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SIMPLIFIED MCRAE MATERIALS PUBLIC INTERNATIONAL LAW - Sources of International Law / Treaties - SOURCES OF INTERNATIONAL LAW International Conventions International Custom General Principles of Law Judicial Decisions and teachings of the most highly qualified publicists (subsidiary) TREATIES VIENNA CONVENTION ON THE LAW OF TREATIES (SALIENT PROVISION)

A treaty means an international agreement concluded between states in written form and governed by International Law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.

Elements:

1. It is an international agreement 2. Between States 3. In writing 4. Governed by International Law

VCLT COMMENTARY (ILC YEAROOK 1966) agreement bet. states / others not precluded / oral form

The term treaty is a generic term covering all forms of international agreements between states regardless of the designation. The term treaty as opposed to the term agreement has been favored. It has become accepted by a majority of the jurists. Other designations are only a matter or nomenclature. But the fact that it is so defined as being an agreement between states is not intended to deny other subjects of international law such as international organizations or insurgent communities from concluding treaties. There was no mention of intention in the definition so as to preclude states from choosing between municipal and international law insofar as they would apply to the provisions of the treaty. The use of the term in writing is also in no way intended to deny legal force to oral arguments under IL; but insofar as the provisions of the VCLT are concerned, their application shall be limited to written agreements.

VIENNA CONVENTION ON THE LAW OF TREATIES (SALIENT PROVISION)

Every state possesses capacity to conclude treaties. But the treaty-making capacity is usually vested exclusively in the Federal Government, although there is no prohibition against conferring the capacity to make treaties to component state. Whether the component state may conclude treaties in its own right or as a mere organ of the federal state is determined by the Federal Constitution.

MAKING OF TREATIES VIENNA CONVENTION ON THE LAW OF TREATIES (SALIENT PROVISION)

Article 7 Full powers 1. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the

purpose of expressing the consent of the State to be bound by a treaty if: (a) he produces appropriate full powers; or

(b) it appears from the practice of the States concerned or from other circumstances that their intention was to

consider that person as representing the State for such purposes and to dispense with full powers.

2. In virtue of their functions and without having to produce full powers, the following are considered as representing their State: (a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating

to the conclusion of a treaty; (b) heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the

State to which they are accredited;

(c) Representatives accredited by States to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ.

COMMENTARY full powers / safeguard / state discretion to dispense with it A person is only considered as representing his

state for purposes of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the state to be

Article 38(1) Statute od the International Court of Justice

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bound only if he produces the appropriate instrument known as full powers or if it appears from the circumstances that the intent of the contracting states was to dispense with them. It is up to the states to decide if they want to dispense w/ the required full powers. But as a rule, the production of the full powers is the fundamental safeguard and proof that a person is indeed authorized to do the particular act in question.

Summary: General Rule: Full powers are required. Exception:

x Heads of State / Heads of Government x Heads of Ministries of Foreign Affairs x Heads of Diplomatic Missions (only for the purpose of adopting the text) x Representatives to International Conferences (only for the purpose of adopting the text)

VIENNA CONVENTION ON THE LAW OF TREATIES (SALIENT PROVISION)

An act relating to the conclusion of a treaty performed by a person who cannot be considered under Article 7 as authorized to represent a State for that purpose is without legal effect unless afterwards confirmed by the State.

x The same rule applies for a person who concluded a treaty but in doing so acted beyond the scope of his powers. A State may by implication, confirm the same if it invokes provisions of the challenged treaty or otherwise acts in such a way as make it appear that the act of the representative is ratified.

DD: By analogy, this is comparable to the rules regarding unenforceable contracts in Contract Law as well as the principle of estoppel.

VIENNA CONVENTION ON THE LAW OF TREATIES (SALIENT PROVISIONS) Article 9

1. The adoption of the text of a treaty takes place by the consent of all the states participating in its drawing up, except as provided in the next paragraph;

2. The adoption of the text of a treaty at an international conference takes place by vote of 2/3 of the states present and voting, unless by the same majority they shall decide to adopt a different rule

Article 11 Means of expressing consent to be bound by a treaty

The consent of a State to be bound by a treaty may be expressed by (1) signature, (2) exchange of instruments constituting a treaty, (3) ratification, (4) acceptance, approval or accession, or (5) by any other means if so agreed.

Article 12 Consent to be bound by a treaty expressed by signature

1. The consent of a State to be bound by a treaty is expressed by the signature of its representative when:

(a) the treaty provides that signature shall have that effect; (b) it is otherwise established that the negotiating States were agreed that signature should have that effect; or (c) the intention of the State to give that effect to the signature appears from the full powers of its representative or

was expressed during the negotiation.

2. For the purposes of paragraph 1:

(a) the initialing of a text constitutes a signature of the treaty when it is established that thenegotiating States so agreed; (b) the signature ad referendum of a treaty by a representative, if confirmed by his State,constitutes a full signature of

the treaty.

Article 13 Consent to be bound by a treaty expressed by an exchange of instruments constituting a treaty

The consent of States to be bound by a treaty constituted by instruments exchanged between them is expressed by that exchange when:

(a) the instruments provide that their exchange shall have that effect; or

(b) it is otherwise established that those States were agreed that the exchange of instruments should have that effect. Article 14 Consent to be bound by a treaty expressed by ratification, acceptance or approval

1. The consent of a State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such consent to be expressed by means of ratification;

(b) it is otherwise established that the negotiating States were agreed that ratification should be required;

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(c) the representative of the State has signed the treaty subject to ratification; or

(d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative or

was expressed during the negotiation.

2. The consent of a State to be bound by a treaty is expressed by acceptance or approval under conditions similar to those which apply to ratification.

COMMENTARY ratification as a general rule nowadays / acceptance, accession, approval The general rule nowadays considering the practice of states is that ratification is necessary to render the treaty binding. There have also been some less formal types of international agreements such as exchange of notes w/c are usually intended to be binding by signature alone, but the practice of states was still to subject the same to ratification. The term acceptance can have 2 meanings. If the treaty states that it is signed subject to acceptance it generally means subject to ratification. It is generally known as a simplified form of ratification. But if the treaty is made open to acceptance w/o prior signature, it generally connotes accession. The same rules apply to approval. Article 15 Consent to be bound by a treaty expressed by accession

The consent of a State to be bound by a treaty is expressed by accession when:

(a) the treaty provides that such consent may be expressed by that State my means of accession

(b) it is otherwise established that the negotiating states were agreed that such consent may be expressed by that state by means of accession

(c) all parties have subsequently agreed that such consent may be expressed by that State by means of accession

x Accession is the traditional method by w/c a state, in certain circumstances becomes party to a treaty to w/c it is not

signatory. There have been divergent opinions as to its possibility at all; but in modern practice, the right to accede is made independent of accession such as by making the entry into force of the treaty conditional upon the deposit of instruments of accession.

Article 16 Exchange or deposit of instruments of ratification, acceptance, approval, or accession

Unless the treaty provides otherwise, instruments of ratification, acceptance, approval, or accession establish the consent of the State to be bound by a treaty upon: (a) their exchange between contracting states

(b) their deposit w/ the depositary

(c) their notification to the contracting states or to the depositary if so agreed

DD: Insofar as deposit of instrument is concerned, the consent of the state is manifested from the mere act of depositing the same; that is the legal nexus not the notification of the said deposit.

Article 18 Obligation not to defeat the object and purpose of a treaty prior to its entry into force

A state is obliged to refrain from acts w/c would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance, or approval,

until it shall have made its intention clear not tobecome party thereto

(b) it has expressed its consent to be bound by the treaty, pending entry into force, and provided that such entry into force is not unduly delayed

PERTINENT CONSTITUTIONAL PROVISIONS

Article VII, Section 20. The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetary Board, and subject to such limitations as may be provided by law. The Monetary Board shall, within thirty days from the end of every quarter of the calendar year, submit to the Congress a complete report of its decision on applications for loans to be contracted or guaranteed by the Government or government-owned and controlled corporations which would have the effect of increasing the foreign debt, and containing other matters as may be provided by law. Article VII, Section 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.

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Article VIII, Section 4 (2). All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en banc xxx shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon. Article XVIII, Section 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning military bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.

RESERVATIONS Article 19 Formulation of reservations A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless: (a) the reservation is prohibited by the treaty;

(b) the treaty provides that only specified reservations, which do not include the reservation in question,may be made; or

(c) in cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with the objectand purpose of the

treaty.

Article 20 Acceptance of and objection to reservations 1. A reservation expressly authorized by a treaty does not require any subsequent acceptance by the other contracting States

unless the treaty so provides.

2. When it appears from the limited number of the negotiating States and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties.

3. When a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation

requires the acceptance of the competent organ of that organization.

4. In cases not falling under the preceding paragraphs and unless the treaty otherwise provides:

(a) acceptance by another contracting State of a reservation constitutes the reserving State a party to the treaty in relation to that other State if or when the treaty is in force for those States;

(b) an objection by another contracting State to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving States unless a contrary intention isdefinitely expressed by the objecting State;

(c) an act expressing a State's consent to be bound by the treaty and containing a reservation is effective as soon as at least

one other contracting State has accepted the reservation.

(a) For the purposes of paragraphs 2 and 4 and unless the treaty otherwise provides, a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later.

Article 21 Legal effects of reservations and of objections to reservations

1. A reservation established with regard to another party in accordance with articles 19, 20 and 23: (a) modifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation

relates to the extent of the reservation; and

(b) modifies those provisions to the same extent for that other party in its relations with the reserving State.

2. The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se.

3. When a State objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving State, the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation.

Article 22 Withdrawal of reservations and of objections to reservations

1. Unless the treaty otherwise provides, a reservation may be withdrawn at any time and the consent of a State which as accepted the reservation is not required for its withdrawal.

2. Unless the treaty otherwise provides, an objection to a reservation may be withdrawn at any time

3. Unless the treaty otherwise provides, or it is otherwise agreed:

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(a) the withdrawal of a reservation becomes operative in relation to another contracting State only when notice of it has been

received by that State;

(b) the withdrawal of an objection to a reservation becomes operative only when notice of it has been received by the State which formulated the reservation.

Article 23 Procedure regarding reservations

(a) A reservation, an express acceptance of a reservation and an objection to a reservation must be formulated in writing and communicated to the contracting States and other States entitled to become parties to the treaty.

(b) If formulated when signing the treaty subject to ratification, acceptance or approval, a reservation must be formally confirmed by the reserving State when expressing its consent to be bound by the treaty. In such a case the reservation shall be considered as having been made on the date of its confirmation.

(c) An express acceptance of, or an objection to, a reservation made previously to confirmation of the reservation does not itself

require confirmation. The withdrawal of a reservation or of an objection to a reservation must be formulated in writing. RESERVATIONS TO THE GENOCIDE CONVENTION The Genocide Convention of 1948 does not contain a reservation clause.

The UN General Assembly now asks the ICJ for an advisory opinion regarding the implications of reservations made thereto. The following conclusions were arrived at:

x In the absence of a provision on reservation, it does not automatically follow that reservations are absolutely

disallowed. In order to determine the effects of such reservations, or if they are at all allowed, due regard for the character and purposes of the multilateral convention must be had. In this case, upon examination of the preparatory stages o f the Convention, it can be gleaned that only limited reservations can be allowed given the intendment of the convention to outlaw genocide as an international crime, as well as to admit as many member states w/o defeating the purpose of such. The Genocide Convention was obviously intended to be universal in scope.

x Absolute or general reservations, in this case cannot be made; it is inconsistent w/ the universal purpose of the convention. But neither is it true that reservations must bear the assent of all contracting states. Such a rule would be impracticable and inconsistent w/ the universal intent of the convention.

x In this case, a state-party making a reservation w/c was opposed to can still be deemed a party if the reservation is not wholly inconsistent w/ the policy and purpose of the Genocide Convention. If, to the opinion of the objecting state, the reservation is wholly inconsistent w/ the said policy, then it may treat the reserving party as not a party to the convention. The treaty does not enter into force as between them. If the reservation was accepted, there is no problem.

x In the absence of ratification, the signatory state cannot yet be considered party to the convention; and if it makes a reservation, it is deemed only provisional in nature. It has not legal effect as yet. Provisional objections thereto can also be made. These merely signify the attitude of the reserving states still subject to ratification. But from the moment of ratification, the effects as stated earlier (first paragraph) come to play.

INTERPRETATION OF TREATIES Article 31 General rule of interpretation

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

a) any agreement relating to the treaty which was made between all the parties in connection withthe conclusion of the

treaty;

b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3. There shall be taken into account, together with the context: a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its

provisions;

b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

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c) any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended. Article 32 Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: a) leaves the meaning ambiguous or obscure; or

b) leads to a result which is manifestly absurd or unreasonable.

INTERPRETATION OF PEACE TREATIES (ICJ ADVISORY OPINION) Under the Peace Treaties, Bulgaria, Hungary, and Romania

undertook to take measures to secure human rights and fundamental freedoms. Under the treaty, disputes are to be resolved by a Commission composed of 1 representative each party, and a third elected by mutual agreement, and should the parties fail to agree, may be appointed by the Secretary General of the UN upon request of either party. Considering that the parties have refused to appoint their representatives, the US and UK are asking that the Sec. Gen. of the UN to make the appointment. This is obviously not contemplated by the agreement. According to the natural and ordinary meaning of the terms thereof, appointment of the national commissioners must precede appointment of the third commissioner, and only in case of disagreement may the matter be submitted for the appointment by the Secretary General upon request. The power of the Sec. Gen. cannot be extended beyond the contemplation of the terms of the treaty.

True that refusal to comply w/ treaty obligations entails international responsibility; nonetheless, such does not suffice to alter the provisions of a treaty. The court can only interpret, not extend or alter the same.

PREEMPTORY NORMS (JUS COGENS) Article 53 Preemptory Norms of International Law

A treaty is void if, at the time of its conclusion, it conflicts with a preemptory norm of general international law. For the purposes of the present Convention, a preemptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. Examples of preemptory norms are unlawful use of force, commission of criminal acts, trading of slaves, piracy, genocide,

human rights violations, equality of states, and self-determination. DD: Observe that Article 53 is couched in general terms and makes no enumeration.

WITHDRAWAL AND TERMINATION Article 54 Termination of or withdrawal from a treaty under its provisions or by consent of the parties The termination of a treaty or the withdrawal of a party may take place:

a) in conformity with the provisions of the treaty; or

b) at any time by consent of all the parties after consultation with the other contracting States Article 56 Denunciation of or withdrawal from a treaty containing no provision regarding termination, denunciation or withdrawal

1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless:

a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or

b) a right of denunciation or withdrawal may be implied by the nature of the treaty.

2. A party shall give not less than twelve months' notice of its intention to denounce or withdraw from a treaty under

paragraph 1.

Article 59 Termination or suspension of the operation of a treaty implied by conclusion of a later treaty

1. A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject-matter and:

a) it appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that treaty; or

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b) the provisions of the later treaty are so far incompatible with those of the earlier one that the two treaties are not capable of

being applied at the same time.

2. 2. The earlier treaty shall be considered as only suspended in operation if it appears from the later treaty or is otherwise established that such was the intention of the parties.

Article 62 Fundamental change of circumstances (Rebus Sic Stantibus)

1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless: a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the

treaty; and b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.

2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty:

a) if the treaty establishes a (territorial) boundary; or

b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any

other international obligation owed to any other party to the treaty.

3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty. x This principle has in fact gained wide acceptance in IL albeit the cases falling under it are relatively few. But the

application of the doctrine of rebus sic stantibus should be confined to w/in narrow limits to regulate strictly the conditions under w/c it may be invoked. The change must be substantial and so radical as to transform the obligations arising from the treaties beyond that contemplated by the parties at the time of its inception.

FISHERIES JURISDICTION CASE rebus sic stantibus / fundamental change Iceland and UK entered into an agreement called the 1961 Exchange of Notes delineating fisheries jurisdiction around their maritime areas. Now Iceland denounces the agreement, deems it terminated, and asserts exclusive jurisdiction over the 12 mile fishing area from its coast. It stresses its fundamental and exceptional dependence upon fishing as a source of livelihood, and alleges that considering the advancement of technology and fishing capacities, its vital interests and existence is threatened, therefore necessitating the application of the principle of rebus sic stantibus. It also refuses to confer jurisdiction upon the ICJ despite the compromissory clause in the agreement. The contention of Iceland is untenable. The Court is not satisfied that the circumstances have so changed as to radically transform the obligations arising from the Exchange of Notes. The change must be a fundamental one. The burdens arising from the agreement must have increased to such an extent that they are now essentially different from that agreed upon. That burden of proof was not quite discharged. DANUBE DAM CASE (DOCTRINES) change was caused by the party invoking rebus sic stantibus Impossibility of performance cannot be invoked if the cause for the impossibility is the breach or fault of the party invoking it. The change must also be unforeseen. Mere state of necessity cannot be invoked for terminating a treaty, but may only serve to exonerate a party from liability. Violations of other treaty rules may serve as ground for taking certain measures and counter measures, but does not by itself suffice to cause the termination of a treaty. CERTAIN RULES IN CASE OF CONFLICT BETWEEN TREATY PROVISIONS AND DOMESTIC LAW

It generally depends on which court is deciding:

1. International Court it will generally uphold treaty obligations

2. Domestic Court it will generally uphold domestic laws

DD: This rule admits of exceptions. x Treaty vs. Constitution when the violation of the Constitution is manifest and concerns a rule of internal law of

fundamental importance, a state may deviate from the treaty obligation. However, following the dualist theory, this is a matter purely of internal law and the state may face international sanctions. DD: Take note that under Article 27 of the Vienna Convention on the Law of Treaties, a state may not invoke the provisions of internal law as justification for failure to perform obligations arising from a treaty.

x Treaty vs. Domestic Law

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o when the 2 instruments relate to the same subject matter, every attempt must be made to reconcile and harmonize both

o if they are wholly inconsistent, that of a later date will prevail provided that the treaty provisions are self-executing o these rules are applicable only in the domestic sphere; in IL, the treaty is binding regardless of the date

SEI FUJII v. CALIFORNIA (DOCTRINE) self-executing vs. non-self-executing treaties The US Constitution distinguished form a treaty that is self-executing from one that is not self-executing. The UN Charter Preamble required enabling legislation to affect private persons, and the rights of private persons were not prescribed in detain the said Un Charter w/ respect to the land law.

- International Customary Law - DEFINITION

It is evidenced by a general practice accepted as law. There must be consistency among states in its practice, and they must consider compliance therewith as impressed w/ legal obligation. Elements:

1. Duration 2. Uniformity (substantial uniformity), consistency of practice 3. Generality (but absolute generality is not needed) 4. Opinio Juris there must be a genuine belief that a certain form of behavior is legally obligatory

as distinguished from a mere act of courtesy, fairness, or morality

THE PAQUETE HABANA vessels / not prizes of war / comity grows into rule of IL Upon examination of state practice in various jurisdictions and cases since time immemorial, and up to the present, it can be concluded that it has become part of International Customary Law that fishing vessels and cargo are exempt from being treated as prizes of war. There have been opinions to the effect that the act of states in refraining form capturing vessels is merely out of comity, and not a sense of legal obligation; however, after the lapse of a period of more than a hundred years of mutual and general state practice, such comity or courtesy grew, by general assent of the civilized nations, into a settled rule of IL.

THE ASYLUM CASE Colombia vs. Peru Haya dela Torre committed the crime of military rebellion in Peru. He sought asylum in

the Colombian Embassy therein. Colombia unilaterally qualified Haya as a political refugee and invokes the Havana & Montevideo Conventions on Political Asylum claiming that they have become part of International Customary Law al least among the Latin-American states. They submitted the matter to the ICJ. Colombias contention is untenable. The party that relies upon such customs must prove its existence by constant and uniform usage among states. Such conventions have not even been ratified by Peru. On the contrary, it even repudiated it. Apart from the signatory states thereto, no other states practice the granting of asylum to such an extent that it becomes accepted as law through uniform usage. That being the case, Colombia cannot unilaterally qualify Haya as a political refugee.

NORTH SEA CONTINENTAL SHELF CASE Denmark & Netherlands vs. Germany Denmark, Germany, & the Netherlands made

line agreements delimiting the North Sea Continental Shelves. However, no further agreement could be reached as Germany contends that the doctrine of just and equitable share must apply, while Denmark and the Netherlands argue that the equidistant principle under the Geneva Convention should be applied arguing that it is already a norm-creating rule. None of the contentions were sustained. The fact that there are still many controversies as to the exact meaning of the equidistance principle negates that it has acquired the status of custom. Second, under the Convention, the application of the equidistance principle is only secondary, the primary rule being agreement as between the states.

Third, the Convention was open to reservation which supports the idea that the said principle has not yet acquired the status of custom; the Convention has also not been able to secure sufficient ratifications. There was no showing of a general recognition of the principle as a rule of law binding upon states, even though a few states have decided to adopt the measure. There must be a sense of legal obligation among the non-party states to comply w/ the rule in order for it to be elevated to the status of international customary law. Justice Sorensen Dissent The conduct of states is the most potent source of IL. Treaties may be binding upon non-contracting parties once accepted as part of customary international law. Geneva Convention results from the UN as part of codification of development of IL. It was ratified by many states, representative of various regions. Controversies have arisen as to interpretation but not as to whether its provisions embody generally applicable rules of IL. It is also impossible for a government to have conclusive evidence of the intent of other parties (to treat it as legally binding or not). The faculty of making reservations has also no connection to the issue of whether its provisions can acquire the status of custom.

FISHERIES JURISDICTION CASE UK vs. Iceland The 1961 Exchange of Notes between UK and Iceland delimited certain fishery limits or zones, and at the same time preferential rights w/ respect to certain zones. However give the advancement of modes of fishing, Iceland, invoking its exceptional dependence on the fishing industry, repudiated the Exchange of Notes and unilaterally imposed a 50 nautical mile exclusive zone excluding the UK vessels. There are 2 principles that have acquired the status of custom in this case: (1) the concept of fishery zones, where the state may claim exclusivity, and (2) preferential rights of fishing in adjacent waters. UK in fact recognizes Icelands preferential rights over the subject domains. However, the concept of preferential rights is incompatible w/ the exclusion of fishing activities of other states.

Just because a state is granted preferential rights over certain domains, it doesnt mean that it can unilaterally exclude other states therefrom. This infringes upon the principle under the Geneva Convention on the High Seas that the exercise of

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the freedom of fishing shall be with reasonable regard to the interests of other states. Icelands act is therefore illegal, and both states are enjoined to negotiate the matter w/ due regard to the interests of both.

NUCLEAR TESTS CASE Australia & New Zealand vs. France The President of France delivered unilateral statements to its embassies in New Zealand and Australia, as well as to the UN to the effect that its atmospheric nuclear tests are completed (the last of its kind) and to be abandoned for underground testing. But later on, this statement was repudiated and the President of France stated that the test would continue. Australia and New Zealand object. Unilateral statements or declarations can have the effect of creating legal obligations. The state must conduct itself consistent w/ its declarations. No prescribed form (oral or in writing) is needed. What is important is that there is a clear intention. There must also be observance of good faith. The international community is entitled to rely upon the credibility of such statements and to act on the basis thereof. Acceptance of other states is not necessary. The same is true in this case. The statements made constitute an undertaking or engagement of the state and must be respected.

Dissent of Judge Barwick They were mere statements of policy and intention, not intending to undertake before the international community such far-reaching implications.

GENERAL ASSEMBLY RESOLUTIONS

Resolutions and declarations of international organs can be recognized as a factor in the custom generating process and may serve as evidence of a general practice.

THE SOUTHWEST AFRICA CASE Justice Tanaka Dissent While it is true that in order to form international customary law, uniform and repeated practice is needed, the same is true w/ statements, resolutions, and declarations, w/c if likewise made uniformly as to manifest the collective will of the international community, could evidence the formation of international custom. In this case, IL is replete w/ collective statements outlawing discrimination from the UN Charter, the Universal Declaration of Human Rights, Declaration on Elimination of All Forms of Discrimination, and many more. Thus, the norm of non-discrimination on the basis of race has become a rule under international customary law. As a member of the UN, the respondent state must comply therewith.

DECISIONS OF INTERNATIONAL ORGANIZATIONS ADVISORY OPINION ON NAMIBIA Up to what extent are the resolutions of the UN Security Council binding? After presenting a

hodge-podge, mishmash, plethora, (or whatever you want to call it) of legal opinions on the matter which elude my much-too-human understanding, the Court (thank goodness) finally came up with an opinion. This is as much as I can understand.

x Art. 24 confers upon the Security Council (SC) the primary responsibility of maintaining international peace and security.

That is the general rule.

x Art. 25, on the other hand, states that the members of the UN must accept and carry out the decisions of the SC in accordance with the Charter. This means that their decisions are binding.

x Chapter VI allows participation of the SC regarding settlement of disputes, allowing it investigatory and recommendatory powers, among other functions

x Chapter VII empowers the SC to determine the existence of threats to the peace, make recommendations, implement provisional and other necessary measures to ensure, peace, and so on

x Chapter VIII pertains to regional arrangements for the maintenance of international peace, and allows members who undertake such arrangements to bring the matter before the SC. The SC in also empowered to utilize such arrangements as would be necessary to ensure peaceful settlements

The discussions are diverse but the ruling is simple. The binding force of the resolutions of the SC are not confined to those pertaining to Chapter VII where threats to the peace are already involved. The resolutions are binding pursuant to Art. 24 and they are binding upon the membership of the UN as a whole. Basis: if only Chapter VII decisions were meant to be binding, then Art. 25 would have been placed in the said chapter. But instead, it appears right after Art. 24, the general rule. Thus the binding force of the SCs resolutions is general in nature.

x As a rule, the resolutions of the UN General Assembly are merely recommendatory, except the following w/c are deemed binding among the members thereof:

o admission of new members o budget approval o apportionment of expenses

THE RULE ON PERSISTENT OBJECTOR A state that has persistently objected to a rule of customary international law during the course of its emergence is not bound by it. This doctrine is of limited application today. In case of new states, or those w/c have been admitted to the community of nations, they are deemed bound by international customary law as a necessary consequence of statehood. They are not, however, bound by pre-existing treaties.

Art. 24 - maintaining peaceArt. 25 - bindingChapter 6- investigatory and recommendatoryChapter 7 - determine existence of threatsChapter 8 - maintenance of international peace

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- General Principles of Law

INTERNATIONAL STATUS OF SW AFRICA trusteeship The ICJ was asked for an advisory opinion on the status of SW Africa

under the International Trusteeship System and what are the obligations of South Africa as the Mandatory. The answer is found in the general principles of law as borrowed from traditional municipal law under the principle of trust. Almost all legal systems possess a system of trust, where for example some minor or lunatics property (or even person) may be entrusted to a responsible person or trustee. By analogy, it applies to trusteeship under international law. That being the case, South Africa, as trustee state, exercises but limited control based on confidence and conscience and cannot carry out the trust or mission for its own benefit. Any attempt to absorb the property entrusted to them shall be illegal. Finding and applying the general principles of law is all about locating those rules and institutions of private law as indications of policy such as the principle of trust, among many others.

DIVERSION OF WATERS FROM THE RIVER MEUSE equity The principles of equity have long been applied by international

tribunals. Although the ICJ is not expressly authorized by its Statute to apply equity, it is allowed to apply general principles of law recognized by civilized nations w/c includes equity. The power however to apply the principles of equity in no way restricts the power of the ICJ to decide cases ex aquo et bono should the parties so agree that the controversy is to be decided base on the said principle. The courts should not shirk from applying such a principle of obvious fairness.

DISTINCTION BETWEEN EQUITY AND EX AEQUO ET BONO

1. Equity when the law cannot cover every possible situation for the purpose of deciding a controversy, the case may be decided based on equitable principles

2. Ex Aequo Et Bono it pertains to the power of the ICJ to decide a case equitably outside the rules of law, at the instance of the parties to the case

Other General Principles of Law: principles of liability, responsibility, reparation, unjust enrichment, property, eminent domain, indemnity, denial of justice, right of passage, prescription, error, presumptions, administrative law, procedure, humanity, good faith, pacta sunt servanda, estoppel, and human rights

APPLICATION IF INTERNATIONAL LAW BY DOMESTIC COURTS FILARTIGA v. PENA-IRALA torture Dolly Filatrigas brother was tortured to death by Pena in Paraguay due to her fathers

political activism. She was even shown the corpse. Pena was prosecuted therein but to no avail. Dolly thereafter went to the US and applied for political asylum. She found out that Pena has arrived at the US and has overstayed thus she commenced an action before the NY Court against Pena based on the Alien Tort Statute, as well as the various International Agreements and Conventions on Human Rights, such as the Universal Declaration. The trial judge dismissed the case for lack of jurisdiction. A states treatment of its citizens is now a matter of international concern. Torture has become internationally outlawed, and the abhorrence thereto has come to acquire the status of international customary law. It is said that the Universal Declaration of Human Rights no longer fits into the category of treaty but has been elevated to the status of customary law. No government has ever asserted a right to torture its people (or aliens). The law of nations is clear and unambiguous in condemning torture. A state has an interest in the orderly resolution of disputes among people w/in its borders even if the act complained of took place outside. So long as personal jurisdiction can be acquired, the courts may adjudicate such transitory tort claims. In principle, it is an expression of comity by giving effect to the laws of the state where the act was committed. The law of nations forms an integral part of common law, and such is recognized by the (US) Constitution. The contention that the law of nations forms part of state law only to the extent that Congress has enacted them is untenable. Neither can Pena hide behind the act of state doctrine. The Alien Tort Statute merely opens the door for the adjudication by aliens of rights already recognized under the law of nations. For purposes of civil liability, the torturer has become like the pirate or slave trader hostis humani generis an enemy of all mankind.

MORTENSEN v. PETERS within cannon shot The Appellant is master of a foreign vessel w/c proceeded to employ otter trawl fishing methods at a point within the Moray Firth (a long narrow inlet of sea) but outside 3 miles of the British Coast. He was prosecuted under the Herring Fishery Act (local law) prohibiting such methods. He alleges that the said area is beyond the territorial sovereignty of Britain. The area is intra fauces terrae although outside of the 3 mile territorial limit. Several notable commentators as well as past decisions recognized the principle, where such bays and creeks capable of bounds or within the view of such shores fall under the territory of the state. The sovereign is the proprietor of the narrow seas within cannon shot of the land, and the firths, gulfs, and bay around the Kingdom. It is, for every purpose, within territorial sovereignty.

The law was also intended to be of general application even to foreigners. Otherwise, the purpose will be defeated. The North Sea Convention establishing fishing limits is inapplicable; the issue pertains to the methods of fishing.

IN RE: OTTAWA & ROCKCLIFFE PARK tax & jurisdiction exemption The municipal corporations of Ottawa and Rockcliffe Park sought to levy taxes upon properties owned by the legations of the US, Brazil, and France, as well as the offices and residences occupied by the King and High Commissioner of the UK and Australia. Taxable? Of course not! The Crown Properties are expressly exempt under the Assessments Act. Even so, international law is incorporated into municipal law and that includes the principle that foreign ministers (and most especially the King!) are not subject to the laws of the state where they have been sent. There is an implied consent that he possesses all the privileges which his principal (the State or the

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Sovereign) possesses. This is essential to the dignity of his sovereign and the duties he is to perform. Thus, he is exempt fro the jurisdiction of the courts; and from this it only follows that he is exempt from tax. Since he cannot be sued, it becomes a legal impossibility for the municipal corporation to exact the taxes from him.

TRENDTEX TRADING v. CENTRAL BANK OF NIGERIA incorporation vs. transformation The doctrine of incorporation

states that the rules of IL and incorporated into English (municipal) law automatically, unless they are in direct conflict w/ an act of the legislature. As the rules of IL change, so does the local law adopt. The doctrine of transformation on the other hand, states that the rules of IL are not to be considered part of English (municipal) law unless adopted by our laws through the legislature or judicial decisions, or through long established custom. It must receive the assent of the nation sought to be bound by it, otherwise, this would usurp the powers of legislature.

Insofar as England is concerned, the incorporation doctrine applies. The courts have applied IL as it changes w/o waiting for aid from any Act of Parliament. Examples are the international laws on slavery. The same is the trend in many other countries. IL knows no stare decisis. If the court is not satisfied that a ruling 30 years ago based on IL still prevails, it will overturn it in accordance w/ the new rules as they evolve.

COMMENT ON THE INCORPORATION CLAUSE

When the Constitution, under Article 2 Section 2, provides that the state adopts the generally accepted principles of international law as part of the law of the land, it does not refer to treaties, but rather to international customary law and other general principles of law. DD: According to the Llamzon Article, the principle of pacta sunt servanda is deemed adopted by virtue of the incorporation clause thus treaty obligations are binding. But as pointed out, it is pacta sunt servanda as a general international custom that is automatically incorporated, not the provisions of a treaty directly, albeit the fact that the effect is the same.

THEORIES ON THE RELATION BETWEEN INTERNATIONAL AND MUNICIPAL LAW 1. Monism IL and municipal law belong to only 1 system w/ IL as superior to domestic law; the basic norm of the national legal

system is located in the norms of IL

2. Inverted Monism municipal law is superior to IL, and denies the term law to international law

3. Dualism IL is distinct from domestic law; a sovereign act under municipal law may result to a state exceeding its competence in international law, nonetheless, the act is not void under municipal law

4. Harmonization the 2 legal systems must be harmonized and given effect

- Personality in International Law

ELEMENTS OF A STATE UNDER 1933 MONTEVIDEO CONVENTION x Permanent population sufficient in numbers to maintain and perpetuate itself x Defined territory x Government expressive of the sovereign will and exercising supremacy within its domain x Assertion of the right to enter into diplomatic relations x It must have attained a certain degree of civilization to enable it to observe the principles of law w/ respect to the outside world

CASE ON THE RIGHTS OF US NATIONAL IN MOROCCO recognized as state / no privileged positions Morocco, even despite its status under the Protectorate, has retained its international personality as a state under IL. Thus, it is entitled to economic liberty and equality under the Act of Algeciras conferred upon states. Conferment of privileged economic positions to France or the US in Morocco would be inconsistent w/ this guaranteed equality.

ADMISSION TO THE LEAGUE OF LIECHTENSTEIN a state nonetheless Liechtenstein was denied admission to the League of Nations because of several factors such as the lack of an army, and the fact that it has to contract w/ various states so that it could provide such services as Customs, communications, and even diplomatic representation. Thus, it cannot discharge the duties imposed upon member states because of its geography and many other factors; but nonetheless, this does not detract from its status as a state in IL as recognized by many other states. RECOGNITION ON RECOGNITION OF STATES / GOVERNMENTS

The recognition of States does not necessarily presuppose the recognition of governments. The practice varies depending on the policy of the state extending recognition. This is, in fact largely discretionary upon the sovereign states extending such recognition. Nonetheless, in IL, there are certain guiding standards for granting recognition, such as Conditions for recognition as a de facto government:

x The new regime has effective control over most of the states territory x That this control seems likely to continue

Conditions for recognition as a de jure government:

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x It has effective control over most of the states territory x This control must be firmly established

It is largely a question of fact depending upon the judgment of the state extending recognition whether the above mentioned qualifications exist. That is why recognition can be said to be subjective. In fact, the power to recognize a de facto government pertains to the state extending it; this right was not yielded to the UN upon signing the UN Charter. It cannot be imposed upon a state (Statement of US Representative to the UN regarding recognition of Israel). When the United States recognizes a government and exchanges diplomatic representatives with it, it in no way implies that the US approves of the said states form, ideology, or policy (US Senate Resolution dated Sept. 25, 1969). The same applies to Canada and other states. Canadian Practice in Recognizing States certain factors must be considered:

x Effective Control with reasonable prospect for permanency w/in its area x Political Considerations this is a policy decision x Timing of Recognition the new government must attain a likelihood of permanence x External Control to recognize a government is to tacitly recognize its freedom from external control

British Practice in Recognition

x Britain no longer recognizes governments, only states x Where an unconstitutional governmental change takes place, the British government will only determine the extent of the

dealings w/ the said government w/o necessarily extending recognition

THE TINOCO ARBITRATION de facto government / law of nullities The Costa Rican government was overthrown by Tinoco through extra-constitutional means. His government lasted for 2 years peacefully but was not recognized by many states, until he retired and left the country. Afterwards, the previous constitution and government were reinstated, and the legislature enacted the Law of Nullities nullifying all contracts between the executive and private persons during Tinocos regime. The Tinoco government, during its time, granted a concession to Central Costa Rica Petroleum (British) for the exploitation of oil reserves, as well as secured a loan from Royal Bank (British) through Banco Internacional.

Britain now seeks to enforce the said contracts, arguing that the Tinoco government was the only de facto government of that time in Costa Rica, and that the succeeding government must honor the obligations Tinocos government entered into. Costa Rica alleges that the British government is estopped as it did not recognize the Tinoco government during its tenure, and that the contracts were illegal for being contrary to the constitution. As a rule, internal changes in government or policy have no bearing in IL. Under the rule on continuity of states a state is bound by the agreements entered into by its previous governments that have ceased to exist. It is not true that the Tinoco government cannot attain de facto status simply because it was instituted contrary to the former constitution. Nonetheless, despite all the foregoing, with regard to the claims of the bank, it was shown that the transactions it entered into were full of irregularities. The loans extended were in fact representation of Tinoco w/c were actually to be his expenses for his flight. The new government cannot be held responsible for the money paid to him for such a purpose. It is more properly claimable against Tinocos estate. About the concession, the same was granted by a body (Chamber of Deputies) w/o power to grant such even under the Tinoco governments laws. That being the case, no claim thereto can be made. Therefore, the Law of Nullities will work no injury to Great Britain.

SELF DETERMINATION ELEMENTS OF THE RIGHT TO SELF-DETERMINATION

x The right to freely determine their political status x Right to freely pursue their economic, social, and cultural development

WESTERN SAHARA CASE self-determination Western Sahara was colonized by Spain in 1884. The UN Gen. Assembly

declared that the decolonization of Western Sahara should occur, to w/c Spain acceded. But this time. Morocco and Mauritius laid similar claims upon its territory based on historic right. The court explained the notion of self-determination (but the ruling was not categorically provided). The very purpose of the UN is to develop friendly relations among nations based on equality and self-determination w/c is basically the right of the people to freely determine their political status and pursue their economic and cultural development. But this requires the free and genuine expression of the will of the people through the democratic process of modern adult suffrage. There may be certain exceptions where consulting the inhabitants is dispensed with, such as if their population cannot yet be considered as people as to entitle them to self-determination, or perhaps in other special circumstances.

Separate Opinion of Judge Dillard The many pronouncements of the General Assembly and this court have in fact created a new norm of IL

Question of Fact if de facto or de jure

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the decolonization of those non-self-governing territories under the aegis of the UN. The existence of such legal ties as herein claimed (historic right in this case), only have a tangential effect to the ultimate choices available to the people. The very purpose of the sacred trust is self-determination to lead to the eventual independence of the peoples concerned, which may be either through the emergence of a sovereign state or its integration or association with an independent state.

NON-STATE ENTITIES AUSTRALIA v. NEW SOUTH WALES not a foreign state The Commonwealth of Australia sues one of its states, New South

Wales, for torts resulting from a collision of vessels. Wales alleges that it is immune from suit, that it is a sovereign state to be placed in the same category as foreign states. This analogy cannot be sustained. An Australian state is necessarily part of the territory of the Commonwealth. It is not a foreign country. The people of New South Wales are the very same people of the Commonwealth. They are but one people w/ a common citizenship. Thus, state immunity, and all the other privileges appurtenant thereto cannot be granted to New South Wales under the pretext that it is a sovereign state. It is an appeal to an impossible standard.

CULTURAL AGREEMENT BETWEE QUEBEC & FRANCE province entering into cultural agreement Canada and France

entered into a Cultural Agreement where they mutually undertook to take measures for the integration and enrichment of their cultures through the exchange of professors, studies, scientists and scientific knowledge, cultivation and dissemination of the French language, support for cultural activities, among others. Within the framework of the Agreement, ententes may be entered into between France and the provinces of Canada in this case Quebec.

It must be noted that Quebec is but a province of the State of Canada. Generally, provinces have no status in international law and are not recognized as states. Perhaps what we can cull from this is that there is nothing to preclude a sovereign state from empowering certain provinces or subdivisions thereof to enter into foreign agreements despite their general lack of international personality.

INTERNATIONAL STATUS OF SW AFRICA mandate system / sacred trust Germany renounced all rights to SW Africa through the Treaty of Versailles. Certain other territories as a consequence of the war have ceased to be under the sovereignty of their previous conquerors, but are still incapable of self-government. By virtue of the Mandates System created under the Covenant of the League of Nations. In this case a tutelage was established for these peoples, this tutelage entrusted to certain advanced nations as Mandatories in behalf of the League. The Union of South Africa became the Mandatory for SW Africa exercising full powers of administration, subject to the supervision of the Council of the League. The creation of this new international institution did not involve any cession of territory or transfer of sovereignty. Its object is to promote the well-being of the inhabitants pursuant to the sacred trust of civilization. The question therefore is that did the Mandate System cease upon the end of the League of Nations?

True that the Mandate System ceased to exist but not the obligation arising from the sacred trust of civilization w/c does not depend upon the existence of the League. The obligations to ensure the utmost well-being and social progress of the inhabitants do not cease simply because the supervisory organ of the League ceased to exist.

RESOLUTION 2145 (TERMINATION OF SOUTH AFRIAS MANDATE OVER SW AFRICA) By virtue of this resolution, the UN General Assemble declared that the Mandate conferred upon Britain as administered by South Africa over SW Africa has been terminated. SW Africa now comes under the direct responsibility of the UN. Nonetheless, SW Africa shall maintain its international status as such until it achieves independence.

LEGAL CONSEQUENCES OF CONTINUED PRESENCE OF SO. AFRICA IN NAMIBIA (SW AFRICA) The GA adopted Resolution

2145 terminating the mandate of SW Africa; the Security Council thereafter adopted Resolution No. 276 declaring the continued presence of South Africa in SW Africa (Namibia) illegal and called upon states to act accordingly. The entry into force of the Charter of the UN created a contractual relationship between the Mandatory States on the one hand and the member states on the other. Therefore, it only follows that when a party disowns or fails to perform the obligations arising therefrom, then such party cannot claim to retain such rights proceeding from the agreement. In this case, South Africa was found to have administered its mandate contrary to the international agreements imposing its obligations as such, as well as against the UN Declaration of Human Rights. It has failed to ensure the moral and material well-being of the inhabitants of Namibia. It has, in fact, disavowed the Mandate. Such violations are a ground for termination.

A Mandate is an international agreement having the character of a treaty or convention. Under the general principles of international law on treaties, material breach is a ground for termination. The Vienna Convention on the Law on Treaties may be applied. Even assuming that the League of Nations (and its successor, the UN) had no power to terminate the Mandate, still the general principles of law must apply in this case, termination due to material breach. This principle is inherent in any agreement despite its silence. The GA, in fact has the right to issue resolutions w/c make determinations or have operative design as in this case. The fact that it is vested w/ recommendatory powers cannot detract from this authority.

CASE OF BELLIGERENT COMMUNITIES & INSURGENT GROUPS Even belligerent groups and insurgents assume certain

obligations under international law w/c among others, includes such obligations as:

x Obligation to distinguish between combatants and non-combatants x Prohibition against attacks against civilians x Prohibition against superfluous injury or inflicting unnecessary suffering x Obligation to refrain from treachery

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x Obligations to respect medical and religious personnel x Prohibition against use of certain forms of weapons

INTERNATIONAL ORGANIZATIONS UNITED NATIONS Purposes of the United Nations:

x Maintain international peace and security x Develop friendly relations among nations x Achieve international cooperation x Be a center for harmonizing the actions of nations in the attainment of these common ends

Governing Principles:

x Sovereign equality x Fulfillment in good faith of the obligations assumed under the Charter x Refrain from use of threat or force x Assistance to the UN in any action taken in accordance w/ the Charter x Ensure that even non-member states act in accordance w/ the Principles as far as may be necessary to ensure

international peace and security x Non-intervention in purely domestic matters, nor shall members states be required to submit matters to settlement w/o

prejudice to enforcement measures under Chapter VII (Security Council)

Principal Organs x General Assembly x Security Council x Economic & Social Council x Trusteeship Council x International Court of Justice x Secretariat

Note: The UN shall enjoy in the territory of its members such legal capacity as may be necessary for the exercise of its functions or the fulfillment of its purposes

REPARATIONS FOR INJURIES SUFFERED IN THE SERVICE OF THE UN international person Can the UN, as an international person, bring a claim against the responsible government for the purpose of obtaining reparations due to damages cause to the UN and to the victim or persons entitled through him? Affirmative! Generally the capacity to bring international claims through the customary methods is reserved to states. However, the UN, due to the nature of its functions and purposes is likewise entitled to bring an action as an international person. The member states, by adopting the Charter, intended to constitute the UN as not only a center for harmonization, but rather as a political body w/ very important political tasks thus clothing the UN w/ international personality. In fact, given the nature of its functions, the only way by w/c the UN can operate in the international plane is for it to possess international personality.

However, it is not correct to say that the UN possesses the same rights as a state. Neither is it correct to say that the UN is a super-state. The powers and duties of such an entity are limited to only those consistent w/ its purposes and functions. That being said, the members states have endowed the UN w/ the capacity to bring international claims whenever necessitated by the discharge of its functions.

EUROPEAN COMMUNITY TREATY European Union / most extensive legal personality Under the said treaty, the European Community (now Union) shall possess the most extensive legal capacity accorded to legal persons under the respective municipal laws of the member states. It may transfer or acquire property, and may sue and be sued in its own name. INDIVIDUALS & CORPORATIONS LAUTERPACHT (INTERNATIONAL BILL OF THE RIGHTS OF MAN) objects of international law Initial efforts were made to

incorporate the rights of man into the very fundamental laws of the states such that the protection of man formed the very reason for the states existence. This principle would suffer set-backs but would re-emerge after the Second World War, where human beings will be viewed as the objects of international law. The purpose of conventions and agreements was to make the world a safe place for man. However, the fundamental claims of human personality to equality, liberty, and freedom against the arbitrary will of the state remained outside the scope of IL.

This is the orthodox view that man was but the passive object of IL. The views have, in fact progressed since then as to view human beings as, to a certain extent, subjects of international law. This could mean that persons can assume certain rights and obligations under IL; this will be reflected in later trends.

EXTRACT FROM THE NUREMBERG TRIAL individual responsibility Can an officer, acting pursuant to the orders of Hitler, be held liable for acts committed by him in violation of international laws? The answer is yes. Individuals can now be held responsible for violations of international law; they can no longer be protected by the doctrine of state sovereignty w/c states that IL is only concerned w/ the actions of states and not individuals, and that those who carry out acts of state are not

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personally responsible. Individuals now have international duties w/c transcend national obligations of obedience. The fact that a person acted merely in obedience to an order of his government will not shield him from liability but it may mitigate punishment. The true test is not the existence of the order but whether the moral choice was in fact possible. Neither can states protect their individuals accused if they exceeded their competence by allowing or ordering the individual to commit the crime.

Recent developments: Ad Hoc International Criminal Tribunals they cover only crimes committed after entry into force; no death penalty can be imposed, neither can there be trial in absentia.

THE STATUTE OF ROME CREATING THE INTERNATIONAL CRIMINAL COURT Here are some salient points on the ICC from the Ebdalin Article.

x Unlike in the ICJ where only states may be parties, the ICC has jurisdiction to try individuals (natural persons) for the most serious crimes of international concern; no death penalty can be imposed

x Such crimes covered by the jurisdiction of the ICC include (1) genocide, or the systematic destruction, through various means, of a particular race or culture, (2) crimes against humanity, such as widespread and systematic attack upon civilian populations w/ full knowledge thereof, (3) war crimes, whenever they are committed as part of a plan or policy for large-scale commission, and (4) aggression. Aggression has not yet been defined, and the jurisdiction of the court over such a crime will only begin when it is finally defined

x It has jurisdiction only after the entry into force of the Statute of Rome. The courts jurisdiction is triggered by the referral

to the Prosecutor of (1) a state party, or (2) the Security Council, or (3) motu propio investigation by the Prosecutor. x The general principles of criminal law are applied such as mens rea, nulla crimen, and prospectivity. In deciding cases,

the sources of law that may be used by the court include (1) the Statute, (2) applicable treaties and rules of international law, and (3) general principles of law whenever applicable

x No reservations to the Statute are permitted x The ICC only exercises complementary jurisdiction meaning it can only step in if the national authorities are unable

or unwilling to act. This principle ensures that the presence of the ICC will not be in derogation of the individual sovereignties of the states

x The ICC will only be born when at least 60 states ratify the Rome Statute; presently only 43 countries have ratified it

although there are some 139 signatories TEXACO OVERSEAS PETROLEUM v. LIBYAN ARAB REPUBLIC internationalized contracts What does internationalization

of a contractual relationship mean? A sovereign state may enter into contractual relations w/ private persons or corporations. Through this, certain private persons may acquire capacities w/in the international sphere. However, their capacities, unlike those of sovereign states, are limited only to those that may be necessary to enable to them to act internationally and to invoke, in the field of IL, such rights that they may derive from the contract. Simply put, internationalization does not elevate a corporation or person to the status of a state it only confers upon him such rights as he may need for him to perform his obligations and enforce his rights in international law.

1950 CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS European Human Rights Commission

After affirming some of the rather commonly known basic rights such as the right to liberty, and the rights of the accused under detention, it established a European Commission on Human Rights, to w/c an individual may appeal after all domestic remedies have been exhausted. The Commission may then refer the matter to the European Court of Human Rights. Any person may address a complaint to the Secretary General of the Council of Europe if he is a victim by one of the High Contracting Parties (presumably states) provided that the latter recognizes the competence of the Commission. The lawfulness of the orders of the Commission may be questioned before the Court at the instance of any member-state, the Council, or any individual or legal person.

DIRECT vs. INDIRECT OBLIGATIONS OF CORPORATIONS (VASQUEZ ARTICLE) Considering that many transnational corporations have amassed great wealth and power, and the fact that some small governments have been unable to curb their potential human rights violations, the idea that corporations should be made directly liable under IL has been advanced by many commentators. Pursuant thereto, the Norms on the Responsibilities of Transnational Corporations & Other Business Enterprises w/ Regard to Human Rights was passed by the Su-Commission on the Promotion of Human Rights but was shelved by the UN Commission on Human Rights due to the vehement protests from the corporate sector. The author seems to disagree w/ the wisdom of the proposition for the following reasons:

x It represents a dramatic departure from the classical model where states are the ones that assume obligations and

responsibilities under international law. This by itself is not sufficient reason not to depart from the classical model, but there are more reasons.

x Imposing direct liability to corporations will cause the disempowering of states, w/c are not expected to respond yieldingly. Under the previous setup, states have wide latitude to determine municipal rules and the conduct of corporations w/in their respective jurisdictions

jurisdiction upon referral to state party / security council or motu proprio investigation by prosecutor

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x To impose liabilities on individuals, on the other hand, would undermine the limited liability feature of corporations w/c has

been an attractive feature to utilize the corporate medium

x Norms not backed by coercive force will be problematic in case of non-state entities. Unlike states that voluntarily relinquish a part of their sovereignty out of the belief that membership in the international community will redound to eventual benefit, corporations are more likely to decide based on their economic interests. Without a coercive force, human rights will be trivialized, rather than promoted.

Perhaps the best way to promote the protection of human rights among the third world countries is for the said developing countries to agree upon certain standards for multi-nationals operating w/in their respective territories. This rule will be more consistent w/ the classical model, by imposing the obligations upon the corporations indirectly. They can also focus on the elimination of corruption and the promotion of democratic governance.

Notes from the Bernas Book Subject of International Law entities endowed w/ rights and obligations and possessing capacity to take certain kinds of actions in

international law. They have international personality. The extent of their powers under IL varies. Object of International Law those who indirectly have rights under or are the beneficiaries of international law through the subjects thereof Theories on Recognition

Declaratory Theory the existence of the state depends upon the presence of the elements, not recognition. By recognizing a state, the recognizing state merely affirms or accepts the current situation. Constitutive Theory recognition constitutes a state and is what confers upon it legal personality Recognition is only terminated by the recognition of another regime. Once a state has been recognized, it cannot be de-recognized so long as it satisfies the requirements or elements of statehood.

- Jurisdiction of States - PRELIMINARIES

Jurisdiction as a concept pertains to the capacity of the state to:

1. Legislate ad prescribe laws or rules 2. Enforce the laws or rules

Jurisdiction, as a power, is exercised over:

1. Persons 2. Property 3. Events

JURISDICTION OVER TERRITORY ISLAND OF PALMAS CASE discovery / mere inchoate right / actual & peaceful display of sovereignty The US and the

Netherlands dispute over title to the Island of Palmas the US alleging that it was ceded to it by Spain by virtue of the Treaty of Paris. The US argues that it was Spain that discovered the Island, and also invokes the principle of contiguity that islands situated outside territorial waters should be considered part of the nearest continent or island of considerable size. These contentions cannot be sustained. Spain can only transfer such rights that it had in the first place. Assuming that Spain discovered the island, discovery only confers an inchoate title w/c must be perfected by effective occupation. It cannot prevail over the peaceful and continuous display of state authority by another state over the said Island. The principle of contiguity, on the other hand, has no basis in IL.

Netherlands, on the other hand, has been in continuous display of authority since the 1700s through progressive evolution and intensification of control; and Spain never contested it. The conditions for the acquisition of sovereignty on the part of the Netherlands are therefore satisfied.

The forms of acquisition of title are:

1. occupation coupled w/ effectiveness 2. conquest (allowed before) 3. cession 4. accretion

Mere title is insufficient; there must be the element of actual display of state functions.

LEGAL STATUS OF EASTERN GREENLAND intention + actual exercise During the 1860s the Danish Government granted various concessions for the purpose of trading in and exploration of Eastern Greenland. Denmark also enacted legislation

OCCA

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regarding fishing limits, establishment of hunting and fishing stations, division into provinces, reservations of commerce to Danish nationals, and entered into commercial conventions where it endeavored to secure the exception of Greenland from the said conventions (a form of recognition) all w/ the end in view of occupying the same under the sovereignty of the King. In 1930, Norway proclaimed that it has proceeded to occupy certain territories of Eastern Greenland and even conferred police powers to some of its nationals alleging that Eastern Greenland was terra nullius and was outside the coverage of the Danish colonies.

A claim to sovereignty not based on some title (such as a treaty) but instead upon continued display of authority is subject to 2 requisites: (1) there must be intention and will to act as sovereign, and (2) there must be actual exercise of such authority. Both requisites are present in favor of Denmark. True that Denmarks concessions may have been unsuccessful, but considering that no other power has disputed its claim, the actions of Denmark are sufficient to establish intention. Legislation is also one of the most obvious forms of exercise of state power. The authority exercised by the Danish King through the various acts stated above was sufficient to give his country a valid claim to sovereignty. Eastern Greenland was therefore under the sovereignty of Denmark, and the occupation by Norway thereof was illegal and invalid.

THE WESTERN SAHARA CASE terra nullius / precondition to occupation Morocco claims that it has legal ties w/ Western Sahara at the time of colonization by it of Spain, and thus must exercise sovereignty thereupon. It alleges that at the time of its occupation by Morocco, Western Sahara was terra nullius. This contention is untenable. As a rule, a cardinal condition of a valid occupation is that the territory is terra nullius. Territories inhabited by tribes or peoples having social and political organization such as Western Sahara of that time cannot be regarded as terra nullius. There were various political tribes under certain chiefs competent to represent them. Moroccos invocation of the Greenland Case is unavailing. There is evidence to suggest that Morocco was not in actual exercise of authority largely due to the presence of the tribes ad their constant movement and warring. By comparison, Spains sovereignty then proceeded from agreements w/ the local chiefs and was not in the nature of occupation but was more in the nature of cession.

THE ISSUE ON SABAH The territory was originally owned by the Sultan of Sulu, Jamalul Alam. He leased the same to Baron de

Overback and Alfred Dent. For some reason, Dent consolidated ownership and established the British North Borneo Co. w/c was placed under British protectorate. The Company surrendered its rights thereto to the British Government and Sabah became a British Colony. When Malaysia was formed, Sabah became its constituent part. The Sultan Esmail Kiram, heir to Sultan Alam, thereafter cancelled the lease and ceded the territory to the Philippine Government (cession).

The claim of the Philippines is therefore anchored on the proposition that as lessee, Dent could not have acquired dominion over the territory and cede the same to the British. Nonetheless, the 1987 Constitution in defining the national territory omitted the phrase other territories belonging to the Philippines by historic right or legal title. Relations between Malaysia and the Philippines have been normalized since then, and the issue remained unresolved.

THE ISSUE ON THE SPRATLYS (COQUIA ARTICLE) The Spratlys Islands is presumed to be rich in oil ad fish reserves and is strategically located in the South China Sea, at the very center of maritime and air trade routes. Many countries lay claim. The Philippines claim is based on occupation that the same was terra nullius when it was discovered by Tomas Cloma, and since then it was considered under Philippine Law as an administrative portion of Palawan. China claimed sovereignty, alleging the presence of Chinese Temples and the expeditions send by its emperors. Vietnams contention was based on succession based on the dissolution of the French Indochina, the presence of temples and structures, missions, etc. Malaysia, Taiwan, and Brunei also law claim. Negotiations are at a standstill but China is allegedly creeping in by building permanent structures. It was maintained a strong and rigid policy claiming sovereignty over all islands w/in the area and requiring prior clearance before passage of military ships and vessels.

So what remedies are available? Diplomatic negotiation through the ASEAN is a good option, participation in workshops for management of potential conflicts, and the organization of an International Authority. Bringing the matter to the Security Council will only be subject to the veto of China; the ICJ cannot assume jurisdiction unless both parties submit to it. Arbitration is possible. The most feasible option is to bring the case to the International Tribunal on the Law of the Sea the convention of w/c China is a party. Our failure to act may result to loss of the territory just like in the Island of Palmas Case.

CLAIM TO KALAYAAN ISLANDS (ARIZALA ARTICLE) Tomas Cloma laid claim to the Spratlys Islands and announced the establishment of a separate government therein. He thereafter ceded the Spratlys to the Philippine Government, and PD 1596 was promulgated constituting the same as a municipality of Palawan. The Constitutions of the Philippines claim as part of the national territory all other territories over w/c the Philippines exercises sovereignty and jurisdiction w/c was opined to include Sabah and the Spratlys. The bases for the Philippines claims are as follows:

x Proximity this consideration is relevant but not decisive as an independent source of title. The principle of contiguity, after all, has no basis in IL, but it may, under certain circumstances, operate to raise certain presumptions. Effective occupation remains the best legal test.

x The Spratlys are part of the Continental Margin under the UNCLOS, the coastal state exercises sovereign rights over its continental shelf for the purpose of exploring and exploiting resources such rights not dependent on occupation or any express proclamation.

x By Reason of History For historical consolidation to take place, there are 3 elements: (1) exercise of authority over the

area, (2) continuity of the exercise of authority, and (3) the attitude of foreign states. To be valid against third states, it has to be perfected by recognition.

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x Discovery and Effective Occupation mere discovery does not suffice; it must be coupled w/ effective control or actual, peaceful, and continuous display of state functions. The territory, as a precondition, must be terra nullius. Cession of territory must be from one state to another; s cession made by a private individual to a state (and vice versa) is not recognized under the Law of Nations.

x Uti Possidetis Juris and Occupation literally means that as you possess, you shall continue to possess. As

between one having title and another having possession, the former has preferential rights; but in the absence of clear title, the one having effective control shall be preferred.

x Abandonment that the claims of the other states have lapsed by abandonment. Long and uninterrupted possession,

known to the owner but not disturbed by him, may be taken as proving abandonment.

Options:

x A treaty arrangement claims would be frozen for the time being for continental cooperation x Condo-imperium joint exercise of territorial sovereignty x Condominium joint exercise of territorial sovereignty w/ a right to dispose

AIRSPACE STATE CONTROL OVER AIRSPACE (MARTIAL ARTICLE) national sovereignty There were once 2 conflicting theories on the

rights to airspace: (1) freedom of the air, and (2) national sovereignty over the air. Under the Paris Convention and the 1944 Chicago Convention the theory of national sovereignty has been accepted. Now, states have complete and exclusive sovereignty over air space above its territory as well as the territorial waters adjacent to its national territory. They form part of the territorial sphere of validity where the state can undertake coercive acts. There have been suggestions to include flight space such as that part of the universal space beyond the earth where rocket flight takes place.

CONVENTION ON INTERNATIONAL CIVIL AVIATION

x No state aircraft (military, customs, police) shall fly over the territory of another state or land thereon w/o authorization by special agreement or otherwise

x All other aircraft shall have the right to make flights into, or in transit on-stop, across its territory and make stops for non-traffic purposes w/o necessity of permission. The state may require landing.

x Prescribed routes and special permission may be required in certain instances such as over inaccessible regions or

those w/o adequate air facilities. INTERNAL AND TERRITORIAL WATERS 1982 CONVENTION ON THE LAW OF THE SEA

x In case of archipelagic waters, the sovereignty of the state extends to its archipelagic waters, and to an adjacent belt of sea to be known as the territorial sea

x Sovereignty extends to air space over the territorial sea as well as to the seabed and subsoil x Every state may establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from the

baselines THE FISHERIES CASE skjaergaard / outer limits / straight baselines Due to the increased presence of British fishermen w/ their

advanced trawlers, in Norwegian coastal waters, Norway enacted a Royal Decree delimiting the Norwegian Fisheries Zone. A dispute arose as to the baselines from w/c the agreed 4 mile territorial sea will be reckoned. Norway alleges that what really constitutes the Norwegian co