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SIMPLIFIED MCRAE MATERIALS PUBLIC INTERNATIONAL LAW - Sources of
International Law / Treaties - SOURCES OF INTERNATIONAL LAW
International Conventions International Custom General Principles
of Law Judicial Decisions and teachings of the most highly
qualified publicists (subsidiary) TREATIES VIENNA CONVENTION ON THE
LAW OF TREATIES (SALIENT PROVISION)
A treaty means an international agreement concluded between
states in written form and governed by International Law, whether
embodied in a single instrument or in two or more related
instruments and whatever its particular designation.
Elements:
1. It is an international agreement 2. Between States 3. In
writing 4. Governed by International Law
VCLT COMMENTARY (ILC YEAROOK 1966) agreement bet. states /
others not precluded / oral form
The term treaty is a generic term covering all forms of
international agreements between states regardless of the
designation. The term treaty as opposed to the term agreement has
been favored. It has become accepted by a majority of the jurists.
Other designations are only a matter or nomenclature. But the fact
that it is so defined as being an agreement between states is not
intended to deny other subjects of international law such as
international organizations or insurgent communities from
concluding treaties. There was no mention of intention in the
definition so as to preclude states from choosing between municipal
and international law insofar as they would apply to the provisions
of the treaty. The use of the term in writing is also in no way
intended to deny legal force to oral arguments under IL; but
insofar as the provisions of the VCLT are concerned, their
application shall be limited to written agreements.
VIENNA CONVENTION ON THE LAW OF TREATIES (SALIENT PROVISION)
Every state possesses capacity to conclude treaties. But the
treaty-making capacity is usually vested exclusively in the Federal
Government, although there is no prohibition against conferring the
capacity to make treaties to component state. Whether the component
state may conclude treaties in its own right or as a mere organ of
the federal state is determined by the Federal Constitution.
MAKING OF TREATIES VIENNA CONVENTION ON THE LAW OF TREATIES
(SALIENT PROVISION)
Article 7 Full powers 1. A person is considered as representing
a State for the purpose of adopting or authenticating the text of a
treaty or for the
purpose of expressing the consent of the State to be bound by a
treaty if: (a) he produces appropriate full powers; or
(b) it appears from the practice of the States concerned or from
other circumstances that their intention was to
consider that person as representing the State for such purposes
and to dispense with full powers.
2. In virtue of their functions and without having to produce
full powers, the following are considered as representing their
State: (a) Heads of State, Heads of Government and Ministers for
Foreign Affairs, for the purpose of performing all acts
relating
to the conclusion of a treaty; (b) heads of diplomatic missions,
for the purpose of adopting the text of a treaty between the
accrediting State and the
State to which they are accredited;
(c) Representatives accredited by States to an international
conference or to an international organization or one of its
organs, for the purpose of adopting the text of a treaty in that
conference, organization or organ.
COMMENTARY full powers / safeguard / state discretion to
dispense with it A person is only considered as representing
his
state for purposes of adopting or authenticating the text of a
treaty or for the purpose of expressing the consent of the state to
be
Article 38(1) Statute od the International Court of Justice
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bound only if he produces the appropriate instrument known as
full powers or if it appears from the circumstances that the intent
of the contracting states was to dispense with them. It is up to
the states to decide if they want to dispense w/ the required full
powers. But as a rule, the production of the full powers is the
fundamental safeguard and proof that a person is indeed authorized
to do the particular act in question.
Summary: General Rule: Full powers are required. Exception:
x Heads of State / Heads of Government x Heads of Ministries of
Foreign Affairs x Heads of Diplomatic Missions (only for the
purpose of adopting the text) x Representatives to International
Conferences (only for the purpose of adopting the text)
VIENNA CONVENTION ON THE LAW OF TREATIES (SALIENT PROVISION)
An act relating to the conclusion of a treaty performed by a
person who cannot be considered under Article 7 as authorized to
represent a State for that purpose is without legal effect unless
afterwards confirmed by the State.
x The same rule applies for a person who concluded a treaty but
in doing so acted beyond the scope of his powers. A State may by
implication, confirm the same if it invokes provisions of the
challenged treaty or otherwise acts in such a way as make it appear
that the act of the representative is ratified.
DD: By analogy, this is comparable to the rules regarding
unenforceable contracts in Contract Law as well as the principle of
estoppel.
VIENNA CONVENTION ON THE LAW OF TREATIES (SALIENT PROVISIONS)
Article 9
1. The adoption of the text of a treaty takes place by the
consent of all the states participating in its drawing up, except
as provided in the next paragraph;
2. The adoption of the text of a treaty at an international
conference takes place by vote of 2/3 of the states present and
voting, unless by the same majority they shall decide to adopt a
different rule
Article 11 Means of expressing consent to be bound by a
treaty
The consent of a State to be bound by a treaty may be expressed
by (1) signature, (2) exchange of instruments constituting a
treaty, (3) ratification, (4) acceptance, approval or accession, or
(5) by any other means if so agreed.
Article 12 Consent to be bound by a treaty expressed by
signature
1. The consent of a State to be bound by a treaty is expressed
by the signature of its representative when:
(a) the treaty provides that signature shall have that effect;
(b) it is otherwise established that the negotiating States were
agreed that signature should have that effect; or (c) the intention
of the State to give that effect to the signature appears from the
full powers of its representative or
was expressed during the negotiation.
2. For the purposes of paragraph 1:
(a) the initialing of a text constitutes a signature of the
treaty when it is established that thenegotiating States so agreed;
(b) the signature ad referendum of a treaty by a representative, if
confirmed by his State,constitutes a full signature of
the treaty.
Article 13 Consent to be bound by a treaty expressed by an
exchange of instruments constituting a treaty
The consent of States to be bound by a treaty constituted by
instruments exchanged between them is expressed by that exchange
when:
(a) the instruments provide that their exchange shall have that
effect; or
(b) it is otherwise established that those States were agreed
that the exchange of instruments should have that effect. Article
14 Consent to be bound by a treaty expressed by ratification,
acceptance or approval
1. The consent of a State to be bound by a treaty is expressed
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;
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(c) the representative of the State has signed the treaty
subject to ratification; or
(d) the intention of the State to sign the treaty subject to
ratification appears from the full powers of its representative
or
was expressed during the negotiation.
2. The consent of a State to be bound by a treaty is expressed
by acceptance or approval under conditions similar to those which
apply to ratification.
COMMENTARY ratification as a general rule nowadays / acceptance,
accession, approval The general rule nowadays considering the
practice of states is that ratification is necessary to render the
treaty binding. There have also been some less formal types of
international agreements such as exchange of notes w/c are usually
intended to be binding by signature alone, but the practice of
states was still to subject the same to ratification. The term
acceptance can have 2 meanings. If the treaty states that it is
signed subject to acceptance it generally means subject to
ratification. It is generally known as a simplified form of
ratification. But if the treaty is made open to acceptance w/o
prior signature, it generally connotes accession. The same rules
apply to approval. Article 15 Consent to be bound by a treaty
expressed by accession
The consent of a State to be bound by a treaty is expressed by
accession when:
(a) the treaty provides that such consent may be expressed by
that State my means of accession
(b) it is otherwise established that the negotiating states were
agreed that such consent may be expressed by that state by means of
accession
(c) all parties have subsequently agreed that such consent may
be expressed by that State by means of accession
x Accession is the traditional method by w/c a state, in certain
circumstances becomes party to a treaty to w/c it is not
signatory. There have been divergent opinions as to its
possibility at all; but in modern practice, the right to accede is
made independent of accession such as by making the entry into
force of the treaty conditional upon the deposit of instruments of
accession.
Article 16 Exchange or deposit of instruments of ratification,
acceptance, approval, or accession
Unless the treaty provides otherwise, instruments of
ratification, acceptance, approval, or accession establish the
consent of the State to be bound by a treaty upon: (a) their
exchange between contracting states
(b) their deposit w/ the depositary
(c) their notification to the contracting states or to the
depositary if so agreed
DD: Insofar as deposit of instrument is concerned, the consent
of the state is manifested from the mere act of depositing the
same; that is the legal nexus not the notification of the said
deposit.
Article 18 Obligation not to defeat the object and purpose of a
treaty prior to its entry into force
A state is obliged to refrain from acts w/c would defeat the
object and purpose of a treaty when: (a) it has signed the treaty
or has exchanged instruments constituting the treaty subject to
ratification, acceptance, or approval,
until it shall have made its intention clear not tobecome party
thereto
(b) it has expressed its consent to be bound by the treaty,
pending entry into force, and provided that such entry into force
is not unduly delayed
PERTINENT CONSTITUTIONAL PROVISIONS
Article VII, Section 20. The President may contract or guarantee
foreign loans on behalf of the Republic of the Philippines with the
prior concurrence of the Monetary Board, and subject to such
limitations as may be provided by law. The Monetary Board shall,
within thirty days from the end of every quarter of the calendar
year, submit to the Congress a complete report of its decision on
applications for loans to be contracted or guaranteed by the
Government or government-owned and controlled corporations which
would have the effect of increasing the foreign debt, and
containing other matters as may be provided by law. Article VII,
Section 21. No treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the
Members of the Senate.
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Article VIII, Section 4 (2). All cases involving the
constitutionality of a treaty, international or executive
agreement, or law, which shall be heard by the Supreme Court en
banc xxx shall be decided with the concurrence of a majority of the
Members who actually took part in the deliberations on the issues
in the case and voted thereon. Article XVIII, Section 25. After the
expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States of America concerning military
bases, foreign military bases, troops, or facilities shall not be
allowed in the Philippines except under a treaty duly concurred in
by the Senate and, when the Congress so requires, ratified by a
majority of the votes cast by the people in a national referendum
held for that purpose, and recognized as a treaty by the other
contracting State.
RESERVATIONS Article 19 Formulation of reservations A State may,
when signing, ratifying, accepting, approving or acceding to a
treaty, formulate a reservation unless: (a) the reservation is
prohibited by the treaty;
(b) the treaty provides that only specified reservations, which
do not include the reservation in question,may be made; or
(c) in cases not falling under sub-paragraphs (a) and (b), the
reservation is incompatible with the objectand purpose of the
treaty.
Article 20 Acceptance of and objection to reservations 1. A
reservation expressly authorized by a treaty does not require any
subsequent acceptance by the other contracting States
unless the treaty so provides.
2. When it appears from the limited number of the negotiating
States and the object and purpose of a treaty that the application
of the treaty in its entirety between all the parties is an
essential condition of the consent of each one to be bound by the
treaty, a reservation requires acceptance by all the parties.
3. When a treaty is a constituent instrument of an international
organization and unless it otherwise provides, a reservation
requires the acceptance of the competent organ of that
organization.
4. In cases not falling under the preceding paragraphs and
unless the treaty otherwise provides:
(a) acceptance by another contracting State of a reservation
constitutes the reserving State a party to the treaty in relation
to that other State if or when the treaty is in force for those
States;
(b) an objection by another contracting State to a reservation
does not preclude the entry into force of the treaty as between the
objecting and reserving States unless a contrary intention
isdefinitely expressed by the objecting State;
(c) an act expressing a State's consent to be bound by the
treaty and containing a reservation is effective as soon as at
least
one other contracting State has accepted the reservation.
(a) For the purposes of paragraphs 2 and 4 and unless the treaty
otherwise provides, a reservation is considered to have been
accepted by a State if it shall have raised no objection to the
reservation by the end of a period of twelve months after it was
notified of the reservation or by the date on which it expressed
its consent to be bound by the treaty, whichever is later.
Article 21 Legal effects of reservations and of objections to
reservations
1. A reservation established with regard to another party in
accordance with articles 19, 20 and 23: (a) modifies for the
reserving State in its relations with that other party the
provisions of the treaty to which the reservation
relates to the extent of the reservation; and
(b) modifies those provisions to the same extent for that other
party in its relations with the reserving State.
2. The reservation does not modify the provisions of the treaty
for the other parties to the treaty inter se.
3. When a State objecting to a reservation has not opposed the
entry into force of the treaty between itself and the reserving
State, the provisions to which the reservation relates do not apply
as between the two States to the extent of the reservation.
Article 22 Withdrawal of reservations and of objections to
reservations
1. Unless the treaty otherwise provides, a reservation may be
withdrawn at any time and the consent of a State which as accepted
the reservation is not required for its withdrawal.
2. Unless the treaty otherwise provides, an objection to a
reservation may be withdrawn at any time
3. Unless the treaty otherwise provides, or it is otherwise
agreed:
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(a) the withdrawal of a reservation becomes operative in
relation to another contracting State only when notice of it has
been
received by that State;
(b) the withdrawal of an objection to a reservation becomes
operative only when notice of it has been received by the State
which formulated the reservation.
Article 23 Procedure regarding reservations
(a) A reservation, an express acceptance of a reservation and an
objection to a reservation must be formulated in writing and
communicated to the contracting States and other States entitled to
become parties to the treaty.
(b) If formulated when signing the treaty subject to
ratification, acceptance or approval, a reservation must be
formally confirmed by the reserving State when expressing its
consent to be bound by the treaty. In such a case the reservation
shall be considered as having been made on the date of its
confirmation.
(c) An express acceptance of, or an objection to, a reservation
made previously to confirmation of the reservation does not
itself
require confirmation. The withdrawal of a reservation or of an
objection to a reservation must be formulated in writing.
RESERVATIONS TO THE GENOCIDE CONVENTION The Genocide Convention of
1948 does not contain a reservation clause.
The UN General Assembly now asks the ICJ for an advisory opinion
regarding the implications of reservations made thereto. The
following conclusions were arrived at:
x In the absence of a provision on reservation, it does not
automatically follow that reservations are absolutely
disallowed. In order to determine the effects of such
reservations, or if they are at all allowed, due regard for the
character and purposes of the multilateral convention must be had.
In this case, upon examination of the preparatory stages o f the
Convention, it can be gleaned that only limited reservations can be
allowed given the intendment of the convention to outlaw genocide
as an international crime, as well as to admit as many member
states w/o defeating the purpose of such. The Genocide Convention
was obviously intended to be universal in scope.
x Absolute or general reservations, in this case cannot be made;
it is inconsistent w/ the universal purpose of the convention. But
neither is it true that reservations must bear the assent of all
contracting states. Such a rule would be impracticable and
inconsistent w/ the universal intent of the convention.
x In this case, a state-party making a reservation w/c was
opposed to can still be deemed a party if the reservation is not
wholly inconsistent w/ the policy and purpose of the Genocide
Convention. If, to the opinion of the objecting state, the
reservation is wholly inconsistent w/ the said policy, then it may
treat the reserving party as not a party to the convention. The
treaty does not enter into force as between them. If the
reservation was accepted, there is no problem.
x In the absence of ratification, the signatory state cannot yet
be considered party to the convention; and if it makes a
reservation, it is deemed only provisional in nature. It has not
legal effect as yet. Provisional objections thereto can also be
made. These merely signify the attitude of the reserving states
still subject to ratification. But from the moment of ratification,
the effects as stated earlier (first paragraph) come to play.
INTERPRETATION OF TREATIES Article 31 General rule of
interpretation
1. A treaty shall be interpreted in good faith in accordance
with the ordinary meaning to be given to the terms of the treaty in
their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty
shall comprise, in addition to the text, including its preamble and
annexes:
a) any agreement relating to the treaty which was made between
all the parties in connection withthe conclusion of the
treaty;
b) any instrument which was made by one or more parties in
connection with the conclusion of the treaty and accepted by the
other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
a) any subsequent agreement between the parties regarding the
interpretation of the treaty or the application of its
provisions;
b) any subsequent practice in the application of the treaty
which establishes the agreement of the parties regarding its
interpretation;
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c) any relevant rules of international law applicable in the
relations between the parties.
4. A special meaning shall be given to a term if it is
established that the parties so intended. Article 32 Supplementary
means of interpretation
Recourse may be had to supplementary means of interpretation,
including the preparatory work of the treaty and the circumstances
of its conclusion, in order to confirm the meaning resulting from
the application of article 31, or to determine the meaning when the
interpretation according to article 31: a) leaves the meaning
ambiguous or obscure; or
b) leads to a result which is manifestly absurd or
unreasonable.
INTERPRETATION OF PEACE TREATIES (ICJ ADVISORY OPINION) Under
the Peace Treaties, Bulgaria, Hungary, and Romania
undertook to take measures to secure human rights and
fundamental freedoms. Under the treaty, disputes are to be resolved
by a Commission composed of 1 representative each party, and a
third elected by mutual agreement, and should the parties fail to
agree, may be appointed by the Secretary General of the UN upon
request of either party. Considering that the parties have refused
to appoint their representatives, the US and UK are asking that the
Sec. Gen. of the UN to make the appointment. This is obviously not
contemplated by the agreement. According to the natural and
ordinary meaning of the terms thereof, appointment of the national
commissioners must precede appointment of the third commissioner,
and only in case of disagreement may the matter be submitted for
the appointment by the Secretary General upon request. The power of
the Sec. Gen. cannot be extended beyond the contemplation of the
terms of the treaty.
True that refusal to comply w/ treaty obligations entails
international responsibility; nonetheless, such does not suffice to
alter the provisions of a treaty. The court can only interpret, not
extend or alter the same.
PREEMPTORY NORMS (JUS COGENS) Article 53 Preemptory Norms of
International Law
A treaty is void if, at the time of its conclusion, it conflicts
with a preemptory norm of general international law. For the
purposes of the present Convention, a preemptory norm of general
international law is a norm accepted and recognized by the
international community of States as a whole as a norm from which
no derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same
character. Examples of preemptory norms are unlawful use of force,
commission of criminal acts, trading of slaves, piracy,
genocide,
human rights violations, equality of states, and
self-determination. DD: Observe that Article 53 is couched in
general terms and makes no enumeration.
WITHDRAWAL AND TERMINATION Article 54 Termination of or
withdrawal from a treaty under its provisions or by consent of the
parties The termination of a treaty or the withdrawal of a party
may take place:
a) in conformity with the provisions of the treaty; or
b) at any time by consent of all the parties after consultation
with the other contracting States Article 56 Denunciation of or
withdrawal from a treaty containing no provision regarding
termination, denunciation or withdrawal
1. A treaty which contains no provision regarding its
termination and which does not provide for denunciation or
withdrawal is not subject to denunciation or withdrawal unless:
a) it is established that the parties intended to admit the
possibility of denunciation or withdrawal; or
b) a right of denunciation or withdrawal may be implied by the
nature of the treaty.
2. A party shall give not less than twelve months' notice of its
intention to denounce or withdraw from a treaty under
paragraph 1.
Article 59 Termination or suspension of the operation of a
treaty implied by conclusion of a later treaty
1. A treaty shall be considered as terminated if all the parties
to it conclude a later treaty relating to the same subject-matter
and:
a) it appears from the later treaty or is otherwise established
that the parties intended that the matter should be governed by
that treaty; or
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b) the provisions of the later treaty are so far incompatible
with those of the earlier one that the two treaties are not capable
of
being applied at the same time.
2. 2. The earlier treaty shall be considered as only suspended
in operation if it appears from the later treaty or is otherwise
established that such was the intention of the parties.
Article 62 Fundamental change of circumstances (Rebus Sic
Stantibus)
1. A fundamental change of circumstances which has occurred with
regard to those existing at the time of the conclusion of a treaty,
and which was not foreseen by the parties, may not be invoked as a
ground for terminating or withdrawing from the treaty unless: a)
the existence of those circumstances constituted an essential basis
of the consent of the parties to be bound by the
treaty; and b) the effect of the change is radically to
transform the extent of obligations still to be performed under the
treaty.
2. A fundamental change of circumstances may not be invoked as a
ground for terminating or withdrawing from a treaty:
a) if the treaty establishes a (territorial) boundary; or
b) if the fundamental change is the result of a breach by the
party invoking it either of an obligation under the treaty or of
any
other international obligation owed to any other party to the
treaty.
3. 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. x This principle has in
fact gained wide acceptance in IL albeit the cases falling under it
are relatively few. But the
application of the doctrine of rebus sic stantibus should be
confined to w/in narrow limits to regulate strictly the conditions
under w/c it may be invoked. The change must be substantial and so
radical as to transform the obligations arising from the treaties
beyond that contemplated by the parties at the time of its
inception.
FISHERIES JURISDICTION CASE rebus sic stantibus / fundamental
change Iceland and UK entered into an agreement called the 1961
Exchange of Notes delineating fisheries jurisdiction around their
maritime areas. Now Iceland denounces the agreement, deems it
terminated, and asserts exclusive jurisdiction over the 12 mile
fishing area from its coast. It stresses its fundamental and
exceptional dependence upon fishing as a source of livelihood, and
alleges that considering the advancement of technology and fishing
capacities, its vital interests and existence is threatened,
therefore necessitating the application of the principle of rebus
sic stantibus. It also refuses to confer jurisdiction upon the ICJ
despite the compromissory clause in the agreement. The contention
of Iceland is untenable. The Court is not satisfied that the
circumstances have so changed as to radically transform the
obligations arising from the Exchange of Notes. The change must be
a fundamental one. The burdens arising from the agreement must have
increased to such an extent that they are now essentially different
from that agreed upon. That burden of proof was not quite
discharged. DANUBE DAM CASE (DOCTRINES) change was caused by the
party invoking rebus sic stantibus Impossibility of performance
cannot be invoked if the cause for the impossibility is the breach
or fault of the party invoking it. The change must also be
unforeseen. Mere state of necessity cannot be invoked for
terminating a treaty, but may only serve to exonerate a party from
liability. Violations of other treaty rules may serve as ground for
taking certain measures and counter measures, but does not by
itself suffice to cause the termination of a treaty. CERTAIN RULES
IN CASE OF CONFLICT BETWEEN TREATY PROVISIONS AND DOMESTIC LAW
It generally depends on which court is deciding:
1. International Court it will generally uphold treaty
obligations
2. Domestic Court it will generally uphold domestic laws
DD: This rule admits of exceptions. x Treaty vs. Constitution
when the violation of the Constitution is manifest and concerns a
rule of internal law of
fundamental importance, a state may deviate from the treaty
obligation. However, following the dualist theory, this is a matter
purely of internal law and the state may face international
sanctions. DD: Take note that under Article 27 of the Vienna
Convention on the Law of Treaties, a state may not invoke the
provisions of internal law as justification for failure to perform
obligations arising from a treaty.
x Treaty vs. Domestic Law
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o when the 2 instruments relate to the same subject matter,
every attempt must be made to reconcile and harmonize both
o if they are wholly inconsistent, that of a later date will
prevail provided that the treaty provisions are self-executing o
these rules are applicable only in the domestic sphere; in IL, the
treaty is binding regardless of the date
SEI FUJII v. CALIFORNIA (DOCTRINE) self-executing vs.
non-self-executing treaties The US Constitution distinguished form
a treaty that is self-executing from one that is not
self-executing. The UN Charter Preamble required enabling
legislation to affect private persons, and the rights of private
persons were not prescribed in detain the said Un Charter w/
respect to the land law.
- International Customary Law - DEFINITION
It is evidenced by a general practice accepted as law. There
must be consistency among states in its practice, and they must
consider compliance therewith as impressed w/ legal obligation.
Elements:
1. Duration 2. Uniformity (substantial uniformity), consistency
of practice 3. Generality (but absolute generality is not needed)
4. Opinio Juris there must be a genuine belief that a certain form
of behavior is legally obligatory
as distinguished from a mere act of courtesy, fairness, or
morality
THE PAQUETE HABANA vessels / not prizes of war / comity grows
into rule of IL Upon examination of state practice in various
jurisdictions and cases since time immemorial, and up to the
present, it can be concluded that it has become part of
International Customary Law that fishing vessels and cargo are
exempt from being treated as prizes of war. There have been
opinions to the effect that the act of states in refraining form
capturing vessels is merely out of comity, and not a sense of legal
obligation; however, after the lapse of a period of more than a
hundred years of mutual and general state practice, such comity or
courtesy grew, by general assent of the civilized nations, into a
settled rule of IL.
THE ASYLUM CASE Colombia vs. Peru Haya dela Torre committed the
crime of military rebellion in Peru. He sought asylum in
the Colombian Embassy therein. Colombia unilaterally qualified
Haya as a political refugee and invokes the Havana & Montevideo
Conventions on Political Asylum claiming that they have become part
of International Customary Law al least among the Latin-American
states. They submitted the matter to the ICJ. Colombias contention
is untenable. The party that relies upon such customs must prove
its existence by constant and uniform usage among states. Such
conventions have not even been ratified by Peru. On the contrary,
it even repudiated it. Apart from the signatory states thereto, no
other states practice the granting of asylum to such an extent that
it becomes accepted as law through uniform usage. That being the
case, Colombia cannot unilaterally qualify Haya as a political
refugee.
NORTH SEA CONTINENTAL SHELF CASE Denmark & Netherlands vs.
Germany Denmark, Germany, & the Netherlands made
line agreements delimiting the North Sea Continental Shelves.
However, no further agreement could be reached as Germany contends
that the doctrine of just and equitable share must apply, while
Denmark and the Netherlands argue that the equidistant principle
under the Geneva Convention should be applied arguing that it is
already a norm-creating rule. None of the contentions were
sustained. The fact that there are still many controversies as to
the exact meaning of the equidistance principle negates that it has
acquired the status of custom. Second, under the Convention, the
application of the equidistance principle is only secondary, the
primary rule being agreement as between the states.
Third, the Convention was open to reservation which supports the
idea that the said principle has not yet acquired the status of
custom; the Convention has also not been able to secure sufficient
ratifications. There was no showing of a general recognition of the
principle as a rule of law binding upon states, even though a few
states have decided to adopt the measure. There must be a sense of
legal obligation among the non-party states to comply w/ the rule
in order for it to be elevated to the status of international
customary law. Justice Sorensen Dissent The conduct of states is
the most potent source of IL. Treaties may be binding upon
non-contracting parties once accepted as part of customary
international law. Geneva Convention results from the UN as part of
codification of development of IL. It was ratified by many states,
representative of various regions. Controversies have arisen as to
interpretation but not as to whether its provisions embody
generally applicable rules of IL. It is also impossible for a
government to have conclusive evidence of the intent of other
parties (to treat it as legally binding or not). The faculty of
making reservations has also no connection to the issue of whether
its provisions can acquire the status of custom.
FISHERIES JURISDICTION CASE UK vs. Iceland The 1961 Exchange of
Notes between UK and Iceland delimited certain fishery limits or
zones, and at the same time preferential rights w/ respect to
certain zones. However give the advancement of modes of fishing,
Iceland, invoking its exceptional dependence on the fishing
industry, repudiated the Exchange of Notes and unilaterally imposed
a 50 nautical mile exclusive zone excluding the UK vessels. There
are 2 principles that have acquired the status of custom in this
case: (1) the concept of fishery zones, where the state may claim
exclusivity, and (2) preferential rights of fishing in adjacent
waters. UK in fact recognizes Icelands preferential rights over the
subject domains. However, the concept of preferential rights is
incompatible w/ the exclusion of fishing activities of other
states.
Just because a state is granted preferential rights over certain
domains, it doesnt mean that it can unilaterally exclude other
states therefrom. This infringes upon the principle under the
Geneva Convention on the High Seas that the exercise of
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the freedom of fishing shall be with reasonable regard to the
interests of other states. Icelands act is therefore illegal, and
both states are enjoined to negotiate the matter w/ due regard to
the interests of both.
NUCLEAR TESTS CASE Australia & New Zealand vs. France The
President of France delivered unilateral statements to its
embassies in New Zealand and Australia, as well as to the UN to the
effect that its atmospheric nuclear tests are completed (the last
of its kind) and to be abandoned for underground testing. But later
on, this statement was repudiated and the President of France
stated that the test would continue. Australia and New Zealand
object. Unilateral statements or declarations can have the effect
of creating legal obligations. The state must conduct itself
consistent w/ its declarations. No prescribed form (oral or in
writing) is needed. What is important is that there is a clear
intention. There must also be observance of good faith. The
international community is entitled to rely upon the credibility of
such statements and to act on the basis thereof. Acceptance of
other states is not necessary. The same is true in this case. The
statements made constitute an undertaking or engagement of the
state and must be respected.
Dissent of Judge Barwick They were mere statements of policy and
intention, not intending to undertake before the international
community such far-reaching implications.
GENERAL ASSEMBLY RESOLUTIONS
Resolutions and declarations of international organs can be
recognized as a factor in the custom generating process and may
serve as evidence of a general practice.
THE SOUTHWEST AFRICA CASE Justice Tanaka Dissent While it is
true that in order to form international customary law, uniform and
repeated practice is needed, the same is true w/ statements,
resolutions, and declarations, w/c if likewise made uniformly as to
manifest the collective will of the international community, could
evidence the formation of international custom. In this case, IL is
replete w/ collective statements outlawing discrimination from the
UN Charter, the Universal Declaration of Human Rights, Declaration
on Elimination of All Forms of Discrimination, and many more. Thus,
the norm of non-discrimination on the basis of race has become a
rule under international customary law. As a member of the UN, the
respondent state must comply therewith.
DECISIONS OF INTERNATIONAL ORGANIZATIONS ADVISORY OPINION ON
NAMIBIA Up to what extent are the resolutions of the UN Security
Council binding? After presenting a
hodge-podge, mishmash, plethora, (or whatever you want to call
it) of legal opinions on the matter which elude my much-too-human
understanding, the Court (thank goodness) finally came up with an
opinion. This is as much as I can understand.
x Art. 24 confers upon the Security Council (SC) the primary
responsibility of maintaining international peace and security.
That is the general rule.
x Art. 25, on the other hand, states that the members of the UN
must accept and carry out the decisions of the SC in accordance
with the Charter. This means that their decisions are binding.
x Chapter VI allows participation of the SC regarding settlement
of disputes, allowing it investigatory and recommendatory powers,
among other functions
x Chapter VII empowers the SC to determine the existence of
threats to the peace, make recommendations, implement provisional
and other necessary measures to ensure, peace, and so on
x Chapter VIII pertains to regional arrangements for the
maintenance of international peace, and allows members who
undertake such arrangements to bring the matter before the SC. The
SC in also empowered to utilize such arrangements as would be
necessary to ensure peaceful settlements
The discussions are diverse but the ruling is simple. The
binding force of the resolutions of the SC are not confined to
those pertaining to Chapter VII where threats to the peace are
already involved. The resolutions are binding pursuant to Art. 24
and they are binding upon the membership of the UN as a whole.
Basis: if only Chapter VII decisions were meant to be binding, then
Art. 25 would have been placed in the said chapter. But instead, it
appears right after Art. 24, the general rule. Thus the binding
force of the SCs resolutions is general in nature.
x As a rule, the resolutions of the UN General Assembly are
merely recommendatory, except the following w/c are deemed binding
among the members thereof:
o admission of new members o budget approval o apportionment of
expenses
THE RULE ON PERSISTENT OBJECTOR A state that has persistently
objected to a rule of customary international law during the course
of its emergence is not bound by it. This doctrine is of limited
application today. In case of new states, or those w/c have been
admitted to the community of nations, they are deemed bound by
international customary law as a necessary consequence of
statehood. They are not, however, bound by pre-existing
treaties.
Art. 24 - maintaining peaceArt. 25 - bindingChapter 6-
investigatory and recommendatoryChapter 7 - determine existence of
threatsChapter 8 - maintenance of international peace
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- General Principles of Law
INTERNATIONAL STATUS OF SW AFRICA trusteeship The ICJ was asked
for an advisory opinion on the status of SW Africa
under the International Trusteeship System and what are the
obligations of South Africa as the Mandatory. The answer is found
in the general principles of law as borrowed from traditional
municipal law under the principle of trust. Almost all legal
systems possess a system of trust, where for example some minor or
lunatics property (or even person) may be entrusted to a
responsible person or trustee. By analogy, it applies to
trusteeship under international law. That being the case, South
Africa, as trustee state, exercises but limited control based on
confidence and conscience and cannot carry out the trust or mission
for its own benefit. Any attempt to absorb the property entrusted
to them shall be illegal. Finding and applying the general
principles of law is all about locating those rules and
institutions of private law as indications of policy such as the
principle of trust, among many others.
DIVERSION OF WATERS FROM THE RIVER MEUSE equity The principles
of equity have long been applied by international
tribunals. Although the ICJ is not expressly authorized by its
Statute to apply equity, it is allowed to apply general principles
of law recognized by civilized nations w/c includes equity. The
power however to apply the principles of equity in no way restricts
the power of the ICJ to decide cases ex aquo et bono should the
parties so agree that the controversy is to be decided base on the
said principle. The courts should not shirk from applying such a
principle of obvious fairness.
DISTINCTION BETWEEN EQUITY AND EX AEQUO ET BONO
1. Equity when the law cannot cover every possible situation for
the purpose of deciding a controversy, the case may be decided
based on equitable principles
2. Ex Aequo Et Bono it pertains to the power of the ICJ to
decide a case equitably outside the rules of law, at the instance
of the parties to the case
Other General Principles of Law: principles of liability,
responsibility, reparation, unjust enrichment, property, eminent
domain, indemnity, denial of justice, right of passage,
prescription, error, presumptions, administrative law, procedure,
humanity, good faith, pacta sunt servanda, estoppel, and human
rights
APPLICATION IF INTERNATIONAL LAW BY DOMESTIC COURTS FILARTIGA v.
PENA-IRALA torture Dolly Filatrigas brother was tortured to death
by Pena in Paraguay due to her fathers
political activism. She was even shown the corpse. Pena was
prosecuted therein but to no avail. Dolly thereafter went to the US
and applied for political asylum. She found out that Pena has
arrived at the US and has overstayed thus she commenced an action
before the NY Court against Pena based on the Alien Tort Statute,
as well as the various International Agreements and Conventions on
Human Rights, such as the Universal Declaration. The trial judge
dismissed the case for lack of jurisdiction. A states treatment of
its citizens is now a matter of international concern. Torture has
become internationally outlawed, and the abhorrence thereto has
come to acquire the status of international customary law. It is
said that the Universal Declaration of Human Rights no longer fits
into the category of treaty but has been elevated to the status of
customary law. No government has ever asserted a right to torture
its people (or aliens). The law of nations is clear and unambiguous
in condemning torture. A state has an interest in the orderly
resolution of disputes among people w/in its borders even if the
act complained of took place outside. So long as personal
jurisdiction can be acquired, the courts may adjudicate such
transitory tort claims. In principle, it is an expression of comity
by giving effect to the laws of the state where the act was
committed. The law of nations forms an integral part of common law,
and such is recognized by the (US) Constitution. The contention
that the law of nations forms part of state law only to the extent
that Congress has enacted them is untenable. Neither can Pena hide
behind the act of state doctrine. The Alien Tort Statute merely
opens the door for the adjudication by aliens of rights already
recognized under the law of nations. For purposes of civil
liability, the torturer has become like the pirate or slave trader
hostis humani generis an enemy of all mankind.
MORTENSEN v. PETERS within cannon shot The Appellant is master
of a foreign vessel w/c proceeded to employ otter trawl fishing
methods at a point within the Moray Firth (a long narrow inlet of
sea) but outside 3 miles of the British Coast. He was prosecuted
under the Herring Fishery Act (local law) prohibiting such methods.
He alleges that the said area is beyond the territorial sovereignty
of Britain. The area is intra fauces terrae although outside of the
3 mile territorial limit. Several notable commentators as well as
past decisions recognized the principle, where such bays and creeks
capable of bounds or within the view of such shores fall under the
territory of the state. The sovereign is the proprietor of the
narrow seas within cannon shot of the land, and the firths, gulfs,
and bay around the Kingdom. It is, for every purpose, within
territorial sovereignty.
The law was also intended to be of general application even to
foreigners. Otherwise, the purpose will be defeated. The North Sea
Convention establishing fishing limits is inapplicable; the issue
pertains to the methods of fishing.
IN RE: OTTAWA & ROCKCLIFFE PARK tax & jurisdiction
exemption The municipal corporations of Ottawa and Rockcliffe Park
sought to levy taxes upon properties owned by the legations of the
US, Brazil, and France, as well as the offices and residences
occupied by the King and High Commissioner of the UK and Australia.
Taxable? Of course not! The Crown Properties are expressly exempt
under the Assessments Act. Even so, international law is
incorporated into municipal law and that includes the principle
that foreign ministers (and most especially the King!) are not
subject to the laws of the state where they have been sent. There
is an implied consent that he possesses all the privileges which
his principal (the State or the
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Sovereign) possesses. This is essential to the dignity of his
sovereign and the duties he is to perform. Thus, he is exempt fro
the jurisdiction of the courts; and from this it only follows that
he is exempt from tax. Since he cannot be sued, it becomes a legal
impossibility for the municipal corporation to exact the taxes from
him.
TRENDTEX TRADING v. CENTRAL BANK OF NIGERIA incorporation vs.
transformation The doctrine of incorporation
states that the rules of IL and incorporated into English
(municipal) law automatically, unless they are in direct conflict
w/ an act of the legislature. As the rules of IL change, so does
the local law adopt. The doctrine of transformation on the other
hand, states that the rules of IL are not to be considered part of
English (municipal) law unless adopted by our laws through the
legislature or judicial decisions, or through long established
custom. It must receive the assent of the nation sought to be bound
by it, otherwise, this would usurp the powers of legislature.
Insofar as England is concerned, the incorporation doctrine
applies. The courts have applied IL as it changes w/o waiting for
aid from any Act of Parliament. Examples are the international laws
on slavery. The same is the trend in many other countries. IL knows
no stare decisis. If the court is not satisfied that a ruling 30
years ago based on IL still prevails, it will overturn it in
accordance w/ the new rules as they evolve.
COMMENT ON THE INCORPORATION CLAUSE
When the Constitution, under Article 2 Section 2, provides that
the state adopts the generally accepted principles of international
law as part of the law of the land, it does not refer to treaties,
but rather to international customary law and other general
principles of law. DD: According to the Llamzon Article, the
principle of pacta sunt servanda is deemed adopted by virtue of the
incorporation clause thus treaty obligations are binding. But as
pointed out, it is pacta sunt servanda as a general international
custom that is automatically incorporated, not the provisions of a
treaty directly, albeit the fact that the effect is the same.
THEORIES ON THE RELATION BETWEEN INTERNATIONAL AND MUNICIPAL LAW
1. Monism IL and municipal law belong to only 1 system w/ IL as
superior to domestic law; the basic norm of the national legal
system is located in the norms of IL
2. Inverted Monism municipal law is superior to IL, and denies
the term law to international law
3. Dualism IL is distinct from domestic law; a sovereign act
under municipal law may result to a state exceeding its competence
in international law, nonetheless, the act is not void under
municipal law
4. Harmonization the 2 legal systems must be harmonized and
given effect
- Personality in International Law
ELEMENTS OF A STATE UNDER 1933 MONTEVIDEO CONVENTION x Permanent
population sufficient in numbers to maintain and perpetuate itself
x Defined territory x Government expressive of the sovereign will
and exercising supremacy within its domain x Assertion of the right
to enter into diplomatic relations x It must have attained a
certain degree of civilization to enable it to observe the
principles of law w/ respect to the outside world
CASE ON THE RIGHTS OF US NATIONAL IN MOROCCO recognized as state
/ no privileged positions Morocco, even despite its status under
the Protectorate, has retained its international personality as a
state under IL. Thus, it is entitled to economic liberty and
equality under the Act of Algeciras conferred upon states.
Conferment of privileged economic positions to France or the US in
Morocco would be inconsistent w/ this guaranteed equality.
ADMISSION TO THE LEAGUE OF LIECHTENSTEIN a state nonetheless
Liechtenstein was denied admission to the League of Nations because
of several factors such as the lack of an army, and the fact that
it has to contract w/ various states so that it could provide such
services as Customs, communications, and even diplomatic
representation. Thus, it cannot discharge the duties imposed upon
member states because of its geography and many other factors; but
nonetheless, this does not detract from its status as a state in IL
as recognized by many other states. RECOGNITION ON RECOGNITION OF
STATES / GOVERNMENTS
The recognition of States does not necessarily presuppose the
recognition of governments. The practice varies depending on the
policy of the state extending recognition. This is, in fact largely
discretionary upon the sovereign states extending such recognition.
Nonetheless, in IL, there are certain guiding standards for
granting recognition, such as Conditions for recognition as a de
facto government:
x The new regime has effective control over most of the states
territory x That this control seems likely to continue
Conditions for recognition as a de jure government:
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x It has effective control over most of the states territory x
This control must be firmly established
It is largely a question of fact depending upon the judgment of
the state extending recognition whether the above mentioned
qualifications exist. That is why recognition can be said to be
subjective. In fact, the power to recognize a de facto government
pertains to the state extending it; this right was not yielded to
the UN upon signing the UN Charter. It cannot be imposed upon a
state (Statement of US Representative to the UN regarding
recognition of Israel). When the United States recognizes a
government and exchanges diplomatic representatives with it, it in
no way implies that the US approves of the said states form,
ideology, or policy (US Senate Resolution dated Sept. 25, 1969).
The same applies to Canada and other states. Canadian Practice in
Recognizing States certain factors must be considered:
x Effective Control with reasonable prospect for permanency w/in
its area x Political Considerations this is a policy decision x
Timing of Recognition the new government must attain a likelihood
of permanence x External Control to recognize a government is to
tacitly recognize its freedom from external control
British Practice in Recognition
x Britain no longer recognizes governments, only states x Where
an unconstitutional governmental change takes place, the British
government will only determine the extent of the
dealings w/ the said government w/o necessarily extending
recognition
THE TINOCO ARBITRATION de facto government / law of nullities
The Costa Rican government was overthrown by Tinoco through
extra-constitutional means. His government lasted for 2 years
peacefully but was not recognized by many states, until he retired
and left the country. Afterwards, the previous constitution and
government were reinstated, and the legislature enacted the Law of
Nullities nullifying all contracts between the executive and
private persons during Tinocos regime. The Tinoco government,
during its time, granted a concession to Central Costa Rica
Petroleum (British) for the exploitation of oil reserves, as well
as secured a loan from Royal Bank (British) through Banco
Internacional.
Britain now seeks to enforce the said contracts, arguing that
the Tinoco government was the only de facto government of that time
in Costa Rica, and that the succeeding government must honor the
obligations Tinocos government entered into. Costa Rica alleges
that the British government is estopped as it did not recognize the
Tinoco government during its tenure, and that the contracts were
illegal for being contrary to the constitution. As a rule, internal
changes in government or policy have no bearing in IL. Under the
rule on continuity of states a state is bound by the agreements
entered into by its previous governments that have ceased to exist.
It is not true that the Tinoco government cannot attain de facto
status simply because it was instituted contrary to the former
constitution. Nonetheless, despite all the foregoing, with regard
to the claims of the bank, it was shown that the transactions it
entered into were full of irregularities. The loans extended were
in fact representation of Tinoco w/c were actually to be his
expenses for his flight. The new government cannot be held
responsible for the money paid to him for such a purpose. It is
more properly claimable against Tinocos estate. About the
concession, the same was granted by a body (Chamber of Deputies)
w/o power to grant such even under the Tinoco governments laws.
That being the case, no claim thereto can be made. Therefore, the
Law of Nullities will work no injury to Great Britain.
SELF DETERMINATION ELEMENTS OF THE RIGHT TO
SELF-DETERMINATION
x The right to freely determine their political status x Right
to freely pursue their economic, social, and cultural
development
WESTERN SAHARA CASE self-determination Western Sahara was
colonized by Spain in 1884. The UN Gen. Assembly
declared that the decolonization of Western Sahara should occur,
to w/c Spain acceded. But this time. Morocco and Mauritius laid
similar claims upon its territory based on historic right. The
court explained the notion of self-determination (but the ruling
was not categorically provided). The very purpose of the UN is to
develop friendly relations among nations based on equality and
self-determination w/c is basically the right of the people to
freely determine their political status and pursue their economic
and cultural development. But this requires the free and genuine
expression of the will of the people through the democratic process
of modern adult suffrage. There may be certain exceptions where
consulting the inhabitants is dispensed with, such as if their
population cannot yet be considered as people as to entitle them to
self-determination, or perhaps in other special circumstances.
Separate Opinion of Judge Dillard The many pronouncements of the
General Assembly and this court have in fact created a new norm of
IL
Question of Fact if de facto or de jure
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the decolonization of those non-self-governing territories under
the aegis of the UN. The existence of such legal ties as herein
claimed (historic right in this case), only have a tangential
effect to the ultimate choices available to the people. The very
purpose of the sacred trust is self-determination to lead to the
eventual independence of the peoples concerned, which may be either
through the emergence of a sovereign state or its integration or
association with an independent state.
NON-STATE ENTITIES AUSTRALIA v. NEW SOUTH WALES not a foreign
state The Commonwealth of Australia sues one of its states, New
South
Wales, for torts resulting from a collision of vessels. Wales
alleges that it is immune from suit, that it is a sovereign state
to be placed in the same category as foreign states. This analogy
cannot be sustained. An Australian state is necessarily part of the
territory of the Commonwealth. It is not a foreign country. The
people of New South Wales are the very same people of the
Commonwealth. They are but one people w/ a common citizenship.
Thus, state immunity, and all the other privileges appurtenant
thereto cannot be granted to New South Wales under the pretext that
it is a sovereign state. It is an appeal to an impossible
standard.
CULTURAL AGREEMENT BETWEE QUEBEC & FRANCE province entering
into cultural agreement Canada and France
entered into a Cultural Agreement where they mutually undertook
to take measures for the integration and enrichment of their
cultures through the exchange of professors, studies, scientists
and scientific knowledge, cultivation and dissemination of the
French language, support for cultural activities, among others.
Within the framework of the Agreement, ententes may be entered into
between France and the provinces of Canada in this case Quebec.
It must be noted that Quebec is but a province of the State of
Canada. Generally, provinces have no status in international law
and are not recognized as states. Perhaps what we can cull from
this is that there is nothing to preclude a sovereign state from
empowering certain provinces or subdivisions thereof to enter into
foreign agreements despite their general lack of international
personality.
INTERNATIONAL STATUS OF SW AFRICA mandate system / sacred trust
Germany renounced all rights to SW Africa through the Treaty of
Versailles. Certain other territories as a consequence of the war
have ceased to be under the sovereignty of their previous
conquerors, but are still incapable of self-government. By virtue
of the Mandates System created under the Covenant of the League of
Nations. In this case a tutelage was established for these peoples,
this tutelage entrusted to certain advanced nations as Mandatories
in behalf of the League. The Union of South Africa became the
Mandatory for SW Africa exercising full powers of administration,
subject to the supervision of the Council of the League. The
creation of this new international institution did not involve any
cession of territory or transfer of sovereignty. Its object is to
promote the well-being of the inhabitants pursuant to the sacred
trust of civilization. The question therefore is that did the
Mandate System cease upon the end of the League of Nations?
True that the Mandate System ceased to exist but not the
obligation arising from the sacred trust of civilization w/c does
not depend upon the existence of the League. The obligations to
ensure the utmost well-being and social progress of the inhabitants
do not cease simply because the supervisory organ of the League
ceased to exist.
RESOLUTION 2145 (TERMINATION OF SOUTH AFRIAS MANDATE OVER SW
AFRICA) By virtue of this resolution, the UN General Assemble
declared that the Mandate conferred upon Britain as administered by
South Africa over SW Africa has been terminated. SW Africa now
comes under the direct responsibility of the UN. Nonetheless, SW
Africa shall maintain its international status as such until it
achieves independence.
LEGAL CONSEQUENCES OF CONTINUED PRESENCE OF SO. AFRICA IN
NAMIBIA (SW AFRICA) The GA adopted Resolution
2145 terminating the mandate of SW Africa; the Security Council
thereafter adopted Resolution No. 276 declaring the continued
presence of South Africa in SW Africa (Namibia) illegal and called
upon states to act accordingly. The entry into force of the Charter
of the UN created a contractual relationship between the Mandatory
States on the one hand and the member states on the other.
Therefore, it only follows that when a party disowns or fails to
perform the obligations arising therefrom, then such party cannot
claim to retain such rights proceeding from the agreement. In this
case, South Africa was found to have administered its mandate
contrary to the international agreements imposing its obligations
as such, as well as against the UN Declaration of Human Rights. It
has failed to ensure the moral and material well-being of the
inhabitants of Namibia. It has, in fact, disavowed the Mandate.
Such violations are a ground for termination.
A Mandate is an international agreement having the character of
a treaty or convention. Under the general principles of
international law on treaties, material breach is a ground for
termination. The Vienna Convention on the Law on Treaties may be
applied. Even assuming that the League of Nations (and its
successor, the UN) had no power to terminate the Mandate, still the
general principles of law must apply in this case, termination due
to material breach. This principle is inherent in any agreement
despite its silence. The GA, in fact has the right to issue
resolutions w/c make determinations or have operative design as in
this case. The fact that it is vested w/ recommendatory powers
cannot detract from this authority.
CASE OF BELLIGERENT COMMUNITIES & INSURGENT GROUPS Even
belligerent groups and insurgents assume certain
obligations under international law w/c among others, includes
such obligations as:
x Obligation to distinguish between combatants and
non-combatants x Prohibition against attacks against civilians x
Prohibition against superfluous injury or inflicting unnecessary
suffering x Obligation to refrain from treachery
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x Obligations to respect medical and religious personnel x
Prohibition against use of certain forms of weapons
INTERNATIONAL ORGANIZATIONS UNITED NATIONS Purposes of the
United Nations:
x Maintain international peace and security x Develop friendly
relations among nations x Achieve international cooperation x Be a
center for harmonizing the actions of nations in the attainment of
these common ends
Governing Principles:
x Sovereign equality x Fulfillment in good faith of the
obligations assumed under the Charter x Refrain from use of threat
or force x Assistance to the UN in any action taken in accordance
w/ the Charter x Ensure that even non-member states act in
accordance w/ the Principles as far as may be necessary to
ensure
international peace and security x Non-intervention in purely
domestic matters, nor shall members states be required to submit
matters to settlement w/o
prejudice to enforcement measures under Chapter VII (Security
Council)
Principal Organs x General Assembly x Security Council x
Economic & Social Council x Trusteeship Council x International
Court of Justice x Secretariat
Note: The UN shall enjoy in the territory of its members such
legal capacity as may be necessary for the exercise of its
functions or the fulfillment of its purposes
REPARATIONS FOR INJURIES SUFFERED IN THE SERVICE OF THE UN
international person Can the UN, as an international person, bring
a claim against the responsible government for the purpose of
obtaining reparations due to damages cause to the UN and to the
victim or persons entitled through him? Affirmative! Generally the
capacity to bring international claims through the customary
methods is reserved to states. However, the UN, due to the nature
of its functions and purposes is likewise entitled to bring an
action as an international person. The member states, by adopting
the Charter, intended to constitute the UN as not only a center for
harmonization, but rather as a political body w/ very important
political tasks thus clothing the UN w/ international personality.
In fact, given the nature of its functions, the only way by w/c the
UN can operate in the international plane is for it to possess
international personality.
However, it is not correct to say that the UN possesses the same
rights as a state. Neither is it correct to say that the UN is a
super-state. The powers and duties of such an entity are limited to
only those consistent w/ its purposes and functions. That being
said, the members states have endowed the UN w/ the capacity to
bring international claims whenever necessitated by the discharge
of its functions.
EUROPEAN COMMUNITY TREATY European Union / most extensive legal
personality Under the said treaty, the European Community (now
Union) shall possess the most extensive legal capacity accorded to
legal persons under the respective municipal laws of the member
states. It may transfer or acquire property, and may sue and be
sued in its own name. INDIVIDUALS & CORPORATIONS LAUTERPACHT
(INTERNATIONAL BILL OF THE RIGHTS OF MAN) objects of international
law Initial efforts were made to
incorporate the rights of man into the very fundamental laws of
the states such that the protection of man formed the very reason
for the states existence. This principle would suffer set-backs but
would re-emerge after the Second World War, where human beings will
be viewed as the objects of international law. The purpose of
conventions and agreements was to make the world a safe place for
man. However, the fundamental claims of human personality to
equality, liberty, and freedom against the arbitrary will of the
state remained outside the scope of IL.
This is the orthodox view that man was but the passive object of
IL. The views have, in fact progressed since then as to view human
beings as, to a certain extent, subjects of international law. This
could mean that persons can assume certain rights and obligations
under IL; this will be reflected in later trends.
EXTRACT FROM THE NUREMBERG TRIAL individual responsibility Can
an officer, acting pursuant to the orders of Hitler, be held liable
for acts committed by him in violation of international laws? The
answer is yes. Individuals can now be held responsible for
violations of international law; they can no longer be protected by
the doctrine of state sovereignty w/c states that IL is only
concerned w/ the actions of states and not individuals, and that
those who carry out acts of state are not
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15
personally responsible. Individuals now have international
duties w/c transcend national obligations of obedience. The fact
that a person acted merely in obedience to an order of his
government will not shield him from liability but it may mitigate
punishment. The true test is not the existence of the order but
whether the moral choice was in fact possible. Neither can states
protect their individuals accused if they exceeded their competence
by allowing or ordering the individual to commit the crime.
Recent developments: Ad Hoc International Criminal Tribunals
they cover only crimes committed after entry into force; no death
penalty can be imposed, neither can there be trial in absentia.
THE STATUTE OF ROME CREATING THE INTERNATIONAL CRIMINAL COURT
Here are some salient points on the ICC from the Ebdalin
Article.
x Unlike in the ICJ where only states may be parties, the ICC
has jurisdiction to try individuals (natural persons) for the most
serious crimes of international concern; no death penalty can be
imposed
x Such crimes covered by the jurisdiction of the ICC include (1)
genocide, or the systematic destruction, through various means, of
a particular race or culture, (2) crimes against humanity, such as
widespread and systematic attack upon civilian populations w/ full
knowledge thereof, (3) war crimes, whenever they are committed as
part of a plan or policy for large-scale commission, and (4)
aggression. Aggression has not yet been defined, and the
jurisdiction of the court over such a crime will only begin when it
is finally defined
x It has jurisdiction only after the entry into force of the
Statute of Rome. The courts jurisdiction is triggered by the
referral
to the Prosecutor of (1) a state party, or (2) the Security
Council, or (3) motu propio investigation by the Prosecutor. x The
general principles of criminal law are applied such as mens rea,
nulla crimen, and prospectivity. In deciding cases,
the sources of law that may be used by the court include (1) the
Statute, (2) applicable treaties and rules of international law,
and (3) general principles of law whenever applicable
x No reservations to the Statute are permitted x The ICC only
exercises complementary jurisdiction meaning it can only step in if
the national authorities are unable
or unwilling to act. This principle ensures that the presence of
the ICC will not be in derogation of the individual sovereignties
of the states
x The ICC will only be born when at least 60 states ratify the
Rome Statute; presently only 43 countries have ratified it
although there are some 139 signatories TEXACO OVERSEAS
PETROLEUM v. LIBYAN ARAB REPUBLIC internationalized contracts What
does internationalization
of a contractual relationship mean? A sovereign state may enter
into contractual relations w/ private persons or corporations.
Through this, certain private persons may acquire capacities w/in
the international sphere. However, their capacities, unlike those
of sovereign states, are limited only to those that may be
necessary to enable to them to act internationally and to invoke,
in the field of IL, such rights that they may derive from the
contract. Simply put, internationalization does not elevate a
corporation or person to the status of a state it only confers upon
him such rights as he may need for him to perform his obligations
and enforce his rights in international law.
1950 CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS European
Human Rights Commission
After affirming some of the rather commonly known basic rights
such as the right to liberty, and the rights of the accused under
detention, it established a European Commission on Human Rights, to
w/c an individual may appeal after all domestic remedies have been
exhausted. The Commission may then refer the matter to the European
Court of Human Rights. Any person may address a complaint to the
Secretary General of the Council of Europe if he is a victim by one
of the High Contracting Parties (presumably states) provided that
the latter recognizes the competence of the Commission. The
lawfulness of the orders of the Commission may be questioned before
the Court at the instance of any member-state, the Council, or any
individual or legal person.
DIRECT vs. INDIRECT OBLIGATIONS OF CORPORATIONS (VASQUEZ
ARTICLE) Considering that many transnational corporations have
amassed great wealth and power, and the fact that some small
governments have been unable to curb their potential human rights
violations, the idea that corporations should be made directly
liable under IL has been advanced by many commentators. Pursuant
thereto, the Norms on the Responsibilities of Transnational
Corporations & Other Business Enterprises w/ Regard to Human
Rights was passed by the Su-Commission on the Promotion of Human
Rights but was shelved by the UN Commission on Human Rights due to
the vehement protests from the corporate sector. The author seems
to disagree w/ the wisdom of the proposition for the following
reasons:
x It represents a dramatic departure from the classical model
where states are the ones that assume obligations and
responsibilities under international law. This by itself is not
sufficient reason not to depart from the classical model, but there
are more reasons.
x Imposing direct liability to corporations will cause the
disempowering of states, w/c are not expected to respond
yieldingly. Under the previous setup, states have wide latitude to
determine municipal rules and the conduct of corporations w/in
their respective jurisdictions
jurisdiction upon referral to state party / security council or
motu proprio investigation by prosecutor
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x To impose liabilities on individuals, on the other hand, would
undermine the limited liability feature of corporations w/c has
been an attractive feature to utilize the corporate medium
x Norms not backed by coercive force will be problematic in case
of non-state entities. Unlike states that voluntarily relinquish a
part of their sovereignty out of the belief that membership in the
international community will redound to eventual benefit,
corporations are more likely to decide based on their economic
interests. Without a coercive force, human rights will be
trivialized, rather than promoted.
Perhaps the best way to promote the protection of human rights
among the third world countries is for the said developing
countries to agree upon certain standards for multi-nationals
operating w/in their respective territories. This rule will be more
consistent w/ the classical model, by imposing the obligations upon
the corporations indirectly. They can also focus on the elimination
of corruption and the promotion of democratic governance.
Notes from the Bernas Book Subject of International Law entities
endowed w/ rights and obligations and possessing capacity to take
certain kinds of actions in
international law. They have international personality. The
extent of their powers under IL varies. Object of International Law
those who indirectly have rights under or are the beneficiaries of
international law through the subjects thereof Theories on
Recognition
Declaratory Theory the existence of the state depends upon the
presence of the elements, not recognition. By recognizing a state,
the recognizing state merely affirms or accepts the current
situation. Constitutive Theory recognition constitutes a state and
is what confers upon it legal personality Recognition is only
terminated by the recognition of another regime. Once a state has
been recognized, it cannot be de-recognized so long as it satisfies
the requirements or elements of statehood.
- Jurisdiction of States - PRELIMINARIES
Jurisdiction as a concept pertains to the capacity of the state
to:
1. Legislate ad prescribe laws or rules 2. Enforce the laws or
rules
Jurisdiction, as a power, is exercised over:
1. Persons 2. Property 3. Events
JURISDICTION OVER TERRITORY ISLAND OF PALMAS CASE discovery /
mere inchoate right / actual & peaceful display of sovereignty
The US and the
Netherlands dispute over title to the Island of Palmas the US
alleging that it was ceded to it by Spain by virtue of the Treaty
of Paris. The US argues that it was Spain that discovered the
Island, and also invokes the principle of contiguity that islands
situated outside territorial waters should be considered part of
the nearest continent or island of considerable size. These
contentions cannot be sustained. Spain can only transfer such
rights that it had in the first place. Assuming that Spain
discovered the island, discovery only confers an inchoate title w/c
must be perfected by effective occupation. It cannot prevail over
the peaceful and continuous display of state authority by another
state over the said Island. The principle of contiguity, on the
other hand, has no basis in IL.
Netherlands, on the other hand, has been in continuous display
of authority since the 1700s through progressive evolution and
intensification of control; and Spain never contested it. The
conditions for the acquisition of sovereignty on the part of the
Netherlands are therefore satisfied.
The forms of acquisition of title are:
1. occupation coupled w/ effectiveness 2. conquest (allowed
before) 3. cession 4. accretion
Mere title is insufficient; there must be the element of actual
display of state functions.
LEGAL STATUS OF EASTERN GREENLAND intention + actual exercise
During the 1860s the Danish Government granted various concessions
for the purpose of trading in and exploration of Eastern Greenland.
Denmark also enacted legislation
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regarding fishing limits, establishment of hunting and fishing
stations, division into provinces, reservations of commerce to
Danish nationals, and entered into commercial conventions where it
endeavored to secure the exception of Greenland from the said
conventions (a form of recognition) all w/ the end in view of
occupying the same under the sovereignty of the King. In 1930,
Norway proclaimed that it has proceeded to occupy certain
territories of Eastern Greenland and even conferred police powers
to some of its nationals alleging that Eastern Greenland was terra
nullius and was outside the coverage of the Danish colonies.
A claim to sovereignty not based on some title (such as a
treaty) but instead upon continued display of authority is subject
to 2 requisites: (1) there must be intention and will to act as
sovereign, and (2) there must be actual exercise of such authority.
Both requisites are present in favor of Denmark. True that Denmarks
concessions may have been unsuccessful, but considering that no
other power has disputed its claim, the actions of Denmark are
sufficient to establish intention. Legislation is also one of the
most obvious forms of exercise of state power. The authority
exercised by the Danish King through the various acts stated above
was sufficient to give his country a valid claim to sovereignty.
Eastern Greenland was therefore under the sovereignty of Denmark,
and the occupation by Norway thereof was illegal and invalid.
THE WESTERN SAHARA CASE terra nullius / precondition to
occupation Morocco claims that it has legal ties w/ Western Sahara
at the time of colonization by it of Spain, and thus must exercise
sovereignty thereupon. It alleges that at the time of its
occupation by Morocco, Western Sahara was terra nullius. This
contention is untenable. As a rule, a cardinal condition of a valid
occupation is that the territory is terra nullius. Territories
inhabited by tribes or peoples having social and political
organization such as Western Sahara of that time cannot be regarded
as terra nullius. There were various political tribes under certain
chiefs competent to represent them. Moroccos invocation of the
Greenland Case is unavailing. There is evidence to suggest that
Morocco was not in actual exercise of authority largely due to the
presence of the tribes ad their constant movement and warring. By
comparison, Spains sovereignty then proceeded from agreements w/
the local chiefs and was not in the nature of occupation but was
more in the nature of cession.
THE ISSUE ON SABAH The territory was originally owned by the
Sultan of Sulu, Jamalul Alam. He leased the same to Baron de
Overback and Alfred Dent. For some reason, Dent consolidated
ownership and established the British North Borneo Co. w/c was
placed under British protectorate. The Company surrendered its
rights thereto to the British Government and Sabah became a British
Colony. When Malaysia was formed, Sabah became its constituent
part. The Sultan Esmail Kiram, heir to Sultan Alam, thereafter
cancelled the lease and ceded the territory to the Philippine
Government (cession).
The claim of the Philippines is therefore anchored on the
proposition that as lessee, Dent could not have acquired dominion
over the territory and cede the same to the British. Nonetheless,
the 1987 Constitution in defining the national territory omitted
the phrase other territories belonging to the Philippines by
historic right or legal title. Relations between Malaysia and the
Philippines have been normalized since then, and the issue remained
unresolved.
THE ISSUE ON THE SPRATLYS (COQUIA ARTICLE) The Spratlys Islands
is presumed to be rich in oil ad fish reserves and is strategically
located in the South China Sea, at the very center of maritime and
air trade routes. Many countries lay claim. The Philippines claim
is based on occupation that the same was terra nullius when it was
discovered by Tomas Cloma, and since then it was considered under
Philippine Law as an administrative portion of Palawan. China
claimed sovereignty, alleging the presence of Chinese Temples and
the expeditions send by its emperors. Vietnams contention was based
on succession based on the dissolution of the French Indochina, the
presence of temples and structures, missions, etc. Malaysia,
Taiwan, and Brunei also law claim. Negotiations are at a standstill
but China is allegedly creeping in by building permanent
structures. It was maintained a strong and rigid policy claiming
sovereignty over all islands w/in the area and requiring prior
clearance before passage of military ships and vessels.
So what remedies are available? Diplomatic negotiation through
the ASEAN is a good option, participation in workshops for
management of potential conflicts, and the organization of an
International Authority. Bringing the matter to the Security
Council will only be subject to the veto of China; the ICJ cannot
assume jurisdiction unless both parties submit to it. Arbitration
is possible. The most feasible option is to bring the case to the
International Tribunal on the Law of the Sea the convention of w/c
China is a party. Our failure to act may result to loss of the
territory just like in the Island of Palmas Case.
CLAIM TO KALAYAAN ISLANDS (ARIZALA ARTICLE) Tomas Cloma laid
claim to the Spratlys Islands and announced the establishment of a
separate government therein. He thereafter ceded the Spratlys to
the Philippine Government, and PD 1596 was promulgated constituting
the same as a municipality of Palawan. The Constitutions of the
Philippines claim as part of the national territory all other
territories over w/c the Philippines exercises sovereignty and
jurisdiction w/c was opined to include Sabah and the Spratlys. The
bases for the Philippines claims are as follows:
x Proximity this consideration is relevant but not decisive as
an independent source of title. The principle of contiguity, after
all, has no basis in IL, but it may, under certain circumstances,
operate to raise certain presumptions. Effective occupation remains
the best legal test.
x The Spratlys are part of the Continental Margin under the
UNCLOS, the coastal state exercises sovereign rights over its
continental shelf for the purpose of exploring and exploiting
resources such rights not dependent on occupation or any express
proclamation.
x By Reason of History For historical consolidation to take
place, there are 3 elements: (1) exercise of authority over the
area, (2) continuity of the exercise of authority, and (3) the
attitude of foreign states. To be valid against third states, it
has to be perfected by recognition.
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x Discovery and Effective Occupation mere discovery does not
suffice; it must be coupled w/ effective control or actual,
peaceful, and continuous display of state functions. The territory,
as a precondition, must be terra nullius. Cession of territory must
be from one state to another; s cession made by a private
individual to a state (and vice versa) is not recognized under the
Law of Nations.
x Uti Possidetis Juris and Occupation literally means that as
you possess, you shall continue to possess. As
between one having title and another having possession, the
former has preferential rights; but in the absence of clear title,
the one having effective control shall be preferred.
x Abandonment that the claims of the other states have lapsed by
abandonment. Long and uninterrupted possession,
known to the owner but not disturbed by him, may be taken as
proving abandonment.
Options:
x A treaty arrangement claims would be frozen for the time being
for continental cooperation x Condo-imperium joint exercise of
territorial sovereignty x Condominium joint exercise of territorial
sovereignty w/ a right to dispose
AIRSPACE STATE CONTROL OVER AIRSPACE (MARTIAL ARTICLE) national
sovereignty There were once 2 conflicting theories on the
rights to airspace: (1) freedom of the air, and (2) national
sovereignty over the air. Under the Paris Convention and the 1944
Chicago Convention the theory of national sovereignty has been
accepted. Now, states have complete and exclusive sovereignty over
air space above its territory as well as the territorial waters
adjacent to its national territory. They form part of the
territorial sphere of validity where the state can undertake
coercive acts. There have been suggestions to include flight space
such as that part of the universal space beyond the earth where
rocket flight takes place.
CONVENTION ON INTERNATIONAL CIVIL AVIATION
x No state aircraft (military, customs, police) shall fly over
the territory of another state or land thereon w/o authorization by
special agreement or otherwise
x All other aircraft shall have the right to make flights into,
or in transit on-stop, across its territory and make stops for
non-traffic purposes w/o necessity of permission. The state may
require landing.
x Prescribed routes and special permission may be required in
certain instances such as over inaccessible regions or
those w/o adequate air facilities. INTERNAL AND TERRITORIAL
WATERS 1982 CONVENTION ON THE LAW OF THE SEA
x In case of archipelagic waters, the sovereignty of the state
extends to its archipelagic waters, and to an adjacent belt of sea
to be known as the territorial sea
x Sovereignty extends to air space over the territorial sea as
well as to the seabed and subsoil x Every state may establish the
breadth of its territorial sea up to a limit not exceeding 12
nautical miles, measured from the
baselines THE FISHERIES CASE skjaergaard / outer limits /
straight baselines Due to the increased presence of British
fishermen w/ their
advanced trawlers, in Norwegian coastal waters, Norway enacted a
Royal Decree delimiting the Norwegian Fisheries Zone. A dispute
arose as to the baselines from w/c the agreed 4 mile territorial
sea will be reckoned. Norway alleges that what really constitutes
the Norwegian co