Pil Reviewer

PUBLIC INTERNATIONAL LAW 1
FPL
SOURCES OF INTERNATIONAL LAW

Military and Paramilitary Activities Nicaragua v. US
The right to sovereignty and to political independence possessed by the Republic of Nicaragua,
like any other State of the region or of the world, should be fully respected and should not in
any way be jeopardized by any military and paramilitary activities which are prohibited by the
principles of international law, in particular the principle that States should refrain in their
international relations from the threat or use of force against the territorial integrity or the
political independence of any State, and the principle concerning the duty not to intervene in
matters within the domestic jurisdiction of a State, principles embodied in the United Nations
Charter and the Charter of the Organization of American States.

North Sea Continental Shelf Cases
The Court consequently concluded that the Geneva Convention was not in its origins or
inception declaratory of a mandatory rule of customary international law enjoining the use of
the equidistance principle, its subsequent effect had not been constitutive of such a rule, and
State practice up to date had equally been insufficient for the purpose.
o Although passage of only a short period of time was not necessarily a bar to the
formation of a new rule of customary international law on the basis of what was
originally a purely conventional rule, it was indispensable that state practice during that
period including that of states whose interests were specially affected, whould have
been both extensive and virtually uniform.
There was no question of the Court's decision being ex aequo et bono. It was precisely a rule of
law that called for the application of equitable principles, and in such cases as the present ones
the equidistance method could unquestionably lead to inequity. Other methods existed and
might be employed, alone or in combination, according to the areas involved. Although the
Parties intended themselves to apply the principles and rules laid down by the Court some
indication was called for of the possible ways in which they might apply them.

South West Africa Cases Ethiopia v. South Africa, Liberia v. South Africa
Moreover, the argument of "necessity" amounted to a plea that the Court should allow the
equivalent of an action popularis, or right resident in any member of a community to take legal
action in vindication of a public interest. But such a right was not known to international law as
it stood at present: and the Court was unable to regard it as imported by "the general principles
of law" referred to in Article 38, paragraph 1 (c), of its Statute.
In the final analysis, the whole "necessity" argument appeared to be based on considerations of
extra-legal character, the product of a process of after-knowledge. It was events subsequent to
the period of the League, not anything inherent in the mandates system as it was originally
conceived, that gave rise to the alleged "necessity which, if it existed, lay in the political field
and did not constitute necessity in the eyes of the law. The Court was not a legislative body.
Parties to a dispute could always ask the Court to give a decision ex aequo et bono, in terms of
paragraph 2 of Article 38. Failing that, the duty of the Court was plain: its duty was to apply the
law as it found it, not to make it.


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Asylum Case
The party which relies on a custom must prove that this claim is established that it has
become binding on the other party that the rule invoked is in accordance with a constant
and uniform usage practised by the States in question, and that this usage is the expression of a
right appertaining to the State granting asylum and a duty incumbent on the territorial State.
This follows from Art. 38 of the Statute of the Court which refers to international custom as
evidence of a general practice accepted as law.

Nuclear Test Cases New Zealand v. France, Australia v. France
It is well recognized that declarations made by way of unilateral acts, concerning legal or factual
situations, may have the effect of creating legal obligations. Nothing in the nature of a quid pro
quo, nor any subsequent acceptance, nor even any reaction from other States is required for
such declaration to take effect. Neither is the question of form decisive. The intention of being
bound is to be ascertained by an interpretation of the act. The binding character of the
undertaking results from the terms of the act and is based on good faith interested States are
entitled to require that the obligation be respected.
The Court concludes that France has assumed an obligation as to conduct, concerning the
effective cessation of the tests, and the fact that the Applicant has not exercised its right to
discontinue the proceedings does not prevent the Court from making its own independent
finding on the subject. As a court of law, it is called upon to resolve existing disputes between
States: these disputes must continue to exist at the time when the Court makes its decision. In
the present case, the dispute having disappeared, the claim no longer has any object and there
is nothing on which to give judgment.
Once the Court has found that a State has entered into a commitment concerning its future
conduct, it is not the Court's function to contemplate that it will not comply with it. However, if
the basis of the Judgment were to be affected, the Applicant could request an examination of the
situation in accordance with the provisions of the Statute.

Nuclear Test Cases New Zealand v. France, Request for examination
The Court concludes that the basis of the 1974 Judgment was consequently France's
undertaking not to conduct any further atmospheric nuclear tests; that it was only, therefore, in
the event of a resumption of nuclear tests in the atmosphere that that basis of the Judgment
would have been affected and that that hypothesis has not materialized.

Legality of the Use by a State of Nuclear Weapons
There is in neither customary nor conventional international law any specific authorization of
the threat or use of nuclear weapons
There is in neither customary nor conventional international law any comprehensive and
universal prohibition of the threat or use of nuclear weapons as such;
A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4,
of the Charter of the United Nations and that fails to meet all the requirements of Article 5 1 is
unlawful
o In Article 2, paragraph 4, of the Charter, the use of force against the territorial integrity
or political independence of another State or in any other manner inconsistent with the
purpose of the United Nations is prohibited. This prohibition of the use of force is to be
considered in the light of other relevant provisions of the Charter.

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o In Article 51, the Charter recognizes the inherent right of individual or collective self-
defence if an armed attack occurs (necessity and proportionality). A further lawful use
of force is envisaged in Article 42, whereby the Security Council may take military
enforcement measures in conformity with Chapter VII of the Charter.
A threat or use of nuclear weapons should also be compatible with the requirements of the
international law applicable in armed conflict, particularly those of the principles and rules of
international humanitarian law, as well as with specific obligations under treaties and other
undertakings which expressly deal with nuclear weapons
It follows from the above-mentioned that the threat or use of nuclear weapons would generally
be contrary to the rules of international law applicable in armed conflict, and in particular the
principles and rules of humanitarian law. However, in view of the current state of international
law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether
the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of
self-defence, in which the very survival of a State would be at stake.
There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading
to nuclear disarmament in all its aspects under strict and effective international control.

Paquete Habana
International law is part of our law, and must be ascertained and administered by the courts of
justice of appropriate jurisdiction as often as questions of right depending upon it are duly
presented for their determination. For this purpose, where there is no treaty and no controlling
executive or legislative act or judicial decision, resort must be had to the customs and usages of
civilized nations, and, as evidence of these, to the works of jurists and commentators, not for
the speculations of their authors concerning what the law ought to be, but for trustworthy
evidence of what the law really is.
At the present day, by the general consent of the civilized nations of the world and
independently of any express treaty or other public act, it is an established rule of international
law that coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed
and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt
from capture as prize of war. And this rule is one which prize courts, administering the law of
nations, are bound to take judicial notice of, and to give effect to, in the absence of any treaty or
other public act of their own government in relation to the matter.

Preah Vihear Temple Case Cambodia v. Thailand
The court concluded that Thailand had accepted the Annex I map. Even if there were any doubt
in this connection, Thailand was not precluded from asserting that she had not accepted it since
France and Cambodia had relied upon her acceptance and she had for fifty years enjoyed such
benefits as the Treaty of 1904 has conferred on her.
Furthermore, the acceptance of the Annex I map caused it to enter the treaty settlement; the
Parties had at that time adopted an interpretation of that settlement which caused the map line
to prevail over the provisions of the Treaty and, as there was no reason to think that the Parties
had attached any special importance to the line of the watershed as such, as compared with the
overriding importance of a final regulation of their own frontiers, the Court considered that the
interpretation to be given now would be the same.
The Court therefore felt bound to pronounce in favour of the frontier indicated on the Annex I
map in the disputed area and it became unnecessary to consider whether the line as mapped
did in fact correspond to the true watershed line.

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Case Concerning Right of Passage over Indian Territory Portugal v. India
The finding of the Court that the practice established between the Parties had required for the
passage of armed forces, armed police and arms and ammunition the permission of the British
or Indian authorities rendered it unnecessary for the Court to determine whether or not, in the
absence of the practice that actually prevailed, general international custom or general
principles of law recognized by civilized nations, which had also been invoked by Portugal, could
have been relied upon by Portugal in support of its claim to a right of passage in respect of these
categories.
The Court was dealing with a concrete case having special features: historically the case went
back to a period when, and related to a region in which, the relations between neighbouring
States were not regulated by precisely formulated rules but were governed largely by practice:
finding a practice clearly established between two States, which was accepted by the Parties as
governing the relations between them, the Court must attribute decisive effect to that practice.
The Court was, therefore, of the view that no right of passage in favour of Portugal involving a
correlative obligation on India had been established in respect of armed forces, armed police
and arms and ammunition.

Corfu Channel Case
Every country has the duty imposed by elementary considerations of humanity and the freedom
of maritime communication not to knowingly allow its territory to be used for acts contrary to
the rights of another state.

Chorzow Factory Case
One party cannot avail himself of the fact that the other has not fulfilled some obligation, or has
not had recourse to some means of redress, if the former party has, by some illegal act,
prevented the latter from fulfilling the obligation in question, or from having recourse to the
tribunal which would have been open to him.
The court observes that it is a principle of international law, and even a general conception of
law, that the breach of an engagement involves an obligation to make reparation.
o the essential principle contained in the actual notion of an illegal act - a principle which
seems to be established by international practice and in particular by the decisions of
arbitral tribunals - is that reparation must, as far as possible wipe out all the
consequences of the illegal act and re-establish the situation which would, in all
probability, have existed if that act had not been committed

Barcelona Traction, Light & Power Company Belgium v. Spain
It had been maintained that a State could make a claim when investments by its nationals
abroad, such investments being part of national economic resources, were prejudicially affected
in violation of the right of the State itself to have its nationals enjoy a certain treatment.
But, in the present state of affairs, such a right could only result from a treaty or special
agreement. And no instrument of such a kind was in force between Belgium and Spain.

Texaco v. Libya
The court notes that GA resolutions even if they are not binding, may sometimes have
normative value. They can in certain circumstances, provide evidence important for establishing
the existence or a rule or the emergence of opinion juris.

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To establish whether this is true of a given GA resolution, it is necessary to look at its content
and the conditions of its adoption; it is also necessary to see whether an opinion juris exists as
to its normative character.
Or a series of resolutions may show the gradual evolution of the opinion juris required for the
establishment of a new rule.

BP v. Libya
The court found that there were no principles in Libyan law common to international law.
The court then looked to PIL, specifically the Vienna Convention on the Law of Treaties but it
does not provide specific rules on remedies.
The Court then determined what was the customary international law on the subject, and found
no explicit support.
Hence court resorted to general principles of law.
o These are municipal legal principles existing in different legal systems.

Saudi Arabia v. Arabian American Oil Company
RA resolutions on the right of state to nationalize were analysed.
o Voting conditions in these resolutions tend to show the support for resolution of
disputes of this sort in accordance with IL.

ACTORS IN INTERNATIONAL LAW

Barcelona Traction, Light & Power Company Belgium v. Spain
It had been maintained that a State could make a claim when investments by its nationals
abroad, such investments being part of national economic resources, were prejudicially affected
in violation of the right of the State itself to have its nationals enjoy a certain treatment.
But, in the present state of affairs, such a right could only result from a treaty or special
agreement. And no instrument of such a kind was in force between Belgium and Spain.
International law had to refer to those rules generally accepted by municipal legal systems. An
injury to the shareholders interests resulting from an injury to the rights of the company was
insufficient to found a claim.
o Where it was a question of an unlawful act committed against a company representing
foreign capital, the general rule of international law authorized the national state of the
company alone to exercise diplomatic protection for the purpose of seeking redress.
o No rule of international law expressly conferred such a right on the shareholders
national state.
It has also been maintained that for reasons of equity, a state should be able, in certain cases, to
take up protection of its nationals, shareholders in a company which had been the victim of a
violation of international law.
o The court considered that the adoption of the theory of diplomatic protection of
shareholders as such would open the door to competing claims on the part of different
states, which could create an atmosphere of insecurity in international economic
relations.
o In the present case, where the companys national state was able to act, the court was
not of the opinion that jus standi was conferred on the Belgian government by
considerations of equity.

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Reparations for Injuries Suffered in the Service of the United Nations
I. In the event of an agent of the United Nations in the performance of his duties suffering .injury in
circumstances involving the responsibility of a State, has the United Nations, as an Organization, the
capacity to bring an international claim against the responsible de jure or de facto government with a
view to obtaining the reparation due in respect of the damage caused (a) to the United Nations, (b) to
the victim or to persons entitled through him?
Court unanimously reaches the conclusion that the Organization has the capacity to bring an
international claim against a State (whether a Member or non-member) for damage resulting
from a breach by that State of its obligations towards the Organization. The Court points out
that it is not called upon to determine the precise extent of the reparation which the
Organization would be entitled to recover; the measure of the reparation should depend upon a
number of factors
Really only the Organization has the capacity to present a claim in the circumstances referred to,
inasmuch as at the basis of any international claim there must be a breach by the defendant
State of an obligation towards the Organization. In the present case the State of which the
victim is a national could not complain of a breach of an obligation towards itself. Here the
obligation is assumed in favour of the Organization
o These powers, which are essential to the performance of the functions of the
Organization, must be regarded as a necessary implication arising from the Charter. In
discharging its functions, the Organization may find it necessary to entrust its agents
with important missions to be performed in disturbed parts of the world. These agents
must be ensured of effective protection. It is only in this way that the agent will be able
to carry out his duties satisfactorily.
"11. In the event of an affirmative reply on point I (b), how is action by the United Nations to be
reconciled with such rights as may be possessed by the State of which the victim is a national?"
The Court does not sate here which of these two categories of protection should have priority
and in the case of Member States it stresses their duty to render every assistance provided by
Article 2 of the Charter. It adds that the risk of competition between the Organization and the
national State can be reduced or eliminated either by a general convention or by agreements
entered into in each particular case, and it refers further to cases that have already arisen in
which a practical solution has already been found.
It does not matter whether or not the State to which the claim is addressed regards him as its
own national

Mavrommatis Case
In exercising the right of diplomatic protection the state asserts its own rights as opposed to
those of its own national.


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A. STATES
1. Territorial Sovereignty

Island of Las Palmas Case
State authority should not necessarily be displayed in fact at every moment on every point of a
territory.
The critical period is a judicial technique in the use or exclusion of evidence consisting of self-
serving acts of parties at a stage when it was evident that a dispute existed.
Based on intertemporal law, the act which creates as right is subjected to the law in force at the
time the right arises. But the existence of a right must follow the conditions required by the
evolution of the law.
o The discovery by Spain creates only an inchoate right, without external manifestations
no title is perfected.

Eastern Greenland Case
A claim to sovereignty based not upon some particular act or title such as a treaty of cession but
merely upon continued display of authority, involves two elements each of which must be
shown to exist: the intention and will to act as sovereign, and some actual exercise or display of
such authority.
Another circumstance which must be taken into account by any tribunal which has to adjudicate
upon a claim to sovereignty over a particular territory, is the extent to which the sovereignty is
also claimed by some other Power.
It is impossible to read the records of the decisions in cases as to territorial sovereignty without
observing that in many cases the tribunal has been satisfied with very little in the way of the
actual exercise of sovereign rights, provided that the other State could not make out a superior
claim. This is particularly true in the case of claims to sovereignty over areas in thinly populated
or unsettled countries.
In most of the cases involving claims to territorial sovereignty . . . there have been two
competing claims to the sovereignty, up to 1931 there was no claim by any Power other than
Denmark to the sovereignty over Greenland. Considering the inaccessible character of the
uncolonized parts of the country, the King of Denmark and Norway displayed . . . in 1721 to
1814 his authority to an extent sufficient to give his country a valid claim to sovereignty, and
that his rights over Greenland were not limited to the colonized area.

SS Lotus Case
There is no general prohibition on a state to extend the application of their law outside their
territory.
o The territoriality of criminal law is not an absolute principle and by no means coincides
with territorial sovereignty.


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Thematic Lighthouses

Minquiers & Ecrehos
In the special circumstances of the case, and in view of the date at which a dispute really arose
between the two Governments about these groups, the Court shall consider all the acts of the
parties, unless any measure was taken with a view to improving the legal position of the Party
concerned.
With regard to the Ecrehos in particular, and on the basis of various mediaeval documents, it
held the view that the King of England exercised his justice and levied his rights in these islets.
Those documents also show that there was at that time a close relationship between the
Ecrehos and Jersey.
o From the beginning of the nineteenth century, the connection became closer again,
because of the growing importance of oyster fishery. The Court attached probative
value to various acts relating to the exercise by Jersey of jurisdiction and local
administration and to legislation, such as criminal proceedings concerning the Ecrehos,
the levying of taxes on habitable houses or huts built in the islets since 1889, the
registration in Jersey of contracts dealing with n:al estate on the Ecrehos.
With regard to the Minquiers, the Court noted that in 1615, 1616, 1617 and 1692, the Manorial
court of the fief of Noirmont in Jersey exercised its jurisdiction in the case of wrecks found at the
Minquiers, because of the territorial character of that jurisdiction. Other evidence concerning
the end of the eighteenth century, the nineteenth and the twentieth centuries concerned
inquests on corpse; found at the Minquiers, the erection on the islets of habitatble houses or
huts by persons from Jersey who paid property taxes on that account, the registration in Jersey
of contracts of sale relating to real property in the Minquiers.
o These various facts show that Jersey authorities have, in several ways, exercised
ordinary local administration in respect of the Minquiers during a long period of time
and that, for a considerable part of the nineteenth century and the twentieth century,
British authorities have exercised State functions in respect of this group.

Case Concerning Sovereignty Over Pulau Ligitan and Pulau SIpadan Indonesia v. Malaysia
The Court points out that in particular in the case of very small islands which are uninhabited or
not permanently inhabited - like Ligitan and Sipadan, which have been of little economic
importance (at least until recently) - effectivites will indeed generally be scarce.
The Court further observes that it cannot take into consideration acts having taken place after
the date on which the dispute between the Parties crystallized unless such acts are a normal
continuation of prior acts and are not undertaken for the purpose of improving the legal
position of the Party which relies on them. The Court therefore, primarily, analyses the
effectivites which date from the period before 1969, the year in which the Parties asserted
conflicting claims to Ligitan and Sipadan.
The Court finally observes that it can only consider those acts as constituting a relevant display
of authority which leave no doubt as to their specific reference to the islands in dispute as such.
Regulations or administrative acts of a general nature can therefore be taken as effectivites with
regard to Ligitan and Sipadan only if it is clear from their terms or their effects that they
pertained to these two islands.
The Court finally observes that activities by private persons such as Indonesian fishermen,
cannot be seen as effectivites if they do not take place on the basis of official regulations or

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under governmental authority. The Court concludes that the activities relied upon by Indonesia
do not constitute acts a titre de souverain reflecting the intention and will to act in that capacity.
Measures taken to regulate and control the collecting of turtle eggs and the establishment of a
bird reserve, as cited by Malaysia as evidence of such effective administration over the islands,
must, in the view of the Court, be seen as regulatory and administrative assertions of authority
over territory which is specified by name.
The Court observes that the construction and operation of lighthouses and navigational aids are
not normally considered manifestations of State authority. The construction of navigational aids,
on the other hand, can be legally relevant in the case of very small islands.
The Court notes that the activities relied upon by Malaysia, both in its own name and as
successor State of Great Britain, are modest in number but that they are diverse in character
and include legislative, administrative and quasi-judicial acts. They cover a considerable period
of time and show a pattern revealing an intention to exercise State functions in respect of the
two islands in the context of the administration of a wider range of islands.
The Court moreover cannot disregard the fact that at the time when these activities were
carried out, neither Indonesia nor its predecessor, the Netherlands, ever expressed its
disagreement or protest.

Eritrea v. Yemen Arbitration
Doctrine of critical date was not applied, the tribunal examined all the evidence irrespective of
the date of the acts to which such evidence relates.
Uti possidetis principle was not applied because the doctrine is only applicable if the boundaries
of the administrative units during colonial rule are known.
While the Treaty of Lausanne divested Turkey of its title, the islands did not become res nullius
so as to be open to acquisitive prescription, nor did they revert automatically to Yemen.
o The effect was that sovereign title remained indeterminate pro tempore.
o It was agreed that no one can claim sovereignty over the territory until all the allied
powers have agreed.
The tribunal ruled that it was not obliged to award the group of islands as a whole to only one
party. Thus, it awarded islands after weighing all the evidence of effective occupation and
applying international law doctrines.
Portico doctrine: islands near coastal states must pertain to such states. It is a means of
attributing sovereignty over off-shore features which fell within the attraction of the mainland.

Singapore v. Malaysia
On the question of burden of proof, the Court reaffirms that it is a general principle of law,
confirmed by its jurisprudence, that a party which advances a point of fact in support of its claim
must establish that fact.
It notes that any passing of sovereignty might be by way of agreement between the two States
in question. Such an agreement might take the form of a treaty. The agreement might instead
be tacit and arise from the conduct of the Parties. In this matter international law does not
impose any particular form but places its emphasis on the parties intentions.
Sovereignty over territory might under certain circumstances pass as a result of the failure of
the State which has sovereignty to respond to conduct titre de souverain of the other State or
to concrete manifestations of the display of territorial sovereignty by the other State. Such
manifestations of the display of sovereignty may call for a response if they are not to be
opposable to the State in question. The absence of reaction may well amount to acquiescence.

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That is to say, silence may also speak, but only if the conduct of the other State calls for a
response.
Any passing of sovereignty over territory on the basis of the conduct of the Parties must be
manifested clearly and without any doubt by that conduct and the relevant facts.
The Court concludes, especially by reference to the conduct of Singapore and its predecessors
titre de souverain, taken together with the conduct of Malaysia and its predecessors including
their failure to respond to the conduct of Singapore and its predecessors, that by 1980
sovereignty over Pedra Branca/Pulau Batu Puteh had passed to Singapore.

Map Cases

Preah Vihear
The Annex I map was never formally approved by the Mixed Commission, which had ceased to
function some months before its production. In its inception, it had no binding character. It was
clear from the record, however, that the maps were communicated to the Siamese Government
as purporting to represent the outcome of the work of delimitation; since there was no reaction
on the part of the Siamese authorities, either then or for many years, they must be held to have
acquiesced.
If the Siamese authorities accepted the Annex I map without investigation, they could not now
plead any error vitiating the reality of their consent.
The court concluded that Thailand had accepted the Annex I map. Even if there were any doubt
in this connection, Thailand was not precluded from asserting that she had not accepted it since
France and Cambodia had relied upon her acceptance and she had for fifty years enjoyed such
benefits as the Treaty of 1904 has conferred on her.
Furthermore, the acceptance of the Annex I map caused it to enter the treaty settlement; the
Parties had at that time adopted an interpretation of that settlement which caused the map line
to prevail over the provisions of the Treaty and, as there was no reason to think that the Parties
had attached any special importance to the line of the watershed as such, as compared with the
overriding importance of a final regulation of their own frontiers, the Court considered that the
interpretation to be given now would be the same.

Frontier Dispute Burkina Faso v. Mali
The principle of uti possidetis juris accords pre-eminence to legal title over effective possession
as a basis of sovereignty. Its primary aim is to secure respect for the territorial boundaries which
existed at the time when independence was achieved.
o When those boundaries were no more than delimitations between different
administrative divisions or colonies all subject to the same sovereign, the application of
this principle resulted in their being transformed into international frontiers, and this is
what occurred with the States Parties to the present case, which both took shape within
the territories of French West Africa.
o Where such boundaries already had the status of international frontiers at the time of
decolonization, the obligation to respect pre-existing international frontiers derives
from a general rule of international law relating to State succession.
The Chamber cannot decide ex aequo et bono, since the Parties have not requested it to do so.
It will, however, have regard to equity infra legem, that is, that form of equity which constitutes
a method of interpretation of the law in force, and which is based on law.

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In frontier delimitations, maps merely constitute information, and never constitute territorial
titles in themselves alone. They are merely extrinsic evidence which may be used, along with
other evidence to establish real facts. Their value depends on their technical reliability and their
neutrality in relation to the dispute and the Parties to that dispute, they cannot effect any
reversal of the onus of proof.
o With regard to the second map, the Chamber finds that, since it was drawn up by a body
which was neutral towards the Parties, although it does not possess the status of legal
title, it is a visual portrayal of both of the available texts and information obtained on
the ground. Where other evidence is lacking or is not sufficient to show an exact line,
the probative force of the IGN map must be viewed as compelling.
Of course, in some cases maps may acquire such legal force, but where this is so the legal force
does not arise solely from their intrinsic merits: it is because such maps fall into the category of
physical expressions of the will of the State or States concerned
Colonial effectivites, the conduct of the administrative authorities as proof of effective
exercise of territorial jurisdiction in the region during the colonial period.

Libya v. Chad
The Court found that the boundary between Libya and Chad is defined by the Treaty of
Friendship and Good Neighbourliness concluded on 10 August 1955 between France ;md Libya,
and determined the course of that boundary (cf. sketch-map No. 4).
The Court considers the subsequent attitudes of the Parties to the question of frontiers. It finds
that no subsequent agreement, either between France and Libya, or between Chad and Libya,
has called in question the frontier in this region deriving from the 1955 Treaty. On the contrary,
if one considers treaties subsequent, there is support for the proposition that after 1955 the
existence of a determined frontier was accepted and acted upon by the Parties.
A boundary established by treaty thus achieves a permanence which the treaty itself does not
necessarily enjoy. When a boundary has been the subject of agreement, the continued
existence of that boundary is not dependent upon the continuing life of the treaty under which
the boundary is agreed.

Case Concerning Kasikili/Sedudu Island Botswana v. Namibia
After examining the map evidence produced in this case, the Court considers itself unable to
draw conclusions from it, in view of the absence of any map officially reflecting the intentions of
the parties to the 1890 Treaty and of any express or tacit agreement between them or their
successors concerning the validity of the boundary depicted in a map, as well as in the light of
the uncertainty and inconsistency of the cartographic material submitted to it.
o That evidence cannot therefore endorse a conclusion at which a court has arrived by
other means unconnected with the maps (Frontier Dispute (Burkina Faso/Republic of
Mali) nor can it alter the results of the Court's textual interpretation of the 1890 Treaty.

Anglo-Norwegian Fisheries Case
Thus the Court, confining itself to the Conclusions of the United Kingdom, finds that the 1935
delimitation does not violate international law. But the delimitation of sea areas has always an
international aspect since it interests States other than the coastal State; consequently, it
cannot be dependent merely upon the will of the latter.
In this connection certain basic considerations inherent in the nature of the territorial sea bring
to light the following criteria which can provide guidance to Courts: since the territorial sea is

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closely dependent upon the land domain, the base-line must not depart to any appreciable
extent from the general direction of the coast: certain waters are particularly closely linked to
the land formations which divide or surround-them (an idea which should be liberally applied in
the present case, in view of the configuration of 'the coast); it may be necessary to have regard
to certain economic interests peculiar to a region when their reality and importance are clearly
evidenced by a long usage.
Norwegian Decree of 1812, as well as a number of subsequent texts (Decrees, Reports,
diplomatic correspondence) show that the method of straight lines, imposed by geography, has
been established in the Norwegian system and consolidated by a constant and sufficiently long
practice.
o The application of this system encountered no opposition from other States. Even the
United Kingdom did not contest it for many years: it was only in 1933 that the United
Kingdom made a formal and definite protest. And yet, traditionally concerned with
maritime questions, it could not have been ignorant of the reiterated manifestations of
Norwegian practice, which was so well-known.
o The general toleration of the international community therefore shows that the
Norwegian system was not regarded as contrary to international law.

Western Sahara
In law, occupation was a means of peaceably acquiring sovereignty over territory otherwise
than by cession or succession; it was a cardinal condition of a valid occupation that the
territory should be terra nullius.
o According to the state practice of that period, territories inhabited by tribes or peoples
having a social and political organization were not regarded as terrae nullius: in their
case sovereignty was not generally considered as effected through occupation, but
through agreements concluded with local rulers.
Even taking account of the specific structure of that State, they do not show that Morocco
displayed any effective and exclusive State activity in Western Sahara. They do, however,
provide indications that a legal tie of allegiance existed at the relevant period between the
Sultan and some, but only some, of the nomadic peoples of the territory, and they show that the
Sultan displayed, and was recognized by other States to possess, some authority or influence
with respect to those tribes
The information before the Court discloses that, while there existed among them many ties of a
racial, linguistic, religious, cultural and economic nature, the emirates and many of the tribes in
the entity were independent in relation to one another; they had no common institutions or
organs. The Mauritanian entity therefore did not have the character of a personality or
corporate entity distinct from the several emirates or tribes which comprised it.
The Court concludes that at the time of' colonization by Spain there did not exist between the
territory of Western Sahara and the Mauritanian entity any tie of sovereignty, or of allegiance of
tribes, or of simple inclusion in the same legal entity.

El Salvador v. Honduras
Uti possidetis juris
o If colonial boundaries are clear, the tribunal will not look at colonial effectivites
o If the boundaries are not clear, the tribunal will look at colonial effectivites

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Where there are cases of overlaps because of lack of sophisticated means of surveying, the
court consideres contemporaneous acts because it is useless to look at effective occupation
because the territories were subject to only 1 colonial rule.
o Contemporaneous acts belief of one that he belongs to this particular unit.
The court looked at the republic titles submitted to them and also the subsequent acts of the
parties after independence.
Principle of acquiescence by recognition will also apply if a party does not object thereto.

Clipperton Island France v. Mexico
There is no proof that Spain discovered the island first and that Spain effectively exercised such
right. It presented a map but the official character of such map cannot be affirmed. Also, proof
of historic right is not supported by manifestation of sovereignty over the island.
The tribunal found that the island was terra nullius and susceptible of occupation.
Physical possession is merely procedural to the taking of possession and is not identical to the
latter.
If a territory is uninhabited, from the moment when the occupying state makes it appearance
there, at the absolute undisputed disposition of that state, from that moment the taking of
possession must be considered as accomplished, and the occupation is thereby completed.
Physical occupation is not required in this case.
The published declaration of occupation was sufficient to show taking of possession and intent
to possess.

2. UNCLOS

b. Territorial Sea

Anglo-Norwegian Fisheries
Thus the Court, confining itself to the Conclusions of the United Kingdom, finds that the 1935
delimitation does not violate international law. But the delimitation of sea areas has always an
international aspect since it interests States other than the coastal State; consequently, it
cannot be dependent merely upon the will of the latter.
In this connection certain basic considerations inherent in the nature of the territorial sea bring
to light the following criteria which can provide guidance to Courts: since the territorial sea is
closely dependent upon the land domain, the base-line must not depart to any appreciable
extent from the general direction of the coast: certain waters are particularly closely linked to
the land formations which divide or surround-them (an idea which should be liberally applied in
the present case, in view of the configuration of 'the coast); it may be necessary to have regard
to certain economic interests peculiar to a region when their reality and importance are clearly
evidenced by a long usage.

f. The Continental Shelf

North Sea Continental Shelf Case
Germany was not obliged to accept the equidistance method for the delimitation of her
continental shelf.

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The delimitation had rather to be effected by agreement in accordance with equitable
principles, and taking account all the relevant circumstances, in such a way as to leave as much
possible to each party all those parts of the continental shelf that constitute a natural
prolongation of its land territory.
o Areas where the natural prolongations overlap or converge into one another should be
divided between the parties in agreed proportions or failing agreement, equally unless
they decide a regime of joint jurisdiction, user or exploration.

Libya v. Malta
The delimitation is to be effected in accordance with equitable principles and taking account of
all relevant circumstances, so as to arrive at an equitable result.
The area of continental shelf to be found to appertain to either part not extending more than
200 miles from the coast of the party concerned, no criterion for delimitation of shelf areas can
be derived from the principle of natural prolongation in the physical sense.
The circumstances and factors to be taken into account in achieving an equitable result:
o The principle that there is to be no question of refashioning geography
o The principle of non-encroachment by one party on areas appertaining to the other
o The principle of the respect due to all relevant circumstances
o The principle that equity does not necessarily imply equality and that there can be no
question of distributive justice.
In this case:
o The general configuration of the coasts of the parties, their oppositeness, and their
relationship to each other within the general geographical context
o The disparity in the lengths of the relevant coasts of the parties and the distance
between them
o The need to avoid in the delimitation any excessive disproportion between the extent of
the continental shelf areas appertaining to the coastal state and the length of the
relevant part of its coast, measured in general direction of the coastlines.
In the view of the Court, the principles and rules underlying the regime of the exclusive
economic zone cannot be left out of consideration in the present case, which relates to the
delimitation of the continental shelf. The two institutions are linked together in modern law,
and one of the relevant circumstances to be taken into account for the delimitation of the
continental shelf of a State is the legally permissible extent of the exclusive economic zone
appertaining to that same State.
o Although there can be a continental shelf where there is no exclusive economic zone,
there cannot be an exclusive economic zone without a corresponding continental shelf.
Equidistance is neither the only appropriate method of delimitation nor a preferable or
obligatory one.

Tunisia v. Libya
Delimitation is to be effected in accordance with equitable principles, and taking account of all
relevant circumstances
The area relevant for the delimitation constitutes a single continental shelf as the natural
prolongation of the land territory of both Parties, so that in the present case, no criterion for
delimitation of shelf areas can be derived from the principle of natural prolongation as such
In the particular geographical circumstances of the present case, the physical structure of the
continental shelf areas is not such as to determine an equitable line of delimitation.

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Aegean Sea Continental Shelf Case Greece v. Turkey
The Court observes that it would be difficult to accept the proposition that delimitation is
entirely extraneous to the notion of territorial status, and points out that a dispute regarding
delimitation of a continental shelf tends by its very nature to be one relating to territorial status,
inasmuch as a coastal state's rights over the continental shelf derive from its sovereignty over
the adjoining land. It follows that the territorial status of the coastal State comprises, ipso jure,
the rights of exploration and exploitation over the continental shelf to which it .is entitled under
international law.

Anglo-French Continental Shelf Arbitration
The islands had their own continental shelf. But, as the court saw the islands as disturbing the
balance of the geographical circumstances, which would otherwise exist between the parties in
the region, as a circumstance causing inequity and calling for delimitation to redress inequity in
some measure.
In this case, the extent of the islands continental shelf was limited to 12 miles to preserve
existing fishery zones.

Case Concerning Maritime Delimitation in the Area Between Greenland and Jan Mayen
Denmark v. Norway
The concept of "special circumstances" was included in the 1958 Geneva Conventions on the
Territorial Sea and the Contiguous Zone (art. 12) and on the Continental Shelf (art. 6, paras. 1
and 2). It was and remains linked to the equidistance method there contemplated. It is thus
apparent that special circumstances are those circumstances which might distort the result
produced by an unqualified application of the equidistance principle.
General international law has employed the concept of "relevant circumstances". 'This concept
can be defined as a fact necessary to be take11 into account, in the delimitation process, to the
extent that it affects the rights of the Parties over certain maritime areas.
Although it is a matter of categories which are different in origin and in name, there is inevitably
a tendency towards assimilation between the special circumstances and the relevant
circumstances under customary law, and this if only because they both are intended to enable
the achievement of an equitable result. This must be especially true in the case of opposite
coasts where, as has been seen, the tendency of customary law has been to postulate the
median line as leading prima facie to an equitable result.
Prima facie, a median line delimitation between opposite coasts results in general in an
equitable solution, particularly if the coasts in question are nearly parallel. There are, however
situations in which the relationship between the length of the relevant coasts, and the maritime
areas generated by them by application of the equidistance method is so disproportionate that
it has been found necessary to take this circumstance into account in order to ensure an
equitable solution.
The Court thus considers that neither the median line nor the 200-mile line calculated from the
coasts of eastern Greenland in the relevant area should be adopted as the boundary of the
continental shelf or of the fishery zone.


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g. The Exclusive Economic Zone

Spain v. Canada
According to international law, in order for a measure to be characterized as a "conservation
and management measure", it is sufficient that its purpose is to conserve and manage living
resources and that, to this end, it satisfies various technical requirements. It is in this sense that
the terms "conservation and management measures" have long been understood by States in
the treaties which they conclude. The same usage is to be found in the practice of States.
Typically, in their enactments and administrative acts, States describe such measures by
reference to factual and scientific criteria.

MV Saiga St. Vincent & Grenadines v. Guinea
The tribunal held that bunkering was an activity the regulation of which falls within the scope
of the exercise by the coastal state of its sovereign rights to explore, exploit, conserve and
manage the living resources in the exclusive economic zone. Guinea was thus entitled to arrest
the vessel.
However, under Art. 73.2 of the UNCLOS, Guinea was under the obligation to promptly release
the crew upon posting of reasonable bond or security.

Camouco Case Panama v. France
The tribunal considered that a number of factors were relevant in an assessment of the
reasonableness of the bonds.
o They included the gravity of the alleged offenses
o The penalties imposed or imposable under the laws of the detaining state
o The value of the detained vessel seized and of the cargo seized
o The amount of the bond imposed by the detaining state and its form
Tribunal concluded that 20 M franc bond imposed was not reasonable. It ordered france should
promptly release camuoco and its master upon posting of 8 M franc bond.

h. Delimitation of Maritime Boundaries

Gulf of Maine Case Canada v. US
No maritime delimitation between States with opposite or adjacent coasts may be effected
unilaterally by one of those States. Such delimitation must be sought and effected by means of
an agreement, following negotiations conducted in good faith and with the genuine intention of
achieving a positive result. Where, however, such agreement cannot be achieved, delimitation
should be effected by recourse to a third party possessing tie necessary competence. In either
case, delimitation is to be effected by the application of equitable criteria and by the use of
practical methods capable of ensuring, with regard to the geographic configuration of the area
and other relevant circumstances, an equitable result.


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j. Conservation & Management of Living Resources of the High Seas

Southern Blue Fin Tuna Cases New Zealand v. Japan, Australia v. Japan
The parties should in the circumstances act with prudence and caution to ensure that effective
conservation measures are taken to prevent serious harm to the stock of southern blue fin tuna.
The parties should intensify their efforts to cooperate with other participants in the fishery for
southern blue fin tuna with a view to ensuring conservation and promoting the objective of
optimum utilization of the stock.

3. Jurisdiction & Immunities

Jurisdiction

Brownwell v. Sun Life Assurance Company
A foreign law may have extraterritorial effect in a country other than the country of origin,
provided the former, in which it is sought to be made operative, gives its consent thereto.
The consent of a state to the operation of a forein law within its territory does not need to be
express; it is enough that said consent be implied from its conduct or from that of its authorized
officers.
It is well settled in the US that its laws have no extraterritorial effect. The application of said law
in the Philippines is based concurrently on the tacit consent thereto and the conduct of the
Philippine Government itself in receiving the benefits of its provisions.

People v. Lol-lo and Saraw
Piracy is a crime not against any particular state but against all mankind. It make be punished in
the competent tribunal of any country where the offender may be found or into which he may
be carried. The jurisdiction of piracy unlike other crimes has no territorial limits.
o Piracy is robbery or forcible depredation on the high seas without lawful authority and
done animo furandi and in the spirit and intention of universal hostility.

Tubb v. Greiss
A foreign army allowed to march through a friendly country or to be stationed in it, by
permission of its government or sovereign, is exempt from the civil and criminal jurisdiction of
the place.
o Grant of free passage implies a waiver of all jurisdiction over the troops during their
passage and permits the foreign general to use that discipline, and to inflict those
punishments which the government of his army may require.

Sovereign Immunities

Pinochet
Although he is entitled to immunity as a former head of state, acts of torture or international
crimes are not considered official acts, and hence not immune.
Under customary international law, it is accepted that a state is entitled to expect that its
former head of state will not be subjected to the jurisdiction of the courts of another state for

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certain categories of acts performed while he was head of state unless immunity is waived by
the current government of which he was once head.
o The immunity is accorded not for the benefit of the former head of state himself but for
the state of which he was once the head, and any international law obligations are owed
to that state and not to the individual.
acts of state taken on behalf of the state and not private acts on behalf of the actor himself
No established rule of international law requires state immunity rationae materiae to be
accorded in respect of prosecution for an international crime.

JUSGMAG
1
Philippines v. NLRC
A suit against JUSMAG is one against the United States Government and in the absence of any
waiver or consent of the latter to the suit, the complaint against JUSMAG cannot prosper.
In this jurisdiction we recognize and adopt the generally accepted principles of international law
as part of the law of the land. Immunity of state from suit is one of these universally recognized
principles. In international law immunity is commonly understood as the exemption of the
state and its organs from the judicial jurisdiction of another state. This is anchored on the
principle of sovereignty of equal states under which one state cannot assert jurisdiction over
another in violation of the maxim par in parem non habet imperium (an equal power has no
power over an equal).
As it now stands, the application of the doctrine of immunity from suit has been restricted to
sovereign or governmental activities (jus imperii) and does not extend to commercial, private
and proprietary acts (jus gestionis).

USA v. Reyes
While the doctrine appears to prohibit only suits against the state without its consent, it is also
applicable to complaints filed against officials of the state for acts allegedly performed by them
in the discharge of their duties.
o The rule is that if the judgment against such officials will require the state itself to
perform an affirmative act to satisfy the same, the suit must be regarded as against the
state itself although it has not been formally impleaded. However, the rule is not all-
encompassing as to be applicable under all circumstances.
Unauthorized acts of government officials of officers are not acts of the state and an action
against the officials or officers by one whose rights have been invaded or violated by such acts
for the protection of his rights is not a suit against the state within the rule of immunity from
suit.
o The rationale for this ruling is that the doctrine of state immunity cannot be used as an
instrument for perpetrating an injustice.
The doctrine of state immunity from suit will not apply and may not be invoked where the
public official is being sued in his private and personal capacity as an ordinary citizen.

Wylie v. Rarang
The rule that a state may not be sued without its consent is one of the generally accepted
principles of international law we adopted as part of our law.
The doctrine is also applicable to complaints filed against officials of the state for acts allegedly
performed by them in the discharge of their duties.

1
Joint United States Military Assistance Group

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The consent of the state to be suid may be manifested expressly or impliedly.
o Express consent may be embodied in a general law or a special law.
o Consent is implied when the state enters into a contract it itself commences litigation.
Express consent is effected only by the will of the legislature through the medium of a duly
enacted statute.
We have held that not all contracts entered into by the government will operate as a waiver of
its non-suability; distinction must be made between its sovereign and proprietary acts.

WHO v. Aquino
It is a recognized principle of international law and under our system of separation of powers
that diplomatic immunity is essentially a political question and courts should refuse to look
beyond a determination by the executive branch of the government.
o And where the plea of diplomatic immunity is recognized and affirmed by the executive
branch of the government, it is then the duty of the courts to accept the claim of
immunity upon appropriate suggestion by the principal law officer of the government,
the solicitor general in this case, or other officer acting under his direction.
The Philippine government is bound by the procedure laid down in Article VII of the Convention
on the Privileges and Immunities of the Specialized Agencies of the UN for consultations
between the Host state and the UN agency concerned to determine in the first instance the fact
of occurrence of the abuse alleged, and if so, to ensure that no repetition occurs and for other
recourses.
o This is a treaty commitment voluntarily assumed by the Philippine government and as
such has the force and effect of law.
RA No. 75 declares as null and void writs or processes sued out or prosecuted whereby inter alia
the person of an ambassador or public minister is arrested of imprisoned or his goods or
chattels are seized or attached and makes it a penal offense to obtain or enforce such writ or
process.

USA v. Ruiz
A state may be said to have descended to the level of an individual and can thus be deemed to
have tacitly given its consent to be sued only when it enters into business contracts. The rule
does not apply where the contract related to the exercise of its sovereign functions.
In this case the projects are an integral part of the naval base which is devoted to the defense of
both the US and the Philippines, indisputably a function of the government of the highest order.

Lyons Inc. v. USA
When a sovereign state enters into a contract with a private person the state can be sued upon
the theory that it has descended to the level of an individual from which it can be implied that it
has given its consent to be sued under the contract.

Minucher v. CA
A foreign agent, operating with immunity from suit but only as long as it can be established that
he is acting within the directives if the sending state.
o The consent of the host state is an indispensable requirement of basic courtesy between
the two sovereigns.

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The official exchanges of communication between two countries, are inadequate to support the
diplomatic status of DEA agent, but they give enough indication that the Philippine government
has given its consent to the activities of such agent within Philippine territory.
o The DEA agent can hardly be said to have acted beyond the scope of his official function
or duties.
Court is constrained to rule that DEA agent allowed by government to conduct activities in the
country to contain the problem on the drug traffic is entitled to the defense of state immunity
from suit.

Holy See v. Rosario
The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The
Holy See through its ambassador, the Papal Nuncio has had diplomatic representations with the
Philippine government since 1957. This appears to be the universal practice in international
relations.
The right of a foreign sovereign to acquire property, real or personal, in a receiving state
necessary for the creation and maintenance of its diplomatic mission is recognized in the 1961
Vienna Convention on Diplomatic Relations.
o This treaty was concurred in by the Philippine Senate and entered into force into the
Philippines on November 15, 1965.

SEAFDEC
2
v. Acosta
International organizations are institutions constituted by international agreements between
two or more States to accomplish common goals. The legal personality of these international
organizations has been recognized not only in municipal law, but in international law as well.
Permanent international commissions and administrative bodies have been created by the
agreement of a considerable number of States for a variety of international purposes, economic
or social and mainly non-political.
o In so far as they are autonomous and beyond the control of any one state they have
distinct juridical personality independent of the municipal law of the state where they
are situated. As such they are deemed to possess a species of international personality
of their own.
One of the basic immunities of an international organization is immunity from local jurisdiction,
it is immune from legal writs and processes issued by the tribunals of the country where it is
found.
o The obvious reason for this is that the subjection of such an organization to the
authority of the local courts would afford a convenient medium through which the host
government may interfere in their operations or even influence or control its policies
and decisions; besides even subjection to local jurisdiction would impair the capacity of
such body to discharge its responsibilities impartially on behalf of its member-states.

ICMC
3
v. Calleja
Specialized agencies are international organizations having functions in particular fields. The
grant of immunity from local jurisdiction is clearly necessitated by their international character
and respective purposes.

2
Southeast Asian Fisheries Development Center
3


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o The objective is to avoid the danger of partiality and interference by the host country in
their internal workings. The exercise of jurisdiction of the Dept. of Labor would defeat
the very purpose of immunity which is to shield the affair of international organizations,
in accordance with international practice, from political pressure or control by the host
country to the prejudice of member states of the organization, and to ensure the
unhampered performance of their functions.
However, they are not without recourse. The Convention on the Privileges and Immunities of
the specialized agencies of the UN provides that each specialized agency shall make provisions
for appropriate modes of settlements of disputes arising out of contracts or other disputes of
private character to which the specialized agent is a party.

Liang v. People
Courts cannot blindly adhere and take on its face the communication from the DFA that
petitioner is covered by any immunity. In receiving ex-parte DFAs advice and in motu proprio
dismissing the two criminal cases without notice to the prosecution, the latters right to due
process was violated. It has been ruled that mere invocation of the immunity clause does not
ipso facto result in the dropping of the charges.
The immunity mentioned under Section 45 in the agreement between ADB and Philippine
government is not absolute but subject to the exception that the act was done in official
capacity.

Israel v. Eichmann
Crimes against humanity are subject to universal jurisdiction

Ker v. Illinois
There is no language in the 1870 Treaty of Extradition between the US and Peru which says in
terms that a party fleeing from the US to escape punishment for crime becomes thereby
entitled to asylum in the country to which he has fled.
A fugitive kidnapped from abroad could not claim any violation of the constitution, laws or
treaties of the US.

Machain v. Sosa

Sosa v. Machain

Ebrahim

UNOCAL Case: Decision by the California Central District Court

Arrest Warrant Case Congo v. Belgium
It is firmly established that, as also diplomatic and consular agents, certain holders of high-
ranking office in a State, such as the Head of State, Head of Government and Minister for
Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal.
In customary international law, the immunities accorded to Ministers for Foreign Affairs are not
granted for their personal benefit but to ensure the effective performance of their functions on
behalf of their respective States.

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In order to determine the extent of these immunities, the Court must therefore first consider
the nature of the functions exercised by a Minister for Foreign Affairs.
o After an examination of those: functions the Court concludes that they are such that,
throughout the duration of his or her office, a Minister for Foreign Affairs when abroad
enjoys full immunity from criminal jurisdiction and inviolability. That immunity and that
inviolability protect the individual concerned against any act of authority of another
State which would hinder him or her in the performance of his or her duties.
Thus, if a Minister for Foreign Affairs is arrested in another State on a criminal charge, he or she
is clearly thereby prevented from exercising the functions of his or her office. Furthermore, even
the mere risk that, by travelling to or transiting another State, a Minister for Foreign Affairs
might be exposing himself or herself to legal proceedings could deter the Minister from
travelling internationally when required to do so for the purposes of the performance of his or
her official functions.
The Court emphasizes, however, that the immunity from jurisdiction enjoyed by incumbent
Ministers for Foreign Affairs does not mean that they enjoy immunity in respect of any crimes
they might have committed, irrespective of their gravity.
o Jurisdictional immunity may well bar prosecution for a certain period or for certain
offences; it cannot exonerate the person to whom it applies from all criminal
responsibility.
o Accordingly, the immunities enjoyed under international law by an incumbent or former
Minister for Foreign Affairs do not represent a bar to criminal prosecution in certain
circumstances.
o The Court refers to circumstances where such persons are tried in their own countries,
where the State which they represent or have represented decides to waive that
immunity, where such persons no longer enjoy all of the immunities accorded by
international law in other States after ceasing to hold the office of Minister for Foreign
Affairs, and where such persons are subject to criminal proceedings before certain
international criminal courts, where they have jurisdiction.

Sec. of Justice v. Lantion

US v. Purganan

4. International Responsibility

Corfu Channel Case
Every country has the duty imposed by elementary considerations of humanity and the freedom
of maritime communication not to knowingly allow its territory to be used for acts contrary to
the rights of another state.

Rainbow Warrior Arbitration

UNOCAL


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US Diplomatic and Consular Staff US v. Iran
The Court points out that the conduct of the militants on that occasion could be directly
attributed to the Iranian State only if it were established that they were in fact acting on its
behalf. The information before the Court did not suffice to establish this with due certainty.
o However, the Iranian State--which, as the State to which the mission was accredited,
was under obligation to take appropriate steps to protect the United States Embassy-did
nothing to prevent the attack, stop it before it reached its completion or oblige the
militants to withdraw from the premises anti release the hostages.
The Court finds that Iran, by committing successive and continuing breaches of the obligations
laid upon it by the Vienna Conventions of 196 1 and 1963, the 1955 Treaty, and the applicable
rules of general international law, has incurred responsibility towards the United States. As a
consequence, there is an obligation on the part of the Iranian State to make reparation for the
injury caused to the United States.

Chorzow Factory Case
One party cannot avail himself of the fact that the other has not fulfilled some obligation, or has
not had recourse to some means of redress, if the former party has, by some illegal act,
prevented the latter from fulfilling the obligation in question, or from having recourse to the
tribunal which would have been open to him.
The court observes that it is a principle of international law, and even a general conception of
law, that the breach of an engagement involves an obligation to make reparation.
o The essential principle contained in the actual notion of an illegal act - a principle which
seems to be established by international practice and in particular by the decisions of
arbitral tribunals - is that reparation must, as far as possible wipe out all the
consequences of the illegal act and re-establish the situation which would, in all
probability, have existed if that act had not been committed.
Principles for determining the amount of compensation due to act contrary to international law
o Restitution in kind; if this is not possible, payment of sum corresponding to the value
which restitution in kind would bear
o Award of damages for loss sustained which would not be covered by restitution in kind
or payment in place of it.

Union Bridge Company Claim US v. Great Britain

Youmans Claim US v. Mexico

Zafiro Claim Great Britain v. US

Bolivar Railway Claim Great Britain v. Venezuela

Neer Claim US v. Mexico

Starrett Housing Corp. v. Iran US v. Iran

5. Vienna Convention on the Law of Treaties

Definition of Treaty

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Abaya v. Sec. Ebdane

DBM v. Kolonwel Trading; Vibal v. Kolonwel; DEPED v. Kolonwel
The question as to whether or not foreign loan agreements with international financial
institutions, partake of an executive or international agreement within the purview of the
Section 4 of R.A. No. 9184
4
, has been answered by the Court in the affirmative in Abaya
Under the fundamental international law principle of pacta sunt servanda, the RP, as borrower,
bound itself to perform in good faith its duties and obligation under the loan.

Definition of Ratification

Lim v. Executive Secretary

Bayan v. Zamora
Ratification is generally held to be an executive act, undertaken by the head of the state or of
the government, as the case may be, through which the formal acceptance of the treaty is
proclaimed.
A State may provide in its domestic legislation the process of ratification of a treaty.
The consent of the State to be bound by a treaty is expressed by ratification when:
o (a) the treaty provides for such ratification,
o (b) it is otherwise established that the negotiating States agreed that ratification should
be required,
o (c) the representative of the State has signed the treaty subject to ratification, or
o (d) the intention of the State to sign the treaty subject to ratification appears from the
full powers of its representative, or was expressed during the negotiation.
In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed,
in the legislature. The role of the Senate is limited only to giving or withholding its consent, or
concurrence, to the ratification

Pimentel v. Executive Secretary
Under E.O. 459, the Department of Foreign Affairs (DFA) prepares the ratification papers and
forward the signed copy to the President for ratification. After the President has ratified it, DFA
shall submit the same to the Senate for concurrence.
The President has the sole authority to negotiate and enter into treaties, the Constitution
provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the
Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987
Constitution provides that no treaty or international agreement shall be valid and effective
unless concurred in by at least two-thirds of all the Members of the Senate.
o The participation of the legislative branch in the treaty-making process was deemed
essential to provide a check on the executive in the field of foreign relations.
It should be emphasized that under the Constitution the power to ratify is vested in the
President subject to the concurrence of the Senate. The President has the discretion even after
the signing of the treaty by the Philippine representative whether or not to ratify a treaty.

4
Government Procurement Reform Act

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The signature does not signify final consent, it is ratification that binds the state to the
provisions of the treaty and renders it effective.
Senate is limited only to giving or withholding its consent, concurrence to the ratification. It is
within the President to refuse to submit a treaty to the Senate or having secured its consent for
its ratification, refuse to ratify it. Such decision is within the competence of the President alone,
which cannot be encroached by this court via writ of mandamus,

Salonga v. Smith
There are three types of treaties in the American system:
o 1. Art. II, Sec. 2 treaties These are advised and consented to by the US Senate in
accordance with Art. II, Sec. 2 of the US Constitution.
o 2. ExecutiveCongressional Agreements: These are joint agreements of the President
and Congress and need not be submitted to the Senate.
o 3. Sole Executive Agreements. These are agreements entered into by the President.
They are to be submitted to Congress within sixty (60) days of ratification under the
provisions of the Case-Zablocki Act, after which they are recognized by the Congress and
may be implemented.

Reservation to the Convention on the Prevention and Punishment of the Crime of Genocide
The Court considers that signature constitutes a first step to participation in the Convention. It is
evident that without ratification, signature does not make the signatory State a party to the
Convention.
o Nevertheless, it establishes a provisional status in favour of that State. This status may
decrease in value and importance after the Convention enters into force. But, both
before and after the entry into force, this status would justify more favourable
treatment being meted out to signatory States in respect of objections than to States
which have neither signed nor acceded.
Pending ratification, the provisional status created by signature confers upon the signatory a
right to formulate, as a precautionary measure, objections which have themselves a provisional
character. These would disappear if the signature were not followed by ratification, or they
would become effective on ratification.
Until this ratification is made, the objection of a signatory State can therefore not have an
immediate legal effect in regard to the reserving State. It would merely express and proclaim
the eventual attitude of the signatory State when it becomes a party to the Convention.

Military and Paramilitary Activities in and against Nicaragua Nicaragua v. US

6. Vienna Convention on Diplomatic Relations; Vienna Convention on Consular Relations and
Optional Protocols

US Diplomatic and Consular Staff US v. Iran
The Court points out that the conduct of the militants on that occasion could be directly
attributed to the Iranian State only if it were established that they were in fact acting on its
behalf. The information before the Court did not suffice to establish this with due certainty.
o However, the Iranian State--which, as the State to which the mission was accredited,
was under obligation to take appropriate steps to protect the United States Embassy-did

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nothing to prevent the attack, stop it before it reached its completion or oblige the
militants to withdraw from the premises anti release the hostages.
The Court finds that Iran, by committing successive and continuing breaches of the obligations
laid upon it by the Vienna Conventions of 196 1 and 1963, the 1955 Treaty, and the applicable
rules of general international law, has incurred responsibility towards the United States. As a
consequence, there is an obligation on the part of the Iranian State to make reparation for the
injury caused to the United States.

Case Concerning Avena and other Mexican Nationals- Mexico v. USA

B. INTERNATIONAL ORGANIZATIONS

1. The UN Charter and the Use of Force

Military and Paramilitary Activities in and against Nicaragua Nicaragua v. US
In the light of the principle of the non-use of force, the court considers that the laying of mines
and certain attacks in Nicaraguan ports, oil installations and naval bases, imputable to US,
constitute infringement of this principle, and not justified by circumstances.
Right of collective self-defense
o That the country engaged in an armed attack
o Whether countries believed they were victims of armed attack, and requested the
assistance of third state in the exercise of collective self defense
In customary international law, the provision of arms to the opposition in another state does
not constitute an armed attack on that state
If one state, with a view to the coercion of another state, supports and assists armed bands in
that state whose purpose it is to overthrow its government, that amounts to an intervention in
its internal affairs, whatever the political objective of the state giving support.
Humanitarian aid on the other hand cannot be regarded as unlawful intervention
o If the provision of humanitarian assistance is to escape condemnation as an intervention
in the internal affairs of another state, it must be limited to the purposes hallowed in
the practice of the Red Cross, and above all, be given without discrimination

Legality of the Use by a State of Nuclear Weapons
There is in neither customary nor conventional international law any specific authorization of
the threat or use of nuclear weapons
There is in neither customary nor conventional international law any comprehensive and
universal prohibition of the threat or use of nuclear weapons as such;
A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4,
of the Charter of the United Nations and that fails to meet all the requirements of Article 5 1 is
unlawful
o In Article 2, paragraph 4, of the Charter, the use of force against the territorial integrity
or political independence of another State or in any other manner inconsistent with the
purpose of the United Nations is prohibited. This prohibition of the use of force is to be
considered in the light of other relevant provisions of the Charter.
o In Article 51, the Charter recognizes the inherent right of individual or collective self-
defence if an armed attack occurs (necessity and proportionality). A further lawful use

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of force is envisaged in Article 42, whereby the Security Council may take military
enforcement measures in conformity with Chapter VII of the Charter.
A threat or use of nuclear weapons should also be compatible with the requirements of the
international law applicable in armed conflict, particularly those of the principles and rules of
international humanitarian law, as well as with specific obligations under treaties and other
undertakings which expressly deal with nuclear weapons
It follows from the above-mentioned that the threat or use of nuclear weapons would generally
be contrary to the rules of international law applicable in armed conflict, and in particular the
principles and rules of humanitarian law. However, in view of the current state of international
law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether
the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of
self-defence, in which the very survival of a State would be at stake.
There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading
to nuclear disarmament in all its aspects under strict and effective international control.

Legality of the Use of Force Yugoslavia v. US

The Case of NATOs Air Campaign in the Kosovo Crisis of 1999

The Caroline Case

Assessing Claims to Revise the Laws of War

Case Concerning Oil Platforms Iran v. US

International Court of Justice

c. Advisory Opinions

Jurisdiction

Military and Paramilitary Activities Nicaragua v. US
The US made a reservation in its Optional Clause whereby disputes arising under multilateral
treaty, which could affect third states which are parties to the treat but are not participating in
the proceedings before the court, were excluded from the jurisdiction of the court.
The reservation of the US prevented the Court from entertaining the claim based on violations
of multilateral treaties.
However, the effect of the reservation did not exclude the application of principles of
international customary law, enshrined in treat law provisions.

Lockerbie Case Libya v. United Kingdom, Libya v. US
In accordance with its established jurisprudence, if the Court had jurisdiction on that date, it
continues to do so; the subsequent coming into existence of the above-mentioned resolutions
cannot affect its jurisdiction once established.
o This notwithstanding the Security Council resolutions adopted after the filing of the
application.

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ELSI
5
Case
The Chamber concludes that it is impossible to deduce what the attitude of the Italian courts
would have been if such a claim had been brought. Since it was for Italy to sow the existence of
a local remedy and as Italy has not been able to satisfy the Chamber that there clearly remained
some remedy which Raytheon and Machlett, independently of ELSI, and of ELSIs trustee in
bankruptcy, ought to have pursued and exhausted, the Chamber rejects the objection of non-
exhaustion of local remedies.

South West Africa Cases Ethiopia v. South Africa, Liberia v. South Africa
The Court found that although the League of Nations and PCIJ were dissolved in 1946, the
obligation of South Africa to submit to compulsory jurisdiction had effectively transferred to the
PCIJ.
o Although the League ceased to exist in April 1946, the UN chapter had entered into
force in November 1945, and the 3 parties to the present proceedings had ratified such
charter and become UN members.

Nauru v. Australia
The court found however that Australias declaration expressly provided that this limitation on
jurisdiction only applies to disputes between states, which Nauru was not prior to its
independence.
The court then found that after Naurus independence, Australia did not enter into any
agreement with Nauru to provide for any such limitation on jurisdiction of the Court. Therefore,
Australias objection to the Courts jurisdiction was rejected.

Case Concerning East Timor Portugal v. Australia
The court concluded that the very subject matter of the decision would necessarily be a
determination of whether Indonesia acquired power to conclude treaties on behalf of East
Timor, which determination could not be made without the consent of Indonesia.
Therefore, the court found it could not exercise jurisdiction.

Provisional Measures

Bosnia v. Hersegovina v. Serbia and Montenegro

Lockerbie Case Libya v. United Kingdom, Libya v. US

Dispute

Admissions Case
So far as concerns its competence, the Court referred to its Opinion of May 28th. 1948, in which
it declared that it could give an opinion on any legal question and that there was no provision
which prohibited it from exercising, in regard to Article 4 of the Charter, a multilateral treaty, an
interpretative function falling within the normal exercise of its judicial powers.
With regard to the second objection, the Court further pointed out that it could not attribute a
political character to a Request which, framed in abstract terms, invited it to undertake an

5
Elettronica Sicula S.P.A.

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essentially judicial task, the interpretation of a treaty provision. There was therefore no reason
why it should not answer the question put to it by the Assembly.
Moreover, the organs to which Article 4 entrusted the judgment of the Organization in matters
of admission had consistently recognised that admission could only be granted on the basis of a
recommendation by the Council.
o If the Assembly had power to admit a State in the absence of a recommendation by the
Council, the latter would be deprived of an important role in the exercise of one of the
essential functions of the Organization.
o Nor would it be possible to admit that the absence of a recommendation was equivalent
to an "unfavourable recommendation" upon which the General Assembly could base a
decision to admit a State.

Free Zones Case

Mavrommatis
A dispute is a disagreement on a point of law or fact, a conflict of interest or legal
interpretations between two parties.
The fact that one party claims that there is no issue while the other claims there is, is not
determinative of the existence of an issue.
o The PCIJ will determine if there is a dispute based on the facts of the case and not on
the assertion of the parties.

UN Headquarters Advisory Opinion, Applicability of Obligation to Arbitrate
The existence of a dispute is a matter for objective determination and cannot depend upon
mere assertions of denials of parties.
The US never expressly contradicted the Secretary Generals view, but had taken measures
against the PLO mission and indicated that they were being taken irrespective of any obligation
it might have under the Headquarters Agreement.
The Court found that the opposing attitudes of the UN and US revealed the existence of a
dispute.

Advisory Opinions

Legality of the Use by a State of Nuclear Weapons in Armed Conflict, WHO Request
There are three conditions which must be satisfied in order to found the jurisdiction of the court
when a request for an advisory opinion is submitted to it by a specialized agency
o 1. The agency requesting the opinion must be duly authorized under the Charter to
request opinions from the Court
o 2. The opinion requested must be on a legal question
o 3. This question must be one arising within the scope of the activities of the requesting
agency.
International organizations do not, unlike States, possess a general competence, but are
governed by the principle of specialty, that is to say, they are invested by the States which
create them with powers, the limits of which are a function of the common interests whose
promotion those states entrust them.
Whatever those effects might be, the competence of the WHO to deal with them is not
dependent on the legality of the acts that caused them.

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Dissent, Weeramantry the question asked by WHO was entirely within its legitimate and
constitutional sphere of interest.

Monetary Gold Case
The Court found first, unanimously, that in the absence of the consent of Albania, it was not
authorized to adjudicate upon Italy's claim against Albania
To go into the merits of such questions would be to decide a dispute between Italy and Albania-
which the Court could not do without the consent of Albania. If the Court did so, it would run
counter to a well-established principle of international law embodied in the Court's Statute,
namely, that the Court can only exercise jurisdiction over a State with its consent.
Albania's legal interests would not only be affected by a decision; they would constitute the very
subject-matter of the decision. Therefore, the Statute (provision on right to intervene which
Albania could use) could not be regarded, even by implication, as authorizing that proceedings
could be continued in the absence of Albania.

Certain Expenses of the UN

Western Sahara
The court is competent to entertain the request for advisory opinion
o Art. 65, par. 1 of the Statute, the Court may give an advisory opinion on any legal
question at the request of any duly authorized body.
o GA is suitably authorized Art. 96, par. 1, of the Charter and that the two questions
submitted are framed in terms of law and raise problems of international law
o They are in principle questions of a legal character, even if they also embody questions
of fact, and even if they do not call upon the court to pronounce on existing rights and
obligations
The court considers that GA, while noting that a legal controversy had arisen, did not have the
object of bringing before the court a dispute or legal controversy with a view to its subsequent
peaceful settlement, but sought an advisory opinion which would be of assistance in the
exercise of its functions concerning the decolonization of the territory. Hence, the legal position
of Spain could not be compromised by the Courts answers to the question submitted.

Botswana v. Namibia
By joint letter both parties, submitted to ICJ jurisdiction to resolve the controversy.
Botswana and Namibia are not parties to the Vienna convention on the Law of Treaties, but they
considered that Article 31 is applicable inasmuch as it reflects customary international law.

Status of Eastern Carelia Finland v. Russia
The question concerned directly a controversy between two states, one of which, not a member
of the League, and had taken no part in the proceedings.
o Hence to answer the question would have been tantamount to deciding the dispute
without the consent of one of the States involved.
Consent to jurisdiction is an essential guiding principle.

Advisory Opinion on the Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territories

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The lack of consent to the ICJs contentious jurisdiction by interested states have no bearing on
the Courts jurisdiction to give an advisory opinion.
o ICJ does not consider that to give an opinion would have the effect of circumventing the
principle of consent to judicial settlement, and it accordingly cannot, in the exercise of
its discretion, decline to give an opinion on that ground.
The lack of clarity in the drafting of a question does not deprive ICJ of jurisdiction.
o Rather it will require clarification in interpretation and such necessary clarifications have
frequently been given by the ICJ.
It cannot accept the view that it has no jurisdiction because of the political character of the
question posed.
ICJ opinions have the purpose of furnishing to the requesting organs the elements of law
necessary for them in their action such that it may furnish an opinion even if the GA has already
declared the construction of the wall to be illegal.

C. The Individual

2. International Criminal Law

Advisory Opinion on the Legality of Nuclear Weapons, WHO Request

Yugoslavia War Crimes Tribunal Decision on Tadic

Yamashita v. Styer

Dizon v. Commanding General

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