as a former head of state enjoys immunity rationae materiae in
ground of convenience of trial or the residence or domicile of parties or of its being the locus relation to acts done by him in relation to his official function as such.
contractus or locus solutionis
b.) However, organization of state torture is not an act committed in his official
EXTRADITION – the surrender of an individual by the state within whose territory he is found to function. The commission of a crime which is an international crime against humanity and
the state under whose laws he is alleged to have committed a crime or to have been convicted of jus cogens cannot be a state function. The principle of individual responsibility for
a crime international criminal conduct has become an accepted part of international law.
o This is a process that is governed by a treaty
o Legal right to demand extradition and the correlative duty to surrender a fugitive exist only c.) The notion of continued immunity for ex-heads of state is inconsistent with the
when created by treaty provisions of the Torture Convention which provides that the international crime of
o Procedure for extradition is normally through diplomatic channels torture can only be committed by an official or someone in official capacity. Since the
immunity applies also to officials who carried out the functions of the state, if torture is
Principles governing Extradition treated as official business sufficient to justify the immunity, then no party would be
1. No state is obliged to extradite unless there is a treaty held liable and the structure of universal jurisdiction over torture committed by officials
2. Differences in legal system can be an obstacle to interpretation of what the crime is is rendered abortive.
3. Religious and political offenses are not extraditable d.) Thus, Senator Pinochet was not acting in any capacity which gives rise to
immunity rationae materiae since authorized and organized torture are contrary to
Bail in Extradition Cases international law.
o Bail may be granted to a possible extraditee only upon a clear and convincing showing that
1. He will not be a flight risk or a danger to the community B. State Immunity
2. There exist special, humanitarian and compelling circumstances CHAPTER 10: - The State may not be sued without its consent.

P a g e | 11
- Based on the principle of equality and independence of states: par in parem non habet imperium. One must also question: (a.) whether the foreign state is engaged in the activity in the regular
- With the gradual expansion of state involvement in commerce, the principle of state immunity course of business; and (b.) if not, whether the nature of the particular transaction or act is in
has evolved to one of restrictive state immunity: only acts jure imperii (governmental acts) and pursuit of a sovereign activity or an incident thereof. If the answer to (b.) is yes, and especially
not acts jure gestionis (trading and commercial acts) are immune. if it is not undertaken for profit or gain, then the act is jure imperii.

The Schooner Exchange v. MacFaddon In this case, petitioner has denied having bought and sold lands in the ordinary course of a real
States enjoy absolute immunity. Despite the absolute territorial jurisdiction of states, one estate business. Instead, he claimed that the acquisition of Lot 5-A was for the site of its mission
sovereign, being bound to not degrade the dignity of his nation by placing himself within the or the Apostolic Nunciature of the Philippines. Respondent failed to dispute such claim.
jurisdiction of another, can be supposed to enter into foreign territory in the confidence that the
immunities belonging to his independent sovereign station, though not expressly stipulated, are * How to claim State immunity?
reserved by implication and will be extended to him. - In PIL, a State must request the Foreign Office of the state where it is sued to convey to
the court that it is entitled to immunity.
Dralle v. Republic of Czechoslovakia - In the Philippines, the foreign government or international organization must first secure
It can no longer be said that by international law, acta gestionis are exempt municipal jurisdiction. an executive endorsement (in whatever form) of its claim of sovereign or diplomatic immunity.
The classic doctrine of immunity arose at a time when there was no justification for any distinction
between private transactions and acts of sovereignty. Today, States engage in commercial Republic of Indonesia v. Vinzon (2003)
activities and enter into competition with their own nationals as well as foreigners. Petitioner, Republic of Indonesia entered into a Maintenance Agreement with respondent, James
Vinzon of Vinzon Trade and Services, to maintain specified equipment (aircons, generator sets,
USA v. Hon. V.M. Ruiz (Philippines) electrical facilities, water heaters, water motor pumps) at the Embassy Main and Annex buildings
The traditional rule of State immunity is a necessary consequence of the principles of and that the Wisma Duta.
independence and equality of States. However, the rules of International Law are constantly
developing and evolving. Because state activities have multiplied, it has become necessary to Chief of Administration, Minister Counselor Azhari Kasim allegedly found Vinzon’s work
distinguish them between sovereign and governmental acts, and private, commercial and unsatisfactory and not in compliance with the agreed standards. Thus, the Embassy terminated
proprietary acts. the agreement.

The result is that State immunity now extends only to acts jure imperii. A state may be said to Respondent alleges that the termination was arbitrary and unlawful. Vinzon filed a complaint in
have descended to the level of an individual and can thus be deemed to have tacitly given its the RTC Makati. Petitioner filed a Motion to Dismiss based on sovereign immunity from suit as well
consent to be sued only when it enters into business contracts. But this does not apply where the as diplomatic immunity under the Vienna Convention on Diplomatic Relations, regarding the suit
contract relates to the exercise of its sovereign functions. against Ambassador Soeratmin and Minister Counsellor Kasim.

In this case, repairs of base facilities are an integral part of the naval base devoted to the defense Respondent alleged that the petitioner has expressly waived its immunity from suit based on a
of both the US and the Philippines, which is a function of the government not utilized nor provision in the Maintenance Agreement which states that any legal action arising from the
dedicated to commercial or business purposes. agreement will be settled according to the laws of the Philippines and by the proper court of
Makati City, Philippines. In addition, the Ambassador and Minister Counsellor may be sued in their
US v. Hon. Luis Reyes (Philippines) personal capacity for tortious acts done with malice and bad faith.
A claim of immunity by an American official was rejected when shown to have been committed
outside the scope of her authority as well as contrary to law. The trial court denied the Motion to Dismiss, which the CA affirmed.

Unauthorized acts of government officials or officers are not acts of the State, and an action Petitioner questions the ruling of the CA that the former had waived its immunity from suit based
against the latter is not a suit against the State within the rule of immunity of the State from suit. on the agreement.
The doctrine of state immunity cannot be used as an instrument to perpetrate an injustice.
The SC ruled in favor of the petitioner:
Holy See v. Eriberto Rosario, Jr. (Philippines) a.) The rules of IL are neither unyielding not impervious to change. The increasing
The mere entering into a contract by a foreign state with a private party cannot be the ultimate need of sovereign states to enter into purely commercial activities brought about a new
test of whether the activity or transaction is ―commercialǁ. concept of immunity. The restrictive theory holds that immunity of the sovereign is
recognized only with regard to public acts but not with regard to private acts.

P a g e | 12
 a.) Every sovereign state is bound to respect the independence of every other sovereign
b.) The mere entering into a contract by a foreign state with a private party cannot state, and the courts of one county will not sit in judgment on the acts of the government of
be construed as the ultimate test of whether or not it is an act jure imperii or jure another, done within its own territory.
gestionis. If the foreign state is not engaged regularly in a business or commercial activity, b.) Redress of grievances due to such acts must be obtained through the means open to be
as in this case, the particular act or transaction must be then tested by its nature. If it is availed of by sovereign powers as between themselves.
in pursuit of a sovereign activity or an incident thereof, then it is an act jure imperii.
Banco Nacional de Cuba v. Sabbatino
c.) The existence alone of a provision in the contract stating that any legal action The act of state doctrine is not a rule of international law but of judicial restraint in domestic
arising out of the agreement shall be settled according to the laws of the Philippines and law, embodied by the principle of separation of powers, whereby courts refrain from making
by a specified court of the Philippines is not necessarily a waiver of state immunity from decisions in deference to the executive who is the principal architect of foreign relations.
suit. It is merely meant to apply where: (a.) the sovereign party elects to sue in the local
courts; or (b.) otherwise waives its immunity by any subsequent act. The applicability of
Philippine laws include the principle recognizing sovereign immunity.

d.) Submission by a foreign state to local jurisdiction must be clear and unequivocal, Alfred Dunhill of London, Inc. v. Cuba
given explicitly or by necessary implication. There is not such waiver in this case. The issue is whether or not the failure of Cuba to return to Dunhill funds mistakenly paid by the
latter for cigars sold to him by certain expropriated Cuban cigar business was an ―act of state.ǁ
e.) The establishment of a diplomatic mission is a sovereign function. It encompasses
its maintenance and upkeep. Hence, the state may enter into contracts with private The Court ruled in favor of Dunhill:
entities to maintain the premises, furnishings and equipment of the embassy and the a.) The concept of an act of state should not be extended to include the repudiations of a purely
living quarter of its agents and officials. commercial obligation owed by a foreign sovereign or by one of its commercial instrumentalities.

f.) Under Article 31 of the Vienna Convention on Diplomatic Relations, a diplomatic Kirkpatrick Co. v. Environmental Tectonics Corp.
agent may be sued in his private capacity for (c.) an action relating to any professional A contract was entered into between the Nigerian Government and Kirkpatrick Co. for the
or commercial activity exercised by the diplomatic agent in the receiving State outside construction and equipment of an aeromedical center at Kaduna Air Force base in Nigeria.
his official functions. Bu the acts of the Ambassador and the Minister Counsellor in
terminating the agreement was committed in relation to their official functions. Thus, Environmental Tectonics, an unsuccessful bidder, found that Kirkpatrick had bribed Nigerian
they enjoy immunity from suit. officials to win the contract. It brought the matter to the Nigerian Air Force and the US embassy
in Lagos.
E. The Act of State Doctrine
US attorney for the District of NJ charged Kirkpatrick with violations of the Foreign Corrupt
Underhill v. Hernandez Practices Act of 1977 to which the latter pleaded guilty.
Through the 1982 revolution in Venezuela, Gen. Hernandez who commanded the anti-
administration party, assumed leadership of the government. Environmental Tectonics brought a civil action against Kirkpatrick to seek damages under the
Racketeer Influenced and Corrupt Organizations Act.
George Underhill, a US citizen, had constructed a waterworks system for Bolivar under a contract
with the government and operated a machinery repair business. Gen. Hernandez refused to grant Defendant moved to dismiss the complaint on the ground of ―act of state doctrine.ǁ
Underhill a passport to leave the city to coerce him to operate his waterworks and repair works
for the benefit of the community and the revolutionary forces. SC ruled that the act of state doctrine is inapplicable where the validity of a foreign government
act is not in question, as in this case.
Underhill files a suit in the US to recover damages for the detention, his alleged confinement to
his own house, and for certain alleged assaults and affronts by the soldiers of Hernadez’s army.

In denying Underhill’s plea, the US court applied the ―act of state doctrineǁ: CHAPTER 11 STATE RESPONSIBILITY

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PROTECTION OF ALIENS 2. Jus civile – applicable only to Roman citizens
No State is obliged to admit aliens into its territory unless there is a treaty requiring it In modern times
Generally, it is difficult to deny admission to all; Hence, States impose legal standards for 1. National treatment or Equality of treatment – aliens are treated in the same manner as
admission nationals
Once admitted, at least under democratic regimes, aliens may not be expelled without due o Bright side: aliens would enjoy the same benefits as local nationals o Dark side: if the State
process is tyrannical and its municipal laws are harsh and violative of human rights, then aliens would
Aliens = ―nationals abroadǁ likewise be subject to such laws
States protect aliens within their jurisdiction in the expectation that their own nationals will be 2. Minimum International Standard – however harsh the municipal laws might be, aliens should
properly treated when residing or sojourning abroad be protected by certain minimum standards of humane protection
Forms of ill-treatment of foreign nationals:
a. Mistreatment by judicial or police authorities
b. Unlawful expropriation of property Neer Claim Facts:
c. Denial of justice or denial of due process of law – failure to prosecute those who attack Mr. Neer, a US national working in Mexico, was shot to death. It was claimed that
foreign nationals the Mexican government had been negligent in their investigation of the murder.
Diplomatic protection – the instrument used for the protection of aliens o Injury to a national
abroad = injury to the individual’s State of nationality Held:
o The interest of the State is in the redress of the injury to itself and not of the injury to the Treatment of an alien, in order to constitute an international delinquency should
individual amount to an outrage, bad faith, willful neglect of duty, or to an insufficiency of
o Individuals are at the mercy of their own State governmental action so far short of international standards that every reasonable
and impartial man would readily recognize its insufficiency.
Corporations and Shareholders
The doctrine of ―effective linkǁ

Barcelona Traction Case Denial of Justice

Facts: Harvard Draft Convention on the Responsibility of States for Damages o Art. 9. Denial of
The claim arose out of the adjudication of bankruptcy in Space of Justice exists when there is
Barcelona Traction, a company incorporated in Canada. The claim’s object was to seek a. Denial
reparation for damage suffered by its shareholders, Belgian nationals, as a result of acts b. Unwarranted delay or obstruction of access to courts
committed contrary to international law. c. Gross deficiency in the administration of judicial or remedial process
d. Failure to provide those guarantees which are generally considered indispensable to the
Held: proper administration of justice
The Court found that Belgium lack jus standi to exercise diplomatic protection of shareholders e. Manifestly unjust judgment – but error of a national court which does not produce
in a Canadian company with respect to measures taken against that company in Spain. manifest injustice is not denial of justice

The breach, if any, was committed against the company, hence, only the company could take Enforcement Regimes
action. Whenever a shareholder’s interests are harmed by an act done to the company, it is to Who can resolve issues of violations of the rights of aliens when appealed to by States in conflict?
the latter that he has to look to institute appropriate action. 1. International Court of Justice
2. Ad-hoc tribunals established for the purpose
As to who should have the right to protect the corporation, it is the State of Nationality of the a. US-Iran Claims Tribunal b. UN Compensation Settlements
corporation, in this case, Canada. 3. Lump-sum Settlements (Claims Settlement Agreements)
a. US-Cambodia b. US-Vietnam
Standard for the Protection of Aliens
Under the Roman Law:
1. Jus gentium – applicable to both citizens and aliens

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DOCTRINE OF STATE RESPONSIBILITY
CAIRE CLAIM
When an injury has been inflicted, there is need to determine whether the State can be held
Facts:
responsible for it Caire, a French national, was killed in Mexico by Mexican soldiers after they had demanded money
Internationally wrongful act – committed when a State violates a customary rule of from him.
international law or a treaty obligation
What needs to be understood? Issue:
1. Elements of an Internationally wrongful act w/n Mexico is responsible for actions of individual military personnel acting without orders or
2. Attributability of the wrongful act to the State against the wishes of their commanding officers
3. Enforcement of the obligation that arises from the wrongful act
Held:
Objective responsibility of the States – responsibility for the acts of the officials or organs of a
INTERNATIONALLY WRONGFUL ACT State, which may devolve upon it even in the absence of any ―faultǁ on its own
No State can escape this responsibility when once it has committed an act which satisfies the
requirements of an ―internationally wrongful actǁ It tends to impute to the State, in international affairs, the responsibility for all the acts
Elements of Internationally wrongful act: committed by its officials or organs which constitute offenses from the point of view of the law
1. Subjective – act must be attributable not to the persons or agencies who performed it, but of nations, whether the official or organ in question has acted within or exceeded the limits of
to the State itself his competence.
2. Objective – act constitutes a breach of an international obligation of the State
What determines the wrongful character of the act is international law and not internal law

This responsibility does not find its justification in general principles, those regulating the judicial
ATTRIBUTION TO THE STATE
organization of the State. The act of an official is only judicially established as an act of State if
1. Acts of State Organs such an act lies within the official’s sphere of competence.
a. Acts of any State organ whether the organ exercises legislative, executive, judicial or any
other functions, whatever position it holds, and whatever its character
The act of an official operating beyond this competence is not an act of State. It should not in
o Organ – includes any person or body which has that status in accordance with the principle, therefore, affect the responsibility of the State.
international law of the State
b. Conduct of an entity which is not an organ of the State but which is empowered to exercise In order to be able to admit this so-called objective responsibility of the State for acts committed
elements of governmental authority provided the entity was acting in that capacity in the by its officials or organs outside their competence, they must have acted at least to all
case in question appearances as competent officials or organs, or they must have used powers or methods
c. Conduct of an organ placed at the disposal of a State by another State acting in the appropriate to their official capacity.
exercise of elements of governmental authority of the
State at whose disposal it had been placed Applying to the present case, the officers in question consistently conducted themselves as
d. Conduct of a State organ or of an entity empowered to exercise elements of governmental officers in the brigade of the Villista general; in this capacity they began exacting the remittance
authority, such organ or entity having acted in that capacity, exceeding its authority or of certain sums of money and when Caire refused, they finally shot him.
contravening instructions concerning its exercise
Under these circumstances, there remains no doubt that, even if they are to be regarded as having
acted outside their competence, the officers have involved the responsibility of the State.

CORFU CHANNEL (previous case)

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 b. Conduct of a movement, insurrectional or other, which succeeds in establishing a new
NICARAGUA v. US
Facts: State in part of the territory of a pre-existing State or in a territory under its
Nicaragua alleges that the mining of Nicaraguan ports or waters was carried out by US military administration
personnel. The President of US authorized a US Government agency to lay mines in Nicaraguan
ports, either in Nicaraguan internal waters or in its territorial sea, by persons in the pay and HOME MISSIONARY SOCIETY CLAIM (US v. BRITAIN) Facts:
acting of the instructions of such agency. US did not issue any public and official warning to The collection of a tax newly imposed by Great Britain on the natives of Sierra Leone known
international shipping of the existence and location of the mines; and that personal and as the ―hut taxǁ was the signal for a serious and widespread revolt in the Ronietta district.
material injury was caused by the explosion of the mines. The imputability to US of these
attacks appear therefore to the Court to be established. In the course of rebellion, all US’ Missions were attacked, and either destroyed or damaged,
and some of the missionaries were murdered.
Nicaragua complains also of infringement of its air space by US military personnel. The Court
finds that only violations of Nicaraguan air space imputable to US on the basis of the high US contends that British Government is responsible for the revolt since it wholly failed to
altitude reconnaissance flights and low altitude flights causing ―sonic booms.ǁ take proper steps for the maintenance of order and the protection of life and property, and
that the loss of life and damage to property is the result of such neglect.
Nicaragua also alleges that US conceived, created and organized a mercenary army, the contra
force. The Court is not able to satisfy itself that US created the contra force but holds it Issue:
largely financed, trained, equipped, armed and organized the FDN, one element of the force. w/n the revolt is attributable to the British Government

Issue: w/n the contras is equated as an organ of US or is acting on behalf of US

Held: Held:
The Court considers that the evidence available to it is insufficient to demonstrate the toal
Even assuming that the ―hut taxǁ was the effective cause of the native rebellion, it was in
dependence of the contras on US aid. A partial dependency may be inferred from the fact itself a fiscal measure to which British Government was perfectly entitled to exercise.
that the leaders were selected by US. There is no clear evidence that US actually exercised
such a degree of control as to justify treating the contras as acting on its behalf. It is well established principle of international law that no government can be held responsible
for the act of rebellious bodies of men committed in violation of its authority, where it is
itself guilty of no breach of good faith, or of no negligence in suppressing insurrection.

2. Acts of other Persons

a. Conduct of a person or group of persons acting on the instructions of, or under the
direction or control of, that State in carrying out the conduct
b. Conduct of a person or group of persons exercising elements of the governmental
authority in the absence or default of the official authorities and in circumstances such
as to call for the exercise of those elements of authority

US v. IRAN (previous case)

3. Acts of Revolutionaries
a. Conduct of an insurrectional movement, which becomes the new government of a State

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 CHORZOW FACTORY CASE (GERMANY v. POLAND)
SHORT v. IRAN
Facts:
Facts: The action of Poland which the Court has judged is not an expropriation but
Claimant is an American national employed by an American Company in Iran. 3 days before is a seizure of property which could not be expropriated even against
the Islamic Revolutionary Government took office, claimant was evacuated from Iran on compensation.
company orders. The claimant sought compensation for salary and other losses resulting from
his alleged expulsion contrary to international law. Held:
If follows that the compensation due to German Government is not
Held: necessarily limited to the value of the undertaking at the moment of
disposition, plus interest to the day of payment. Such a limitation might
Where a revolution leads to the establishment of a new government, the State is held
result in placing Germany and the interests protected by Geneva
responsible for the acts of the overthrown government insofar as the latter maintained control
of the situation. Convention, in a situation more unfavourable than that in which Germany
and these interests would have been if Poland had respected the said
Convention. Such a consequence would not only be unjust, but also and
Claimant relies only on the acts committed by revolutionaries and is unable to identify any
above all incompatible with the aim of the Convention that is the prohibition
agent of the revolutionary movements whose actions compelled him to leave Iran. The acts
of the liquidation of property, rights and interests of German nationals and
of supporters of a revolution as opposed to its agents cannot be attributed to the government.
of companies controlled by German nationals in Upper
Silesia.
Claimant relies on the declarations made by the leader of the Revolution. While these
statements are of anti-foreign and in particular anti-American sentiments, these does not
The essential principle contained in the actual notion of an illegal act is that
amount to an authorization to revolutionaries to act in such a way that the Claimant should reparation must wipe out all the consequences of the illegal act and re-
be forced to leave Iran. establish the situation would have exited if that act had not been
committed.

Restitution in kind, or, if this is not possible, payment of a sum corresponding

to the value which a restitution in kind would bear; the award, if need be,
PRELIMINARY OBJECTIONS
of damages for loss sustained which would not be covered by restitution in
Claim of denial of justice may be lost due to failure to answer some preliminary objections
kind or payment in place of its – such are the principles which should serve
a. Lack of nationality link
b. Failure to exhaust national remedies o Purpose: to protect international courts from being to determine the amount of compensation due for an act contrary to
international law.
swamped with cases which are better handled locally
o Application: cases founded on diplomatic protection or on injury to aliens

CALVO CLAUSE REJECTED

A provision in a contract to the effect that ―under no condition shall the intervention of foreign
diplomatic agents in any matter related to the contractǁ be resorted to
REPARATION This was rejected in North American Dredging Company Claim due to the right to seek redress is
1. Obligation to make full reparation for the injury caused by the internationally wrongful act a sovereign prerogative of a State and a private individual has no right to waive the State’s
2. Injury consist of any damage, whether material or moral, arising in consequence of the right
internationally wrongful act
3. Responsible State may not rely on the provisions of its internal law as justification for failure EXPROPRIATION OF ALIEN PROPERTY
to comply with its obligation Expropriation can be internally wrong if it is done contrary to the principles of international law
1962 UN General Assembly Resolution on the Sovereignty over Natural
Resources
o Expropriation shall be based on grounds or reasons of public utility, security or the national
inters which are recognized as overriding purely individual or private interests, both
domestic and foreign

P a g e | 17
o In such cases, the owner shall be paid appropriate compensation in accordance with the
rules in force in the State taking such measures in
the exercise of its sovereignty and in accordance with international law

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