Sei sulla pagina 1di 42

Public International Law, 2009

Public International Law, 2009 Fr. Joaquin Bernas | MANIEGO, A2012 P UBLIC I NTERNATIONAL L AW

Fr. Joaquin Bernas | MANIEGO, A2012

PUBLIC INTERNATIONAL LAW

NOTES AND DISCUSSIONS (2009ED) 2-A 2012 (FR. JOAQUIN BERNAS)

CHAPTER ONE: THE NATURE OF INTERNATIONAL LAW

I. What is international law?

Traditional definition: “The body of rules and principles of action binding upon civilized states in their relation to one another.”

Entities governed: States (primarily), international organizations, individuals

(Third) Restatement of Foreign Relations Law of the United States (Restatement): Considered by U.S. Courts as the most authoritative work on international law.

Definition: “The law which deals with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.”

Scope of international law: In the age of technological advancement and globalization, public international law (PIL) is rapidly expanding—new subject matters, changing political and social principles and new states and entities being added to the community of nations. Beyond the primary concern for the maintenance of peace, it extends to cover all the interests of international and even domestic life.

Is it a law?

The following reasons illustrate the arguments why PIL is not law, and why it is commonly disregarded:

There can be no law binding sovereign states.

No international legislative body.

o United Nations (UN) General Assembly

resolutions are generally not binding on anybody.

No international executive to enforce legislation.

o

UN Security Council – intended to be an international executive; always prevented by veto power

o

No assured procedure of identifying violation— most of UN powers have reference to lawbreaking taking the form of an act of aggression or as a threat to peace, but there are many violations of PIL which are not of this nature. As a result, all the UN can do is

censure.

No central authority to make judgments binding on states

o International Court of Justice (ICJ) – can only bind states when they consent to be bound

National policy or interest is often preferred over international law.

o National officials often find justification for the things they do.

Above arguments are based on an exaggerated notion of sovereignty as embodying an individualist regime, but this is not the reality. Reality is social interdependence and the predominance of the general interest.

Henkin: “Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.”

Brierly: Law is binding because a reasonable man, whether as an individual or as part of a state, believes that order is preferred over chaos, and that order is the governing principle of the world.

Final analysis: There is a general fundamental respect for law because of the possible consequences of defiance, either to oneself or to the larger society. International law is law because it is seen as such by states and other subjects of international law.

Theories about international law: command theory, consensual theory, natural law theory

Command Theory – From John Austin; law consists of commands originating from a sovereign and backed up by threats of sanction is disobeyed.

In this view, international law is not law because there is no command sovereign. This theory has been generally discredited.

Consensual Theory – International law is binding because of the consent of the states, like treaties and customary law.

However, there are many binding rules which do not derive from consent.

Natural Law Theory – Law is derived by reason from the nature of man. International law is the application of natural reason to the nature of the state-person.

The theory finds little support but much of customary law and what are regarded as general principles of international law are expressions of natural law.

Dissenters: No objective basis for international law because it is a mere combination of politics, morality and self-interest hidden under the smokescreen of legal language.

Public vs. Private International Law: Scope and Differences

Public International Law, 2009

Public International Law, 2009 Fr. Joaquin Bernas | MANIEGO, A2012  Public International Law – “International

Fr. Joaquin Bernas | MANIEGO, A2012

Public International Law – “International law” – Governs the relationships between and among states, and also their relations with international organizations and individual persons

decolonization, resulting in an expansion of membership in the UN composing of formerly colonies, now newly recognized states.

 

Private International Law – “Conflicts of law” – Really considered domestic law which deals with cases where foreign law intrudes in

Grouping of States during the Cold War—Western, socialist, developing countries

the domestic sphere where there are questions of the applicability of foreign law or the role of foreign courts

o

Western States (United States, etc) were not of one mind but insisted on two general points—that legal provisions must be clear and

Historical development of International Law

precise, and that any substantive rule must be

Ancient Law to post-World War I

accompanied by an implementation

Ancient international law governed exchange of diplomatic emissaries, peace treaties. The progressive rules of jus gentium or law “common to all men” became the law of the Roman Empire.

mechanism that can spot and correct violations. Some remained satisfied with the status quo but some were more open to Third World demands and were supportive of social

Modern international law began with the birth of nation-

and legal changes

states in the Medieval Age. It was governed by Roman or Canon Law, which drew heavily from natural law.

o

Socialist states were led by the Soviet Union, which sought to avert Western intrusion into

Hugh Grotius is the father of modern international law; authored the De Jure Belli ac Pacis, which discussed the “law of nations” (later named “international law” by British philosopher Jeremy Bentham.) He was preceded by largely natural law theorists.

domestic affairs even as they sought relatively good relations with the West for the sake of economic and commercial interchange. They also sought to convert developing nations to their ideology.

Positivist approach reinterpreted international law on the basis of what actually happened in the conflict between states and not from concepts derived from reason.

o

Developing countries formed the overwhelming majority and were mostly former colonies suffering underdevelopment with newly industrializing countries like the

Notion of sovereignty gave rise to the Austin’s command theory.

Pacta sunt servanda arose in light of the Peace of Westphalia which ended the Thirty Years War (1618- 1648) and established a treaty-based framework for

Philippines, Malaysia, Thailand, Singapore and South Korea who earned their independence through armed or political struggle while remaining under the influence of Western or socialist ideas.

peace cooperation.

Post-Cold War Period

Congress of Vienna (1815) ended the Napoleonic Wars and created a sophisticated system of multilateral political and economic cooperation.

League of Nations (from the Treaty of Versailles):

Arose after the culmination of World War I, as an institution set up by the victors of the war to prevent the recurrence of world conflagration. It was originally composed of 43 states. The United States did not join. The League of Nations created the Permanent Court of International Justice.

From the end of World War II to the end of the Cold War

United Nations (UN): Because the League of Nations failed to prevent the occurrence of World War II, the victors then set up the UN in 1945 as a new avenue for peace. This marked a shift of power away from Europe and the beginning of a truly universal institution.

Decolonization: The universalization began by the establishment of the UN was advanced by

Dissolution of the Soviet Union led to the re- emergence of international relations being based on multiple sources of power and not on ideology. The Baltic states (Estonia, Latvia, Lithuania) were restored to statehood and the newly born Russian Federation did not inherit the Soviet Union’s position as a superpower.

United States: The last remaining superpower, politically and ideologically leading the Western States. It acts as both world politician (in a selective manner) and global mediator.

Socialist countries are no longer united; some depend on support from Western states.

Developing countries have veered away from ideological orientation and towards market orientation as well as fighting poverty and backwardness.

The UN has declined as the international agency for the maintenance of peace.

Public International Law, 2009

Public International Law, 2009 Fr. Joaquin Bernas | MANIEGO, A2012 C HAPTER T WO : T

Fr. Joaquin Bernas | MANIEGO, A2012

CHAPTER TWO: THE SOURCES OF INTERNATIONAL LAW

I. What are the sources of international law?

As distinguished from domestic law: It is relatively easier to find domestic law because they are generally found in statute books and in collections of court decisions. In international law, there is no centralized legislative, executive or judicial structure, making it difficult to locate the source of PIL. The problem is further heightened by the constantly changing state of world affairs and competing sovereignties.

Classification of sources—material and formal

Formal sources: May refer to various processes by which rules come into existence, e.g. legislation, treaty-making, judicial decision-making, state practice

Material sources: Concerned with the identification, substance and content of the obligation; also called “evidence” or international law

Conditions for Legal Principles: Laid down by the doctrine of sources, these conditions are the observable manifestations of the “wills” of the States as revealed in the processes by which norms are formed—treaties and customs.

Verification process is inductive and positivistic—finding what laws the states have created and what laws they are willing to place themselves under.

“Proof” that international law is characterized by individualism.

Article 38(1) of the Statute of the International Court of Justice: Most widely accepted statement on the “sources” of international law. However, Art. 38 is primarily a directive; it does not speak of actual sources but directs the ICJ on how to resolve conflicts brought before it.

Article 38 enumerates the following as applicable to disputes before it, without prejudice to the power of the court to decide ex aequo et bono (for the right and good) if the parties agree thereto:

International conventions, whether general or particular, establishing rules expressly recognized by contesting states

International custom, as evidence of a general practice accepted as law

General principles of law, recognized by civilized nations

Judicial decisions and teachings of highly qualified publicists of various nations (as subsidiary means and subject to the provisions of Art. 59—which states that the decision of the ICJ is only res judicata as between the parties and with respect only to that particular case)

Sources according to the Restatement:

A rule of international law is one that has been accepted as such by the international community of states—

As customary law

By international agreement

By derivation from general principles common to the major legal systems of the world

Customary law – that which results from a general and consistent practice of states followed by them from a sense of legal obligation

International agreements – create law for the state parties thereto; may lead to the creation of customary international law when such agreements are intended for adherence to states generally and are in fact widely accepted

General principles of law – general principles common to major legal systems, even if not incorporated or reflected in customary law or international agreements; applied as supplementary rules of PIL where appropriate.

Sources, in general: custom, treaties and other international agreements, generally recognized principles of law, judicial decisions and teachings of highly qualified and recognized publicists.

II. Customary Law

Definition: A general and consistent practice of states followed by them from a sense of legal obligation. (Restatement)

Contains the basic elements of custom: the material factor (how states behave) and the psychological or subjective factor (why states behave the way they do)

Material factor (usus): Contains several elements—duration, consistency, generality

Duration—may be long or short

Customary law as a result of long, immemorial practice:

Paquete Havana (US SC)WON fishing smacks were subject to capture by armed vessels of the US. o Ruling: By ancient usage centuries ago, gradually ripening into a rule of international law, coast fishing vessels, pursuing their vocation has been recognized as exempt from capture as prize of war

Customary law as a result of short duration is not excluded: North Sea Continental Shelf (ICJ)Ruling:

Passage of only a short time is not a bar to the formation of custom on the basis of what was purely a conventional rule, so long as State practice should have been both extensive and virtually uniform and should show that there is general recognition that a rule of law or legal obligation is involved.

Duration is not the most important element; the other two are more important.

Consistency—involves continuity and repetition, as laid down in the Asylum case

Asylum (ICJ)WON Colombian Ambassador could claim de la Torre, alleged mastermind of a military rebellion in Peru, as a political refugee, granting him asylum and safe

Public International Law, 2009

Public International Law, 2009 Fr. Joaquin Bernas | MANIEGO, A2012 passage, over the objections of the

Fr. Joaquin Bernas | MANIEGO, A2012

passage, over the objections of the Peruvian government, who disputed Colombia’s claim.

o Ruling: Against Colombia—because they didn’t prove that there was constant and uniform practice of unilateral qualification as a right of the State of refuge and an obligation upon the territorial State. Colombia, as the State granting asylum, is not competent to qualify the

nature of the offense by unilateral and definitive decision to bind Peru.

Uniformity and generality—need not be complete, just substantial

Nicaragua v. US (ICJ)—To deduce the existence of customary law, it is sufficient that the conduct of states should be consistent with such rules and that instances of state conduct inconsistent with it should be considered as breaches of the rule, not proof of a new rule in place.

Subjective factor (opinio juris): The belief that a certain form of behavior is

obligatory makes practice an international rule; otherwise, practice is not law.

Even humanitarian consideration by itself does not constitute opinio juris:

Nicaragua v. US (ICJ)—For new customs to be created, not only must the acts be settled practice, but they must be accompanied by opinio juris sive necessitatis. The conduct of States must be evidence of a belief that the practice is rendered obligatory by the existence of a rule of law requiring it. The need of such belief is implicit in the notion of opinio juris.

Customary law can develop to bind only two or a few states, but the state claiming it must prove that it is also binding on the other party/parties, as was proved by Portugal in the Right of Passage over Indian Territory (ICJ).

Dissenting states may be bound by custom, unless they have consistently objected to it.

Anglo-Norwegian Fisheries Case (ICJ)—WON Norway, who has consistently objected to England’s coastline delimitation rule, is bound by the aforesaid custom.

Ruling: Against England—It is inapplicable as against Norway inasmuch as she has always opposed any attempt to apply it on the Norwegian coast.

Dissent protects only the dissenter; the custom is applicable to other states.

A new state joining the international law system is bound by any kind of practice which has already been recognized as customary law.

Contrary practice: Even after a practice is recognized as customary law, it is possible to adopt a contrary practice. However, contrary practice can cast doubt on the alleged law and can show great uncertainty as to the existing customary law, unless it can gain general acceptance to supervene the preceding custom.

Evidence of state practice: Although custom may be proved in many ways, like treaties, diplomatic correspondence, statements of political leaders, as well as state conduct, the existence of opinio juris is a matter of proof and the burden of proving its existence rests on the state claiming it.

Instant custom: Spontaneous activity of a great number of states protesting/supporting a specific line of action. Best example—American line

of action after the attack on the World Trade Center in New York gave birth to

instant customary law classifying the act as an armed attack under Article 51

of the UN Charter justifying collective self-defense.

Martens Clause in Humanitarian Law: 1899 Hague Peace Convention—“Until

a more complete code of laws of war has been issued, the High Contracting

parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and belligerents remain under the protection and the rule of the principles of the laws of nations as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience.”

The clause places humanitarian laws and dictates of public conscience on the same level as usage or usus, suggesting that even without practice, there can emerge a principle of law based on humanitarian law and the dictates of public conscience.

Treaties and custom: It depends on the intention of the parties—it may be that the treaty is declaratory proof of customary law, or serves to complement it. Adherence to treaties may be adherence to practice as opinio juris. If

treaties and custom contradict each other, the later one will prevail because it

is presumed to be a deliberate choice on the part of the state.

If a treaty is later than custom, the principle of pacta sunt servanda (Lat. “agreements must be kept”) governs.

EXCEPT if the customary law has the status of jus cogens (Lat. “compelling law”)a norm accepted and recognized by the international community as a whole as one from which no derogation is permitted and can be modified only by a subsequent norm of general

international law having the same character. Treaties which conflict with a peremptory norm of general international law are void.

If a custom comes later than a treaty, generally, the later custom is said to prevail as an expression of a later will. However, attempts ought to be made to reconcile the treaty with custom, as is shown in the Angle-French Continental Case.

Anglo-French Continental Case: WON the equidistance principle applies in the delimitation of the continental shelves of the United Kingdom and France. Article 6 (in the treaty) makes the application of the equidistance principle obligatory for the Parties to the convention, but the combined character of the equidistance-special circumstances rule means that the obligation to apply the equidistance principle is always qualified by the condition “unless another boundary line is justified by special circumstances.”

Public International Law, 2009

Public International Law, 2009 Fr. Joaquin Bernas | MANIEGO, A2012 III. Treaties (will be treated in

Fr. Joaquin Bernas | MANIEGO, A2012

III. Treaties (will be treated in Chapter 3)

IV. General principles of law recognized by civilized nations

Also known as “general principles of law recognized or common to the world’s major legal systems.” (Restatement) It references municipal law

principles common to legal systems of the world and are evidence of the fundamental unity of law, most of them incorporated into conventional international law.

They are supplementary rules of international law, found in judicial decisions and the teachings of highly qualified publicists of various nations; they are a subsidiary means for the determination of rules of law. Examples are—

Chorzow Factory (PCIJ): Every violation involves the obligation to make reparation.

Private rights gained under one regime do not cease upon a change of government.

Principle of estoppel

Article 38(1) (Statute) is an affirmation of general principles of law in domestic law systems and makes up for the fact that there is no international legislative system. It plugs in some of the gaps of the

current international law system.

Barcelona Traction Case (ICJ)—The Court cannot disregard the institution of municipal law because it would, without justification, invite serious legal difficulties.

Judicial decisions: Article 38 directs the court to apply these in a subsidiary manner in the determination of the rules of law, subject to Article 59 (on res judicata of ICJ cases as only being between parties). However, despite this, cases decided by the ICJ are considered highly persuasive in international law circles and have contributed to the formation of international law, e.g. arbitral decisions have been instrumental in the formation of PIL principles.

Teachings of highly qualified writers and “publicists:” In cases of first impression, the court reluctantly makes reference to writers since they are the only available sources. Common law courts are less willing to use them than civil law courts. “Publicists” are institutions which write on PIL, but may bear potential national bias—being primarily government-sponsored entities—like The International Law Commission (a UN organ), the Institut de Droit International, the International Law Association (a multinational body), the Restatement, and the annual Hague Academy of International Law’s annual publication.

Equity considerations: As a source of law, the Permanent Court of Justice had occasion to use equity in the case of Diversion of Water from the Meuse (PCIJ), where the issue was WON Belgium had violated an agreement with the Netherlands about any construction altering water levels and the rate of flow of the Meuse waters when the Netherlands built a lock earlier than when they were supposed to. The Court rejected both on the basis of equity, saying that where two parties who have assumed reciprocal obligations, the continuing non-performance of one party does not permit it to take advantage of a similar non-performance by the other party, because a court of equity refuses relief to a plaintiff whose conduct in regard to the subject matter has

I.

been improper. The Court here recognizes that, under Article 38 of the Statute, the Court has some freedom to consider principles of equity as part of the international law which it has to apply.

When it is accepted, equity is an instrument whereby customary or conventional law may be supplemented or modified in order to achieve justice. It has both a procedural and substantive aspect.

Procedurally, equity is a mandate to the judge to exercise discretion to achieve a determination that is more equitable and fair.

Different kinds of equity are distinguished—intra legem, praeter legem, contra legem

Intra legem: Within the law; the law is adapted to the facts

Praeter legem: Beyond the law; the law is used to fill the gaps within the law

Contra legem: Against the law; there is refusal to apply the law because it is unjust

Other supplementary sources: UN Resolutions (merely recommendatory, but may sometimes be an expression of opinio juris or are reflections of what has become customary law), “soft law” (non-treaty agreements and not covered by the Vienna Convention on Treaties, like administrative rules guiding practice of states for international organizations; preferred by States because it is simpler and more flexible for future relations.

CHAPTER THREE: THE LAW OF TREATIES

Treaties

Many forms of treaties: conventions, pacts, covenants, charters, protocols, concordat, modus vivendi, etc. It is the most deliberate form of commitment through which governments cooperate with one another. The general term used is international agreements. They are convenient tools through which states show common intent, in the absence of international legislative.

1969 Vienna Convention on the Law of Treaties: Governs treaties between states; entered into force in 1980.

A Convention on the Law of Treaties Between States and International Organizations or Between International Organizations was adopted in March 1986, and should enter into force 30 days after the 35 th ratification or accession of states.

Definition: A treaty is 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. (Vienna Convention)

Elements of a treaty—1. In writing; 2. Reflective of the intention of the parties to be bound; 3. Governed by international law

Some writers believe that even oral agreements can by binding. However, only written agreements can be subject to the provisions of the Vienna Convention.

No particular form is prescribed, as is shown in the following cases:

Qatar v. Bahrain (ICJ)—WON the two States should be bound by the signing and exchange of Minutes between

Public International Law, 2009

Public International Law, 2009 Fr. Joaquin Bernas | MANIEGO, A2012 the two heads of state with

Fr. Joaquin Bernas | MANIEGO, A2012

the two heads of state with the binding force of an international agreement. Ruling: To ascertain whether it can be considered as an international agreement, the Court must have regard for its actual terms and the particular circumstances in which it was drawn. The Minutes had included a reaffirmation of the obligations they entered into, and were not, thus, a simple record of the meeting but enumerate the commitments to which the parties have consented, thus creating rights and obligations in international law for the parties and validly constitute an international agreement. When it was contended that there was no intention to be bound by the Minutes, the Court deemed it unnecessary to have to look into intentions because of the signatures of the two ministers.

Norway v. Denmark (PCIJ): In a case involving a dispute over sovereignty in Eastern Greenland where Norway accepted Denmark’s offer of concessions in exchange for non-obstruction of the latter’s plans, WON the Norwegian Minister is bound by his statement to the Danish minister “that the Norwegian Government would not make any difficulty in the settlement of this question.” Court—YES.

On UNILATERAL DECLARATIONS:

Nuclear Test Cases: Australia v. France & New Zealand v. France (ICJ): These cases were filed as a response to France being a signatory to the Nuclear Test Ban Treaty and yet continued to conduct tests in the South Pacific until 1973. However, the cases were dismissed when France, through a series of unilateral announcements, said that it would conduct no further tests. Nonetheless, the court commented that unilateral declarations have the effect of creating legal obligations when the commitments are a.) very specific and there is b.) a clear intent to be bound.

European Union v. US: Attributing legal significance to unilateral statements made by a State should not be done lightly, and are subject to strict conditions.

Functions of treaties: May be sources of international law; charters of international organizations; used to transfer territory, regulate commercial relations, settle disputes, protect human rights, etc.

Multilateral treaties: Open to all states of the world; operate to create norms which are the basis for a general rule of law. May be either codification treaties (covering principles) or “law-making treaties” (treaties which ripen into law) or they may have the character of both.

Collaborative mechanism treaties: May be of universal or regional scope, and operate through the organs of different states.

Bilateral treaties: In the nature of contractual agreements which create shared expectations (trade agreements) and are sometimes called “contract treaties.”

While treaties are generally binding only on the parties, the generality of the acceptance of specific rules created by the treaty can have the effect of creating a universal law in the same way that practice creates customary law.

Making of treaties: Generally, treaties originate from foreign ministries and negotiation is done through them. Larger multilateral treaties are negotiated in diplomatic conferences run like a legislative body.

Negotiation: Negotiators must possess negotiating powers because a treaty reached by one without proper authorization has no legal effect unless ratified. A person represents the state in negotiations when he produces appropriate full powers or it appears that it is the practice of the State to consider that person as representative of its interest for such purposes. Negotiations conclude with the signing of the document.

Ex. Heads of State & Government and Ministers for Foreign Affairs; heads of diplomatic missions; representatives accredited by States to an international conference or an international organization.

Authentication of text: When documents are signed, they are deemed authenticated, making the text authoritative and definitive. In cases of dispute, basis for resolution is the authenticated document.

Consent to be bound: The most important step through which a document becomes binding as international law. There are various ways by which consent to be bound is expressed.

Ex. Through signature, exchange of instruments constituting a treaty, acceptance, approval, accession, or any other means agreed upon.

Ratification: Manner of ratification differs from state to state. In the Philippines, it is done via concurrence of two-thirds of all the members of the Senate (Sec. 21, Art. VII, 1987 Constitution.) By this, a state is required not to engage in acts which can defeat the purpose of the treaty.

Notification, Exchange and Deposit of Ratification: Unless the treaty provides otherwise, notification, exchange and deposit establish the consent of a State to be bound by a treaty.

Accession to a treaty: Only those not originally parties of the treaty can express their consent to be bound by accession, where the treaty provides or it is otherwise established that such consent may be expressed by that State by means of accession.

Reservations: A unilateral statement made by a State when signing, ratifying or approving a treaty purporting to exclude or modify the legal effect of certain provisions of a treaty in its application. They are different from statutes, which apply to all, and from interpretative declarations, which are not derogations but are expressions of how a state understands its adoption of the treaty.

Public International Law, 2009

Public International Law, 2009 Fr. Joaquin Bernas | MANIEGO, A2012  Reservation is not allowed when

Fr. Joaquin Bernas | MANIEGO, A2012

Reservation is not allowed when prohibited by the treaty, when the treaty provides for special reservations, or when the reservation is incompatible with the object and purpose of the treaty.

Reservations expressly authorized by treaty do not need to be subsequently accepted unless provided by the treaty itself.

Reservation requires acceptance by all the parties if the number of party States to the treaty are limited and the acceptance of the treaty as a whole is essential to the purpose of the treaty.

If the treaty is integral for an international organization, a reservation requires the acceptance of the organization.

Reservation is deemed to be accepted if others failed to raise any objections within one year after notification of the reservation or after it expressed its consent to be bound, whichever is later.

Reservations may be withdrawn at any time and consent of the other State is not required for its withdrawal. Likewise, objections to reservations may be withdrawn at any time. Withdrawal becomes operative in relation to another contracting State only when notice has been received by other contracting states.

Form: Reservation must be in writing and communicated to contracting States and other states entitled to become parties. Express acceptance of a reservation by other states does not require confirmation in itself. Withdrawal of a reservation or of an objection thereto must be in writing.

Reservation in bilateral treaties is considered a rejection of the treaty. Reservations, then, are only applicable to multilateral treaties.

The Philippines and the 1982 Law of the Sea: The Philippines made a reservation conditioning its acceptance of the 1982 Law of the Sea on the Philippine claim in the 1987 Constitution on “internal waters” between islands, irrespective of breadth. USSR filed a formal protest but FJB says that the reservation is unnecessary because the new rule only applies to waters not previously

considered as internal waters.

Reservations in human rights treaties: No reservations can be made for Human Rights treaties.

Entry into force of treaties: Enter into force on the date agreed upon by the parties. Where no date is indicated, once consent has been given. Multilateral treaties come into force once the required number of parties consent or accept the treaty. They may also be applied provisionally.

Application of treaties:

The first fundamental rule on treaties is pacta sunt servanda, ensuring that every treaty in force is binding upon the parties to it and must be performed by them in good faith. (Article 26 of the Convention)

The second fundamental rule is that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. (Article 46 of the Convention)

Third—regarding the territorial scope of its applicability: Unless a different intention appears from the treaty or is otherwise established, a treaty or is otherwise established, a treaty is binding

upon each party in respect of its entire territory. (Article 29 of the Convention)

Interpretation of treaties: Article 31 combines various approaches to treaty interpretation

Objective approach: interpretation according to the ordinary meaning of the words

Teleological approach: interpretation according to the telos or the purpose of the treaty

Subjective approach: honors the special meaning given by the parties

If there are ambiguities, supplementary sources may be used; in

case of conflicts, language that is agreed upon by the parties shall prevail.

Air France v. Saks (US): WON an air carrier is liable for a passenger’s injuries due to the dropping of air pressure which occurred while the plane was in the process of landing, causing the passenger to become deaf in one ear. Despite the Warsaw Convention making the airline liable for injuries sustained by passengers on the account of any accident occurring onboard the aircraft or in the course of any of its operations while embarking/disembarking, the court found that the injuries were a result of a usual and expected event (the dropping of air pressure), which was not within the meaning of the word “accident” in Article 17.

Invalidity of treaties: Error of fact, fraud, corruption, duress

Error: Mistake in a factual antecedent essential to the State entering into the treaty in the first place; does not apply if there was prior notice or the State head contributed to the mistake.

Fraud: Fraudulent behavior is involved in inducing another to enter into a treaty with the State.

Corruption: Consent is procured through either direct or indirect corruption of its representative.

Duress: There is duress by procuring consent through the coercion of another State’s representative or acquiring another State’s consent through threat or use of force in violation of the principles of international law.

Jus cogens: A peremptory norm of international law from which no derogation is permitted; any treaty which violates jus cogens is deemed void.

Loss of right to assert the invalidity of a treaty: A state loses the right to protest a treaty’s validity when, after knowing all of the facts, expressly agreed to its validity or continues to keep it in force/in operation.

Municipal law as a ground to invalidate a treaty: Generally, a state cannot

use municipal law as a ground to invalidate a treaty unless there is a manifest violation.

Manifest violation: A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.

Public International Law, 2009

Public International Law, 2009 Fr. Joaquin Bernas | MANIEGO, A2012 • Ex. A state representative is

Fr. Joaquin Bernas | MANIEGO, A2012

Ex. A state representative is subject to a restriction when concluding a treaty (a manifest violation if he does not observe the restriction, unless the other states were informed of his lack of capacity and contracted with him anyway)

Amendment of treaties: A formal revision done with the participation (at the very least in its initial stage) by all the parties to the treaty.

Bilateral: Innocent party may invoke the breach of the other party as a ground to terminate or suspend the operation, in whole or in part.

Multilateral: Breach of the treaty entitles the other parties (by unanimous agreement) to suspend the operation of the treaty, in

whole or in part, either between themselves and the defaulting State or as between all of the parties, or to ask for the termination of the treaty

A treaty may be amended by agreement of the parties. The

Article 40: Applies for amendments which will affect only some of

 

party specially affected by the breach may invoke it as

A

procedure to be followed is the same as formation—it is much more

 

a

ground for suspending the operation of the treaty, or

difficult as to multilateral treaties than bilateral treaties because it is difficult to obtain the consent of all the parties in multilateral

suspend the relations between itself and the defaulting State.

treaties.

the states but only after all parties have been given the opportunity to consider the proposed amendments.

 

Any other party may invoke breach as a ground to suspend the operation of the treaty in whole or in part with respect to itself if it is of such a character that a

Notice of the proposal to amend must be given to all contracting parties, because they all have the right to: a.) the decision as to the action to be taken; b.) the

negotiation and conclusion of any agreement for the amendment.

Every original contracting party-State is also entitled to become a party to the amended treaty. Also, the amended treaty does not bind those who do not give their consent to it. A State that becomes a party to the treaty after the amendment shall (unless it is expressed differently) be considered as a party to the treaty as amended and a party to the original treaty in relation to those who did consent to the amended treaty.

Modification: A formal revision that involves only some of the parties.

material breach by one radically changes the position of all the other parties with respect to further performance.

Examples of breach: Unsanctioned repudiation of a treaty, violation of a provision essential to the accomplishment of the purpose of the treaty.

Note: The ground of material breach cannot apply to provisions relating to the protection of the human person contained in humanitarian treaties.

Namibia Case (ICJ): The case is an advisory opinion on the legal consequences of a breach of a resolution sought by the Security Council after it had ruled that South Africa’s extended stay in Namibia was illegal. Ruling: The ICJ held that the two forms of material breach had occurred in this case (unsanctioned repudiation and violation of a treaty provision.) South Africa was under an obligation to withdraw from Namibia, and other States

Article 41: Allows for modification by two or more of the parties.

Two or more parties in a multilateral treaty may modify

The modifying parties must also inform the other parties

were under no obligation to recognize any acts by South African administration from Namibia.

the treaty as between themselves if the treaty provides that it may be modified or it does not prohibit modification. The lack of prohibition must also indicate that it must not affect the enjoyment of rights under the treaty by other parties, or it must not relate to a provision,

Supervening impossibility of performance: It has become impossible to fulfill the treaty because of the disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility is temporary, it may only be cause to suspend. It cannot be invoked if the impossibility is a result of a breach by the party claiming the ground.

derogation from which is incompatible with the effective

Danube Dam Case (ICJ): WON Hungary could claim the right to

execution of the objective of the treaty.

of their intent to modify as well as the modification itself.

terminate the 1977 Treaty between the State and Czechoslovakia to facilitate the construction of dams on the Danube river on the basis of impossibility of performance and rebus sic stantibus. Due

Termination of treaties: Termination according to—conclusion according to the terms, by consent, expiration of definite period, achievement of purpose.

 

to environmental concerns, Hungary had to suspend operations causing Czechoslovakia to respond with unilateral measures, causing Hungary to try to terminate the treaty. Ruling: The court

Change of government does not terminate a treaty.

held that Hungary could not claim impossibility of performance if

Other modes of terminating a treaty: Material breach, impossible performance, rebus sic stantibus

they had a hand in the breach that caused the impossibility (in this case, failure to carry out the works for which Hungary was

Material breach: The treaty’s terms are breached.

responsible.) Furthermore, the change in circumstance is not fundamental enough to radically transform the extent of the obligations under the Treaty.

Public International Law, 2009

Public International Law, 2009 Fr. Joaquin Bernas | MANIEGO, A2012  Rebus sic stantibus (Fundamental change

Fr. Joaquin Bernas | MANIEGO, A2012

Rebus sic stantibus (Fundamental change in circumstance): There is a fundamental change in the circumstances, unforeseen by the parties, from those at the conclusion of the treaty.

This may not be invoked as a ground for terminating a treaty unless those circumstances were an essential basis of the consent of the parties to be bound to the treaty, and the effect of the change transforms the extent of obligations still to be performed under the treaty.

Rebus sic stantibus may also be invoked to suspend a treaty’s operations. However, the modern approach to its invocation is restrictive (Fisheries Jurisdiction case)—the changes must have increased the burden of the obligations to be executed to the extent of rendering performance something essentially different from the original intention.

Fisheries Jurisdiction (ICJ): WON the proposed extension of Iceland’s exclusive fisheries jurisdiction from 12 miles to 50 miles was a breach of an agreement between the State and UK, on Iceland’s argument that the agreement was no longer binding because of rebus sic stantibus. Ruling: The court ruled that the fundamental change being pushed by Iceland (increased exploitation of fishery resources because of the increased catching capacities of fishing fleets) cannot be said to have transformed the extent of the jurisdictional obligation imposed in the agreement with the UK.

Exceptions: Fundamental change in circumstances cannot be invoked as a ground for termination or withdrawal when the treaty establishes a boundary, or if it is a result of a breach by the party invoking it.

Procedure for termination:

Party-State must notify other parties (in writing and signed by one

with full powers) of the ground or defect in the consent which would allow it to withdraw or terminate the treaty. Notification must indicate the measure proposed and the reasons.

If within a period of not less than three (3) months, no objections are raised, proposing State may carry out the measures proposed. In case of an objection, the parties concerned shall seek a solution through the necessary means.

If no solution is reached within 12 months, the dispute must be submitted to:

ICJ

Arbitration, or

Secretary General of the UN for procedure specified in the Annex of the Convention

The proposal may be revoked any time before it takes effect.

Authority to terminate: Vienna Convention does not enumerate those who have the capacity to terminate treaties; however, it is logical that those with the authority to enter into treaties also have the authority to terminate them.

Can the President unilaterally terminate a treaty? In US jurisdiction (Goldwater v. Carter), the question was raised but not resolved because the case was not yet ripe for adjudication.

Succession to treaties: In the case of a brand new state (one state ceases to exist and is succeeded by another occupying the same territory), the Vienna

Convention on the Succession of States with Respect to Treaties concluded that the “clean slate rule” is applied, and a newly independent state is not bound to maintain treaties entered into by the previous state. If they choose, however, they may agree to be bound by the treaties of its predecessor.

Exception: Treaties affecting boundary regimes. They are considered as attached to the territory, not to the State.

CHAPTER FOUR: INTERNATIONAL LAW AND MUNICIPAL LAW

I. Conflict between International Law and Municipal Law—Dualism vs. Monism

Dualist/pluralist theory: International law (PIL) and municipal law (ML) are

essentially different.

As to source: ML is a product of local custom or legislation and PIL is sourced from treaties and custom grown among states.

As to relations to regulate: ML regulates relations between individual persons under the state, while PIL regulates relations between states.

As to substance: ML is the law of the sovereign over individuals while PIL is a law between sovereign states.

Which prevails: ML must prevail (Dualists are positivists—strong emphasis on state sovereignty)

Monistic Theory: PIL and ML belong to only one system of law.

Monism Theory 1: ML subsumes and is superior to PIL.

Monism Theory 2: PIL is superior to ML (this theory is supported by Kelsen); this superiority stems from a deep suspicion of local sovereigns and from the conviction that PIL imbues the domestic order with a sense of moral purpose.

ML in PIL: Prevailing practice accepts dualism to the extent that it recognizes two legal systems.

Parties may not invoke provisions of ML to avoid or to justify its failure to perform a treaty or any kind of international agreement. Dualist theory blocks the entry of ML in the area of PIL.

A state that enters into an international agreement must modify its

ML to make it conform to the agreement. As in the case of

Exchange of Greek and Turkish Population, the Court ruled that a

state is “bound to make in its legislation such modifications as may

be necessary to ensure the fulfillment of the obligations

undertaken.”

However, even under a dualist perspective, the two systems are

not

completely separate. Barcelona Traction Case (ICJ): A court

who

disregards the relevant institution of ML would be losing touch

Public International Law, 2009

Public International Law, 2009 Fr. Joaquin Bernas | MANIEGO, A2012 with reality. However, PIL refers only

Fr. Joaquin Bernas | MANIEGO, A2012

with reality. However, PIL refers only to generally accepted rules in municipal systems and not to the particular ML of a particular State.

If an international court is called to decide a case based on municipal and not international law, they must apply it as it would be applied in the country where it is from.

PIL in ML: Dualism still applies when it comes to entry of PIL into the domestic sphere. Unless it becomes a part of municipal law, PIL has no place in the settlement of conflicts in domestic law.

Two theories on how PIL becomes a part of ML: Doctrines of transformation and incorporation

Transformation—for PIL to become part of ML, it must be expressly and specifically transformed into domestic law through legislation or any other appropriate machinery. Treaties do not become part of the law of the land unless the State consents to it.

Incorporation: When any question arises which is properly the object of its jurisdiction, the law of nations is adopted by common law, and becomes part of the law of the land.

Philippine law: Treaties and international agreements become part of the law of the land when concurred in by the Senate (1987 Constitution). The acceptance of the Philippines of the generally accepted principles of PIL manifests its adherence to the dualist theory and adopts the incorporation

theory, making PIL a part of ML. Philippine courts, then, can use PIL to settle domestic disputes.

Incorporation only applies to customary law and treaties which have formed part of customary law, because the 1987 Constitution also provides that treaties have to be ratified.

When Philippine Courts use PIL to settle domestic disputes: Mejoff v. Director of Prisons (Declaration of Human Rights, in deciding WON to release an alien of Russian descent from detention pending deportation), Kuroda v. Jalandoni (the Hague and Geneva Convention, in WON a military commission had jurisdiction over war crimes committed in violation of the two conventions prior to 1947), Agustin v. Edu (Vienna Convention on Road Signs and Signals, in determining WON the Letter of Instruction prescribing the use of early warning devices possesses relevance,) J.B.L. Reyes v. Bagatsing (International duty to protect foreign embassies.)

International/Municipal Rule: Where there is a conflict between PIL and ML, what prevails depends on whether the case goes to an international or a domestic court. Before an international court, a party cannot argue or plead its own law. Domestic courts have no choice but to follow local law.

Conflict between State Constitution and treaty: Treaty is not valid and

operative as domestic law; the SC has the power to declare the treaty invalid. However, this does not mean that the theory is declared unconstitutional or that it loses its international character.

Tanada v. Angara: WON the Senate’s ratification of the GATT Treaty is contrary to national interest and the Constitution. The Court ruled that the principles embodied in the Constitution are not

self-executing principles ready for enforcement but are used by the Judiciary to aid or guide the exercise of its power of judicial review. Tanada case is supposed to be a retreat from the next case.

Manila Prince Hotel v. GSIS: WON the State can award the contract to a Filipino bidder over an international one on the basis of the principles in the 1987 Constitution such as preferring qualified Filipinos. The Court said that the provisions need not be subject to legislation but are self-executory on their own, a mandatory, positive command complete in itself. It is per se judicially enforceable.

Conflict between treaty and law: Whichever one is later prevails—based on the American view that treaties and statutes are equal in rank. However, the preference of a statute over a treaty (in case a statute comes later) only applies as to its domestic aspect, not to its international aspect.

Head Money Cases (US): Treaties do not hold a privileged position above other acts of Congress, and other laws affecting "its enforcement, modification, or repeal" are legitimate. So far as a treaty made by the United States can become the subject of judicial cognizance in the courts, it is subject to such acts which Congress may pass.

Whitney v. Robertson (US): WON the agreement between Hawaii and the US as to admit their sugars duty-free into the country would also apply to the merchant-petitioners’ produce of similar centrifugal and molasses sugar from San Domingo, a State which also has a similar treaty with the United States. The court ruled, gleaning doctrine also from the Head Money cases that when the stipulations are not self-executing, they require legislation to put them into effect. Such legislation is subject to modification and repeal by Congress. If the treaty contains self-executing stipulations, to that extent they have the force and effect of a legislative enactment.

CHAPTER FIVE: SUBJECTS OF INTERNATIONAL LAW--STATES

I. Subjects vs. Objects of International Law

They are entities endowed with rights and obligations in the international order, possessing the capacity to take certain kinds of action on the international plane.

Have international personality and are capable of acting in international law.

Vs. Objects: Objects of PIL are those who indirectly have rights under/are beneficiaries of international law through the subjects of international law

States enjoy the fullest personality in PIL.

II.

Statehood

Commencement: A state as a person in PIL should possess the following characteristics—a.) permanent population, b.) defined territory, c.) government, and d.) capacity to enter into relations with other states. (Montevideo Convention of 1933 on Rights and Duties of States)

Public International Law, 2009

Public International Law, 2009 Fr. Joaquin Bernas | MANIEGO, A2012  Examples : When a portion

Fr. Joaquin Bernas | MANIEGO, A2012

Examples: When a portion of territory has seceded, foreign control over an entity claimed to be a state, or when states have formed a union or continue to retain some autonomy, when members of a federation claim to be a state.

Elements of Statehood—People, Territory, Government and Sovereignty

People/Population: A community of persons sufficient in number, capable of maintaining permanent existence of the community and held together by a common bond of law. There is no minimum population required, nor are they required to have racial, cultural or economic similarities.

Territory: An entity called a state must exercise sovereignty over a definite territory; it may satisfy the territorial requirement for statehood even if its boundaries have not yet been settled with finality because it does not cease to be a state even if all its territory is occupied by another power or if it has lost control of its territory temporarily. (Restatement)

Government: Institution by which an independent society makes and carries out rules of action necessary to enable men to live in a social state, or which are imposed upon people forming that society by those who possess the power or authority of prescribing them (US v. Dorr, 2 Phil. 332.) In PIL, there is no required form of government. For purposes of PIL, it is the national government which has international personality and it is that which is responsible for the actions of the agencies and instrumentalities of the State. Temporary absence of government does not terminate the existence of a state.

Sovereignty: Independence from outside control. It is, according to the Montevideo Convention, the capacity of the State to enter into relations with other States. This, however, is dependent upon recognition.

Self-determination: Related to but is not identical to sovereignty. The latter falls under the broader concept of the right of self- determination. It is the impetus behind the birth of new states in the post-World War II era, and is asserted by both the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights. “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

May be broken down into two levels of claim to self- determination: first, the establishment of new states—a claim of a group within an established state to break away and form their own identity; and second, claims to be free from external coercion or to overthrow rulers and establish a new government. The latter is the assertion of the right of revolution, or that of autonomy.

The UN has various ways of giving effect to self- determination like resolutions of support, sanctions for offenses against SD, rights of participation in

international fora—however, PIL has yet to recognize a right of secession from a legitimately existing state.

Recognition of states: When one state recognizes the capacity of another state to exercise all the rights attributed to statehood; it is an act of acknowledgement.

Declaratory theory: Recognition merely ‘declares’ the existence of the state; statehood depends upon its possession of the elements, not upon fact of recognition, and the recognizing state merely accepts an already existing situation. (The weight of authority supports this.)

Constitutive theory: Recognition ‘constitutes’ the state; there is no state until it is recognized by another. The fact of recognition makes the state a state, and confers legal personality on the entity. This theory emphasizes that states are under no obligation to enter into bilateral relations, but also allows those entities who do not have all the Montevideo Convention elements of a state to be recognized as such.

Political issue: Lately, it is of note that the recognition of states of one another has become a matter of political discretion—a state

recognizes the existence of another if it is beneficial to them. Treatment of recognition has been inconsistent and it is seen that political realities have primacy over consistency in application. Traditional criteria was largely amoral—how states came to be was not a relevant factor; now, placing conditions leading to recognition implies an attempt at greater moral dimension but have sacrificed the application of a consistent doctrine.

Recognition of Government: Closely related to recognition of states, it is the act of acknowledging the capacity of an entity to exercise powers of government. If there is a change in government that came about through constitutionally mandated means, recognition comes as a matter of right. If it came about through extra-constitutional means, the cases of Tinoco Arbitration and Upright v. Mercury Business Machines Co. may be helpful.

Tinoco Arbitration (W.H. Taft, arbitrator): WON Great Britain is estopped from pursuing claims against the temporary Tenneco government of Costa Rica because it never recognized the Tinoco government either as de jure or de facto. Ruling: The status of the brief Tenneco government was that of de facto, which was capable of creating rights in different subjects, and these rights cannot be ignored to work any injury to the succeeding government.

Upright v. Mercury Business Machines Co. (US): WON plaintiff, as an assignee of a trade acceptance debt of a foreign corporation which is a creature of East German government, can enforce the unpaid claim against Mercury Business Machines despite East Germany not being recognized by the United States. Ruling: An unrecognized foreign government may have a de facto existence juridically cognizable when it affects private rights and obligations.

Consequences of non-recognition: Recognition allows opportunities not afforded to non-state entities, like extensions from funding agencies,

Public International Law, 2009

Public International Law, 2009 Fr. Joaquin Bernas | MANIEGO, A2012 facilitation of loans, access to foreign

Fr. Joaquin Bernas | MANIEGO, A2012

facilitation of loans, access to foreign courts, etc. However, recognition of a government is a highly political decision.

Entry into the UN does not require recognition by all members. Recognition is only to the extent of the activities of the organization.

Neither recognition nor diplomatic relations necessarily mean approval of the government.

Termination of recognition: When a new regime is recognized in lieu of the old government. A state cannot be de-recognized so long as it continues to fulfill the requirements of statehood.

Succession of States: States do not last forever and state succession may

arise in different circumstances, such as a result of decolonization, dismemberment, secession, annexation and merger. What occurs in each of these instances is that an existing sovereignty disappears in whole or in part and a new sovereignty arises giving rise to questions of succession to rights and obligations.

Tabula rasa theory: Clean-slate theory, where a new state is not bound by any rights and obligations of its predecessor.

Opposing theory says that a new state inherits all of the rights and obligations of the old state.

Continuity: When a new state arises, what is its relation to the predecessor state? Does it continue the existence of the old state or is it completely distinct from it? It is less of a problem when there is a new regime

(constitutive of a ‘state’) like in the case of Pakistan and India succeeding British India. It is more problematic in cases like the former Soviet Union and Yugoslavia.

Specific provisions: Taken from the Restatement—

As to territory: When a state succeeds another state with respect to particular territory, the capacities, rights and duties of the predecessor state with respect to that territory terminate and are assumed by the successor state.

As to state property: Subject to agreement between predecessor and successor states, title passes as follows:

1.) Where part of the territory of a state becomes territory of another state, property of the predecessor state located in that territory passes to the successor state; 2.) Where a state is absorbed by another state, property of the absorbed state, wherever located, passes to the absorbing state; 3.) Where part of a state becomes a separate state, property of the predecessor state located in the territory of the new state passes to the new state.

As to public debts: Subject to agreement between the states, responsibility for public debts, rights and obliges under contracts, remain with the predecessor state, except:

1.) Where part of the territory of a state becomes territory of another state, local public debt, and the rights and obligations under contracts relating to that territory, are transferred to the successor state. 2.) Where it is absorbed by another state, the public debt, etc. pass to the absorbing state.

3.) Where part of the state becomes a separate state, local public debt, and rights and obligations relating to the territory of the new state, pass to the new state.

As to treaties:

1.) When part of the territory of a state becomes territory of another state, the treaties of the predecessor state cease to have effect in respect of the territory and the treaties of the successor state come into force there. 2.) When a state is absorbed by another state, the treaties of the absorbed state are terminated and the treaties of the absorbing state become applicable to the territory of the absorbed state. 3.) When a part of a state becomes a new state, the new state does not succeed to the treaty to which the predecessor state was a party, unless, expressly or by implication, it accepts such agreements and the other party agrees (Clean slate theory). 4.) Pre-existing boundary and other territorial agreements continue to be binding notwithstanding (uti possidetis rule).

Fundamental Rights of States—Independence, equality, peaceful co- existence

Independence: Capacity of a state to provide for its own well-being and development free from the domination of other states, provided it does not impair or violate their legitimate rights. From this flows the power of jurisdiction over territory and permanent populations, the right to self-defense and the right of legation.

Equality: Equality of legal rights irrespective of size or power of the State. In the UN, it is the doctrine behind the principle of one state, one vote.

Peaceful co-existence: Elaborated in the Five Principles of Co- Existence by India and China (1954) and includes mutual respect for each other’s territorial integrity and sovereignty, mutual non- aggression, non-interference, and the principle of equality.

Incomplete subjects—Protectorates, federal state, mandated and trust territories, Taiwan, Malta, Holy See

CHAPTER SIX: SUBJECTS OF INTERNATIONAL LAW—OTHER SUBJECTS

I. International Organizations

An organization that is set up by treaty among two or more states and is different from NGOs, which are set-up by private persons. It is a treaty that is

the constituent document of international organizations.

Only states are members of international organizations. To be able to delineate the activities of international organizations, one must look at the relevant rules of its body and to its constitution.

How do they come into existence?

Do they have international personality?

Do they enjoy any kind of immunity?

Public International Law, 2009

Public International Law, 2009 Fr. Joaquin Bernas | MANIEGO, A2012  Formed via multilateral treaties, but

Fr. Joaquin Bernas | MANIEGO, A2012

Formed via multilateral treaties, but also treaties of a particular type—which create new subjects of international law, imbued with some autonomy, where parties are geared towards a common goal.

Reparations Case (ICJ Advisory Opinion): WON an agent of the United Nations in the performance of his duties suffered injuries in a situation involving responsibility of a State has the capacity to bring an international claim against the responsible government to obtain reparations for both the victim and the United Nations. Ruling: Members of the UN created an entity possessing objective international personality and not merely a personality recognized by them alone. Despite the UN Charter being silent about the organization’s international personality, its possession of legal personality may be implied from the functions of the organization.

However, the recognition of an international organization’s personality does

not place it on the same level as states. It does not give them the powers and privileges that a state enjoys, for their powers are limited by the instrument which created them.

Advisory Opinion on the Use of Nuclear Weapons: International organizations are governed by the principle of specialty and are invested by the States which create them with powers, limited by

the function of common interests. The powers conferred on them are normally the subject of an express statement of their charter instrument. However, they may possess subsidiary powers necessary to achieve their objectives called “implied powers.”

Immunities: The basis for their immunities is not sovereignty (as in States and Heads of State) but the need for the effective exercise of their functions. The immunities for the United Nations and its designated agents and representatives are found in Article 105 of the UN Charter and are described as “those which are necessary for the fulfillment of its/their purposes.” The General Assembly may make recommendations to determine the details of the application of the particular immunities, which they did in the General Convention on the Privileges and Immunities of the United Nations and the Convention and Privileges of Specialized Agencies.

The Philippine courts have recognized the immunity of other international organizations in International Catholic Migration Commission v. Calleja (190 SCRA 130), Southeast Asian Fisheries Development Center v. Acosta (226 SCRA 49) and Lasco v. United Nations Revolving Fund for Natural Resources Exploration (241 SCRA 681).

However, in the case of Kapisanan ng mga Manggagawa v. International Rice Research Institute (190 SCRA 130, decided jointly with the International Catholic Migration Commission case), IRRI was treated as an international organization despite being created via memorandum of agreement, not by treaty, by the Philippine government and the Rockefeller and Ford Foundations. Although initially considered a private corporation with the SEC, IRRI was granted the status of an international organization in 1979 through PD 1620. The Court recognized it as a specialized agency on the same footing as the International Catholic Migration Commission, an international organization. The end result is that

employees who were seeking redress for violation of labor rights were rebuffed by the Supreme Court.

In the two cases involving the Asian Development Bank, of which treaty the Philippines is a signatory, the results were different. In one case, deciding whether or not the NLRC could take cognizance

of a case involving illegal dismissal against ADB, the immunity of ADB was upheld. However, in the other case, the immunity of an ADB employee was not upheld in the face of a criminal complaint for grave oral defamation because the immunity could only be limited to acts performed in an official capacity, and it could not cover the commission of a crime.

United Nations’ Structure and Powers: The UN is a universal organization charged with peace-keeping, the development of friendly relations among nations, the achievement of international cooperation and the promotion of human rights and fundamental freedoms for all human beings without discrimination (BASICALLY: peace, cooperation, friendly relations and human rights)

However, the UN is enjoined in intervening in matters which are within domestic jurisdiction of any state.

In the hierarchy of international organizations, the UN occupies a position of preeminence. In the event of a conflict between international agreements between Member States and the UN Charter, the UN Charter must prevail.

Principal organs of the UN: General Assembly, Security Council, ECOSOC, Trusteeship Council, Secretariat, ICJ and Other Agencies

General Assembly: Where all member States are represented. It exercises plenary powers, and may discuss any question or matter within the scope of its Charter. It distinguished between “important questions” and “other questions.” Important questions are decided by an absolute majority (2/3) of the members voting and present. Other questions require only a majority. The Charter identifies which questions are deemed important questions; the GA may include other important questions by majority vote.

Security Council: Primarily responsible for the maintenance of international peace and security. There are 15 member states, five of them permanent (China, France, Russia [in the place of the former USSR, as agreed upon by the former Soviet Union], the United Kingdom and the United States—as the winners of World War II). The other seats are filled up by election to two-year terms in accordance with equitable geographic representation. It distinguishes between “procedural matters” and “all other matters.”

Matters which are not procedural only require nine affirmative votes, including the concurring vote of the permanent members. However, because the Charter does not specify what matters are procedural and which are not, it is the practice of the Council that a decision on whether or not matters are procedural also requires the concurrence of the permanent members. This makes the double veto by the permanent members possible. An abstention is considered a veto.

Public International Law, 2009

Public International Law, 2009 Fr. Joaquin Bernas | MANIEGO, A2012  ECOSOC: Has 54 member states

Fr. Joaquin Bernas | MANIEGO, A2012

ECOSOC: Has 54 member states elected for three year terms. Subsidiary organs include the UN Commission on Human Rights and the Commission on the Status of Women

Trusteeship Council: Supervises non-self governing territories. Limited jurisdiction and has suspended operations, following Palau’s independence in 1994.

Secretariat: Comprises of a Secretary General and such staff as the Organization may require. A Secretary General is elected to a five year term by the General Assembly upon the recommendation of the Security Council, which is subject to veto power. He is the Chief Administrator and has the power to bring to the attention of the Security Council any matter which may threaten the maintenance of international peace and security.

ICJ: Covered in another chapter.

Other Agencies: Other specialized agencies aside from the main organs of the UN—UN Educational, Scientific and Cultural Organization (UNESCO), the International Civil Aviation Organization (ICAO), the World Health Organization (WHO), the Food and Agricultural Organization (FAO), the World Bank and the International Monetary Fund (IMF.)

Regional Organizations: Regional organizations also play important roles, but they are neither organs nor subsidiary agencies of the UN. They are autonomous international organizations having institutional affiliation with the UN by concluding agreements with the UN. They are created pursuant to international agreements for the purpose of dealing with regional problems in general, or with specific matters like economic, military or political concerns.

ASEAN: In this region, the Philippines is one of the original Member Countries of the Association of South East Asian Nations (ASEAN), formed in 1967. The other original members are Indonesia, Malaysia, Singapore and Thailand. Brunei Darussalam joined in 1984. Vietnam joined in 1995. Laos and Myanmar joined in 1997. Cambodia became the last member in 1999. It was created pursuant to the Bangkok Declaration, which sought to push for a joint effort to promote economic cooperation and the welfare of the people in the region.

It aims to promote economic, social and cultural development of the region through cooperative programs, to safeguard political and economic stability of the region, and to serve as a forum for the resolution of intra-regional differences. Its goals are accelerated economic growth, social progress, cultural development, regional peace and stability through respect for justice and adherence to the UN Charter.

Comprises three pillars: ASEAN Security Community, ASEAN Economic Community and ASEAN Socio-Cultural Community.

Fundamental principles: Mutual respect for independence and sovereignty, recognition of the right of every state to lead its national existence free from external influence, the non-interference in internal affairs, peaceful settlement of differences, renunciation of the threat or use of force and effective cooperation. (Treaty of Amity and Cooperation in Southeast Asia [TAC])

All ten member States have already ratified the charter and it will take effect upon the deposit of all ratifications.

II. Insurgents and Liberation Movements

Protocol II: Only international agreement regulating the conduct of parties in a

non-international armed conflict—1977 Protocol II to the 1949 Geneva Conventions. It develops and supplements the Common Article 3 without modifying its existing application. It covers non-international armed conflict

and, if satisfied, grants them the status of a subject of international law as “para-statal entities possessing definite, if limited, form of international personality.” They may be recognized as having belligerent status against the de jure government and other states are required to maintain neutrality towards them. They are also capable of entering into treaties.

Non-international armed conflict: Armed conflicts which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized groups under (1) responsible command which (2) exercise control over a particular territory so that they can carry out sustained and concerted military operations (sustained capability to maintain themselves.)

Protocol II applies only when the two elements are present. The Philippine Government has maintained that Protocol II will not apply in the case of the National Democratic Front because they fail to cross the threshold of Protocol II’s application.

Inapplicable to situations of internal disturbances like riots, or such other isolated and sporadic acts of violence, even if armed forces are called to suppress the disorder.

Common Article 3: States that in case of non-international armed conflict, contracting parties are required to treat humanely persons who do not partake of the hostilities at all times, without any adverse distinction as to race, class, etc. Acts of violence to life and person (mutilation, cruel treatment, torture), hostage-taking, outrages upon personal dignity, carrying out of sentences and executions without those judicial guarantees recognized as indispensable by civilized peoples, with respect to the persons previously mentioned, shall be prohibited at all times. The wounded and sick shall be cared for, and an impartial humanitarian body like the Red Cross may offer its services. The application of Common Article 3 does not make the conflict an international one.

National Liberation Movements: Organized groups fighting in behalf of a people for freedom from colonial groups; people fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination.

First arose in Africa, then in Asia. Currently, liberation movements are on the wane.

Characteristics: May be based within the territory they are seeking to liberate, or based in a friendly country—control of territory is not

Public International Law, 2009

Public International Law, 2009 Fr. Joaquin Bernas | MANIEGO, A2012 a necessary factor. Legitimacy comes from

Fr. Joaquin Bernas | MANIEGO, A2012

a necessary factor. Legitimacy comes from their goal of self- determination. Therefore, they have a goal of eventual control of a definite territory, and an organization capable of coming into contact with other international organizations.

Once the goals are attained, they may claim status of international subjects.

Unilateral declaration: An authority representing the people engaged in armed conflict against a High Contracting Party in Article I of the 1977 Geneva Convention (meaning non-international armed conflict) may seek to apply the Convention and the Protocols by means of unilateral declaration, which bring the Convention and Protocol into force immediately, and the represented party assumes the same rights and obligations as those which have been assumed by a High Contracting Party to the same Conventions and Protocol, making the latter agreements binding upon both of them.

III.

Individuals

Individuals have increasingly become appropriate subjects of international law because of greater global awareness of human rights, which have granted them limited rights and obligations in PIL.

Best examples are those individuals who have acquired obligations arising from regulation of armed conflicts, making those behind certain actions fall under criminal responsibility. However, those who claim violations of their individual rights still have to rely on the enforcement power of states, but come treaties have provided for the right of individuals to petition international bodies if a contracting state has violated some of their human rights.

Development of the International Criminal Court has allowed individuals to have international legal personality; however, the Philippines is not a signatory.

CHAPTER SEVEN: TERRITORY—LAND, AIR AND OUTER SPACE

I. Territory in PIL

Territory: Element of a state; an area over which a State has effective control.

Control over territory is the essence of a State. Even if boundaries are uncertain, there is a definitive core over which sovereignty is exercised. Sovereignty over a portion of the surface of the globe is the legal condition for the inclusion of such portion in the territory of any particular state.

Includes land, maritime areas, airspace and outerspace.

Modes of acquisition: Discovery and occupation, prescription, cession,

conquest and subjugation, and accretion.

Occupation: Acquisition of terra nullius (territory which belonged to no one, or was effectively abandoned without intent of returning prior to occupation).

Western Sahara Case (ICJ Advisory Opinion): WON Western Sahara was considered terra nullius if they were inhabited by organized tribes. The Court advised that any territory inhabited by peoples having a social or political organization cannot be considered terra nullius.

Las Palmas Case (Perm. Crt.): WON the Island of Las Palmas belongs to the US (via ceding of Spain’s rights over it through the Treaty of Paris) of to the Netherlands (via occupation and exercise of control). Ruling: Although the original title by discovery could be traced to Spain, it never exercised control over the territory and therefore they only had inchoate title over the islands, because discovery alone could not suffice to prove sovereignty over the territory—it needs to be coupled with control over it. Spain could not transfer more rights than she herself possessed. Its inchoate right cannot prevail over

a definite title founded on continuous and peaceful

display of sovereignty, upon which the Netherlands founded their claim. The Arbitrator rules in favor of the Netherlands.

Relative effective control may depend upon the nature of the case. Where there are two or more claimants to a territory, effective control is also relative to the strength of the claims.

Eastern Greenlands Case (PCIJ): WON Denmark or

Norway’s claim to sovereignty will prevail. Ruling: Claims

to sovereignty based upon continued displays of authority

involves two elements—intention and will to act as

sovereign, and actual display of authority. In addition to that, the extent to which the sovereignty is also claimed

by

some other Power must also be taken into account, as

to

which of the two is stronger. Because up to 1931 there

was no other claim other than Denmark, and up to 1921 no one disputed the claim, the Court ruled in favor of Denmark.

Prescription: A recognized mode of acquisition requiring effective control, but the object of prescription is not terra nullius. This makes

the required length of effective control longer than that of occupation. Prescription may be negated by a lack of acquiescence by the prior occupant.

Cession: The acquisition of property through treaty. A treaty of cession imposed by a conqueror is invalid, making what prevails merely a de facto regime.

Conquest: Taking possession of territory through armed force. For acquisition of conquered territory, it is necessary that war had already ended either by treaty or by indication of surrender. The conqueror must have intended to acquire the territory indefinitely and not just occupy it temporarily. Conquest as a mode of acquisition is proscribed by PIL today. The latest instance of a response to an attempted conquest is the action taken against Iraq when it invaded Kuwait.

Accretion or Avulsion: A kind of sovereignty by operation of nature. Accretion is the gradual increase of territory by the action of nature while avulsion is a sudden change.

II.

Public International Law, 2009

II. Public International Law, 2009 Fr. Joaquin Bernas | MANIEGO, A2012  Contiguity (when certain lands

Fr. Joaquin Bernas | MANIEGO, A2012

Contiguity (when certain lands are deemed part of territory on the basis of closeness) is not a basis for sovereignty, with Las Palmas as argument against it because it is impossible to show a rule of positive international law affirming contiguity as basis.

Intertemporal law: The view that the rules in effect at the time of the acquisition should be applied.

Airspace

Prior to World War I, airspace was thought to be completely free. Because of the invention of airplanes and the outbreak of the war, there was a realization that the use of the air had security implications. It was then thought that airspace is merely an extension of the territory below.

Each state has exclusive jurisdiction over the air space above its territory, and consent for transit must be obtained before passage is allowed.

Chicago Convention on International Civil Aviation created the International Civil Aviation Organization (ICAO) and prescribed ruled for civil aviation. The Chicago Convention is applicable only to civil and not State aircraft, which are aircraft used in military, customs and police services.

No state aircraft of any contracting states shall fly over the territory of another state or land there without authority by special agreement or otherwise, and only according to the terms thereof. They will also have due regard for the safety of navigation of civil aircraft.

Flight over territory is divided into non-scheduled and scheduled.

Non-scheduled flights: Contracting states making non-scheduled flights have the right, subject to the observance of the convention, to make flights into and in transit non-stop across the territory and stops for non-traffic purposes without requiring prior permission, subject to the State flown over’s right to require landing. The state making the NSF reserves the right to require aircraft wanting to proceed over inaccessible regions or those without adequate air navigation facilities to obtain special permission for such flights or to follow prescribed routes.

Scheduled flights: No scheduled flights may be operated without the special permission or authority of the State flown over, and in accordance with such terms laid down in the permit.

Cabotage (the transport of goods/passengers within the same country): Each contracting State shall have the right to refuse permission to the aircraft of other contracting States to take on, within its territory, passengers, mail or cargo for pay/hire and destined for another point within its territory. Every contracting State undertakes not to enter into arrangements which grant this privilege on an exclusive basis to any other State nor shall they obtain any such privilege from any other State.

Rationale: Chicago Convention attempts to protect civil aviation; however, since then, a number of incidents have taken place, like the 1955 shooting of an Indian aircraft by Bulgaria, the 1973 shooting of a Libyan aircraft by Israel, and the 1983 shooting of a Korean aircraft by Russia. As to the latter, Russia’s justification was based on its sovereign right to protect its airspace.

Flexible rule with respect to State aircraft: In 1953, it was suggested by Lissitzyn in an AJIL article that a flexible rule be adopted as to State aircraft, in that the territorial sovereignty must not expose the aircraft and its occupants to unnecessary great danger in relation to the apprehended harmfulness of the intrusion. An aircraft must not be attacked unless there is reason to suspect that the aircraft is a real threat, and even then, a warning must be relayed to land or change course before attacking. As to civilian aircraft, many have held that they must never be attacked. Even the Soviet Union, as part of its justification in the preceding paragraph, predicated its attack upon the mistaken notion that the South Korean aircraft was an American reconnaissance aircraft.

III. Outer Space

The assertion under air space law used to be that air sovereignty extended unlimitedly; this was changed by the development of outer space law. Thus, sovereignty over air space extends only until where outer space begins. There is no definite answer yet as to the delineation between air and outer space.

Outer space, it has been accepted, is not susceptible to appropriation by any State.

1967 Treaty on the Exploration and Use of Outer Space: First achievement in outer space law.

Outer space shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law. There shall be free access to all areas of celestial bodies, freedom of scientific investigation, and States shall encourage and facilitate international cooperation in such investigation.

States shall not place in orbit or install on any celestial bodies any objects carrying nuclear weapons or any other kinds of weapons of mass destruction.

The Moon and other celestial bodies shall be used by all State parties exclusively for peaceful purposes, and it shall be prohibited to establish military bases and to conduct military exercises on celestial bodies.

Astronauts shall be considered envoys of mankind in outer space and all States shall render to them all possible assistance in the event of accident, distress, or emergency landing on the territory of another State or on the high seas. When they land, they shall be returned to the State of registry of their space vehicle.

Any important data or information discovered which could constitute a danger shall be relayed immediately to the State Parties or the Secretary General of the United Nations.

CHAPTER EIGHT: TERRITORYTHE LAW OF THE SEA

I. Maritime Law

Importance of the sea flows from two factors:

As a medium of communication

Public International Law, 2009

Public International Law, 2009 Fr. Joaquin Bernas | MANIEGO, A2012  As a carrier of vast

Fr. Joaquin Bernas | MANIEGO, A2012

As a carrier of vast natural resources

Doctrine of the Open Seas: Despite the Portuguese believing that some areas of the open sea belonged to it, Grotius elaborated on the doctrine of the open seas which considered the high seas as res communis or accessible to all. However, it has recognized as permissible the delineation of

a maritime belt by littoral states as an indivisible part of its domain called the territorial sea.

1982 Convention of the Law of the Sea (LOS): The sovereignty of a coastal State extends beyond its land territory and internal waters and, if archipelagic, beyond its archipelagic waters, to an adjacent belt of sea called the territorial sea.

Sovereignty shall extend to the airspace above the territorial sea as well as its bed and subsoil.

Sovereignty shall be subject to this convention and PIL.

above sea level and the elevation is not within the territorial sea of another State.

The straight baselines must not cut off from the high seas or the exclusive economic zone the territorial sea of another State. If part of the archipelagic waters of an archipelagic State lies in between two parts of an adjacent neighboring State, existing rights traditionally exercised by that neighboring State shall be respected.

The baselines drawn according to this method shall be placed on charts or lists of geographical coordinates which shall be given due publicity. Copies of the chart/list must be deposited with the Secretary-General of the UN.

Sovereignty: Sovereignty over the territorial sea, the airspace above and the bed and subsoil shall be exercised in the same manner as it is exercised on

land.

II.

Territorial Sea

Right of innocent passage: Territorial sea is subject to the right of innocent

belt of sea twelve (12) nautical miles from the baseline of the coastal State.

A

passage by other States. The right applies to ships and aircraft; submarines

the application of the 12-n.mile rule results in overlapping, the rule used is

If

must surface.

the equidistance rule, where the dividing line is the median line equidistant from the opposite baselines. However, this only applies if there is historic title

or other special circumstances requiring a different measurement.

Baselines: The low water line along the coast as marked on large scale charts officially recognized by the coastal State. The use of the low water

mark is most favorable to the coastal States and shows the character of the territorial waters as appurtenant to the land territory. (Anglo-Norwegian Fisheries Case)

Normal baseline method: Follows the low water line along the coast along its curvatures.

Straight baseline method: Traditionally used by archipelagic states, where straight lines are drawn connecting selected points on the coast without appreciable departure from the general shape of the coast. This was first upheld in the Anglo-Norwegian Fisheries Case when used by Norway. In the Philippines, RA 3046 and RA 5446 have drawn straight baselines around the Philippines.

Article 7 and 47(1) of LOS upheld the use of the straight baseline method for archipelagic states, subject to certain limitations.

The main islands must be drawn within the straight baselines, which join the outermost points of the outermost islands. The ratio of the land to the water included within the territory must be between 1 to 1 and 9 to 1.

Lengths of baselines must not exceed 100nm, except 3% of the total number of baselines used to enclose the territory. The 3% may exceed the length up to 125nm.

The baselines must not depart from the general configuration of the archipelago. Baselines cannot be drawn to and from low-tide elevations unless there are lighthouses or any similar installations permanently

The right of innocent passage is passage that is not prejudicial to the peace, good order or security of the coastal State. Thus, the

following acts are considered prejudicial and not subject to the right of innocent passage.

Threat/use of force

Use of weapons

Gathering intelligence reports/surveillance

Acts of propaganda affecting defense/security of the coastal State

Taking onboard or launching of any aircraft or any military device

Loading of any goods contrary to law

Willful pollution contrary to LOS

Fishing activities

Carrying out of research or survey activities

Acts aimed at interfering with communication systems or any other facilities of the coastal State

Any other activity with no direct bearing on passage

Coastal states have the unilateral right to verify the character of passage and to take necessary steps to prevent passage if it turns out not to be innocent.

As determined by the Corfu Channel Case, the right of innocent passage is applicable to straits. In times of war, warships may pass through straits, provided it is innocent. In times of peace, no State has the right to prohibit passage unless otherwise provided in an international convention.

III. Internal waters

All waters (part of the sea, rivers, lakes, etc.) landwards from the baseline of

the territory.

Sovereignty: Same as in land.

Right of innocent passage: NOT subject to RoIP.

Public International Law, 2009

Public International Law, 2009 Fr. Joaquin Bernas | MANIEGO, A2012  However, ports must be open

Fr. Joaquin Bernas | MANIEGO, A2012

However, ports must be open to foreign vessels and can only be closed when vital interests of the State so requires. (Saudi Arabia v. Aramco) States may regulate access to ports. (Nicaragua v. US)

Sovereignty: The coastal state exercises such authority to the extent necessary to prevent infringement of its customs, fiscal, immigration, or sanitation authority over its territorial waters or territory, and to punish such infringement.

IV. Archipelagic Waters

 

The power of control of the littoral state does not change the nature of the

 

Internal waters + waters in between islands as enclosed by the use of the straight baseline method. These are called archipelagic waters and an

 

waters. It is still beyond the territorial sea, considered as part of the high seas, and is not subject to the complete sovereignty of the coastal state.

 

archipelagic state may designate sea lanes and air routes suitable for

VII.

Exclusive economic zone or “patrimonial seas”

 

continuous and expeditious passage of foreign ships and aircraft through its archipelagic waters and the adjacent territorial sea.

Right of Innocent Passage: YES, there is RoIP.

The waters 200nm from the baseline. The doctrine of patrimonial seas developed in light of conservation and management of coastal fisheries. A

Philippine Reservation to LOS: Because of this concept of archipelagic waters, there was a seeming conflict between the Philippine Constitution, which had considered those waters as internal waters (meaning, no RoIP.)

 

coastal state has rights over the economic resources of the sea, seabed and subsoil—but the right does not affect the right of navigation and overflight of other states (meaning, RoIP cannot be deprived of foreign states.)

 

Because of this, upon its ratification of the LOS, it made the reservation as to:

 

The provision imposes corresponding rights and obligations on coastal states

Two primary obligations:

 

The convention’s non-impairment of the Philippine’s sovereign

relative to the exploitation, management and preservation of the resources

 

rights arising from the Constitution, of its rights as successor to the United States’ rights acquired through the Treaty of Paris

found within the zone.

(Spain to US) and the Treaty of Washington (UK to US), of its rights and obligations through the Mutual Defense Treaty with the US, of its sovereign rights over the sea lanes and the deprivation of the RoIP over its straits connecting the internal waters with the

Coastal states must ensure through proper measures that the living resources of the EEZ are not subject to over-exploitation. There is a duty to maintain and restore populations of harvested fisheries at levels which produce maximum sustainable yield.

special economic zone or the high seas.

Coastal states must promote the objective of optimum utilization

 

The reservation is not necessary because the new rule in the LOS applies only to those waters which had not been previously

of the living resources; if it cannot utilize or harvest the resources, it must grant access to other states.

 

considered as internal waters. The 1973 Constitution, which states that the archipelagic waters are internal waters, predates the 1982 LOS.

Delimitation of the overlapping exclusive economic zone between adjacent states is determined by agreement/treaty.

 

VIII.

Continental/Archipelagic Shelf

V. Bays

Continental/archipelagic/insular shelf for archipelagos refer to:

 

A well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain land-locked waters and constitute more than

 

Seabed and subsoil of the submarine areas adjacent to the coastal state BUT outside the territorial seas, up to a depth of 200m or,

 

a

mere curvature of the coast. It is not a bay unless its area is as large as, or

beyond that, to where the depth allows exploitation.

is

larger than, that of the semi-circle whose diameter is a line drawn across

Seabed and subsoil of areas adjacent to islands.

the mouth of that indentation (LOS.)

 

Coastal state has the right to explore and exploit its natural resources, to

This application does not affect the right of navigation of others. Moreover,

 

Waters of a bay are considered internal waters.

erect installations as needed and to erect a safety zone over its installations

 

Measurement: Area of indentation is that lying between the low water mark of the indentation and a line joining the low water mark of its natural entrance

 

with a radius of 500m.

 

points. The line measuring the internal waters shall not exceed 24nm; if the mouth of the bay is more than 24nm, then only the maximum area which may be enclosed by the 24nm shall be considered the internal waters.

 

the right does not extend to non-resource material on the shelf area such as wrecked ship and their cargoes.

 

Exceptions: The above method of measuring bays shall not apply to so-called

IX.

The Deep Seabed: “The Common Heritage of Mankind”

historic bays, or where the system of straight baseline method applies. Historic bays are those which are treated by the coastal state as internal

Includes: Areas of the seabed, ocean floor and its subsoil, which lie beyond any national jurisdiction. Being the common heritage of mankind, it may not

waters on the basis of historic rights acknowledged by other states.

 

be appropriated by any state or person.

VI. Contiguous Zone

 

X.

Islands

 

Area of water not exceeding 24nm from the baseline; it exceeds 12nm from the edge of the territorial sea.

Naturally formed area of land, surrounded by water. It is above water at high tide.

Public International Law, 2009

Public International Law, 2009 Fr. Joaquin Bernas | MANIEGO, A2012  Its territorial sea, contiguous zones

Fr. Joaquin Bernas | MANIEGO, A2012

Its territorial sea, contiguous zones and continental shelf shall be determined in accordance with the provisions of the Convention applicable to other land territory.

Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.

There is no clear definition in PIL of “economic life”

Artificial islands or installations are not islands, but may be subject to safety

zones which coastal states may establish around them. Safety measures may also be prescribed.

XI. High Seas

Article I, Geneva Convention: High Seas—all parts of the sea that are not included in the territorial sea or in the internal waters of a State.

Subject to six freedoms:

Freedom of navigation

Freedom of overflight (belonging to both civil and State aircraft)

Freedom of fishing

Freedom to lay submarine cables and pipelines

Freedom to construct artificial islands and structures

Freedom of scientific research

First four are from the 1958 Convention of the High Seas and the last two were added by the 1982 LOS, but the latter two are subject to restrictions.

The flag state has exclusive jurisdiction over its ships on the high seas to the extent not limited by agreement because by legal fiction, a ship is a “floating” part of the flag state.

Freedom of fishing is qualified by the duty to cooperate in taking measures to ensure the conservation and management of the living resources of the high seas.

Article 86: “The six freedoms apply to all parts of the sea not included in the EEZ, in the territorial sea or the internal or archipelagic waters of a state.” However, this is not an indication of what constitutes high seas, because the EEZ is not a part of the territorial sea.

Doctrine of Hot Pursuit: Where there is good reason to believe that a foreign vessel has violated laws or regulations of a coastal state, hot pursuit is allowed. However, the pursuit must commence when the foreign vessel is within internal waters, archipelagic waters or territorial waters, or the contiguous zone, and may be continued without interruption if it enters into the high seas. If the foreign vessel is in the contiguous zone, it may be pursued only for violations of the coastal state in the contiguous zone.

Hot pursuit must stop when the ship pursued enters the territorial waters of its own state or that of a third party.

Hot pursuit may be carried out by warships or military aircraft.

The I’m Alone case (AJIL): WON the US is liable for the sinking of a vessel on the basis of hot pursuit. Ruling: Although the hot pursuit was justified, the sinking of the vessel was not, and the US must pay damages and apologize to the Canadian government.

Settlement of Disputes: Peaceful settlement is compulsory and required by law. If a bilateral statement fails, Article 285 requires submission of the dispute in one of the tribunals clothed with jurisdiction like the International

Tribunal for the LOS, the ICJ or an arbitral tribunal, constituted under the Convention.

CHAPTER NINE: JURISDICTION OF STATES

I.

Jurisdiction

The authority to affect legal interests; jurisdiction may follow the powers of government—there is executive jurisdiction to enforce the norms prescribed,

legislative jurisdiction to prescribe norms of conduct, and judicial jurisdiction, jurisdiction to adjudicate.

PIL limits itself to criminal not civil jurisdiction, because civil jurisdiction is subject of conflicts of law or private international law.

Five principles of State jurisdiction:

Territoriality

Nationality

Protective

Universality

Passive Personality

The first three are generally supported in customary law and the fourth has special circumstances; the fifth does not enjoy wide acceptance.

Jurisdiction may be acquired via treaty.

II. The Territoriality Principle

The fundamental source of jurisdiction. A state has absolute but not necessarily exclusive power to prescribe, adjudicate and enforce rules for conduct that occurs within its territory. This is why it is necessary to determine boundaries.

Rules on boundaries:

Boundary separating two states is determined by acts of the states expressing their consent to the location.

Thalweg doctrine: If the boundary between two states is a navigable river, its location is the middle of the channel, without prejudice to a different arrangement consented to.

If the boundary between two states is a non-navigable river or lake, its location is the middle of the river or lake, without prejudice to a different arrangement consented to.

To have jurisdiction, control must be established, along with occupation.

Effects Doctrine: A state has jurisdiction over acts occurring outside its territory but having effects within it.

Subjective territoriality: A state has jurisdiction to prosecute and punish crime commenced within the state but completed abroad.

Objective territoriality: A state has jurisdiction to prosecute and punish crime commenced without the state but completed within its territory.

The Lotus Case (PCIJ): WON Turkey has jurisdiction over the offense committed against its vessel, the Boz-Kourt, which collided with a French steamer, the Lotus, near Constantinople, Turkey, causing the death of 8 Turkish national sailors. By virtue of filing criminal proceedings against Lt.

Public International Law, 2009

Public International Law, 2009 Fr. Joaquin Bernas | MANIEGO, A2012 Demons, the officer in charge of

Fr. Joaquin Bernas | MANIEGO, A2012

Demons, the officer in charge of the Lotus at the time of the collision, it is contended by France that Turkey has violated international law; in reply, Turkey alleged that no principle of IL conflicts with the act. Ruling: The Court held that there is no rule in PIL prohibiting the State to which the ship on which the effects of the offense have taken place belongs from regarding the offense as having been committed within its territory and capable of prosecution. While this can be overturned by showing a rule of customary law which conflicts with it, France has not proven such. Therefore, there is no rule. The Court therefore rules that it is a case of concurrent jurisdiction.

Jurisdiction over foreign vessels in the Philippines:

French rule: Crimes committed aboard a foreign merchant vessel should not be prosecuted in the courts of the country within whose territorial jurisdiction they were committed unless the commission affects the peace and security of the territory.

English rule: Followed in the US; crimes perpetrated under such circumstances where the territoriality principle is applicable are in general triable in the courts of the country within whose territory they were committed. The Philippines adheres to this rule.

Trail Smelter Arbitration: WON Canada is liable to the US for damages caused by its smelter which produced emissions of sulphur dioxide allegedly damaging Washington state. Ruling: Yes, Canada is liable for damages since there was injury caused to the US, because a State owes at all times a duty to protect other States against injurious acts by individuals from within its jurisdiction. The smelter is enjoined from causing further damage to the State of Washington.

III. The Nationality Principle

Every state has jurisdiction over its nationals, even when those nationals are

outside the state.

Blackmer v. US (US): WON Blackmer was correctly adjudged in contempt for failure to respond to subpoenas served upon him in France requiring him to appear as witness in behalf of the US and WON the statute authorizing the issuance of subpoenas is repugnant to the Constitution for violation of the due process clause. Ruling: Even if Blackmer became a resident of France, he continued to owe allegiance to the United States and the US retained its authority over him. He was bound by its laws made applicable to him in a foreign country.

State nationals and the “effective nationality link”: A state has the right to

decide who its nationals are using either the principle of jus sanguinis or jus soli or naturalization laws. However, before a person can be claimed by a state as a national, there must be established an effective nationality link. Consent of the individual alone is not enough.

Nottebohm Case (ICJ): WON Nottebohm, a German national by birth, constant fixture in Guatemala and newly claimed Liechtenstein national by naturalization, can be claimed by Liechtenstein as its national in a case for reparations over the protests of Guatemala, Ruling: Liechtenstein cannot claim

Nottebohm as its national, despite valid fulfillment of its naturalization laws because of failure to satisfy the effective nationality link sufficient for Liechtenstein to extend and exercise protection for him. Evidence against him: he was a habitual resident of Guatemala, it being the center of his interests and of his business activities. Nationality is a legal bond, concerning the citizen personally, a genuine connection of existence, interests and sentiments together with the existence of reciprocal rights and obligations.

Corporations: A state has jurisdiction over corporations organized under its rules. Other bases: Principal residence/place of business test, control test.

Stateless persons: Those who do not have a nationality. They may be either de jure or de facto stateless. The former are those who lost their nationality, if they had one, and have not acquired a new one, while the latter are those who have a nationality but to whom protection is denied by their state when out of the state.

Mejoff v. Director of Prisons (90 Phil. 70): WON Boris Mejoff, a former Russian national who was brought to the Philippines as a spy for Japanese forces and subsequently detained for two years because no ship would take him, and he lacked travel documents, should be released. Ruling: Even if they are stateless, aliens have no right of asylum, If there is no charge against them, However, they cannot remain in detention indefinitely. Because he was brought in by a de facto corporation, his entrance was not illegal. Mejoff should be released but placed under the surveillance of qualified immigration authorities.

IV. The Protective Principle

A state may exercise jurisdiction over conduct outside its territory what threatens its security so long as that conduct is generally recognized as criminal by states in the international community.

“Lord Haw Haw:” A decision upholding the conviction of an American citizen guilty of high treason because of messages he broadcast trying to get the Allies to surrender. No principle of comity demands that a state should ignore the crime of treason committed against it outside its territory.

Limitations: Only offenses posing a direct, specific threat to national security. When applied to terrorist activities, a more liberal approach to the limitation may be applied.

V. The Universality Principle

Certain activities, universally dangerous to states and their subjects, require authority in all community members to punish such acts wherever they may occur, even absent a link between the state and the parties or the acts in question.

This principle was started with instances of piracy. Piracy means any illegal act of violence or depredation committed for private ends on the high seas or outside the territorial control of any State.

Public International Law, 2009

Public International Law, 2009 Fr. Joaquin Bernas | MANIEGO, A2012  Currently covers genocide, crimes against

Fr. Joaquin Bernas | MANIEGO, A2012

Currently covers genocide, crimes against humanity, war crimes, aircraft piracy and terrorism. Growing support for universal jurisdiction over crimes against human rights.

Genocide: Acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

Killing members of the group;

Causing serious bodily or mental harm to members of the group;

Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

Imposing measures intended to prevent births within the group;

Forcibly transferring children of the group to another group.

Crimes against humanity: Any of the following acts when committed as part of a wide-spread or systematic attack (where “attack directed against any civilian population” means the multiple commission of the following acts

against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such an attack) against any civilian population with knowledge of the attack:

Murder;

Extermination – includes intentional infliction of conditions of life, the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population;

Enslavement – the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking persons, in particular women and children;

Deportation or forcible transfer of population – forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under int’l law;

Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

Torture – intentional infliction of severe pain or suffering, physical or mental, upon a person in the custody or under the control of the accuser; does not include pain or suffering arising from, inherent, or incidental to lawful sanctions;

Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity – forced pregnancy is the unlawful confinement of a woman forcibly made pregnant with the intent of affecting the ethnic composition of any population;

Persecution against any identifiable group or collectivity on political, racial, national, ethnic, or other grounds – intentional and severe deprivation of fundamental rights contrary to int’l law by reason of the identity of the group or collectivity;

Enforced disappearance of persons – arrest, detention or abduction of persons by, or with the authorization, support, or acquiescence of a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of

removing them from the protection of the law for a prolonged period of time;

Apartheid – inhumane acts committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group with the intention of maintaining that regime.

Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

War crimes: Grave breaches of the Geneva Conventions of 1949.

Filartiga v. Pena-Irala (F.2D US): WON the US Court has jurisdiction over a case concerning the wrongful death of a 17-year old tortured to death in Paraguay, brought by two nationals of Paraguay, on the basis of the Alien Tort Act. Ruling: Yes, it has jurisdiction, claiming the universality principle. The requisites of torture require it to be committed by one in an official capacity, and its prohibition has become part of customary international law. Several declarations and documents, including the Universal Declaration of Human Rights, have created an expectation of adherence among its member states.

Eichmann Cases (Courts of Israel): WON Israel has jurisdiction to try the

case of a high-ranking SS officer on the basis of the Nazi Collaborator’s Law,

a law intending retroactive application, despite the acts being committed

outside its borders by a person who is not a national. Ruling: The power of Israel to enact the law is based on a dual foundation—the universal character of the crimes in question and their specific character as intended to exterminate the Jewish people. The offense of genocide is a grave offense

against the law of nations itself (delicta juris gentium) and is the gravest type

of act against humanity. In this case, it is a just retroactive law. As to the

universality principle, power is vested in every State regardless of the fact that the offence was committed outside its territory by a person who did not belong to it, provided he is in its custody at the time he is brought to trial.

VI. The Passive Personality Principle

Asserts that a state may apply law—particularly criminal law—to an act committed outside its territory by a person not a national where the victim of the act was its national.

The principle is not accepted for ordinary torts or crimes, but it is increasingly accepted as applied to terrorist attacks and other organized attacks on a

state’s nationals on the basis of their nationality.

US v. Fawiz-Yunis (Federal US): WON the US Court has jurisdiction over a criminal proceeding against the several Arab men who hijacked a Jordanian airline on the basis that some of the nationals taken hostage were Americans. Ruling: Yes, the Court has jurisdiction under the universality principle and under the passive personality principle. As to the latter, it recognizes that states have a legitimate interest in protecting the safety of its citizens when they journey outside national borders. Even though it is the most controversial of the five sources of jurisdiction, it is agreed that the

Public International Law, 2009

Public International Law, 2009 Fr. Joaquin Bernas | MANIEGO, A2012 international community recognizes the legitimacy of

Fr. Joaquin Bernas | MANIEGO, A2012

international community recognizes the legitimacy of the Passive Personality Principle.

Rationale: The reason why this is so frowned upon is because any assertion

of this kind of jurisdiction may subject a country to indefinite criminal liability;

a country may be subject to laws not their own and may be arrested for

committing acts which they do not know to be illegal.

VII. Conflicts of Jurisdiction

Because of the various ways of a state to assume jurisdiction, there may be instances of conflicting yet valid claims of jurisdiction.

The Balancing Test—Timberlane Lumber Co. v. Bank of America: Tripartite analysis to determine WON a US Court can assume jurisdiction over an antitrust claim. If the answer is yes to all of the questions below, the court assumes jurisdiction.

Was there an actual or intended effect on American foreign commerce? (There must be an effect before federal courts can exercise subject matter jurisdiction under the Sherman Act statutes)

Is the effect sufficiently large to present cognizable injury to the plaintiffs and represent a civil violation of the anti-trust laws? (To show that there is a greater burden)

Are the interests of and link to the US including effects on American foreign commerce sufficiently strong, versus those of other nations, to justify an assertion of extraordinary authority?

Balancing test:

Degree of conflict with foreign law or policy

VIII.

The nationality or allegiance of the parties the locations or principal places of business of corporation

The extent to which enforcement by either state can be expected to achieve compliance

The relative significance of effects on the U.S. as compared with those elsewhere

The extent to which there is explicit purpose to harm or affect American commerce, the foreseeability of such effect

The relative importance to the violations charged of conduct with the US as compared with conduct abroad.

International comity—Hartford Fire Insurance Co. v. California: Even when a state has basis to exercise jurisdiction, it will refrain from doing so if its exercise will be unreasonable.

Unreasonableness is determined by evaluating various factors— link of the activity to the territory of the regulating state, the connection (such as nationality, residence, economic activity) between the regulating state and the person principally responsible for the activity to be regulated, the character of the activity to be regulated, the existence of justified expectations that might be regulated, the existence of justified expectations that might be protected or hurt by the regulation, the likelihood of conflict with regulation by another state.

Forum non conveniens—Piper Aircraft Co. v. Reyno: Discretionary application of the court. Applies when, in the circumstances of the case, it be discovered that there is a real unfairness to one of the suitors in permitting

the choice of a forum which is not the natural or proper forum, either on the ground of convenience of trial or the residence or domicile of parties or of its being the locus contractus or locus solutionis, then the doctrine of forum non conveniens is properly applied.

The court needs to weigh the private interest and the public interest factors.

The private interest factors are:

Access to sources of proof

Availability of compulsory process for unwilling witnesses

Other personal problems which make trial easy, expeditious, and inexpensive.

The public interest factors are:

Congestion

Desire to settle local controversies at home

Having the case tried in a forum at home with the applicable law.

Extradition

The surrender of an individual by the state within whose territory he is found to the state under whose laws he is alleged to have committed a crime. It is a

process governed by treaty, and the legal right to demand extradition and the correlative duty to surrender a fugitive exist only when governed by treaty. Extradition is normally done through diplomatic channels.

No state is obliged to extradite unless there is a treaty.

Differences in legal system can be obstacles to interpretation of what the crime is

Religious and political offenses are not extraditable.

US v. Alvarez-Machain (US): WON the US Court has jurisdiction over Alvarez who is indicted for participation in the kidnap and the murder of a DEA agent and Mexican pilot. Ruling: Yes, they do. The forcible abduction of Alvarez did not violate the extradition treaty between US and Mexico because nothing in the treaty proscribes forcible abduction because it does not specify the ways

by which a State may gain custody of a national of the other country for the purposes of prosecution.

Due Process in Extradition: Secretary of Jusice v. Lantion: WON notice and hearing are essential during the evaluation stage of the proceedings. Ruling:

There is no provision in the RP-US Extradition Treaty that gives the right to demand copies of the extradition requests. The likening of an extradition to a criminal procedure is not persuasive because an extradition is sui generis and does not involve the determination of guilt.

Bail in Extradition Cases: A court may grant bail after the determination by the court that (1) he/she is not a flight risk, and (2) There exist special, humanitarian and compelling circumstances. (Rodriguez v. Judge)

Lately, the Court overturns stare decisis in favor of the growing importance of the individual person in PIL, who has attained global recognition, the higher value being given to human rights in the international sphere.

If bail can be granted in deportation proceedings, there is no justification not to allow it for extradition because both are

Public International Law, 2009

Public International Law, 2009 Fr. Joaquin Bernas | MANIEGO, A2012 administrative proceedings where the innocence or

Fr. Joaquin Bernas | MANIEGO, A2012

administrative proceedings where the innocence or guilt of the parties is not in issue.

CHAPTER TEN: IMMUNITY FROM JURISDICTION

I.

Immunity

General rule: The jurisdiction of a state within its territory is complete and absolute

 

Exceptions: Sovereign immunity and diplomatic immunity

II.

Head of State Immunity

Immunity is enjoyed by the head of state and by the self itself. While the head of State is sitting, the immunity is absolute.

Mighell v. Sultan of Johore: WON the Sultan of Johore can be sued for breach of promise to marry. Ruling: The Court ruled that the subject matter of the case was a private matter, and upon verification of the Sultan’s foreign sovereignty, the case was dismissed because the immunity of heads of state was recognized.

Pinochet Case (UK): WON a former Head of State can enjoy immunity rationae materiae in relation to acts done by him as Head of State. Ruling:

The immunity for former heads of state shields only acts which were done in an official or governmental capacity. It cannot be said that international crime against humanity and jus cogens can ever be done in a governmental capacity; therefore, upon relinquishment of his seat, a head of state may be liable to be called to account if there is evidence that he authorized or perpetrated serious international crimes. It is also argued that absolving Pinochet on the basis of immunity RM would circumvent the system of making people liable for the international crime of torture.

State Immunity: “The state may not be sued without its consent”

Found in both municipal and international law.

Based on the principle of equality of states—par in parem non habet imperium.

The Schooner Exchange case: “The nation within its own territory is necessarily exclusive and absolute; however, absolute sovereignty does not include the presence of foreign sovereigns nor their

sovereign rights as its objects.”

The immunity of the sovereign head is also communicated to the foreign sovereign state. Every sovereign is understood to waive the exercise of a part of that complete exhaustive territorial jurisdiction, which is the attribute of every nation.

Acts jure imperii v. Acts jure gestionis: The distinction drawn between acts jure imperii (governmental acts) and acts jure gestionis (trading and commercial acts) are elaborated on in Dralle v. Czechoslovakia.

Dralle case (Austria): It can no longer be said that acts jure gestionis are exempt from municipal jurisdiction. The immunity as regards acts jure gestiontis, when the State’s actions as regards trading and commercial activity were usually limited to commercial acts, developed out of political activities such as the purchase of

commodities for diplomacy or war. Today, however, it has become commonplace for the State to enter into the free market and even enter into direct competition with their own nationals. It must follow that the immunity that initially developed has ceased to become applicable.

Traditional rule on State Immunity exempts a state from being sued in the courts of another State without its consent or waiver. A State’s commercial

activity is a descent to the level of individuals and there is a form of tacit consent to be sued when it enters into business contracts with others.

Holy See v. Eriberto Rosario, Jr. However, not every contract entered into is a form of tacit consent to be sued. It depends upon whether the foreign state is engaged in the activity in the regular course of business. If not, or it is in pursuit of a sovereign activity, it falls within the exemption of acts jure imperii especially when not intended for gain or profit.

A state claiming sovereign immunity must request the Foreign Office of the state where it is sued to convey to the Court that said defendant is entitled to immunity.

A party who feels transgressed by anyone claiming immunity may ask his own government to espouse his cause through diplomatic channels.

Republic of Indonesia v. Vinzon: WON the Republic of Indonesia, represented by Chief of Administration, Minister Counsellor Kasim, enjoys immunity in a case concerning a maintenance agreement. Ruling: The Court ruled in favor of Indonesia, and stated that international law is founded on principles of reciprocity, comity, independence and equality of States. The existence alone of a paragraph in the maintenance agreement allowing for certain actions to be tried in a venue does not constitute a waiver of sovereign immunity from suit.

III. Diplomatic and consular immunities

Vienna Convention on Diplomatic Relations governs diplomats, or those concerned with the political relations of states. Immunities and privileges

enjoyed stem not from sovereignty but to be able to perform his or her functions properly.

Diplomatic immunity is enjoyed by:

Head of the mission – the person charged by the sending State with the duty of acting in that capacity;

Members of the mission – the head of the mission and the members of the staff of the mission;

Members of the staff of the mission – the members of the diplomatic, administrative, technical and service staff of the mission;

Members of the diplomatic staff – members of the staff of the mission having diplomatic rank;

Diplomatic agent – head of the mission or a member of the diplomatic staff of the mission

Public International Law, 2009

Public International Law, 2009 Fr. Joaquin Bernas | MANIEGO, A2012  Members of the administrative and

Fr. Joaquin Bernas | MANIEGO, A2012

Members of the administrative and technical staff – members of the staff of the mission employed in the administrative and technical service of the mission;

Members of the service staff – members of the staff of the mission in the domestic service of the mission;

Private servant – a person who is in the domestic service of a member of the mission and who is not an employee of the sending State;

Premises of the mission – buildings or parts of the buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission, including the residence of the head of the mission.

Functions of the diplomatic mission:

Representing the sending State in the receiving State;

Protecting in the receiving State the interest of the sending State and of its nationals, within the limits permitted by international law;

Negotiating with the government of the receiving State;

Ascertaining by all lawful means conditions and developments in the receiving state, and reporting thereon to the Government of the sending State;

Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.

Establishment of diplomatic relations:

Relations are established by mutual consent. Agreements must first be obtained before the head of a mission is sent to the receiving State. The receiving state is not obliged to give reasons for refusing an agreement and, at any time and without need to give explanations, upon notice to the sending state, may declare the head of mission or any member of the diplomatic mission as persona non grata. A person declared persona non grata is declared as not acceptable, and the sending State shall recall the person or terminate his functions.

It is the duty of all persons enjoying the privileges and immunities of diplomats to respect the laws and regulations of the receiving State.

IV. Consuls and Consular immunities

Consuls are not concerned with political matters but with administrative and economic issues, such as the issuance of visas.

Functions of Consuls:

1. Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by int’l law;

2. Furthering the development of commercial, economic, cultural, and scientific relations between the sending state and the receiving state and promoting friendly relations between them;

3. Ascertaining all lawful means, conditions, and developments in the commercial, economic, cultural, and scientific life of the receiving State, reporting thereon to the Government of the sending state and giving information to interested persons;

4. Issuing passports and travel documents to nationals of the sending State, reporting thereon to the Government of the sending State, and visas or appropriate documents to persons wishing to travel to the sending State;

5. Helping and assisting nationals of the sending State;

6. Acting as notary and civil registrar;

7. Safeguarding the interests of national of the sending State in case of succession mortis causa in the territory of the receiving State;

8. Safeguarding the interests of minors and other persons lacking full capacity who are nationals of the sending State, particularly where any guardianship or trusteeship is required;

9. Representing or arranging appropriate representation for nationals of the sending state before the tribunals and other authorities of the receiving state to preserve their rights and interests;

10. Transmitting judicial and extra-judicial documents or executing letters rogatory or commissions to take evidence for the courts of the sending state;

11. Exercising rights or supervision and inspection in respect of vessels having the nationality of the sending state and or aircraft registered in that state and in respect of their crews;

12. Extending assistance to vessels and aircraft mentioned above and to their crews, taking statements regarding the voyage of a vessel, examining and stamping the ship’s papers, and conducting investigations into any incidents which occurred during the voyage and settling disputes between master, officers, and seamen;

13. Other functions entrusted by the sending state not prohibited by the laws and regulations of the receiving state or to which no objection is taken by the receiving state or which are referred to in the international agreements in force.

Act of State Doctrine

Local courts cannot pass upon the validity of the acts of a foreign state; Judicial restraint in domestic law in deference to the executive who is the principal architect of foreign relations.

All acts concerning the act of State doctrine concern political and legislative acts, but never judicial.

Underhill v. Hernandez: WON Underhill is entitled to damages from Hernandez based on the latter’s refusal to grant him a passport to leave the country and on the assertions that he had been kept in detention by Hernandez. Ruling: Underhill is not entitled to damages because of the “act of state doctrine” Courts of one state will not sit in judgment on the acts of the government of another, done within its own territory.

Dunhill v. Cuba: WON Cuba’s failure to return the overpayment made by Dunhill on cigars can be considered as an act of state. Ruling: No, it is not an act of state. An act of state cannot extend to include the repudiation of a purely commercial obligation.

Public International Law, 2009

Public International Law, 2009 Fr. Joaquin Bernas | MANIEGO, A2012  Kirkpatrick Co. v. Environmental Tectonics

Fr. Joaquin Bernas | MANIEGO, A2012

Kirkpatrick Co. v. Environmental Tectonics Corporation: WON Kirkpatrick & Co. can get the case (where he is accused of bribing Nigerian officials to win a bidding war contrary to the Foreign Corrupt Practices Act) against it dismissed by invoking the act of State doctrine. Ruling: No, it cannot be invoked. It is not the validity

of a foreign act at issue; the act of state doctrine does not establish

exceptions for controversies, but merely requires that acts of foreign sovereigns within their jurisdictions shall be deemed valid.

Provincial Government v. Placer Dome: WON the district court had jurisdiction over the case based upon the act of state doctrine such that removal from state to federal court was proper (on the grounds that, by raising the act of state doctrine, the case would be moved to the federal court from the district court because it tendered questions of international law and foreign relations.) Ruling: The Court reverses the decision of the district court, which was done pursuant to a claim by Placer Dome. It must be shown on the plaintiff’s complaint that it is attacking the validity of any act of a foreign state, or else a rejection of the act of state doctrine is proper. None of the supposed acts of state identified by the district court as justification to raise it to the federal court is essential to the

claim of Province. Nothing in the complaint would require a court to pass judgment on any official act of the Philippine government. “Just as raising the specter of political issues cannot

sustain dismissal under the political question doctrine, neither does

a general invocation of international law or foreign relations mean

that an act of state is an essential element of a claim.” It cannot be

thought that every case touching foreign relations lies beyond judicial cognizance.

APPENDICES—CHAPTER TEN: IMMUNITY FROM JURISDICTION

Rights and privileges of diplomats:

Article 22 – Inviolability of Premises of the Mission:

The premises of the mission shall be inviolable. Agents of the receiving State may not enter them, except with the consent of the head of the mission.

The receiving State is under a special duty to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.

The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment, or execution.

Article 23 – Exemption from Property Taxes:

The sending State and head of the mission shall be exempt from all national, regional or municipal dues and taxes in respect of the premises of the mission, whether owned or leased, other than such as represent payment for specific services rendered.

Exemption from taxation is NOT applicable to dues and taxes payable under the law of the receiving State by persons contracting with the sending State or the head of the mission.

Article 24 – Inviolability of Archives and Documents

Archives and documents of the mission shall be inviolable at any time and wherever they may be.

Article 27 – Inviolability of Official Correspondence

The receiving State shall permit and protect free communication on the part of the mission for all official purposes. The mission may employ all appropriate means, including diplomatic couriers and messages in code or cipher. However, the mission may install and use

a wireless transmitter only with the consent of the

receiving state.

Official correspondence of the mission shall be inviolable. Official correspondence means all correspondence relating to the mission and its functions.

The diplomatic bag shall not be opened or detained.

Packages constituting the diplomatic bag must bear

visible external marks of their character and may contain only diplomatic documents or articles intended for official use.

The diplomatic courier shall be protected by the receiving State in the performance of his functions. He shall enjoy personal inviolability and shall not be liable to any form of arrest or detention.

The sending State of the mission may designate diplomatic couriers ad hoc who shall enjoy the immunities

of a diplomatic courier until he has delivered to the

consignee the diplomatic bag in his charge.

Article 29 – Inviolability of Person of the Diplomatic Agent

The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving state shall treat him with due respect and shall take appropriate steps to prevent any attack on his person, freedom or dignity.

Article 30 – Inviolability of the Private Residence, Papers, Correspondence, and Property of the Diplomatic Agent

Same protection granted to the residence, papers, property, and correspondence of the diplomatic agent as

that granted to the premises of the mission.

Article 31 – Immunity from Criminal, Civil, and Administrative Jurisdiction

A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.

He shall also enjoy immunity from its civil and administrative jurisdiction EXCEPT:

o a. in real actions relating to private immovable property situated in the territory of the receiving

Public International Law, 2009

Public International Law, 2009 Fr. Joaquin Bernas | MANIEGO, A2012   State, unless he holds it

Fr. Joaquin Bernas | MANIEGO, A2012

 

State, unless he holds it on behalf of the sending State for the purposes of the mission;

But the diplomatic agent can voluntarily participate in the social security system of the receiving state, provided

 

o

b. in actions relating to succession in which the

c. in actions relating to any professional or

that it is permitted by the receiving state.

 

diplomatic agent is involved as executor,

Article 34 – Exemption from Taxation

administrator, heir, or legatee as a private

A diplomatic agent shall be exempt from all dues and

 

o

person;

taxes, personal or real, national, regional or municipal, EXCEPT:

 

commercial activity exercised by the diplomatic

o

Indirect taxes normally incorporated in the

Dues and taxes on private immovable property

agent in the receiving State outside of his official functions.

o

price of goods or services;

A

diplomatic agent is not obliged to give evidence as a

 

situated in the territory of the receiving state,

witness.

 

unless held on behalf of the State for the

A

diplomatic agent is exempt from execution except if the

 

purposes of the mission;

case falls under the three exceptions under #2, and

 

o

Estate, succession, or inheritance tax;

provided that the measures of execution can be taken without infringing the inviolability of his person or his residence.

o

Dues and taxes on private income derived within the State and capital taxes on investments made in commercial undertakings

The diplomatic agent is not exempt from the jurisdiction

 

in the receiving State;

of

the sending state.

 

o

Charges levied for specific services rendered;

Article 32 – Waiver of Immunity

o

 

Immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Art. 37 may be waived by the sending State.

Registration, court or record fees, mortgage dues, and stamp duty with respect to immovable property.

Article 36 – Exemption from Customs Duties

Waiver must be express.

The initiation of proceedings by a diplomatic agent or by

a person enjoying immunity from jurisdiction under Art.

The following are exempt from customs duties, taxes and other related charges for storage, cartage, and other similar services:

 

37 shall preclude him from invoking immunity in respect

o

a. articles for official use of the mission;

of

any counter-claim directly connected with the principal

o

b. articles for the personal use of a diplomatic

claim.

 

Waiver of immunity in respect of civil or administrative proceedings shall not be held to imply waiver of immunity from execution of the judgment, for which a separate

agent or members of his family forming part of his household, including articles intended for his establishment.

Personal baggage of a diplomatic agent shall be exempt

waiver is necessary.

from inspection unless there are serious grounds to

Article 33 – Exemption from Social Security Provisions

presume that it contains articles not covered by the

A

provisions with respect to services rendered for the

diplomatic agent shall be exempt from social security

The exemption also applies to private servants who are

exempted items above, or that are prohibited or

sending state.

controlled by quarantine regulations of the receiving State. The inspection shall be conducted only in the

presence of the diplomatic agent or his authorized rep.

in the sole employ of a diplomatic agent, provided:

Article 37 – Immunity of members of the family and other staff

 

o

a. that they are not nationals or permanent residents of the receiving state; and

b. they are covered by the social security

Members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the

o

provisions in force in the sending state or a third state.

receiving State, enjoy the privileges and immunities in Articles 29-36.

A diplomatic agent who employs persons to whom the

exemption in #2 does not apply, shall not be exempt from

upon employers.

Members of the admin and technical staff of the mission, together with their family members, who are not nationals

social security provisions of the receiving state imposed

or permanent residents of the receiving state shall enjoy the immunities under Articles 29-35, except that the

immunity from civil and administrative jurisdiction shall not extend to acts performed outside the course of their duties. They shall also enjoy the privileges under Art. 36,

Public International Law, 2009

Public International Law, 2009 Fr. Joaquin Bernas | MANIEGO, A2012 in respect of articles imported at

Fr. Joaquin Bernas | MANIEGO, A2012

in respect of articles imported at the time of first installation.

Members of the service staff of the mission who are not nationals or permanent residents of the receiving State shall enjoy immunity in respect of acts performed in the

course of their duties, exemption from dues and taxes on the emoluments received by reason of their employment, and the exemption granted in Art. 33.

Private servants or members of the mission who are not nationals or permanent residents in the receiving State shall be exempt from dues and taxes on emoluments received by reason of their employment. In other respects, they may enjoy privileges and immunities to the extent admitted by the receiving State.

Article 38 – Immunity of Diplomatic Agents who are Nationals of Permanent Residents of the Receiving State

If the receiving State grants additional privileges and immunities, a diplomatic agent who is a national of or permanent resident in the State shall enjoy only immunity from jurisdiction and inviolability in respect of official acts performed in the exercise of his functions.

Immunity or other members of the staff of the mission and private servants who are nationals or permanent residents: Only to the extent admitted by the receiving state. But state must exercise its jurisdiction without unduly interfering with the performance of the functions of the mission.

Article 39 – Commencement and Termination of the Immunities

The immunities commence from the moment the person enjoying the immunities enters the territory of the receiving State on proceeding to take up his port or, if already in its territory, from the moment when his

appointment is notified to the Ministry of Foreign Affairs.

They end when the functions of a person enjoying immunity have come to an end, the immunities cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict.

With respect to acts performed by the person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.

Article 41 – Duty of Persons Enjoying Immunity

Duty is to respect the laws and regulations of the receiving State.

Article 42 – Prohibitions

They may not practice for personal profit any professional or commercial activity in the receiving State.

Rights and privileges of Consuls:

Article 34 – Freedom of Movement

Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security, the receiving state shall ensure freedom of movement and travel in its territory to all members of the consular post.

Article 35 – Freedom of Communication

The receiving State shall permit and protect free communication on the part of the consular post for all official purposes. The mission may employ all appropriate means, including diplomatic or consular couriers, diplomatic or consular bags, and messages in code or cipher. However, the consular post may install and use a wireless transmitter only with the consent of the receiving state.

Official correspondence of the consular post shall be inviolable. Official correspondence means all correspondence relating to the consular post and its functions.

The consular bag shall not be opened or detained. But if the competent authorities of the receiving state have serious reason to believe that the bag contains something other than the correspondence, documents or articles, they may request that the bag be opened by an authorized rep of the sending state. If the request is refused, the bag shall be returned to its place of origin.

Packages constituting the consular bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use.

Article 36 – Communication and Contact with Nationals of the Sending State

Consular officers shall be free to communicate with nationals of the sending state and to have access to them. Nationals of the sending state shall have the same freedom to communicate and to access consular officers of the sending state.

If he so requests, the competent authorities of the receiving state shall, without delay, inform the consular post of the sending state if a national of that state is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested shall be forwarded by the authorities without delay;

Consular officers shall have the right to visit a national of the sending state who is in prison, custody, or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending state who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain

Public International Law, 2009

Public International Law, 2009 Fr. Joaquin Bernas | MANIEGO, A2012 from taking action on behalf of

Fr. Joaquin Bernas | MANIEGO, A2012