Public International Law

NOTE: PLEASE REFER TO SUPPLEMENT #1 FOR SOME CORRECTIONS AND ADDITIONS - ED.

PUBLIC INTERNATIONAL LAW UP LAW A2015 reviewer for the class of

Prof. H. Harry L. Roque

AFRICA, AMABEL KAY AMORIN, DANNIEL ROY ARCILLA, JOHN MARK BELTEJAR, JAN ROBERT DE LEON, CLAIRE FABELLA, LINDSEY JAVELOSA, RANULFO III PEÑALBER, AMIRAH

IN GENERAL .........................................................1 SOURCES OF INTERNATIONAL LAW ...............2

E.

Vienna Convention on the Law of Treaties ............................................................ 98

F.

Vienna Conventions on Diplomatic Relations and Consular Relations, and Optional Protocols ............................. 109

ACTORS IN INTERNATIONAL LAW ................20 States ............................................................... 23 A.

Territorial Sovereignty .......................... 24

B.

UNCLOS ................................................ 35

VIENNA CONVENTION ON DIPLOMATIC RELATIONS ............................................. 109

BASELINES ................................................ 35

VIENNA CONVENTION ON CONSULAR RELATIONS ............................................. 113

INTERNAL WATERS AND INNOCENT PASSAGE................................................... 38

International Organizations ........................ 117

TERRITORIAL SEA ...................................... 40 STRAITS AND TRANSIT PASSAGE ................ 45

A.

The UN Charter and the Use of Force.. 117

B.

International Court of Justice.............. 130 APPLICABLE LAW .................................... 131

ARCHIPELAGOS ......................................... 48

JURISDICTION ......................................... 131

CONTIGUOUS ZONE .................................. 50

ADVISORY OPINIONS .............................. 131

CONTINENTAL SHELF ................................ 50

CASES ON JURISDICTION......................... 133

EXCLUSIVE ECONOMIC ZONE .................... 57

CASES ON PROVISIONAL MEASURES ....... 136

DELIMITATION OF MARITIME BOUNDARIES ................................................................. 62 HIGH SEAS ................................................ 62

CASES ON ADVISORY OPINIONS .............. 138

RIGHT OF ACCESS OF LAND-LOCKED STATES TO AND FROM THE SEA AND FREEDOM OF TRANSIT.................................................... 63

The Individual ............................................... 141 A.

Human Rights..................................... 141

B.

International Criminal Law.................. 143

C.

NAVIGATION............................................. 65

Foreign Investments and Natural Resources .......................................... 145

SETTLEMENT OF DISPUTES ........................ 68

WHEN LAWFUL ...................................... 154

PEACEFUL USE OF THE OCEANS................. 68

WORLD TRADE ORGANIZATION .............. 162

THE AREA.................................................. 64

C.

CASES ON DISPUTE ................................. 136

Jurisdiction and Immunities .................. 69 JURISDICTION ........................................... 69 SOVEREIGN IMMUNITIES .......................... 71

D.

International Responsibility .................. 89

UP LAW A2015 PUBLIC INTERNATIONAL LAW REVIEWER GROUP JAVELOSA, RANULFO III Head

AFRICA, AMABEL KAY AMORIN, DANNIEL ROY ARCILLA, JOHN MARK

BELTEJAR, JAN ROBERT DE LEON, CLAIRE FABELLA, LINDSEY PEÑALBER, AMIRAH Members

This reviewer contains information drawn from various sources, including primary source materials (e.g. cases, international law references), notes from class discussions, as well as existing reviewers. We in no way warrant the accuracy of the information herein provided. Neither do we give any assurance that it would suffice with respect to whatever end you may have for it and in satiating one’s thirst for knowledge of international law. While useful for purposes of review, this is in no way intended to substitute actual classroom learning and exhaustive study of primary materials. We exhort users to continue to study the subject matter consistent with the (extraordinary) diligence expected of a student of law.

PUBLIC INTERNATIONAL LAW

IN GENERAL International Law, Defined It is a body of legal principles, norms, and processess, which regulates the relations of States and other international persons, and governs their conduct affecting the interests of the international community as a whole. (Higgins, Chapter 1) Shortcomings of Traditional Rules-Based Definition Traditionally, it was defined as “rules applicable to states with their relationship with one another”. There are two limitations to this definition: 1) When there are no existing rules; and 2) Who sets the rules. The Southwest Africa Cases (infra.) is an example of the limitation of defining international law as a rulesbased system. In that case, the International Criminal Court (ICJ) refused to exercise jurisdiction over the question of whether or not the system of apartheid was in accord with international law. The Court ruled that, “(Despite) the various considerations of a non-judicial character, social, humanitarian and other…these are matters for the political rather than for the legal arena.” By referring strictly to international law as a corpus of rules, it effectively deemed the moral and ethical issues surrounding systematic racial segregation as non-legal matters that the Court could not take cognizance of. This development rendered the ICJ (then) a useless body, and has led to a push for the creation of other tribunals (e.g. International Tribunal on the Law of the Sea [ITLOS].) CLASS NOTES

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state practice, and decisions by a variety of authorized decision makers. (ibid.) Hersch Lauterpacht, an eminent expert in international law, agrees with the position that international law is not the mere application of rules; instead, it is a choice between competing or conflicting claims on the basis of superiority.

Q: Why is international law “law”? States consider them law because: 1. It upholds and embodies their values; 2. It is in their national interest; 3. They consider as law that ought to be followed Basis of International Law Higgins (ibid.) outlines three bases which explain international law’s binding nature: 1. Natural Law Some writers suggest that it is in the natural order of things that certain matters should be regulated in compulsory manner. An obligatory foundation to the basic precept of justice is to be found in natural law, which gives rise to ibligations consisting in what is essentially necessary for subsistence and self-preservation. 2. Consent This is based on the sovereignty of state, which in turn emphasizes their freedom to act unilateraly save to the extent they agreed upon to be constrained. This advances the view that the obligatory character of international law is made by the concordance of the wills of states. 3. Reciprocity States perceive a reciprocal advantage in cautioning self-restraint in terms of committing violations of international law norms.

International Law as a Normative System It should be viewed as a normative system, not merely as a set of rules. It is the process of authoritative decisionmaking part of a normative system taking into consideration important elements that are not rules or jurisprudence. (Higgins, Chapter 1) Making judments on the basis of international law goes beyond simply “finding the rule” and applying it. Neither should the accumulated trend of past decisions be applied indiscriminately. Policy and extra-legal considerations, though different from rules, are an integral part of that decision-making process. It involves interest in claims and counterclaims,

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SOURCES OF INTERNATIONAL LAW ICJ Statute, Article 38. 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. The ICJ statute provides an enumeration of sources that the Court shall apply with respect to controversies. *Note that this is not an enumeration of sources of international law; it is only a list of things that the court can consider in arriving at decisions. A. International conventions B. International custom C. General principles of law D. Judicial decisions and teachings of publicists

Primary Sources

Secondary Source

There exists a hierarchy among the sources. A, B and C are primary sources, while D is a secondary source. The Court is not constrained to consider only one source. Its decisions may arise as a result of a combination of sources. International Conventions; Treaties International conventions and treaties are sources of obligations in the nature of domestic contracts. These call into operation the principle of pacta sunt servanda, literally, agreements must be kept. These, tribunals will merely interpret.

A treaty contrary to a custom or a general principle part of jus cogens would be void or voidable. (Brownlie, Chapter 1) While a treaty is principally binding only on parties, in some cases its provisions may produce a strong, lawcreating effect at least as great as the general practice considered sufficient to support a customary rule, given the:  number of parties;  explicit acceptance of rules of law; and  declaratory nature of the provisions. (Brownlie, Chapter 1)

Q: Can the resolutions of the UN General Assembly be considered as a source of international law?

In general, UN GA resoultions are non-binding. However, when they are concertned with general norms of international law, an acceptance by a majority vote constitutes evidence of the opinions of governments in the widest forum of expression of such opinions. (ibid.) They are also considered as a first step in the proces of law creation, and may be evidence of developing trends of customary law. (Higgins, Chapter 2) Nonetheless, resolutions cannot be a substitute for ascertaining custom. Each resilution must be assessed in the light of all the sircumstances and also by reference to toher evidence of opinions of states on the point in issue. (Brownlie, Chapter 1) International Custom; Elements (Brownlie, Chapter 2) 1. Duration No particular duration is required. While passage of time can be considered as part of the evidence of generality and consistency, a long practice is not necessary. 2. Consistent state practice In invoking custom, it must be proven that there is a constant and uniform usage of a custom practised by the states in question. (Asylum Case, infra.) Complete uniformity is not required; substantial uniformity is enough. 3. Generality of practice 4. Opinio juris sive necessitatis This refers to a recognition by states that a certain practice is “obligatory,” and a belief that such practice is required by, or consistent with international law. They do so for the reason that the practice is required by law, and not merely because of courtesy or political expediency. This exists when states must have behaved in such a way that their conduct is “evidence of a belief that practice is rendered obligatory by the

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existence of a rule of law requiring it.” (North Sea Continental Shelf Cases, infra.) A new norm cannot emerge without both practice and opinio juris; and an existing norm does not die without the great majority of states engaging in a contrary practice and withdrawing their opinio juris. (Higgins, Chapter 2) In order for a practice to crystallize into a customary norm, class discussions and Higgins (ibid.) only point to the following essential elements: 1. Consistent state practice; and 2. Opinio juris CLASS NOTES

Q: What is the effect of a breach of a customary international norm?

Generally, a breach of a customary norm can give rise to the birth or creation of a new norm. There would thus be instances where state conduct inconsistent with established rules can be an indication of the recognition of a new rule. However, “if a state acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself,…the significance of that attitude is to confirm rather than to weaken the rule.” (Case Concerning Military and Paramilitary Activities in and against Nicaragua [Nicaragua v. USA], supra.) General Principles of Law This refers to analogies derived from general principles of municipal law. According to Brownlie (Chapter 1), the rationale for its inclusion is to authorize the Court to apply municipal law principles, legal reasoning and private law analogies insofar as they are applicable to relations between states in order to make the law of nations a viable system for application. This category also contemplates principles traced to state practice regarded as such by civilized nations. These include principles of consent, reciprocity, equality among states, finality of awards and settlements, legaility of agreements, good faith, and domestic jurisdiction. (ibid.) Judicial Decisions Decisions of the ICJ are merely “subsidiary means for the determination of rules of law,” and consitute only an evidence of the law. The ICJ applies the law and does not make it. However, it may be contended that a unanimous or almost unanmous decision has a role in the progressice development of law. ICJ Statute, Article 59. The decision of the Court has no binding force

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except between the parties and in respect of that particular case. Moreover, the ICJ does not observe stare decisis or the principle of judicial precedent, though it strives to maintain judicial consistency. Decisions of national tribunals also have evidential value. They provide indirect evidene of the practice of the state of the forum on the question involved. Writers also make frequent reference to municipal decisions. (ibid.) Teachings of Publicists Teachings of publicists are also only evidence of law. Nonetheless, they are used widely in arbitral tribunals, national courts, and the ICJ itself, and there are cases where writers have had a formative influence on international law. (ibid.) Jus Cogens Norm A jus cogens or peremptory norm is a norm which States cannot derogate or deviate from in their agreements. It owes its status from the fact that the community as a whole regards these norms as of critical importance, such that particular states cannot “contract-out” of them. It is mandatory and cannot be set aside or modified by agreement. (Higgins, Chapter 2)

Q: Is a jus cogens norm the same as an erga omnes obligation?

No. A jus cogens norm is a peremptory norm which states consider as one from which no derogation is permitted. An erga omnes obligation, on the other hand, refers to obligations that a state owes to the international community as a whole. Given the importance of the rights involved, all states can be held to have a legal interest in their protection. (Case Concerning The Barcelona Traction, Light and Power Company, Limited) As such, it is used as a remedial law principle that allows all states to have standing with respect to its breach. “The notion of erga omnes is concerned with standing; that of jus cogens with the non-derogable quality of a norm.” (Higgins, Chapter 9) In the Case Concerning East Timor (Portugal v. Australia) (infra.), Portugal invoked the erga omnes obligation of right to self-determination in order to press a claim against Australia in its actvities in East Timor, though it in itself was not directly affected by Austalia’s acts. Formal v. Material Sources 1. Formal Sources – consist of the methods and procedures by which norms are created. For

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example, the constitutional machinery of law making in municipal law.

Convention and the Geneva Convention because the Philippines is not a signatory thereto at the time of the commission of the acts.

The ICJ cannot be considered as a formal source because it does not have the concept of stare decisis.

The Commission had jurisdiction to try him. UN GA Resolutions also cannot be formal sources because they are merely restatements of customs. CLASS NOTES 2.

Material Source – they are the substantive evidence of the existence of norms. They supply the substance of the rule to which the formal sources gives the force and nature of law. In other words, they are evidence that the norm in fact exists. For example, RA in printed form.

ICJ Statute, Article 53. 1. Whenever one of the parties does not appear before the Court, or fails to defend its case, the other party may call upon the Court to decide in favor of its claim. 2. The Court must, before doing so, satisfy itself, not only that it has jurisdiction in accordance with Articles 36 and 37, but also that the claim is well founded in fact and law.

Q: Does repetition play a role in the development of international law?

Repetition is necessary because a customary international norm arises out of repeated state action. It is therefore basic to the formation of a rule of conduct. Norms of international law are created by States through definite norm-creating methods accepted or recognized by them as a means of expressing consent as to their binding effect. In other words, international law is based on their normative consent.

KURODA v. JALANDONI

The Military Commission had jurisdiction to try Petitioner because even if the Philippines was not a signatory to the Conventions, which both US and Japan were signatories to, the rules and regulations of the Hague and Geneva conventions form part of and are wholly based on the generally accepted principles of international law. Such rules and principles form part of the law of our nation . Moreover, when the crimes charged against petitioner were allegedly committed, the Philippines was under the sovereignty of United States and thus we were equally bound together with the United States and with Japan to the right and obligation contained in the treaties between the belligerent countries. These rights and obligation were not erased by our assumption of full sovereignty. As held in Laurel v. Misa, “The change of our form government from Commonwealth to Republic does not affect the prosecution of those charged with the crime of treason committed during the Commonwealth because it is an offense against the same sovereign people.” This case illustrates the relationship between customary law and treaty law. On the one hand, if a treaty provides conventional law, only the parties thereto are bound. On the other hand, if a treaty provides customary law, all states, signatories thereto or not, are bound. This decision finds support in the Incorporation Clause in Article II, Section 2 of the Philippine Constitution. However, this case shows that even without the said clause, general principles of international law continue to be binding by virtue of our membership in the community of nations, CLASS NOTES

83 Phil 171 (1949)

YAMASHITA v. STYER Shigenori Kuroda was formerly a Lieutenant-General of the Japanese Imperial Army and Commanding General of the Japanese Imperial Forces in the Philippines (1943-1944). He was charged before a Military Commission convened by the Chief of Staff of the Armed Forces of the Philippines for the atrocities committed by Japanese Forces against civilians and other conduct during the war. Kuroda:

The Military Commission has no jurisdiction to try him.  No jurisdiction to try him for acts committed in violation of the Hague

75 Phil 563 (1945)

Tomoyuki Yamashita is a commanding general in the Japanese Imperial Army in the Philippines. From being a prisoner of war after his surrender, his status was changed to that of an accused war criminal and was charged before an American Military Commission for having allowed members under his command to commit massacre of thousands of unarmed non-combatant civilians. Yamashita:

The Military Commission has no jurisdiction to try him.

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 Commission was not duly constituted;  The Philippines is not a US-occupied territory, hence an American military commission does not have jurisdiction therein;  He did commit any offense against the laws of war. The Commission had jurisdiction to try him. SC cannot exercise jurisdiction over the acts of the Military Commission. Citing Raquiza v Bradford, the Court held that any attempt of our courts to exercise jurisdiction over the US Army before the end of a state of war would amount to a violation of the Philippines’ faith. The state of war did not end with the cessation of hostilities; incidents of war (e.g. seizure and punishment of enemies who violate the laws of war; creation of military tribunals) may remain pending and should be left unimpeded until completion. The Commission was duly constituted in accordance with the authority of General MacArthur as commander of US Forces and the Joint Chiefs of Staff. Per the Articles of War, a military commander has an implied power to covene a Military Commission for the purpose of trying offenders or offenses against the laws of war in appropriate cases as it is an aspect of waging war. Jurisdiction over Yamashita was acquired by virtue of his capture by US forces. And the charges against him – brutal atroities against unarmed civilians and other high crimes, among others – are offenses against the laws of war over which the Commission ahs jurisdiction. During the liberation, the Philippines was occupied by US forces for the purpose of removing Japanese forces. The formation of the Commission is an incident of such liberation, and this has jurisdiction. Perfecto, J., concurring and dissenting.: The Philippines is bound to treat Yamashita in accord with established rules of treating war criminals. “Impelled by irrepressible endeavors aimed towards the ideal, by the unconquerable natural urge for improvement, by the unquenchable thirstiness of perfection in all orders of life, humanity has been struggling during the last two dozen centuries to develop an international law which could answer more and more faithfully the demands of right and justice as expressed in principles which, weakly enunciated at first in the rudimentary juristic sense of peoples of antiquity, by the inherent power of their universal appeal to human conscience, at last, were accepted, recognized, and consecrated by all the civilized nations of the world.” “Yamashita is entitled to be accorded all the guarantees, protections, and defenses that all prisoners should have

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according to the customs and usages, convention and treaties, judicial decisions and executive pronouncements, and generally accepted opinions of thinkers, legal philosophers and other expounders of just rules and principles of international law.” Justice Perfecto’s separate opinion is perhaps the best statement regarding the binding nature of international humanitarian law and customary norms. The excerpted paragraphs show that humanitarian law is customary in nature by its “universal appeal to human conscience, …recognized, by all civilized nations of the world.” His disquisition predates that of the Nuremberg trials. CLASS NOTES

KOOKOORITCHKIN v. SOLICITOR GENERAL 81 Phil 435 (1949)

Eremes Kookoorithckin is a Russian applying for naturalization in the Philippines. He was a member of the White Russian Army and was part of a contingent of 1,200 which fled to Manila after the Russian Revolution. He is a resident of Camarines Sur, married to a Filipina, works for a bus company, and had in fact fought in the guerilla war against the Japanese. Although Russian by birth, he disclaims Soviet citizenship. Solicitor General:

He is not entitled to naturalization.  There is no evidence that establishes his legal entry into the Philippines  He cannot speak English or Bicolano fluently;  No showing that he has lost his Russian citizenship, or that he is stateless.

Kookooritchkin is a stateless refugee entitled to naturalization. No further proof of his legal entry is necessary. His arrival as part of the group of Russian soldiers was well documented, and his continuous residence in the Philippines for 25 years without issue can be taken as evidence of the legality of his residence. It is well known that the Soviet dictatorship has left thousands of stateless refugees and displaced persons without country and without flag. Its oppression has made it natural for those who were able to escape from it to “feel the loss of all bonds of attachment” therefrom. As such, there is no need for him to further prove his statelessness apart from his testimony that he “owes no allegiance to the communist government” and that he has fled from it. He even refused to claim Russian citizenship during the Japanese citizenship even if it meant better conditions for him.

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States: “We are civilized people now so we don’t do harsh things to each other.” (Karichi Notes, citing Prof. Roque, 2010) This case was not taken up during class. CLASS NOTES

CASE CONCERNING MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAISNT NICARAGUA (NICARAGUA v. USA)

 US terminated said treaty with Nicaragua, and withdrew its agreement to the optional clause.  US submitted a multilateral treaty reservation, which excluded disputes arising under multilateral treaties from ICJ jurisdiction, unless: o All parties to the treaty affected by the decision are also parties to the case before the Court; or o US specially agrees to jurisdiction

Court has jurisdiction.

ICJ Reports 1986, p.14 (1986)

Nicaragua instituted proceedings against the United States for the latter’s alleged responsibility for military and paramilitary activities therein. It alleged that the US violated its sovereignty by: Recruiting, training, financing and aiding the contras (i.e. those fighting against the Nicaraguan government), to the point that it exercises effective control over them; Carrying out operations against Nicaragua through persons under US command (e.g. mining of certain Nicaraguan ports in early 1984, and attacks on its ports, oil installations, a naval base, etc.) Undertaking overflights of US aircraft over Nicaragua, not only for intelligence gathering and delivering supplies to the contras on the field, but also to intimidate the population. The US countered that its efforts were brought about by the reports of Nicaraguan involvement in logistical support, including provision of arms, for guerrillas in El Salvador. Nicaragua:

United

Court has jurisdiction on the basis of the US’s acceptance of jurisdiction under:  Treaty of Friendship, Commerce and Navigation with Nicaragua; and  Optional clause under Art. 36 par. 2 of the ICJ statute The United States is liable for the following:  Violation of Art. 2, Par. 4 of the UN Charter, and the customary international law obligation to refrain from the threat or use of force;  Intervention in the internal affairs of Nicaragua, breaching the Charter of the Organization of American States and of the rules of customary international law forbidding intervention  Violation of Nicarguan sovereignty and a number of other obligations established in general customary international law and in the inter-American system. Court has no jurisdiction over the matter.

Once an application has been commenced at a time when the law in force granted the Court jurisdiction over the controversy, any lapse of the law (by expiration, lapsing, or revocation) thereafter cannot deprive the Court of jurisdiction already established. Therefore, despite the US’ termination of the Treaty of Friendship, Commerce and Navigation with Nicaragua, the Court may continue to exercise jurisdiction. Also, the US cannot take refuge in its multilateral treaty reservation. The Court also held that customary law operates independently of treaty law. The treaties themselves only refer to pre-existing customary international law. Principles such as the non-use of force, non-intervention, respect for the independence and territorial integrity of states, and the freedom of navigation continue to be binding as part of customary international law, despite the operation of provisions of conventional law. Norms retain a separate existence; customary international law continues to exist and to apply, separately from international law. Therefore, a multilateral treaty reservation would not operate to exclude the application of any rule of customary international law the content of which was the same as or analogous to that of the treaty law rule. On creation of customary norms The Court said that the mere fact that states declare their recognition of certain rules is not sufficient to consider such as being part of customary international law. The rules must exist in the opinio juris of states, which are confirmed by practice. It is not required that the corresponding practice must be in absolute conformity with the rule. It is sufficient that the conduct of states, should, in general, be consistent with such rules and that instances of state conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule. If a state acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the

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significance of that attitude is to confirm rather than to weaken the rule. Opinio juris from GA resolutions UN General Assembly Resolutions may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by themselves.

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would lessen what it believed to be its proper share of the area based on the proportionality to the length of its North Sea coastline. Denmark, Netherlands:

On the existence of armed attack The Court does not believe that the concept of “armed attack” includes not only acts by armed bands where such acts occur on a significant scale, but also assistance to rebels in the form of the provision of weapons or logistical or other support. It is also clear that it is the State which is the victim of an armed attack which must form and declare the view that it has been so attacked. There is no rule in customary international law permitting another state to exercise the right of collective self-defense on the basis of its own assessment of the situation.

NORTH SEA CONTINENTAL SHELF CASES (GERMANY v. DENMARK; GERMANY v. NETHERLANDS) ICJ Reports 1969, p.5 (1969)

Germany:

By two Special Agreements concluded between 1) Netherlands and Germany (1 December 1964) and 1) Denmark and Germany (9 June 1965), the Parties submitted to the Court certain differences concerning “the delimitation as between the Parties of [certain] areas of the continental shelf in the North Sea which appertain to them”. The Court was asked to decide the applicable “principles and rules of international law” in the delimitation of the disputed areas. The Court was not asked to actually delimit the boundaries as the task was reserved to the Parties. Most of the North Sea had already been delimited between the Parties. However, they have been unable to agree on the prolongation of the partial boundaries mainly because Denmark and Netherlands wanted it to be based on the Equidistance Principle, while Germany believed that it

The matter should be governed by a mandatory rule of law called the “equidistance-special circumstances” rule, reflecting the language of Art. 6 of the 1958 Geneva Convention on the Continental Shelf. In the absence of agreement of the Parties to employ another method, “all continental shelf boundaries had to be drawn by means of an equidistance line, unless ‘special circumstances’ were recognized to exist.” (In other words: The boundary should be based on the “equidistance-special circumstance” rule because it is a Rule of Customary International Law – in the absence of agreement by the statesparties to employ another method or to proceed to a delimitation on an ad hoc basis, all continental shelf boundaries must be drawn by means of an equidistance line, unless or except to the extent which “special circumstances” exist.) The case should be decided on the basis of equitable principles – “one according to which each of the States concerned should have a ‘just and equitable share’ of the available continental shelf, in proportion to the length of its seafrontage (Apportionment Theory).” Alternatively, if the Equidistance Method were held to be applicable, the configuration of the German North Sea coast constituted a special circumstance that justifies not using such method in this case. (In other words: The equidistance principle is not obligatory on states not parties to the Convention. The rule that should be applied is one according to which each of the states concerned should have a “just and equitable share” of the available continental shelf, in proportion to the length of its coastline or seafrontage. In any case, the Equidistance Principle is not applicable due to the configuration of its coastline.)

Germany is not bound to accept the equidistance principle

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The Court held that Germany was not under a legal obligation to accept the application of the Equidistance Principle because its practical convenience and certainty of application are not enough to convert it into a rule of law. It ruled that the Convention was not binding on Germany because although it was a signatory, it never ratified, and was consequently not a party. Denmark and Netherlands contended that the regime of Art. 6 was binding on Germany because the latter had assumed that obligations of the Convention by public statements, proclamations, and in other ways. The Court held that only estoppel could give merit to Denmark and Netherland’s contention; however, they showed no evidence of such prejudice so Art. 6 was not applicable to this case.

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

The element of a reasonable degree of proportionality between the extent of the continental shelf areas appertaining to each state and the length of its coast measured in the general direction of the coastline, taking into account the effects, actual or prospective, of any other continental shelf delimitations in the same region.

SOUTH WEST AFRICA CASES (ETHIOPIA v. SOUTH AFRICA; LIBERIA v. SOUTH AFRICA), SECOND PHASE ICJ Reports 1966, p.6 (1966)

Equidistance principle is not inherent in continental shelf doctrine The Court held that the equidistance principle is not inherent in the basic doctrine of the continental shelf. Equidistance clearly could not be identified with the notion of natural prolongation, since the use of the equidistance method would frequently cause areas which were the natural prolongation of the territory of one state to be attributed to another. Hence, the notion of equidistance was not an inescapable a priori accompaniment of basic continental shelf doctrine. No customary norm providing for use of equidistance principle The Court also held that the Equidistance Principle was not a rule of Customary International Law. Its non-exclusion from the faculty of reservation leads to the inference that it was not considered as reflective of emergent customary law. Moreover, the number of ratifications and accessions was hardly sufficient to make it a general rule of international law. As regards the time element, although the 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, should have been both extensive and virtually uniform in the sense of the provision invoked and should have occurred in such a way as to show a general recognition that a rule of law was involved. In the course of negotiations, the factors to be taken into account were to include:  the general configuration of the coasts of the parties, as well as the presence of any special or unusual features;  so far as known or readily ascertainable, the physical and geological structure and natural resources of the continental shelf areas involved;

South West Africa (now present-day Namibia) was a League of Nations Mandate Territory placed under the administration of South Africa (as “mandatory”). Ethiopia and Liberia, in their capacities as former members of the League of Nations, filed this action against the Government of South Africa, alleging that the latter had failed to promote the well-being of the inhabitants of South West Africa in violation of its Mandate. Ethiopia, Liberia:

South Africa failed to promote the material and moral well-being of the inhabitants of the Territory by:  Practicing apartheid (i.e. distinction as to race, color, national or tribal origin with respect to rights of inhabitants) over the Territory;  Subjecting the territory to arbitrary legislation and decrees detrimental to human dignity, rights and liberties inconsistent with the latter’s international status. Humanitarian considerations are sufficient to generate legal rights and obligations, which South Africa violated. The Mandate system operated under a “sacred trust of civilization” (i.e. aim of aiding the well-being and development of people not able to govern themselves), and all civilized nations had an interest to see

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South Africa:

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this is carried out. It is no longer bound to terms of the Mandate upon the dissolution of the League of Nations

The Court held that it could only rule on legal rights, not on moral or ethical issues. The ICJ is a court of law, and can take account of moral principles only in so far as these are given legal form. While humanitarian considerations may constitute the inspirational basis for rules of law, they themselves do not amount to law. The “sacred trust” interest invoked has no residual juridical content which could operate per se to give rise to legal rights and obligations outside the system as a whole. It must be something more than a moral or humanitarian ideal in order to take on a legal character. In order to generate legal rights and obligations, it must be given juridical expression and be clothed in legal form. This is an example of the limitation of defining international law as a rules-based system. (see comments, supra. p. 1) “The principles set forth in this case have been obliterated by later cases. Fundamental equality is now considered an erga omnes obligation since it is a fundamental human right.” (Karichi Notes, citing Prof. Roque, 2010) CLASS NOTES

ASYLUM CASE (COLOMBIA v. PERU) ICJ Reports 1950, p.266 (1950)

Victor Raul Haya de la Torre, a Peruvian political figure, applied for asylum before the Colombian Ambassador in Lima after the Peruvian Government instituted rebellion charges against him for leading a botched coup attempt. The Colombian Ambassador granted him asylum, and thereafter requested safe-conduct to enable the refugee, whom he unilaterally qualified as a political offender, to leave the country. Peru refused and insisted that he committed common crimes so he was not entitled to enjoy the benefits of asylum. The two Governments were unable to reach an agreement so they submitted the matter to the Court. Colombia:

An asylum-granting state (i.e. Colombia) is entitled to unilaterally qualify persons seeking asylum as political refugees. The territorial state (i.e. Peru) is bound to respect such qualification and to give the guarantees necessary for the departure of the refugee.

Peru:

Such rule is based on American international law and constant and uniform practice among Latin American states, as evidenced by:  Bolivarian Agreement of 1911, which provided for the application of principles of international law in the use of asylum;  Montevideo Convention on Political Asylum granted the right of qualification of a refugee to the granting State Colombia does not have the right of unilateral qualification of a person as a political refugee entitled to diplomatic asylum. Haya de la Torre is charged with a common crime, hence asylum cannot be granted.

Colombia is not entitled to qualify a person as a political refugee by a unilateral decision. A decision to grant diplomatic asylum involves a derogation from the sovereignty of that State. It withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively within the competence of that State [Peru]. Such derogation from territorial sovereignty cannot be recognized unless there is legal basis. The party which relies on a custom must prove that it is established in such a manner that it has become binding on the other party by a constant and uniform usage. In the instant case, principles of international law do not recognize any rule of unilateral and definitive qualification by the State granting asylum. The Montevideo Convention relied on by Columbia for unilateral qualification has been ratified by 11 states and has not been ratified by Peru. As such, it can neither be taken as a reliable evidence of custom, nor be invoked against Peru. As shown by the inconsistency and rapid succession of asylum conventions and their acceptance and rejection by various states, there is so much fluctuation and discrepancy in the exercise of diplomatic asylum that it is not possible to discern any constant and uniform usage in support of unilateral qualification, accepted as law by all States. Haya de la Torre is not entitled to asylum. While the charge of military rebellion was not a common crime which would justify Peru’s objection to the asylum, there was no urgency within the meaning of the Havana Convention to justify a grant of asylum as there was no imminence or persistence of a danger to the refugee.

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Three months had elapsed between the military rebellion and grant of the asylum. It was not proved that the situation in Peru at the time implied the subordination of justice to the executive or the abolition of judicial guarantees to warrant the granting of asylum. Extradition v. Asylum  Extradition. – The refugee is within the territory of the State of refuge. Also, the refugee is outside the territory of the State where the offense was committed. The decision to grant the refugee asylum in no way derogates from the sovereignty of that State.  Diplomatic Asylum. – The refugee is within the territory of the State where the offense was committed. A decision to grant diplomatic asylum involves a derogation from the sovereignty of that State. Colombia failed to prove the existence of a customary international norm allowing unilateral qualification. Asylum. – It is a fundamental human right to enter another state in the ground of an unreasonable persecution in a territorial state because of religious belief, ethnicity, political ideology, etc. It involves 2 basic rights: 1. Right of non-refoulement – right of the individual seeking asylum not to be brought back to the territorial state pending an administrative inquiry as to his eligibility for refugee status; and 2. Right not to be prosecuted when the individual seeking asylum is granted refugee status. CLASS NOTES

NUCLEAR TESTS CASE (NEW ZEALAND v. FRANCE) ICJ Reports 1974, p.457 (1974)

New Zealand instituted proceedings against France over the latter’s atmospheric nuclear tests in the South Pacific which had entailed the release of radioactive matter into the atmosphere. It sought interim measures of protection from the ICJ which would bar France from conducting further nuclear tests. New Zealand:

France:

 New Zealand was affected by radioactive fallout from the atmospheric tests, and this constituted a violation of its rights under international law.  ICJ has no jurisdiction over the case; France did not even appoint an agent to represent it therein.  Radioactive matter from the tests are insignificant

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Court need not decide on the matter due to assurances from the French Government that atmospheric nuclear tests would end. Court observed from statements of the New Zealand Prime Minister that an assurance from France that atmospheric testing is “finished for good” would bring the dispute to an end. French authorities have made a number of consistent public statements in public concerning future tests:  Statement of the French President that France would be able to commence underground testing as soon as the last round of atmospheric tests were completed, and that he had made clear to his government that such round would be the last;  Statement by the French Ambassador to New Zealand, that the 1974 atmospheric tests would be the last of its kind;  Statement by the French Minister of Defense that underground testing would commence the following year These conveyed the message that France, following the conclusion of the 1974 tests, would cease the conduct of atmospheric nuclear tests. 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. Form is not 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. France, in conveying to the world its intention effectively to terminate its atmospheric tests, was bound to assume that other States might take note of these statements and rely on their being effective. It is true that France has not recognized that it is bound by any rule of international law to terminate its tests, but this does not affect the legal consequences of the statements in question. 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. (See “Request For An Examination of the Situation in accordance with Par. 63 of the Court’s Judgment Of 20 December 1974 in the Nuclear Tests [New Zealand v. France] Case”, infra., p. 11)

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NUCLEAR TESTS CASE (AUSTRALIA v. FRANCE)

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cognizance of the same and are entitled to require that the obligation thus created be respected.

ICJ Reports 1974, p.253 (1974)

(Note that this case contemplates a similar set of facts as in the Nuclear Tests Case [New Zealand v. France], supra.) The French Government had been carrying out atmospheric tests of nuclear devices in the South Pacific, in the years 1966, 1967, 1968, 1970, 1971 and 1972. Prior to the initiation of the proceedings, Australia had already sent several Notes inviting the French Government to refrain from further atmospheric nuclear tests and to formally assure the Australian Government that no such tests will be held in the Pacific, but the latter only asserted the legality of its conduct and gave no indication that it would cease from conducting tests. Australia

France:

 The tests have caused fallout of measurable quantities of radioactive matter to be deposited on Australian territory.  ICJ has no jurisdiction over the case; France did not even appoint an agent to represent it therein.  Radioactive matter from the tests are insignificant

Court need not decide on the matter due to assurances from the French Government that atmospheric nuclear tests would end. France had effectively assumed an obligation to cease conducting atmospheric nuclear tests by way of unilateral statements made by its government officials. The Court appreciated the following statements:  Statement from the French President, in part saying that France will be “in a position to move to the stage of underground tests”, that “atmospheric tests soon to be carried out will, in the normal course of events, be the last of this type”, and that “I had myself made it clear that this round of atmospheric tests will be the last.”  Statements made by the French Minister of Defense in a television interview and press conference where he announced that the French Government had done its best to ensure that the 1974 nuclear tests would be the last atmospheric tests and that it was ready to proceed with underground testing were considered. Therefore, Australia’s objective could be deemed to have been met. When it is the intention of the state making a declaration that it should become bound according to its terms, such intention confers on the declaration the character of a legal obligation. Such unilateral declarations would require no reply or subsequent acceptance to take effect. Under the principle of good faith, States may take

Unilateral declarations from States are not sources of international law; but they form a basis for the operation of estoppel. CLASS NOTES

REQUEST FOR AN EXAMINATION OF THE SITUATION IN ACCORDANCE WITH PAR. 63 OF THE COURT’S JUDGMENT OF 20 DECEMBER 1974 IN THE NUCLEAR TESTS (NEW ZEALAND v. FRANCE) CASE ICJ Reports 1995, p.288 (1995)

Two decades after the 1974 judgment on the Nuclear Tests Case (New Zealand v. France), France announced that it would conduct a series of UNDERGROUND nuclear tests in two South Pacific islands. New Zealand thus filed this request for an examination, pursuant to paragraph 63 of the 1974 judgment (see last paragraph of Nuclear Tests Case [New Zealand v. France], supra, p. 10) New Zealand:

 Scientific data today shows that underground testing can also have adverse effects, and thus be considered within the purview of the 1974 judgment; and  It is unlawful for France to conduct such nuclear tests before it has undertaken an Environmental Impact Assessment according to accepted international standards.

The Request does not fall within the 1974 decision, which applies only to atmospheric tests; it does not pertain to other forms of nuclear testing (i.e. underground testing). Since the basis of the 1974 Judgment pertains to nuclear tests in the atmosphere, only upon resumption of atmospheric tests will the “basis” of the Judgment be deemed “affected”. Thus, the Court held that it cannot take into consideration questions relating to underground nuclear tests. The Court pointed out, however, that this Order is without prejudice to the obligations of States to respect and protect the natural environment, obligations to which both New Zealand and France have in the present instance reaffirmed their commitment. Judge Weeramantry, dissenting: Through Par. 63, the ICJ in the 1974 judgment created a procedure sui generis allowing New Zealand to reopen the case, in the event that France fails to fulfill its unilateral undertaking to cease the atmospheric nuclear tests. The

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issue during that time was focused only on atmospheric tests because in 1974, those were the only type of nuclear tests being undertaken by France. However, had the Court the knowledge available today, it would not have viewed New Zealand’s grievances as having come to an end in the consequence of shifting the venue of the explosions (from atmospheric to underground testing). New Zealand’s complaint in 1973 was that damage was caused by French nuclear explosions in the Pacific. New Zealand's complaint today is the same. The cause is the same, namely, French nuclear tests in the Pacific. The damage is the same, namely, radioactive contamination. The only difference is that the weapons are detonated underground. New Zealand had made out a prima facie case of danger from French nuclear tests, on which it has shown that the “basis” of the 1974 Judgment is now “affected”. This gave New Zealand a right to request the examination of the situation, and placed the Court under a duty to consider its Request and interim measure, and also the applications for permission to intervene of Australia, Samoa, Solomon Islands, the Marshall Islands and the Federated States of Micronesia. Important principles of environmental law were stated in this case:  Inter-temporal Principle – the Court must apply scientific knowledge now available and not limit itself to what was known at the time the issue came about.  Inter-generational rights – each generation is both a custodian and a user of our common natural and cultural patrimony. As custodians of this planet, we have certain moral obligations to future generations which can be transformed into legally enforceable norms. Considering that the half-life of radioactive by-products would last for thousands of years, it is the responsibility of the people today to protect the interest of the future generations.  Precautionary principle – when there is a complaint regarding environmental damage being committed by another party, the proof or disproof likely lies with the other party. Several conventions/declarations had been entered into using this principle, that environmental measures must anticipate, prevent and attack the causes of environmental degradation. Under the Bergen Declaration, prior assessment and reporting of the environmental impact of projects or programs of states shall be undertaken by parties. This principle is important because it should have prompted the ICJ to decide this case and not postpone the examination of the case presented by NZ until full scientific evidence is available that can either support or refute NZ’s contention.

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



Environmental Impact Assessment – an ancillary of the precautionary principle which requires states to assess the possible impact of a program to the environment prior to its undertaking. Principle that damage must not be caused to other nations – no nation is entitled by its own activities to cause damage to the environment of any other nation.

LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS (ADVISORY OPINION) ICJ Reports 1996, p.226 (1996)

WHO submitted a request to the ICJ for an advisory opinion. The question was “in view of the health and environmental effects, would the use of nuclear weapons by a State in war or other armed conflict be a breach of its obligations under international law including the WHO Constitution?” Against Nuclear Weapons:

Existence of a rule of international customary law which prohibits recourse to those weapons.  Treaties which can be interpreted to prohibit use of nuclear weapons (e.g. genocide, right to life, environmental protection);  Consistent practice of non-utilization of nuclear weapons by States since 1945;  UN General Assembly resolutions that deal with nuclear weapons and that affirm, with consistent regularity, the illegality of nuclear weapons.

There is no customary international law which authorizes the threat or use of nuclear weapons. Customary international law and treaty law do not contain any specific prescription authorizing the threat or use of nuclear weapons or any other weapon in general or in certain circumstances, in particular those in the exercise of legitimate self- defense. However, neither is there customary international law which provides a universal prohibition of the threat or use of nuclear weapons. As to the treaties. Although there are treaties which deal exclusively with the acquisition, manufacture, possession and deployment of nuclear weapons, the treaties do not constitute such prohibition of the weapons themselves. While these may foreshadow a future general prohibition of the use and indicate an increasing awareness of the dangers of such weapons, these do not amount to a prohibition on the use or threat of use of the same. As to the non-utilization of nuclear weapons. The international community remains divided on whether the non-recourse to use of nuclear weapons constitutes an

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expression of opinion juris. While it has been argued that non-use since 1945 (Hiroshima and Nagasaki bombings) was indicative of aversion to nuclear weapon utilization, others countered that the role of such weapons in the “policy of nuclear deterrence” (i.e. mutually assured destruction) constituted a valid use. As such, the Court ruled that there is no such opinion juris expression. As to the UN General Assembly Resolutions. While General Assembly resolutions have no binding effect, they may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris. To establish whether this is true of a given General Assembly resolution, it is necessary to look at its content and the conditions of its adoption. It is also necessary to see whether an opinio juris exists as to its normative character.

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Various legal writings and treatises of legal experts and luminaries which provide for the exemption of fishing/commercial vessels Customary international norms are self-executory; there need not be any treaty or agreement to bring them into force. CLASS NOTES

CASE CONCERNING RIGHT OF PASSAGE OVER INDIAN TERRITORY (PORTUGAL v. INDIA) ICJ Reports 1960, p.6 (1960)

In the instant case, the General Assembly resolutions presented were adopted with substantial numbers of negative votes and abstentions. Although these are indicative of a deep concern over use of nuclear weapons, they still fall short of establishing the existence of an opinion juris on the illegality of the use of such weapons.

THE PAQUETE HABANA 175 US 677 (1900)

Two Spanish fishing vessels from Cuba – the “Paquete Habana” and the “Lola” – and their cargoes were captured by US gunboats during the Spanish-American War and condemned as a prize of war. A final decree of condemnation and sale was entered wherein the vessels were considered as not exempt from seizure

India placed some obstacles through the Indian Peninsula which prevented the right of passage of Portugal to its enclave territories – “Dadra” and “Nagar Haveli”. The representative of Portugal asserted that their territory surrounded by the Indian Peninsula, and that India allegedly refused entry to certain Portuguese individuals by refusing to grant their visas. According to Portugal, this deprived them of their right to exercise sovereignty over their territories. Portugal:

The fishing vessels are not subject to capture by the US armed vessels. By ancient usage among civilized nations coast-fishing vessels pursuing their vocation of catching and bringing in fresh fish have been recognized as exempt, with their cargoes and crews, from capture as prize of war. The seizures were therefore unlawful and without probable cause. This ancient usage has gradually ripened into a rule of international law. Evidence why there is customary international law:  King Henry IV’s orders to his admirals in 1403 exempting coastal fishers from capture  Treaty of Calais (between UK and France, which excluded fishing vessels from seizure during war)  US-Prussia Treaty (against seizure of fishing vessels)

India:

 The Treaty of Poona of 1779 issued by the Maratha ruler (Indian) granted it sovereignty over the enclaves and with such right of passage;  A right of passage exists through the Indian Peninsula in their favor;  India has a correlative obligation to respect such right.  The Treaty of Poona was not validly entered into and it never became a treaty with respect to them;  No international law conferring the right of passage and there is also no correlative obligation on its part to respect it;  No established local custom between them.

Portugal has a right of passage through the Indian Peninsula. There was a constant and uniform practice which dates back to the British and post-British periods:

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



Treaty of 1779 – The Marathas (Indians) themselves regarded the treaty as valid and binding. The treaty was also frequently referred to in subsequent formal documents by the Marathas. The British, as successors of the Marathas, recognized Portuguese sovereignty over the enclave territories and never questioned it. By implication it was subsequently recognized by India. As a consequence the villages comprised in the Maratha grant acquired the character of Portuguese enclaves within Indian territory.

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Thailand is under an obligation to withdraw the detachments of armed forces it has stationed therein. Thailand, however, counters that that the temple is in Thai territory. Cambodia:

However, with regard to armed forces, police and arms and ammunitions, there is no such right of passage.  During the British period up to 1878 passage of armed forces and armed police between British and Portuguese possessions was regulated on a basis of reciprocity.  Article XVIII of the Treaty of Commerce and Extradition of 26 December 1878 between Great Britain and Portugal laid down that the armed forces of the two Governments should not enter the Indian dominions of the other, except for the purposes specified in former Treaties, or for the rendering of mutual assistance as provided for in the Treaty itself, or in consequence of a formal request made by the Party desiring such entry. Constant and uniform practice between States is also a source of international law. There is no need to resort to general international custom or to general principles of law in disposing of such cases when there is an established between the parties. CLASS NOTES Thailand:

GENERAL PRINCIPLES OF LAW Estoppel Estoppel and acquiescence are general principles of law which can be a basis of international law. The requisites of this principle are the same as those provided for by the Civil Code, namely: 1) Act or representation; 2) Reliance on the act; and 3) Damage to other party stemming from such reliance. (Civil Code, Art. 1437)

CASE CONCERNING THE TEMPLE OF PREAH VIHEAR (CAMBODIA v. THAILAND) ICJ Reports 1962, p.6 (1962)

The Temple of Preah Vihear is an ancient Hindu Temple subject to a lengthy dispute on ownership between Cambodia and Thailand. Both states stationed troops to enforce their claim. Cambodia claims that the territorial sovereignty over Preah Vihear belongs to Cambodia, and

 Maps printed and published by a French cartographical firm;  Publication and communication of 11 maps to the Siamese government;  The map traced a frontier line purporting to be the outcome of the work of delimitation of the Mixed Commission. It showed that the whole Temple area is on the Cambodian side;  There was an acknowledgement by conduct by Thai authorities because they never questioned or disagreed about the maps within a reasonable time. Therefore, they must be deemed to have acquiesced;  When the Siamese authorities received the maps, the Minister of Interior thanked the French Minister of Bangkok for the maps and asked for another 15 copies for the transmission to Siamese governors;  The Siamese authorities did not raise any query about the map as between themselves and France or Cambodia, or expressly repudiate it as such, until the 1958 negotiations in Bangkok, when the question of Preah Vihear came under discussion between Thailand and Cambodia.  At all material times, Thailand has exercised full sovereignty in the area of the Temple;  The general nature of the area allows access from Thailand to the Temple, whereas access from Cambodia involves the scaling of a high cliff from the Cambodian plain.

The Temple is situated in territory under the sovereignty of Cambodia. Therefore, Thailand is under an obligation to withdraw any military or police forces stationed at the Temple. From the foregoing facts, it was concluded that Thailand had accepted the map. Thailand was precluded from asserting that she had not accepted the map since for 50 years she did not raise any question or disagreement with the delimitation of the frontiers. The signing of the map by Thai officials is a positive act which constituted estoppel. CLASS NOTES

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Indirect Evidence Leading to one Conclusion; Totality of Evidence Remedial principles such as the allowance for the admission of circumstantial or indirect evidence can be a basis for resolving factual disputes. Indirect evidence may be given probative value especially when it is based on a series of facts, and if linked together will logically lead to a single conclusion.

THE CORFU CHANNEL CASE ICJ Reports 1949, p. 4 (1949)

(First Incident) Albanian ships fired at Royal Navy Ships while the latter was crossing the Corfu Channel after they had conducted an inspection of the area. (Second Incident) Subsequently, when the Royal Navy Ships crossed again, they weren’t fired at but they struck mines. (Third incident) The UK swept the Albanian territorial waters for mines without Albanian consent and over its clear objection. United Kingdom:

Albania:

 Albanian government intentionally laid down the mines in the Corfu Channel;  Albania and Yugoslavia worked together in laying the new mines after the channel was already swept by the UK ships;  Regardless of who put the mines, the Albanian government knew of this act.  Albania did not lay the mines but it was the Yugoslavian minelayers who did so without their knowledge;  The acts of the Royal Navy were violative of Albanian sovereignty

Albania was liable for damages for the First and Second incidents. UK’s mine-clearing operation (third incident) was illegal. The laying of the minefield which caused the explosions could not have been accomplished without the knowledge of Albania. However, since Albania has exclusive control over its waters, UK as the victim of breach, would be unable to

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furnish direct proof of facts giving rise to Albania’s responsibility. In this case, the ICJ considered indirect proof which leads to the sole conclusion that Albania had knowledge. The following circumstances show a totality of evidence to support the conclusion that there was a breach of international law:  Albania constantly kept a close watch over the waters of the North Corfu Channel as evidenced by the Albanian Delegate in the Security Council and the diplomatic notes of the Albanian government concerning the passage of foreign ships through its territorial waters;  Albania never notified anyone about the mines in its waters. It can be concluded that they wanted to keep the mines in the channel a secret; and  Albania had lookouts in different locations which were strategic places to watch the channel. The lookouts would have seen whoever laid the mines in the channel. Therefore, Albania had the obligation to warn the UK ships regarding the existence of mines. The obligation is based on the general principles of:  Elementary considerations of humanity  Freedom of maritime communication  Every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States (For a discussion on the strait/right of passage aspect of the case, refer to p. 48)

SUBSTANTIVE PRINCIPLES OF LAW Reparation It is an indispensable consequence of the failure of a State to conform to its obligations. It “must, as far as possible, wipe-out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if the act has not been committed.” (The Factory at Chorzow Case) The reparation of a wrong may consist in: 1. Restoration to status quo ante. 2. Compensation. – If restoration is not possible, the remedy is compensation to such amount of indemnity as to necessarily wipe out all the effects of the illegal act.

THE FACTORY AT CHORZOW (GERMANY v. POLAND) 1928 PCIJ (ser. A) No. 17 (1928)

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The Government of German Reich submitted to the Permanent Court of International Justice a suit for reparation against the Polish Government for the Polish government’s taking possession of the nitrate factory in Chorzow, Poland (constructed by Germany), resulting to damage of 2 companies controlled by Germans. It was alleged that the taking was in violation of Article 6 of the Geneva Convention.

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Belgium:

Spain:

 On behalf of natural and juristic persons alleged to be Belgian nationals and shareholders in BT, it is entitled to reparation for damage caused to these persons by the conduct, which is contrary to international law, of the various organs of Spain towards BT.  Belgium does not have jus standi.

Poland violated the Geneva Convention by taking the factory. Therefore, Poland is obliged to pay the German Reich as reparation a compensation for the damage sustained by the 2 companies.

Belgium did not have jus standi to intervene or make a judicial claim on behalf of Belgian interests in a Canadian Company.

Reparation is the corollary of the violation of the obligations resulting from an engagement between States. In determining reparation, the following must be considered: a. Existence of the obligation to make reparation; b. Existence of the damage which must serve as the basis for the amount of the indemnity; c. Extent of the damage.

Although a State can make a claim when investments by its nationals abroad (such investments being part of a State’s national economic resources) were prejudicially affected in violation of the right of the State itself to have its nationals enjoy a certain treatment, such right could only result from a treaty or special agreement. There is no instrument of such kind which was in force between Belgium and Spain.

The essential principle in determining compensation for an act contrary to international law: “Reparation must wipe out all the consequences, as far as possible, of the illegal act and reestablish the situation which would, in all probability, have existed if the act had not been committed.”

A corporation enjoys a separate personality from its shareholders and from the State in which it is organized. CLASS NOTES

Since the seizure of the factory and the undertaking therein is prohibited by the Geneva Convention, the obligation to restore the undertaking is incumbent or, if not possible, to pay indemnity. Since it is already impossible to restore the factory to its owners, then compensation for the loss sustained as a result of the seizure and payment of indemnity is incumbent upon Poland. Domestic Corporations are Separate Entities from their Respective States

CASE CONCERNING THE BARCELONA TRACTION, LIGHT AND POWER COMPANY, LIMITED (BELGIUM v. SPAIN) ICJ Reports 1970, p.3 (1970)

Barcelona Traction and its subsidiaries are incorporated in Canada and Spain. BT’s share is largely held by Belgian nationals. After the Spanish Civil War, the Spanish government refused the authorization for the transfer of foreign currency necessary for the servicing of bonds issued by BT. BT incurred debt for the payment of interest on the bonds and subsequently, it was declared bankrupt. Belgium filed an Application with the ICJ.

Principle of Acquired or Vested Rights The principle of respect for acquired rights is one of the fundamental principles of both public international law and municipal law of most civilized States.

SAUDI ARABIA v. ARABIAN AMERICAN OIL COMPANY (ARAMCO) 27 ILR 117

The Government of the State of Saudi Arabia made a concession agreement with the Arabian American Oil Company (ARAMCO), which includes the exclusive right to transport oil which it had extracted from its concession area in Saudi Arabia. Subsequently, Saudi Arabia concluded another concession agreement with Mr. Onassis and his company (Saudi Arabian Maritime Tankers) which gave the latter a 30-year right of priority for the transport of Saudi Arabian oil. An issue therefore arose regarding those provisions and the agreement between Aramco, which was previously given the In its capacity as first concessionaire, Aramco enjoys exclusive rights which have the character of acquired or ' vested ' rights and which cannot be taken away from it by the Government by means of a contract concluded with a second concessionaire, even if that contract were equal to its own contract from a legal point of view. The principle of respect for acquired rights is one of the fundamental

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principles both of public international law and of the municipal law of most civilized States. The taking, therefore, must have just, adequate and prompt compensation Distinction between a franchise and concession agreement: A franchise for the extraction of wealth is imbued with public interest. A concession agreement, however, involves no public service as there is no public end-user. CLASS NOTES Principle of “Nullem Crimen, Nulla Poena Sine Lege” There is no crime when there is no law punishing it.

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proscribed acts alleged to have occurred, nor is it necessary that the crime alleged takes place during combat, that it be part of a policy or of a practice officially endorsed or tolerated by one of the parties to the conflict, or that the act be in actual furtherance of a policy associated with the conduct of war or in the actual interest of a party to the conflict; the obligations of individuals under international humanitarian law are independent and apply without prejudice to any questions of the responsibility of States under international law.

NATIONALIZATION CASES TEXACO v. LIBYA 53 ILR 389 (1978)

PROSECUTOR v. TADIĆ ICTY Judgment of 2 October 1995 (1995)

Dusko Tadid [tah-dich] was the first individual to be tried by the International Criminal Tribunal for the Former Yugoslavia (ICTY). He was tried for war crimes and was accused of committing atrocities at the Serb-run Omarska concentration camp in Bosnia-Herzegovina in 1992. Tadid challenged the jurisdiction of the International Tribunal. Tadid claims that to be duly established by law, the International Tribunal should have been created either by treaty, the consensual act of nations, or by amendment of the Charter of the United Nations, not by resolution of the Security Council. Tadid:

 To be a duly established tribunal which could try him, the International Tribunal should have been created either by treaty, the consensual act of nations, or by amendment of the Charter of the United Nations, not by resolution of the Security Council.

The International Tribunal has jurisdiction over the acts of Tadid. Article 2 of the Statute provides that: “International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949”, and there follows a list of the specific crimes proscribed. Geneva Conventions are a part of customary international law, and as such their application in the present case does not violate the principle of nullum crimen sine lege. It would be sufficient to prove that the crime was committed in the course of or as part of the hostilities in, or occupation of, an area controlled by one of the parties. It is not, however, necessary to show that armed conflict was occurring at the exact time and place of the

Deeds of Concession were concluded between the Libyan Government and 2 American companies. A Decree of Nationalization nationalized 51% of the properties, rights and assets of the companies relating to the Deeds of Concession. Amoseas, a company governed by foreign law, which was formed jointly by the Companies to be their operating entity in Libya, was to continue to carry out its activities for the account of the Companies to the extent of 49%, and for the account of the Libyan National Oil Company (N.O.C.), to the extent of 51%. The Nationalization Decree converted Amoseas into a non-profit company, the assets of which were completely owned by N.O.C. Amoseas lost its name and was renamed. The Companies notified the Libyan Government that recourse would be taken to arbitration by virtue of clause 28 of the Deeds of Concession. The dispute, relating to nationalization, should be resolved in concurrence with the principles of international law and not to be based solely on the law of the nationalizing state. When contractual relations is governed by international law between a State and a foreign private party means that for the purposes of interpretation and performance of the contract, it should be recognized that a private contracting party has specific international capacities. Considering that some contracts may be governed both by municipal law and by international law, the arbitrator held that the choice of law clause referred to the principles of Libyan law rather than to the rules of Libyan law. The application of the principles of Libyan law does not have the effect of ruling out the application of the principles of international law. It simply requires the combination of the two in verifying the conformity of the first with the second.

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The arbitrator ruled that he would refer on the one hand to the principle of the binding force of contracts recognized by Libyan law, and on the other to the principle of pacta sunt servanda (i.e. agreements must be kept) which is a general principle of law of international law. The principles of Libyan law were in conformity with international law and the Deeds of Concession in dispute had a binding force. Also, the Resolutions of the UN General Assembly have binding effect in resolving international disputes. In determining the legal validity of the resolutions, the voting patterns and conditions are considered:  Resolution No. 1803: On the right of States to nationalize but always in accordance with international law o Voting Pattern: 87 For, 2 Against, 12 Abstain o Supported by many states of the Third World and several Western developed countries with market economies, including the most important US. o Hence, all geographical areas and all economic systems were represented. 

Resolution No. 3171: No recourse to international law; exclusive and unlimited competence on the legislation and courts of the host country. o Voting Pattern: 86 For, 11 Against, 28 Abstain o Not consented to by the most important Western countries and caused a number of developing countries to abstain.

BRITISH PETROLEUM v. LIBYA 53 ILR 297 (1978)

British Petroleum had a contract with Libya to extract, process and export oil. Libya passed a Nationalization Law which restored ownership of all properties, rights and assets to the nation and transferred them to the Arabian Gulf Exploration Company. BP protested the nationalization. BP:

Cited Clause 28 of their Agreement which provides that:  The applicable law in resolving disputes between Libya and BP would be Libyan principles of law common to the principles of international law;  If there are no common principles, general principles of law will apply;  General principles of law will be preferred over Libyan principles of law.

When a State breaches a concession agreement through sovereign power in the form of nationalization, the concessionaire does not have the right to ask for specific

performance or restitution in integrum. Its only remedy is an action for damages. States, because of their sovereignty, have the power to expropriate. The only exception to this rule is if the taking was down without prompt, adequate and just compensation. CLASS NOTES

INTERNATIONAL TREATIES SALONGA v. EXECUTIVE SECRETARY GR No. 176051 (2009)

Daniel Smith was a member of the US Armed Forces who was charged with rape against Suzette Nicolas. Pursuant to the Visiting Forces Agreement, US was granted custody of Smith pending the proceedings. RTC found Smith guilty. Pursuant to the VFA, he shall serve his sentence in a facility that shall be agreed upon by the Philippines and US authorities. The Romulo-Kenney agreement was entered into which provided that Smith will be detained at the 1st floor, Rowe (JUSMAG) Building, US Embassy. The Philippine police & jail authorities shall have access to the place of detention in order to ensure the compliance of the US with the terms of the VFA. Therefore, Smith was taken out of the Makati jail by Philippine law enforcement agents and brought to the US Embassy. The VFA is being assailed for being void and unconstitutional. The VFA is constitutional. In Bayan vs. Zamora, the SC upheld the constitutionality of the VFA stating that the VFA was duly concurred in by the Philippine senate and has been recognized as a treaty by the US. Though the VFA was not submitted for advice and consent of the US Senate, it is still a binding international agreement or treaty recognized by the US because:  Only policymaking agreements are submitted to the US Senate;  Those that carry out or further implement policymaking agreements are submitted to Congress under the provisions of Case-Zablocki Act. Submission of this kind of agreement to the US Senate is not necessary;  The RP-US Military Defense Treaty is the policymaking agreement, while the VFA is its implementing agreement. The RP-US Military Defense Treaty has been ratified & concurred by both Philippine & US senates. The VFA is different from Medellin vs. Texas because in Medellin vs. Texas, the US SC held that treaties entered into by the US are not automatically part of their domestic law unless these treaties are self-executing or there is an implementing legislation to make them enforceable.

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 Comparing the VFA with the Vienna Convention on Consular Relations & the Avena decision of the International Court of Justice (which is subject matter of the Medellin decision), the VFA is (1) self- executing agreement because the parties intend its provisions to be enforceable and (2) it is covered by implementing legislation which is the Case-Zablocki Act. These two characteristics are absent in the subject matter of the Medellin decision.

MEDELLIN v. TEXAS 552 US 491 (2008)



The terms of the agreement must be couched in such a way that it reveals the intention for its provisions to be self-executory; or Congress must enact implementing legislation.

In the instant case, while Avena constitutes an international law obligation on the part of the United States, it does not help Medellin because not all international law obligations automatically constitute binding federal law. The Vienna Convention on Consular Affairs which Avena seeks to enforce does not have automatic domestic legal effect, as its terms were not selfexecutory, and neither is there implementing legislation passed by Congress.

Jose Medellin is a Mexican national who was convicted and sentenced to death for participating in the gang rape and murder of two teenage girls in Houston. The International Court of Justice in the Case Concerning Avena and Other Mexican Nationals held that the United States had violated the Vienna Convention rights of 51 Mexican nationals (including Medellin) and that their state-court convictions must be reconsidered, regardless of any forfeiture of the right to raise the Vienna Convention claims because of a failure to follow state rules governing criminal convictions. Medellin:



 



The state had violated his rights under the Vienna Convention on Consular Affairs, to which the United States is a party. Article 36 of the Vienna Convention gives any foreign national detained for a crime the right to contact his consulate; The Vienna Convention granted him an individual right that state courts must respect; There is a memorandum from the U.S. President that instructed state courts to comply with the ICJ's rulings by rehearing the cases; The Constitution gives the President broad power to ensure that treaties are enforced, and that this power extends to the treatment of treaties in state court proceedings.

The ICJ judgment is not automatically enforceable domestic law. While an international treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it or unless the treaty itself is “self-executing”. In order for a treaty or binding international obligation to have domestic effect:

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ACTORS IN INTERNATIONAL LAW An actor of international law is an entity of a type recognized by customary law as: 1. capable of possessing rights and duties; 2. capable of bringing international claims; and 3. Having these capacities conferred upon it. (Brownlie, Chapter 3) If an entity is not a subject of international law, it may still have legal personality of a very restricted kind depending on the agreement or acquiescence of recognized legal persons. (Magallona, 2005) There are now many subjects because recognition and acquiescence may sustain an entity which is anomalous, and yet has a web of legal relations on the international plane.

ESTABLISHED LEGAL PERSONS States They are the repositories of legitimated authority over peoples and territories. (infra.) Political Entities Legally Proximate to States This refers to political settlements (not sovereign states) both in multilateral and bilateral treaties. They possess certain autonomy, fixed territory and population, and some legal capacities on the international plane. They are like states but politically such entities are not sovereign states. Example: former Free City of Danzig. – It had international personality but it was placed under the protectorate of Poland. Condominium This refers to a joint exercise of state power within a particular territory by means of an autonomous local administration. However, the local administration can only act as an agency of the states participating in the condominium. Example: Nauru. – A tripartite condominium mandate territory administered by Australia, New Zealand and United Kingdom from 1923 to 1942. Internationalized Territories This is applied in cases where:  A special status was created by multilateral treaty and protected by an international organization; or where

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Exclusive administration of a territory is done by an international organization or an organ thereof.

Example: United Nations Transitional Administration in East Timor (UNTAET). – An entity established by the UN Security Council which administered present-day East Timor prior to independence. International Organizations These organizations are required to comply with certain conditions so that they may acquire legal personality on an international plane, and not merely as a legal person within a particular system of national law. (infra.) Example: the United Nations. Agencies of States These agents may have the appearance of enjoying separate personality. The components of federal states probably have treaty-making capacity, where this is provided for internally, as agents of the federal state. By agreement, states may create joint agencies with delegated powers of a supervisory, rule-making and even judicial nature. Agencies of Organizations These are subsidiary organs of international organizations. They may be created by the constituent treaty or the exercise of powers conferred by the constituent treaty. Such organs have a significant amount of independence and are invested with considerable administrative, rulemaking and judicial powers without themselves acquiring a distinct legal personality. Example: World Health Organization. – A subsidiary organ of the United Nations.

SPECIAL TYPES OF PERSONALITY Non-Self-Governing Peoples They have a special type of legal personality, and it depends on the principle of self-determination. The claim to represent such non-self-governing peoples may be given recognition by individual state action or collectively in the form of UN General Assembly resolutions. State in statu nascendi It is a political entity, which aspires for political independence and recognition of its status of statehood, while statehood has yet to be realized. This assumes continuity after statehood has been attained, and gives effect to legal acts occurring before independence. Example: Palestinian Liberation Organization. – An organization created for the purpose of creating an independent state in Palestine. Many authors are of the opinion that in the event Palestinian statehood is

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realized, the acts of the PLO can be considered acts of a state in statu nascendi. Legal Constructions A state's legal order may be projected on the plane of time for certain purposes although politically it has ceased to exist. Belligerent and Insurgent Communities This refers to de facto authorities in control of a specific territory. Parastatal entities are recognized as possessing a definite if limited form of international responsibility attributed with treaty-making capacity. Entities sui generis These are entities which maintain some sort of existence on the international legal plane in spite of their anomalous character. This anomalous character may be negated by acquiescence, recognition and the incidence of voluntary bilateral relations, provided no rule of jus cogens is broken. Example: “The Sovereignty of the Holy See.” – its personality seems to rest partly on its approximation to a state in function, and partly on its approximation to a state in function, and partly on acquiescence and recognition by existing legal person, as evidenced by the fact that a number of states have diplomatic relation with it and it has been a party to multilateral conventions. Example: Exile governments. – they are also accorded considerable powers within the territory of most states; the legal status of such entities is consequential on the legal condition of the community it claims to represent, which may be a state, belligerent community or non-self-governing peoples. Example: Taiwan. – It is a territory the title of which is undetermined, inhabited and has an independent administration. It is treated as having a modified personality, approximating that of a state. Individuals There is no general rule that individuals cannot be a subject of international law. However, this implies the existence of certain capacities. (infra., p. 141) (Brownlie, Chapter 3)

CASE CONCERNING THE BARCELONA TRACTION, LIGHT AND POWER COMPANY, LIMITED (BELGIUM v. SPAIN) ICJ Reports 1970, p.3 (1970), supra.

Barcelona Traction is a holding company incorporated in Toronto, Canada for the purpose of creating and developing electric power production and distribution

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systems in Spain. It later formed subsidiary companies incorporated in either in Canada or Spain. After the First World War, majority of Barcelona Traction’s share capital were held by Belgian nationals. Barcelona Traction issued several sterling bonds however the servicing of these bonds were suspended because of the Spanish Civil War. When the war ended, Spanish authorities still refused to authorize the transfer of foreign currency necessary to resume the servicing of the bonds. The company was eventually declared bankrupt. Belgium then initiated an application before the ICJ against the Spanish government for damages allegedly caused by the latter to the Belgian shareholders of Barcelona Traction. Belgium:

Spain:

It has jus standi because injury was sustained by Belgian nationals who had interests in the company bankrupted by acts of Spain. Belgian Government lacks the jus standi to intervene or make a judicial claim on behalf of Belgian interests in a Canadian company even assuming that the Belgian character of those interests was established.

Belgium did not have jus standi to sue in behalf of Barcelona Traction’s Belgian shareholders. The acts complained of did not affect any Belgian naturalistic or juristic person but in fact concerned a juristic entity registered in Canada. The Belgian interests in this case were in the nature of shareholding interests. Changes in the international arena have given birth to municipal institutions that have transcended frontiers and play an important role in international relations, which in this case is the corporate entity. However, since corporate entities are essentially created by States within their domestic jurisdiction, municipal laws should be considered in resolving disputes concerning them. Pertinent to this case, municipal law places a firm distinction between the rights of the company and those of the shareholder. Only the company, which was endowed with legal personality, could take action in respect of matters that were of a corporate character. A wrong done to the company frequently caused prejudice to its shareholders, but this did not imply that both were entitled to claim compensation. A State could make a claim when investments (which are part of the State’s economic resources) made by its nationals abroad were prejudicially affected in violation of its right to have its nationals enjoy a certain treatment. However, at present, this could only be enforced through a treaty and it was not found that there was such an instrument in force between Belgium and Spain.

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REPARATION FOR INJURIES SUFFERED IN THE SERVICE OF THE UNITED NATIONS (ADVISORY OPINION) ICJ Reports 1949, p. 174 (1949)

By virtue of a general assembly resolution, the UN asked the ICJ to determine whether the UN can make arrangements regarding reparations in behalf of its agents for injuries suffered in connection with their duties. They also asked WON they had the capacity to bring an international claim against the responsible de jure or de facto government with regards to obtaining said reparations for damages caused to the UN itself, the victim, and the heirs of said victim. The UN is an international person and has the capacity to bring international claims. The UN is an organization and as such, it is as an international person subject to international law. It is therefore capable of possessing international rights and duties, including the capacity of maintaining its rights by bringing international claims. Such claim can be based on the breach of an international obligation on the part of the member held responsible for such against the interests of the UN itself, its administrative machine, its property and assets, and the interests of which it is the guardian. As regards the damages caused to the victim (UN agents), while it is not expressly stated in the UN Charter that the organization can include such interests in their claims, the UN is deemed to have those powers which although not expressly provided in the charter, is conferred upon it by necessary implication as being essential in the performance of its duties. In this case, in order to ensure the independence of the agent, which in turn ensures the independence of the UN itself, it is essential that the agent in performing his duties need not have to rely on any other protection other than that of the organization. ICJ rejected the doctrine that only states are subjects of international law. CLASS NOTES

THE MAVROMMATIS PALESTINE CONCESSIONS PCIJ, Ser. A, No. 2, (1924)

The Greek Republic filed a case before the ICJ alleging the refusal of the Government of Palestine and the British Government who holds the mandate over Palestine, to recognize the rights acquired by Mavrommatis (a Greek subject). Prior to the controversy, Mavrommatis concluded contracts and agreements with the Ottoman authorities in regard to concessions for certain public works to be constructed in Palestine. The dispute was in the beginning between a private person (Mavrommatis) and a State (Britain).

Mavrommatis failed to obtain satisfaction for his claim through ordinary channels. Being a Greek subject, the Republic of Greece took up Mavrommatis’ case and pursued reparations in his behalf. Greece:

Britain:

It is entitled to protect its subjects such as Mavrommatis in this case, when they have been injured by acts contrary to international law by another state. Greece had no standing in this case.

Greece had standing to bring the present claim in the capacity of a sole claimant. A State like Greece can take up the case of its subjects when they are injured by acts contrary to international law committed by another State, from who said subject had been unable to obtain satisfaction through the ordinary channels. This is founded on Greece’s right to ensure respect for rules of international law, a right which in this case appears to have been violated by Britain. It should not be looked at not as a substitution between Greece and its subject, but as assertion of its own rights as a State. This will lead to the conclusion that Greece is the sole claimant in this case. The court deemed as irrelevant whether the dispute originated from a personal injury or not.

CERTAIN EXPENSES OF THE UNITED NATIONS (ARTICLE 17, PARAGRAPH 2, OF THE CHARTER) (ADVISORY OPINION) ICJ Reports 1962, p. 151 (1962)

The Acting Secretary-General of the UN wrote a letter to the President of the ICJ requesting the latter to give an advisory opinion on the following question: “Do the expenditures authorized in General Assembly resolutions relating to the UN operations in the Congo undertaken in pursuance of the Security Council resolutions and the expenditures authorized in the General Assembly resolutions relating to the operations of the UN Emergency Force constitute ‘expenses of the Organization’ within the meaning of Article 17, paragraph 2, of the Charter of the United Nations?“ Yes, they were expenses of the organization within the meaning of the UN charter. Article 17, paragraph 2 states: “The expenses of the Organization shall be borne by the Members as apportioned by the General Assembly.”

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The aforementioned provision refers to "the expenses of the Organization" without any further explicit definition of such expenses and would thus lead to the interpretation that “expenses” of any organization are the amounts paid out to defray the costs of carrying out its purposes, in this case, the political, economic, social, humanitarian and other purposes of the UN pursuant to its Charter. The test is to determine the relationship of the expenditures to the purposes of the UN set forth in Art. 1 of the Charter. The purposes may be summarized as: 1) goal of international peace and security; 2) friendly relations; 3) achievement of economic, social, cultural, and humanitarian goals, and respect for human rights; and 4) to be a center for harmonizing the actions of nations in the attainment of these common ends. When the Organization takes action which warrants the assertion that it was appropriate for the fulfillment of one of the stated purposes of the UN, the presumption is that such action is not ultra vires to the Organization. In fact, both national and international law contemplate cases in which body corporate or politic may be bound by an ultra vires act of its agent as to third parties. In this case, the financial obligations incurred by the Secretary-General of the General Assembly pursuant to resolutions of the Security Council for the maintenance of international peace and security (included in UN’s purposes) must be presumed to, as in fact they did, constitute “expenses of the Organization.”

States A State is regarded as a subject of international law in that it has “the capacity to be a bearer of rights and duties under international law”. It possesses objective or erga omnes personality, or that which exists wherever rights and obligations of an entity are established by general international law. (Magallona, 2005) Primacy of States as Subjects of International Law There is a position that states are the primary actors in international law. This view holds that “the world is today organized on the co-existence of States, and that fundamental changes will take place only through State action.” (Magallona, citing Friedmann, 2005) Basic Criteria for Statehood 1933 Montevideo Convention on the Rights and Duties of States, Article 1.

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The state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states. The 1933 Montevideo Convention on the Rights and Duties of States provides four qualifications which must be present in order for an entity to be considered a State: a) a permanent population; b) a defined territory; c) government; and d) Capacity to enter into relations with the other states.

Q: As to government as an element of the state: Does it have to be functioning?

No, it does not. An example is Somalia. It is sufficient that it is organized, such as a government in exile. Also, if functioning would be required, the PH will cease to be a state in case it is inundated by high tide. State Succession State succession occurs when one state replaces another with respect to a particular territory, and thus involves a permanent displacement of the sovereignty of one state by the sovereign power of the successor state. (Magallona, 2005) It also involves the “replacement of one state by another in the responsibility for the international relations of the territory.”

RECOGNITION Recognition It is the act by which another State acknowledges that the political entity recognized possesses the attributes of statehood. Effect; Not an Element of Statehood There are two theories on the nature and effect of recognition: 1. Constructive School – maintains that it is the act of recognition which constitutes or creates the status of a State as a subject of law and thus gives it legal personality. The international status of any entity is to be determined by the will and consent of already existing States. 2. Declaratory Theory - asserts that the recognition merely confirms the acceptance by States of the status of an entity as a State.

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Practice of States and opinion of publicists indicate that the declaratory school is the preferred approach, the prevailing view being that recognition is not an element of statehood. (Magallona, 2005)

Q: Is recognition from other states necessary for one’s statehood

No, this would be violative of the sovereign equality of states as found in the UN Charter. Otherwise, there will be a situation when affirmative action of other states will allow them to assert dominance.

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Modes of Acquiring Territorial Title 1. Occupation – not the mere discovery but effective exercise of sovereignty over a territory which is terra nullius (i.e. not under the sovereignty of another state). Effective occupation means “continued display of authority which involves two elements: the intention and will to act as a sovereign, and some actual exercise or display of such authority (Eastern Greenland Case). Animus occupandi must be demonstrated and evidenced by some administrative or political acts in relation to the territory in question and such act must be under the title of sovereignty.

Recognition by other states is determinative, not constitutive of statehood. While recognition is no longer necessary for a state to exist as such, it is still important because it signifies other states’ confidence in another. It also shows intention to have diplomatic relations. Functions 1. Determination of statehood (While not a criteria, it may have evidential effect before a tribunal in establishing presence of statehood) 2. Condition for the establishment of diplomatic relations and the conclusion of treaties

Territories inhabited by tribes or peoples having a social and political organization are not regarded as terra nullius, and hence may not be subject to valid occupation. (Western Sahara Case) 2.

Accession or Accretion – natural process of land formation resulting in increase of territory.

3.

Cession – mode of transfer of title to territory from one state to another by way of treaty whereby the ceding state renounces its title to such territory. It is thus a bilateral mode of acquisition, the other modes being unilateral. It is a derivative mode since its validity depends on the valid title of the ceding state; the cessionary state cannot have more rights than what the ceding state possessed.

4.

Prescription – acquisition of sovereignty over a territory through continuous and undisturbed exercise of sovereignty over it during such period as is necessary to create under the influence of historical development the general conviction that the present condition of things is in conformity with international order.

No Duty to Give Recognition Recognition, as a public act of a state, is an optional and political act. There is no legal duty for such state to give another state recognition. (Brownlie, Chapter 4)

A. Territorial Sovereignty Territory It is that defined portion of the surface of the globe which is subjected to the sovereignty of the state. (Magallona, citing Oppenheim) There are four types of regimes of territory in law: 1. Territorial Sovereignty This extends over land territory, territorial sea, the seabed and subsoil of the territorial sea. Territory includes islands, islets, rocks and reeds. 2. Territory not subject to the sovereignty of any state and has a status of its own. 3. Res nullius Covers the same subject matter legally susceptible to acquisition by states but not yet placed under territorial sovereignty. 4. Res communis Consist of high seas and the outer space which are not capable of being placed under state sovereignty. (Brownlie, Chapter 4)

Requisites: a) Possession that must be exercised under the title of sovereign. b) Peaceful and uninterrupted possession. c) Possession must also be public. d) It must endure for a certain length of time. The Vienna Convention and UN Charter now prohibit the use of force or conquest as a mode of acquiring territorial sovereignty. (Magallona, 2005) Relation of State Sovereignty to the International Independence and Equality of States From the standpoint of the national legal order, state sovereignty is the supreme legal authority in relation to subjects within its territorial domain. This is the traditional

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context referring to sovereignty as “absolute.” However, in the international sphere, sovereignty realizes itself in the existence of a large number of sovereignties, such that there prevails in fact co-existence of sovereignties under conditions of independence and equality.

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The sovereignty of one state ends where the sovereignty of another begins. That limitation is built into the nature of state sovereignty under international law. To conceive it as unlimited is to negate its existence in the context of the co-existence of sovereignties, resulting in the negation of the international community composed of juridically equal states. State Sovereignty as defined in International Law It is the right to exercise in a definite portion of the globe the functions of a State to the exclusion of another state. According to the widely accepted opinion Of Judge Huber in the Island of Las Palmas case, “Sovereignty in the relations between states signifies independence. The development of the national organization of States during the last few centuries, as, as a corollary, the development of international law, have established this principle of the exclusive competence of the State in regard to its own territory I such a way as to make it the point of departure in settling most questions that concern international relations.”

ISLANDS OF LAS PALMAS CASE (U.S. v. NETHERLANDS) 2 RIAA 829 (1930)

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Netherlands:

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





placed the latter in estoppel because said treaty kept Spain’s title over the area in dispute intact. The Treaty of Paris wherein Spain ceded the Philippines to the United States and by virtue of which the latter became the successor of Spain. It has constructive possession over Las Palmas pursuant to the principle of contiguity in that the island forms a geographical part of the Philippines and therefore is under the power exercising sovereignty over the Philippines. Discovery by Spain, or any other method of acquisition over the disputed territory, has not been adequately proven. Assuming arguendo that Spain indeed had title over Las Palmas, it has lost such title thru acquiescence because it did not exercise sovereignty over the disputed territory. It has been represented by the East India Company through which it possessed and exercised sovereignty over Las Palmas from 1648 onwards. Contracts of Suzerainty wherein it established conventions with natives (included collection of taxes, etc.) which show Netherlands’ exercise of sovereignty over the territories of the native princes of the island.

Netherlands has a stronger claim over Las Palmas by virtue of effective occupation.

Las Palmas is a single, isolated island in the middle of Mindanao and East Indies (controlled by the Netherlands). Both the United States and the Netherlands claim that the island of Las Palmas should belong to their respective territories. The matter was submitted to arbitration with Swiss Max Huber as arbitrator. United States:

 The island was discovered by Spain as confirmed by cartographers and authors.  The Treaty of Munster to which both Spain and Netherlands were parties

Sovereignty signifies independence in the relations between states and independence which, in turn, is the right to exercise the functions of a state over one’s territory to the exclusion of all others. In case of dispute as to who should exercise sovereignty over a given territory, the test is to determine whether there is acquisition of territory coupled with continuous and peaceful display of sovereignty. Using the critical period technique, the period to consider in this case is that prior to the 1898 (Treaty of Paris). While Spain ceded its territory to the US by virtue of the Treaty of Paris, it could not transfer to the latter rights that it did not have. It was not proven that Spain indeed had possession and exercised sovereignty over Las Palmas therefore the US cannot claim Las Palmas as successor to Spain. The fact that in the 16th century, international law allowed for “seeing” without occupation as equivalent to discovery, this should be subjected to the concept of intertemporal law which provides that while the act that creates a right is subjected to the law in force at the time it

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arises, its continued existence must follow the conditions th required by the evolution of law. Therefore, said 16 th century international law is qualified by 19 century international law which requires not only discovery but also effective occupation. Spain’s discovery merely created an inchoate title and without any external manifestation, said title was not perfected. US’ claim of contiguity was rejected, as this was inapplicable in cases of territorial sovereignty because it is not precise and could lead to arbitrary results. In the end, this inchoate title cannot prevail over Netherlands’ open and public display of sovereignty which is evidence of its effective occupation over Las Palmas. Critical Period. – It 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. Regardless of subsequent events, the court will freeze the period of the controversy to the date when the issue because ripe for adjudication. Intertemporal law. – Where different legal rules existed over a period of time, both the rule at the creation of the right and rule at time of its existence should be applied. Discovery alone merely gives rise to a mere inchoate right. Effective occupation must be proven. US could have won the case if they had shown that at that time there was no separation of church and state. By showing that there were priests, civil registrar, collection of tribunes, etc., they would have been able to show Spanish occupation of the island. Also, this case is disturbing because the US lost something that they did not have. By December 1898, Filipinos were already in control of the state. CLASS NOTES

“LAS PALMAS ARBITRATION REVISTED” by H. Harry Roque

CONTEXT This is in context of the continued dispute between the Philippines and Indonesia as to which territory Las Palmas should belong to. In 2002, amidst negotiations between the two states, Indonesia enacted a new Baselines Law wherein it used Las Palmas as a basepoint in drawing its archipelagic baselines. If the this new law was to be followed, the Philippines will not only lose Las Palmas but also around 15,000 square miles of archipelagic and territorial waters which are currently defined as Philippine territory under the Treaty of Paris. Said law is contrary to Indonesia’s former commitment to delimit the area in dispute only after negotiations with the Philippines have concluded. Accordingly, the Baselines Law was equivalent

to an official claim to the land and territorial waters of the island. This renewed the controversy settled in the 1928 Las Palmas Arbitration wherein the Netherlands was declared to have superior title over the disputed territory. REASONS WHY PHILIPPINES SHOULD CLAIM LAS PALMAS According to the author, there are several reasons why the Philippines should claim the area of Las Palmas. First, it is very close to the strategic axis linking the Pacific and Indian oceans. It will enable the Philippines, possibly in cooperation with Indonesia, to establish archipelagic sealanes and control, monitor and maintain surveillance of sensitive maritime jurisdictions. Many population centers, industrial zones and ports are accessible from that area. Second, it is close to the critical spawning areas of economically important fish like the yellow fin tuna. The area has also been declared as a maritime eco-region by the WWF because of its distinct and outstanding biodiversity. Third, the area in dispute is also a “warm pool” of the world’s oceans making it suitable for large scale ocean terminal plants. The author also said that the aforementioned reasons, plus the sheer amount of area that the Philippines will lose, warrant a re-examination of the 1928 Las Palmas Arbitration which is the root of Indonesia’s claim to Las Palmas. CRITICISMS TOWARD THE 1928 ARBITRATION The author cited Jessup’s criticisms of the substantive and procedural aspects of Huber’s arbitration. According to Jessup, the use of Intertemporal Law is non-sequitur and is without precedent. Jurisprudence abounds in international law which respects the Principle of Acquired Rights or applies the law at the time of the creation of a right. Thus, a state’s title over territory cannot be extinguished simply by virtue of the rise of a contemporary norm. If this was the case, the retroactive effect of law would be highly disturbing in that every state would have to re-examine its title to each part of its territory to determine whether a change in the law has necessitated a reacquisition. In Spain’s case, when it acquired Las Palmas by virtue of discovery which was valid in 16th century international law, it already acquired a right over said territory regardless of the evolution underwent by international law. As to Huber’s ruling that US failed to show effective occupation, Jessup criticized this using the Theory of Constructive Possession which provides that the possession of the whole is tantamount to the possession of the parts of the whole. In occupying Mindanao, Spain also occupied Las Palmas as part of the Philippine archipelago. Jessup also criticized Huber’s rejection of the Principle of Contiguity which is actually recognized in international law and has been prominently practiced in 1928 (time of the arbitration) especially in dealing with a

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desolate, uninhabited island. This was even used by the PCIJ in deciding the Eastern Greenland case. Other authorities like Lauterpacht and O’Connell join Jessup in criticizing the arbitration and Netherlands’ claim to Las Palmas. UNITED STATES’ STANDING TO ARBITRATE The United States’ also did not have standing to arbitrate or personality to advance a right in the 1928 Arbitration based only on Spain’s 1898 cession of title to it. While acquiring title through cession is a valid, the United States’ title is only as good as its predecessor. In this case, Spain no longer had title over the Philippines in December 1898 because the Philippines was already independent as of June 12, 1898. It already had all the elements of a state even before the Treaty of Paris. NON-TRANSFERRABILITY OF ARBITRAL AWARDS As a general rule of state succession, successor states are not bound by obligations entered into by its predecessor and they are at a complete liberty WON to undertake such obligations since they are a completely new entity. The only exception to this would be obligations in relation to territorial boundaries pursuant to a treaty. However, Las Palmas was awarded to the Netherlands by virtue of an arbitration to which the Philippines was not a party to. It is therefore not bound by Huber’s ruling. The Philippines has also never acknowledge that it has automatically succeeded the US is said arbitration. CONCLUSION The author concluded by saying that even assuming that Indonesia’s title to Las Palmas is indisputable pursuant to the 1928 Arbitration, this does not justify the former’s use of said island in its 2002 Baselines Law as a base point for drawing its archipelagic baselines. This is because Netherlands, as Indonesia’s predecessor-in-interest, never alleged in the arbitration that Las Palmas formed part of the Indonesian archipelago. Therefore, Las Palmas should be treated as an island independent of the Indonesian archipelago if not an actual part of the Philippines. Concept of constructive occupation. – A State should not have to physically occupy every nook and cranny of land in order to prove its occupation; this should also apply to archipelagos. CLASS NOTES

ARIGO v. EXECUTIVE SECRETARY (PETITIONERS’ PLEADING)

The controversy arose when the government entered into Service Contract No. 38 with Shell, Chevron and PNOC for the exploration, development, and production of petroleum resources in the Camago-Malampaya Reservoir about 80 km off the coast of Palawan in the West Philippine Sea. Because of this project, there arose a dispute between the national government and the provincial government of Palawan with regard to the sharing of the proceeds. Palawan claims that it is entitled to a 40% of the proceeds pursuant to the Local Government Code. It also based its claim in the assertion that the Camago-Malampaya gas fields are located within the territorial jurisdiction of Palawan. However, according to the national government, the area in dispute is outside Palawan’s jurisdiction and therefore it is only the national government which is entitled to the proceeds of the contract. Pres. Arroyo later issued EO 683 which provided for a Provisional Implementation Agreement (PIA) that would allow 50% of the disputed 40% of the net government share in the proceeds of SC 38 to be utilized for the immediate and effective implementation of the development projects for the people of Palawan. Petitioners assail the constitutionality of said executive order. CA dismissed their petition so they appealed to the SC. Arguments raised in the pleadings: TERRITORIAL BOUNDARIES OF THE PHILIPPINES ALREADY DEFINED BY LAW RA 3046 of 1961, as amended by RA 5446 of 1968 MUST GOVERN TERRITORIAL BOUNDARIES OF THE PHILIPPINES The CA was wrong in dismissing their petition pursuant to the “ongoing efforts of both the legislative and executive departments to arrive at a common position in redefining the country’s baseline” which should not be encroached upon by judicial adjudication. Petitioners assert that the CA itself has acknowledged that there is already an

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existing law defining the country’s territory (mentioned in the heading) which is still good law and must therefore govern the territorial boundaries of the state, not the “efforts” being undertaken by the legislative and executive departments. Also, Article 1 of the 1987 Constitution is another good law which already defines the metes and bounds of our national territory. IMPLICATION OF EO 683 ON PHILIPPINE CLAIMS UNDER UNCLOS Since Palawan is the strong and secure anchor on which the Philippines claim to an Extended Continental Shelf (extending up to 350 n.m. from the baseline) under UNCLOS stands, EO 683, by saying that CamagoMalampaya is outside Palawan’s jurisdiction, dismembers national territory because it cuts away the Philippine claim to an ECS. According to petitioners, the oil and gas in the area are not found in the waters off Palawan but in the continental shelf of Palawan. Accordingly, the delineation of the limits of the country’s continental shelf will assure its sovereign rights over the petroleum, natural gas, and other resources found in the area. An ECS means a much expanded claim to rich natural resources in the region and a greater access to these resources. PROJECT TO DELIMIT THE OUTER LIMITS OF THE PHILIPPINE CONTINENTAL SHELF Petitioner also mention the research efforts being conducted by various agencies (UP Law Center, NIGS, etc.) to fortify the Philippine assertion to a right to an ECS in preparation for its claim before the UN. The project has identified that the Kalayaan Group of Islands, the Benham Rise, and the Scarborough Shoal are three areas where the possible ECS exists. According to experts, the best way to claim an ECS is to consider the Malampaya fields and the KIG or the Spratlys as a unified extension or a natural prolongation of the continental shelf of Palawan. Notably, the KIG area is very promising with respect to petroleum and natural gas. PHILIPPINE CLAIM TO KIG DEPENDENT ON THE CAMAGOMALAMPAYA AREA BEING PART OF PALAWAN’S CONTINENTAL SHELF According to petitioners, to say that the CamagoMalampaya fields are not part of Palawan is to say that the Philippines does not have any claim to an ECS, or much less, to an “inner” continental shelf that is all of 200 n.m. extending seaward. In effect, it is to deny the existence of a continental shelf appurtenant to Palawan, and such is also a surrender of Philippine claims to sovereign rights over a large region that Filipinos have long considered as belonging to Philippine national territory, including the KIG. This may result in the bargaining away the Filipino people’s rightful claim to the rich marine resources in the region, in contravention of the national interest in the integrity of the national territory as well as the people’s right to enjoy the benefits of the natural resources of the country. This is also violative of the Constitution.

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LEGAL STATUS OF EASTERN GREENLAND PCIJ Ser. A/B No. 53 (1933)

In June 10, 1931, Norway issued a Royal Resolution declaring that it is taking possession of certain territory (Elrik Raudes Land) of Eastern Greenland. Denmark opposed this and the matter as to who had titled over the area in dispute was submitted to the ICJ. Denmark:

Norway:

Effective occupation or the continuous and peaceful occupation of the area which has existed for a long time before the dispute. The evidence it presented are:  Imposition of taxes;  Settlements;  Taking over trade monopolies;  Granting of concessions;  Fixing of territorial waters by legislation;  Promulgation of laws of administration;  Building trading and research stations;  Multilateral and bilateral treaties entered wherein Norway recognized Danish authority over the area;  Granting of permits to visitors;  Ihlen Declaration (Norwegian Minister of Foreign Affairs speaking in behalf of his government) stating that Norway would not make it difficult for Denmark to settle in Eastern Greenland Eastern Greenland was terra nullius and it was the first to exercise sovereignty over said area. The evidence it presented are:  Expeditions;  Involvement in hunting and trading;  Continuous rejection of Denmark’s claim;  Wire stations; and

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

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Construction of cabins.

Denmark had a stronger claim than Norway. A claim to sovereignty based upon continued display of authority has two elements that must be shown to exist:  Intention and will to act as a sovereign; and  Some actual exercise or display of such authority. Denmark has met these two requirements as proven by the evidence it presented. Notably, before Norway issued its 1931 declaration, no other power disputed Danish sovereignty over the area. There was also not enough evidence to support Norway’s position that Denmark lost sovereignty over the disputed area by voluntary abandonment. While there was a period wherein Denmark no longer had intercourse with Greenland, the interest in the latter was eventually revived. Norway’s claim that Denmark only possessed he western coast of Denmark was also rejected. Denmark had constructive possession over Greenland regardless of Norway’s assertion that the former’s legislative and administrative acts only concerned Danish colonies (which were located on the western coast) because the word “Greenland” in these acts should be given their ordinary meaning as encompassing the whole of Greenland. Norway failed to prove otherwise. Norway has acquiesced and was in fact in estoppel with regards to Denmark’s claim over Greenland. Prior to the dispute, Norway’s government had on many occasions recognized Denmark as the sovereign over Greenland. A prime example of this is the Ihlen Declaration (mentioned in the position of the parties above). If the area is thinly populated or unsettled, little actual exercise of sovereign rights is sufficient. Although both sides were able to present evidence establishing their sovereignty over the area, what won it for Denmark was the estoppel or acquiescence in the part of Norway because of the Ihlen Declaration. Although acquiescence is not a means of acquiring title, it is proof of a better claim. Also, this case was decided five years after the Island of Las Palmas case by the PCIJ still headed by Max Huber. Interestingly, unlike in the Las Palmas Arbitration, Huber applied the concept of constructive occupation in this case. CLASS NOTES

THE CASE OF THE S.S. “LOTUS” PCIJ Ser. A No. 10(1927)

A collision occurred at the high seas between a French mail steamer Lotus with and a Turkish collier Boz Kourt. The Boz Court split in half and it eventually sank, resulting to the death of 8 Turkish nationals. The officer on board Lotus was the French Lt. Demons. Lt. Demons was requested by Turkish authorities to go ashore 3 days after the incident to give evidence regarding the matter. He was then arrested by Turkish authorities without notice to France to ensure his criminal prosecution for manslaughter under Turkish law. He was convicted. The French government eventually protested the actions of the Turkish authorities and demanded the release of Lt. Demons. Upon failure to settle the matter, they submitted the issue to the PCIJ. France:

Turkey:

In case of breach of navigation regulations, exclusive jurisdiction lies with the flag state under whose flag the vessel sails. France also invoked the Treaty of Lausanne which stated that all questions regarding jurisdiction between Turkey and other contracting states must be governed by the principles of international law. Claimed jurisdiction on the basis of Article 6 of its Penal Code which provides that any foreigner who commits an offense abroad to a prejudice of Turkey or a Turkish national shall be punished in accordance with the Turkish Penal Code provided that he is arrested in Turkey.

Turkey did not act contrary to international law. There is no principle of international law that prohibits Turkey from exercising jurisdiction over Demons and that there was no presumption of restriction against its acts. The court rejected France’s contention that the territoriality of criminal laws prohibits the exercise of one’s power outside one’s territory without a permissive rule of convention or international custom. There is also no general prohibition on a state to extend the application of their law outside of their territory. This is because the territoriality of criminal law is not an absolute principle of international law and by no means coincides with territorial sovereignty. Furthermore,

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France is without basis in saying that international law prohibits proceedings by a state as to offenses committed by foreigners based only on the nationality of the victim because this is not the only criterion on which Turkey’s jurisdiction is based. Notably, Turkey could also base its jurisdiction on the fact that the collision also affected Turkey’s vessel. Even states which strictly apply the territoriality of criminal laws concede that if one of the elements of an offense (most especially its effects) has taken place in their national territory, the crime is to be regarded as having been committed there despite the fact that the author of the crime was in the territory of another state at the time of the commission of the act. The court also rejected the exclusive jurisdiction of the flag state in this case because such principle is not universally accepted leaving the states a free hand. This case has already been overturned by the UNCLOS in Article 97 [1], which provides for concurrent jurisdiction of the flag state and the state of the person’s nationality in such instances. CLASS NOTES

THEMATIC LIGHTHOUSES Lighthouses are important with regard to claims of sovereignty because their construction and maintenance is a discharge of a state obligation to ensure safety in the seas. CLASS NOTES

THE MINQUIERS AND ECREHOS CASE (FRANCE v. UNITED KINGDOM) ICJ Reports 1953, p. 47 (1953)

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France:

United Kingdom:

            

Prohibition of fishing; Restriction of visits to Ecrehos; Diplomatic exchanges; Granting of concessions; Building of lighthouses and buoying; Official visits by French officials; Erection of a house. Jersey courts exercising criminal jurisdiction for nearly 100 years; Jersey law requiring holding of inquests on corpses found in the area; Houses built in the area were assessed for the levying of taxes; Licensing of fishing boats; Real estate contracts relating to property in the area were registered in the public registry of deeds; Jersey customs authorities established a custom house for the purpose of a census.

United Kingdom has produced the more convincing proof of title. UK won because of “ordinary local administration”, and its claim was able to establish the exercise of state function of jurisdiction, administration, and legislation over the islands. As to the French claim that its installation of lighthouses, beacons and other navigational aids evinces sovereignty over the island groups, the court held that “such acts can hardly be considered as sufficient evidence of the intention of that Government to act as sovereign over the islets; nor are those acts of such a character that they can be considered as involving a manifestation of State authority in respect of the islets.”

CASE CONCERNING SOVEREIGNTY OVER PULAU LIGITAN AND PULAU SIPADAN (INDONESIA v. MALAYSIA) ICJ Reports 2002, p. 625 (2002)

The Minquiers and Ecrehos group of Islet and rocks are found in the English Channel. Both parties contend that they have respectively an ancient or original title to the Minquiers and Ecrehos, and that their title has always maintained and was never lost.

Indonesia and Malaysia lay claim over the islands of Ligitan and Sipadan. Both countries cite treaties, colonial effectivites, and title by succession as proof of ownership.

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Indonesia:

Malaysia:

 In 1895 and 1928, Dutch Royal Nay deployed ships in the area;  Indonesian fishermen fished in the area; and  Non-inclusion of the islands in their maps immaterial because they were prepared in haste.  As early as 1914, the Great Britain regulated the control and collection of turtle eggs in the area;  It established licensing for boats;  Established reservations for bird sanctuaries;  British North Borneo authorities constructed lighthouses in the 1960s which were under the control of the Malaysian authorities.

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 Yemen:

  

Ethiopia, which had in turn inherited its title from Italy; Construction and maintenance of lighthouses in different islands. Historic title. This title can be traced to the Bilad el-Yemen, which is said to have existed as early as the 6th Century AD. Automatic reversion. When the Ottoman Empire collapsed, ending its occupation of the area, the title reverted back to Yemen. Construction and maintenance of lighthouses in different islands.

No title by succession. Italy, Eritrea’s predecessor, did not obtain title to the territory under the Treaty of Lausanne because it was provided that the allied powers have yet to agree on who can claim sovereignty over the territory.

The court ruled for Malaysia because of its “effective acts of administration”

No historic title. Medieval Yemen had no concept of territorial sovereignty. Therefore, Yemen cannot claim title by automatic reversion.

Among other evidence presented, Malaysia’s construction of lighthouses in 1962 and 1963 was considered by the Court. While they are not usually used as an indicator of state authority (as in the Minquiers and Ecrehos Case), they are legally relevant in the case of small islands.

The tribunal found out that none of them presented a better claim, so it decided based on effective occupation, since occupation is the prima facie evidence of title.

The Court rejected Indonesia’s claim that they merely tolerated the construction of the lighthouses because they are useful for safe navigation. According to the Court, these lighthouses are very important to people in North Borneo, and the silence of Indonesia over this construction is highly unusual.

ERITREA-YEMEN ARBITRATION (1996)

Portico Doctrine. – A method by which off-shore islands can be attributed to a State’s sovereignty. Islands near coastal states must pertain to such states. Both parties have constructed and operated lighthouses in different islands. The significance of these lighthouses would thus have to be considered separately, on a per island basis. Eritrea was found to be sovereign over the Mohabbakah islands, the Haycock islands and Southwest Rocks owing to their proximity to the Eritrean mainland and presumption of natural unity. Yemen was found to be sovereign over the Zubayr group of islands and the Zuqar-Hanish group on the balance of the evidence from the Parties regarding the exercise of the functions of state authority. The delimitation was contentious due to significant oil reserves and oil shipping lanes in the area. This case is most analogous to the issue on Spratlys. CLASS NOTES

The dispute relates to ownership over the Red Sea islands between Eritrea which claims title by succession, and Yemen which claims title by automatic reversion and historic title. Eritrea:

 Succession. It inherited title to the Islands in 1993, when the State of Eritrea became legally independent from the State of

MAP CASES ERITREA-YEMEN ARBITRATION (1996), supra.

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(This section deals with the parties’ claims relating to maps. For a more exhaustive discussion, refer to p. 31)

(This section deals with the parties’ claims relating to maps. For a more exhaustive discussion, refer to p. 14)

Claims relating to maps: Eritrea:  Maps from the 20th century that Italy (its predecessor state) was sovereign over the islands. Yemen:  Maps from the 18th to 19th centuries show that the islands once belonged to Yemen, proving its historical title.  UN maps from the 1950’s show that the islands were not considered part of Ethiopia (present-day Eritrea)

Two treaties were entered into by France and Siam which involved delimitation of certain areas. A commission was tasked to survey the delimitation points and the final stage of the delimitation was the preparation of maps. Siam did not possess adequate technical means to do so, prompting it to ask French officers to do the mapping for them. The maps were drawn by a well-known French cartographer and given wide publicity. It was communicated to the government of Siam.

As to the pre-19th century maps, Court ruled that there was no attribution of the islands to Yemen. As to the use of maps to prove Italian sovereignty during the 20th century, it appears that official Italian cartography did not wish formally to portray the Islands as being under Italian sovereignty in the inter-war period. However, the map evidence – whilst supportive of and consistent with the conclusions reached – is not itself determinative. Were there no other evidence in the record concerning the attitude or intentions of Italy, this evidence would be of greater importance. As to the UN maps, it is UN practice that its publication of maps does not constitute a recognition of sovereign title over territory. Hence, they cannot be relied upon by either party.

The principle of estoppel was applicable. The maps were communicated to Siam as purporting to represent the outcome of the work of delimitation. Since there was no reaction on the part of Siam, either then or for many years, and that France (later, Cambodia) relied on this nonobjection of Siam, Siam (later, Thailand) is estopped from claiming otherwise. The uti possidetis juris principle is applicable as to the successor states i.e. Cambodia and Thailand. Principle of Uti Possidetis Juris. – Successor states shall respect colonial boundaries of colonial rulers.

CASE CONCERNING THE TERRITORIAL DISPUTE (LIBYAN ARAB JAMAHIRIYA v. CHAD) ICJ Reports 1994, p. 6 (1994)

Also, the Court considered the 20th century maps as tending to show the superiority of Yemeni map evidence, and that Eritrean cartography described the islands as non-Eritrean. These conclusions were considered in arriving at the determinations made as to which islands go to each party. (discussed supra.)

CASE CONCERNING THE TEMPLE OF PREAH VIHEAR (CAMBODIA v. THAILAND) ICJ Reports 1962, p. 6 (1962)

In 1955, a treaty was concluded between France and Libya. France was previously the colonial power exercising sovereignty over Chad, while Libya was a former colony of Italy and has just gained independence when it entered into a treaty with France. The treaty states that the frontiers of the two territories are those that result from international instruments in force on the date of constitution of Libya. A territorial dispute erupted between the parties, thus they agreed to submit the matter to the ICJ to decide upon the limits of the territories of the respective parties in accordance with the rules of international law.

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Libya:

Chad:

 There is no border because the 1955 treaty has already expired;  This case concerns a dispute regarding attribution of territory;  Court must fix the boundaries on the basis of effective occupation.  Libya is bound by the 1955 treaty;  This case concerns a dispute regarding attribution of territory;  Court needs only to locate where the boundaries are, applying the uti possidetis juris principle.

The terms of the treaty signified that the parties recognize the complete frontier between their respective territories. 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. Libya never challenged the territorial dimensions of Chad as set out by France which is reflected by UN publications even after 1960. The establishment of this boundary is a fact which, from the outset, has had a legal life of its own, independently of the fate of the 1955 Treaty. Once agreed, the boundary stands, for any other approach would vitiate the fundamental principle of the stability of boundaries, the importance of which has been repeatedly emphasized by the Court. In effect, a boundary established by treaty thus achieves a permanence which the treaty itself does not necessarily enjoy. The treaty can cease to be in force without in any way affecting the continuance of the boundary. The Court applied the principle of uti possidetis juris – which provides that successor states must respect the colonial boundaries of colonial rulers, and such boundaries would survive after independence. With respect to the fact that the treaty itself specified that it has a life of only 20 years, the Court applied the theory of auto-limitation – which provides that boundaries have a life of its own, separate from the treaty itself. A boundary established by treaty achieves permanence which the treaty itself does not necessarily enjoy.

ANGLO-NORWEIGIAN FISHERIES CASE (UNITED KINGDOM v. NORWAY)

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In 1935, a Norwegian Royal Decree was enacted delimiting the Norwegian fisheries zone. This delimitation made use of straight baselines drawn between fixed points on the Norwegian coastal zone – a zone which includes its mainland, and the various islands, islets and reefs, fjords and bays which comprise a distinctive archipelago known as the “skjaergaard.” [skahr-jard] The United Kingdom, in light of its various fishing interests in that area, protested the delimitation, claiming that it was contrary to international law principles. United Kingdom: Norway:

 Norway’s baselines must be reckoned from the low-water mark on the mainland;  Baselines must be reckoned from the lowwater mark of the skjaergaard;

The baseline shall be determined using the straight baseline method, following the outline of the “skjaergaard”. The Norwegian mainland is bordered in its western sector by the "skjaergaard", which constitutes a whole with the mainland. This being so, it is the outer line of the "skjaergaard" which must be taken into account in delimiting the belt of Norwegian territorial waters. Straight baseline method. This method consists of selecting appropriate points on the low-water mark and drawing straight lines between them. Following this method, there is no need to follow all of the indentations or sinuosities in drawing the baseline. Straight baselines shall be drawn connecting appropriate points along the skjaergaard. It is from this line that the territorial sea shall be reckoned.

ICJ Reports 1951, p. 116 (1951)

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Spain: Morocco:

Mauritania:

 Terra nullius during colonization, hence part of its Empire;  Immemorial possession of the territory;  Uninterrupted exercise of authority;  Allegiance of local tribes;  Ties with a historical “Mauritanian Entity”;  Common way of life with the nomads

None of the parties had a better claim over the others. (Magallona, 2005)

In using the straight baseline method, the Court provided the following guidelines: 1) the baseline must not depart to any appreciable extent from the general direction of the coast; 2) the sea areas lying within the landward side of the baseline must be closely linked to the land domain and are internal waters; 3) The economic interest peculiar to the region, as evidenced by long usage, should be considered. The Court also noted that the delimitation of sea areas always has an international aspect. It cannot be dependent merely upon the will of the coastal State as expressed in its municipal law. Although the act of delimitation is necessarily a unilateral act, the validity of the delimitation with regard other States depends upon international law.

WESTERN SAHARA (ADVISORY OPINION) ICJ Reports 1975, p. 12 (1975)

Territories inhabited by the tribes or peoples having a social and political organization were not regarded as terra nullius. In this case, at the time of the colonization Western Sahara was inhabited by peoples who, though nomadic, were socially and politically organized in tribes and under chiefs competent to represent them. It also shows that, in colonizing Western Sahara, Spain did not proceed on the basis that it was establishing its sovereignty over a terra nullius. What is essential is a showing of effective display of authority during Spanish colonization and immediately after. Morocco failed to display any effective and exclusive State activity in Western Sahara. The allegiance it claims from people therein is limited to only a few tribes. The historical Mauritanian Entity used by Mauritania has not been shown to have any sovereign ties with Western Sahara. It has no separate identity from that of the tribes which composed it, whose nomadic way of life knew no territorial frontiers. Neither were these tribes distinct and independent in relation to each other, and there was no common institution that they recognized.

THE CASE CONCERNING THE LAND, ISLAND AND MARITIME FRONTIER DISPUTE (EL SALVADOR v. HONDURAS, with NICARAGUA intervening) ICJ Reports 1992, p. 351(1992)

Spain, Morocco and Mauritania were embroiled in a territorial dispute over territory known as “Western Sahara.” The UN General Assembly requested the ICJ to answer two questions re: the Western Sahara (WS): (1) Was Western Sahara at the time of colonization by Spain terra nullius?; and (2) What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?

The Parties, El Salvador, Honduras, and intervenor Nicaragua, were all former administrative subdivisions (provinces) of the Spanish empire in Central America. El Salvador and Honduras became independent states after the disintegration of the Spanish empire in Central America. Even before their independence, Spanish Central America had overlapping administrative boundaries. The Court was tasked to find where the boundaries are. The uti possidetis juris principle was applied. The Court said that if the colonial boundaries are clear, it will not look at colonial effectivites. In this case, there are cases of overlaps because of lack of sophisticated means for surveying.

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Contemporaneous acts (belief of one that he belongs to this particular unit) are considered because it is useless to look at effective occupation, for the territories are subject to only one colonial rule. The Court looked at the Republic Titles submitted to them and the subsequent acts of parties after independence, referring to post-colonial effectivites as proof of colonial boundaries. The Court said that principle acquiescence by recognition will also apply if a party does not object. Uti possidetis still applied to the islands (El Tigre, Meanguera & Meanguerita) because none of them are terra nullius which can be acquired through occupation.

occupation. Physical occupation is merely procedural to the taking of possession and is not identical to the latter.

CLIPPERTON ISLAND ARBITRATION (FRANCE v. MEXICO) (1931)

B. UNCLOS

If a territory is uninhabited, from the moment when the occupying state makes its appearance there, at the absolute and 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.

The United Nations Convention on the Law of the Sea (UNCLOS) is the ultimate constitution governing the use of the sea. It took 80 years to be codified. While taken to be a mere restatement of customary international law, it goes beyond being a mere codification of opinio juris. It was agreed upon by states on the basis of consensus and compromise, and in effect may be taken to constitute state practice binding even on non-parties. Clipperton Island, apparently uninhabitable, is a low coral reef in the Pacific Ocean. In 1858, the French Navy, while cruising about half a mile off Clipperton, declared that the sovereignty of the island beginning from that date belongs to Emperor Napoleon III. The vessel didn't reach the shore and it left without leaving on the island any sign of sovereignty. The declaration was communicated to the government of Hawaii and was published in the journal The Polynesian of Honolulu. The island remained without population and no administration. Later, Mexico arrived and ignored the occupation claimed by France and hoisted their own flag. It claimed that the islands belong to it. France:

Mexico:

 1858 landing, and hoisting of French flag;  Declaration of sovereignty communicated to the Government of Hawaii through the journal, “The Polynesian”;  Spain discovered it and by virtue of the Papal Bull of Alexander VI, it belonged to Spain and, in 1836, to Mexico as Spain’s successor.

France has title over the islands. 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

Its roots can be traced to the treatise “Mare Liberum” by Portuguese Hugo Grotius, which advanced the principle that the sea is owned by everyone and that it was under the regime of the “common heritage of mankind.” It divides the oceans and seas into the following maritime zones:  Internal Waters  Territorial Sea  Contiguous Zone  Exclusive Economic Zone  High Seas

BASELINES Baseline It is a line from which the breadth of the territorial sea and other maritime zones is measured. It is essential for the determination of the maritime boundary of the coastal state. There are two types: 1. Normal Baseline 2. Straight Baseline UNCLOS, Art. 5. Normal baseline Except

where

otherwise

provided

in

this

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Convention, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State. Normal Baseline It is the low-water line along the coast as marked on largescale charts officially recognized by the coastal state. (Art. 5) There is no fixed or definitive method to determine the location of the low-water line. One way is to mark it on the lowest ebb tide or on the lowest astronomical tide. Another way, as suggested in the Anglo-Norwegian Fisheries Case, is to use the mean between the high and low tides.

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4. Straight baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them or except in instances where the drawing of baselines to and from such elevations has received general international recognition. 5. Where the method of straight baselines is applicable under paragraph 1, account may be taken, in determining particular baselines, of economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by long usage. 6. The system of straight baselines may not be applied by a State in such a manner as to cut off the territorial sea of another State from the high seas or an exclusive economic zone. Straight Baseline It is used where the coastline is deeply indented and cut into or if there is a fringe of islands along the coast in its immediate vicinity, by joining the appropriate points of these features using straight lines. (Art. 7 [1])

Fig.. (Magallona, 2005)

UNCLOS, Art. 7. Straight baselines 1. In localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured. 2. Where because of the presence of a delta and other natural conditions the coastline is highly unstable, the appropriate points may be selected along the furthest seaward extent of the lowwater line and, notwithstanding subsequent regression of the low-water line, the straight baselines shall remain effective until changed by the coastal State in accordance with this Convention.

UNCLOS sets forth limitations on the use of the straight baseline method: 1. Must not depart to any appreciable extent from the general direction of the coast; (Art. 7 [3]) 2. Sea areas lying within the straight baselines must be sufficiently close to the land domain to be subject to the regime of internal waters; (ibid.) 3. Must not be drawn to and from low-tide elevations;  UNLESS, lighthouses or similar installations permanently above sea level have been built on them; and  UNLESS such use of baselines on lowtide elevations have received general international recognition. (Art. 7 [4]) 4. Cannot be applied by a state in such a manner as to cut off the territorial sea of another from the high seas or an EEZ. (Art. 7 [6]) The drawing of straight baselines may take into account economic interests peculiar to the region concerned, the realty and importance of which are clearly evidence by a long usage. (Art. 7 [5]) This has likewise seen application in the Anglo-Norwegian Fisheries Case.

3. The drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters.

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of islands, an indentation has more than one mouth, the semi-circle shall be drawn on a line as long as the sum total of the lengths of the lines across the different mouths. Islands within an indentation shall be included as if they were part of the water area of the indentation.

Fig.. (Magallona, 2005)

Baselines for Mouths of Rivers UNCLOS, Art. 9. Mouths of rivers If a river flows directly into the sea, the baseline shall be a straight line across the mouth of the river between points on the low-water line of its banks.

4. If the distance between the low-water marks of the natural entrance points of a bay does not exceed 24 nautical miles, a closing line may be drawn between these two low-water marks, and the waters enclosed thereby shall be considered as internal waters. 5. Where the distance between the low-water marks of the natural entrance points of a bay exceeds 24 nautical miles, a straight baseline of 24 nautical miles shall be drawn within the bay in such a manner as to enclose the maximum area of water that is possible with a line of that length. 6. The foregoing provisions do not apply to socalled "historic" bays, or in any case where the system of straight baselines provided for in article 7 is applied. A bay is a well-marked indentation in the coast which satisfies the semi-circle test. (Art. 10 [2])

Fig. (Magallona, 2005)

Baselines for Bays UNCLOS, Art. 10. Bays 1. This article relates only to bays the coasts of which belong to a single State. 2. For the purposes of this Convention, a bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain land-locked waters and constitute more than a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semicircle whose diameter is a line drawn across the mouth of that indentation. 3. For the purpose of measurement, the area of an indentation is that lying between the low-water mark around the shore of the indentation and a line joining the low-water mark of its natural entrance points. Where, because of the presence

Semi-Circle Test. – The indentation in question must have an area as large as or larger than that of a semi-circle, whose diameter (which constitutes the straight baseline) is a line drawn across the mouth of the indentation.  Baseline: o A closing line drawn across the natural entrance of the bay o May not exceed 24 nautical miles.  Arc: o Drawn from the endpoints of the baseline

Fig. (Magallona, 2005)

If the baseline exceeds 24 nautical miles:  A straight baseline shall be drawn within the bay such that it encloses the maximum area of water that is possible with a line not exceeding 24 nautical miles. (Art. 10 [5])

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Fig. Fig. (Magallona, 2005)

If the bay has more than one mouth because of the presence of islands:  The baseline shall be drawn on a line as long as the sum total of the lengths of the lines across different mouths.

Fig. (Magallona, 2005)

Baselines for Low-tide Elevations UNCLOS, Art. 13. Low-tide elevations 1. A low-tide elevation is a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide. Where a lowtide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, the low-water line on that elevation may be used as the baseline for measuring the breadth of the territorial sea. 2. Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea of its own. A low-tide elevation (LTE) is a naturally formed area of land surrounded by water, which is above water at low tide but submerged at high tide.

Baselines for Ports UNCLOS, Art. 11. Ports For the purpose of delimiting the territorial sea, the outermost permanent harbor works which form an integral part of the harbor system are regarded as forming part of the coast. Off-shore installations and artificial islands shall not be considered as permanent harbor works. Port installations forming an integral part of a harbor system, such as breakwaters, wharves and loading bays, are regarded as forming part of the coast. (Art. 11 [5]) Baselines shall be drawn from their openings.

Baselines may be reckoned from such low-tide elevations when such LTE lies wholly or partly within the breadth of the territorial sea (i.e. 12 nautical miles) from the mainland or an island.

INTERNAL WATERS AND INNOCENT PASSAGE UNCLOS, Art. 8. Internal waters 1. Except as provided in Part IV, waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State. 2. Where the establishment of a straight baseline in accordance with the method set forth in article 7 has the effect of enclosing as internal waters areas which had not previously been considered as

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such, a right of innocent passage as provided in this Convention shall exist in those waters. Internal Waters, Defined Internal waters are waters of lakes, rivers found within the coastal state and those waters on the landward side of the baseline of a coastal state. Coastal State Has Sovereignty Over these waters the coastal state has sovereignty as if it were part of its land territory. This extends to the airspace over it and to its seabed and subsoil. No Right of Innocent Passage There is no right of innocent passage in internal waters, as such right applies only to the territorial sea and the archipelagic waters. (Art. 52) However, if through the use of the straight baseline method a coastal state is able to enclose as its internal waters areas which were previously part of the territorial sea (Art. 8 [2]) or straits used for international navigation (Art. 35 [a]), the right of innocent passage continues to exist in such “extended” internal waters.

CASE CONERNING MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA (NICARAGUA v. UNITED STATES)

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Violation of freedom of maritime conference. Any state whose vessels enjoy a right to innocent passage in territorial waters of another state also enjoys all the freedom necessary for maritime navigation. To lay mines in the territorial waters of another state during peacetime is an unlawful act. In addition, if a state lays mines in any waters in which foreign vessels have rights of access or passage, and fails to give any warning or notification with regard to such mines, such state is in breach of international law and acts against the freedom of navigation and maritime commerce.

SAUDI ARABIA v. ARABIAN AMERICAN OIL COMPANY 27 ILR 117, supra.

(For a thorough treatment of the case, refer to p. 16) (*Note: The parts of the case concerning internal waters are missing. A due search only produced excerpts from the case relevant only to the contractual issues therein, and none on internal waters. Hence, no original discussion on the matter could be included.) Harbors are internal waters, not territorial seas. CLASS NOTES

ICJ Reports 1986, p.14 (1986), supra.

MAGALLONA et.al. v. EXECUTIVE SECRETARY G.R No. 187167 (2011)

(supra. For a more exhaustive discussion, refer to p. 6) Nicaragua alleges that the United States was in breach of its obligation under general and customary international law in violating the sovereignty of Nicaragua. One of the acts imputed by Nicaragua which are directly attributable to the United States is the alleged mining (i.e. laying of mines) of Nicaraguan ports and territorial waters, which has destroyed 12 vessels, Nicaraguan and foreign alike. The laying of mines in the internal and territorial waters of Nicaragua rendered the US in breach of its CIL obligations not to violate Nicaraguan sovereignty and not to interrupt peaceful maritime conference. Evidence shows that the mining was authorized by US President Reagan, and conducted under the supervision of US agents.

Congress passed RA 9522, which amended the old baselines law (RA 3046). The new law, passed under the pretense that there was a May 2009 deadline set by the UNCLOS to beat, “shortened one baseline, optimized the location of some basepoints around the Philippine archipelago and classified adjacent territories (Kalayaan Group of Islands and Scarborough Shoal) as ‘regimes of islands.’” Petitioners assailed the constitutionality of RA 9522. Petitioners:

 RA 9522 reduces the Philippine maritime territory by discarding pre-UNCLOS demarcations embracing the rectangular area delineated by the Treaty of Paris and other treaties (and encoded in the Constitution);

Violation of Sovereignty. The laying of mines within the ports of a state is governed by the law relating to internal waters and subject to the sovereignty of the coastal state. It is therefore that sovereignty which is affected. Such operations not only constitute breaches of the principle of non-use of force, but also constitute a violation of Nicaragua’s sovereignty.

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 It unconstitutionally converts country’s internal waters into archipelagic waters, which are subject to maritime passage and overflight. This exposes Philippine waters to nuclear and maritime pollution hazards;  Failure of the law to enclose the Kalayaan Group of Islands and Scarborough Shoal within the baselines in favor of their treatment as regimes of islands takes the same outside PH territory and undermines the Philippine claim thereto. RA 9522 is constitutional. No diminution of territory. RA 9522 does not delineate Philippine territory. It is only a baseline law which is, in turn, but a statutory mechanism to delimit with precision PH maritime zones and continental shelves pursuant to UNCLOS. The law and UNCLOS play no role in the acquisition, enlargement or diminution of territory. In fact, RA 9522 increased PH total maritime space. While having reduced territorial seas from (271,136 sq. nm  32, 106 sq. nm), it allowed the country to claim 382,669 sq. nm of EEZ. This EEZ even extends beyond the waters covered under the old baselines law. (Caveat: subject to delineation of boundaries in accordance with UNCLOS in case of overlapping EEZs)

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Delineation of archipelagic waters valid. Philippine sovereignty is maintained in archipelagic waters, their airspace, bed and subsoil. However, this fact of sovereignty does not preclude the operation of international law norms subjecting archipelagic waters to marginal burdens (i.e. right of innocent passage, archipelagic sea lanes passage) in the interest of maintaining expeditious international navigation. Rights of innocent passage are customary norms automatically incorporated into Philippine Law, and such rights are concessions to archipelagic states in exchange for their right to claim archipelagic waters subject to territorial sovereignty. This notwithstanding, Congress may pass legislation regulating innocent and sea lanes passage. Regime of Islands classification valid. KIG and Scarborough Shoal cannot be enclosed within the baselines because such areas are located at an appreciable distance from the nearest shoreline of the Philippines. To enclose them would constitute a breach of the UNCLOS, particularly: Art. 47 (3) – “the drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago.” The decision to classify them as regimes of islands manifests the Philippine’s observance of its pacta sunt servanda obligation under UNCLOS. Such areas fall under Art. 121, which covers any “naturally formed area of land, surrounded by water, which is above water at high tide.” While the Court recognized the move to become an archipelagic state pursuant to UNCLOS was optional, it held that Congress could properly do so. The UNCLOS did not require any new baseline law. The language of the convention is permissive. Contrary to the Arroyo Administration’s insistence, the May 2009 deadline was not for archipelagic states to revise their baselines. It was for purposes of making claims to an extended continental shelf (which we did for Benham Rise). RA 9522 led to a reduction 229,000 sq. nm loss of territorial waters. CLASS NOTES

TERRITORIAL SEA UNCLOS, Art. 3. Breadth of the territorial sea

Fig.. Delimitation of maritime zones under RA 9522.

Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.

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xxxx UNCLOS, Art. 4 Outer limit of the territorial sea The outer limit of the territorial sea is the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea. Territorial Sea, Defined It is a belt of sea adjacent to internal waters or archipelagic waters, as the case may be, whose breadth extends up to a limit not exceeding 12 nautical miles from a coastal state’s baselines.

Fig. (Magallona, 2005)

Coastal State Has Sovereignty A coastal state’s sovereignty covers the territorial sea, which extends to the airspace over the same as well as to its bed and subsoil. (Art. 2 [2]) Right of Innocent Passage Passage means navigation through the territorial sea for the purpose of: a) Traversing that sea without entering internal waters; or b) Proceeding to or from internal waters. (Art. 18 [1]) Passage must be continuous and expeditious. But a ship is allowed to stop and anchor if: a) Such anchoring or stopping is incidental to ordinary navigation; or b) Rendered necessary on account of force majeure or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress. (Art. 18 [2]) UNCLOS, Art. 19. Meaning of innocent passage 1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.

There is innocent passage if such passage is not prejudicial to the peace, good order or security of the coastal state. Non-innocent passage. – Passage shall NOT be innocent if a foreign ship, without the consent of the coastal state, engages in any of the following acts while passing though the territorial sea: a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations; b) any exercise or practice with weapons of any kind; c) any act aimed at collecting information to the prejudice of the defense or security of the coastal State; d) any act of propaganda aimed at affecting the defense or security of the coastal State; e) the launching, landing or taking on board of any aircraft; f) the launching, landing or taking on board of any military device; g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State; h) any act of willful and serious pollution contrary to this Convention; i) any fishing activities; j) the carrying out of research or survey activities; k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State; l) any other activity not having a direct bearing on passage. (Art. 19 [2]) Rights of protection for the coastal state. – A coastal state is given the following rights of protection with regard to the right of innocent passage. It may: 1) Take necessary steps in its territorial sea to prevent non-innocent passage; 2) Take measures to prevent any breach of the conditions for the admission of ships to internal waters, with respect to ships proceeding to internal waters or ports or to ships calling at a port facility outside internal waters; and 3) Suspend temporarily the innocent passage of foreign ships in specified areas of the territorial sea  IF, such suspension is essential for the protection of its security  Such suspension may take effect only after publication. (Art. 25)

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Duties of a coastal state. – The coastal state must not hamper the innocent passage of foreign ships. While it is given the right to enforce laws and regulations (infra.) relating to innocent passage, the coastal state is barred from: a) imposing requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage; or b) discriminating in form or in fact against the ships of any State or against ships carrying cargoes to, from or on behalf of any State. It is also the coastal state’s duty to give appropriate publicity to any danger to navigation, of which it has knowledge, within its territorial sea. (Art. 24) Laws and regulations by coastal state. – A coastal state may adopt laws and regulations relating to innocent passage relating to any or all of the following: a) the safety of navigation and the regulation of maritime traffic; b) the protection of navigational aids and facilities and other facilities or installations; c) the protection of cables and pipelines; d) the conservation of the living resources of the sea; e) the prevention of infringement of the fisheries laws and regulations of the coastal State; f) the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof; g) marine scientific research and hydrographic surveys; and h) the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State. (Art. 21) The coastal state must give due publicity to such laws and regulations. The coastal state may not apply law and regulations on the design, construction, manning and equipment of foreign ships.  UNLESS, such laws and regulations only give effect to generally accepted international rules or standards. (Art. 21) Sea lanes and traffic separation schemes. – The coastal state, when necessary for the safety of navigation, may require foreign ships exercising their right to innocent passage to use designated sea lanes or follow prescribed traffic separation schemes. Tankers, nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances or materials may be required to confine their passage to sea lanes designated by the coastal state.

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In designating sea lanes and prescribing traffic schemes, the coastal state shall take into account: a) Recommendations of the competent international organization; b) Any channels customarily used for international navigation; c) Special characteristics of particular ships and channels; and d) Density of traffic. These must be clearly indicated on charts and given due publicity. (Art. 22) Charges which may be levied on foreign ships. – General Rule: No charge for passage. Exception: Charges for payment of specific services rendered to the ship. (Art. 26) Exercise of criminal jurisdiction. – General Rule: Coastal State should NOT exercise criminal jurisdiction on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage. Exceptions: a) if the consequences of the crime extend to the coastal State;* b) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea;* c) if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances. (Art. 27 [1]) *For exceptions A and B, if the ship master so requests, the coastal state shall notify the diplomatic agent or consular officer of the flag state before taking any steps. (Art. 27 [3]) Article 27 also provides for particular situations: Ship passing though  Coastal state has the the territorial sea right to take any steps AFTER LEAVING authorized by its laws for internal waters: the purpose of an arrest or investigation on board. (Art. 27 [2]) Ship, proceeding  Coastal state may not from a foreign port, take any steps on board passing through the to arrest any person or to territorial sea conduct any investigation WITHOUT in connection with any

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ENTERING internal waters:

crime committed before the ship entered the territorial sea. (Art. 27 [5])

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 

Q: Which rule does the UNCLOS follow with respect

to criminal jurisdiction over acts committed during innocent passage? It seems that the UNCLOS per Art. 27 (1) (a) and (b), follows the French Rule – crimes committed aboard a foreign merchant vessels should not be prosecuted in the courts of the country within whose territorial jurisdiction they were committed, unless their commission affects the peace and security of the territory.

Exercise of civil jurisdiction. – A coastal state may not stop or divert a foreign ship passing through the territorial sea for the purpose of exercising civil jurisdiction in relation to a person on board the ship. (Art. 28 [1]) It may likewise not levy execution against or arrest the ship for the purpose of any civil proceedings, except: 1. with respect to obligations or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage through the waters of the coastal State; (Art. 28 [2]) or 2. For the purpose of any civil proceedings, a foreign ship lying in the territorial sea, or passing through the territorial sea after leaving internal waters. (Art. 28 [3])



Belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality; Under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent; and Manned by a crew which is under regular armed forces discipline. (Art. 29)

The coastal state may require any warship to leave the territorial sea immediately if:  It does not comply with the laws and regulations of the coastal State concerning passage through the territorial sea; and  Disregards any request for compliance therewith which is made to it. (Art. 30) A warship’s flag state shall bear international responsibility for any loss or damage to the coastal state resulting from the non-compliance by a warship or other government ship operated for non-commercial purposes with the laws and regulations of the coastal state concerning passage through the territorial sea or with the provisions of this Convention or other rules of international law. (Art. 31)

THE GULF OF SIDRA INCIDENT

Rules for special ships. – UNCLOS provides for special rules governing particular ships’ exercise of the right to innocent passage. Submarines, Underwater Vehicles Foreign nuclearpowered ships, and ships carrying nuclear or other inherently dangerous or noxious substances

 

Navigate on the surface; and Show their flag (Art. 20)

 

Carry documents; and Observe special precautionary measures established for such ships by international agreements (Art. 23)

Q: Are warships allowed innocent passage through the territorial sea?

Yes. The right to innocent passage pertains to all ships, including warships. UNCLOS lays down in Articles 29-32 special rules applicable only to warships and other government ships operated for non-commercial purposes. (infra) Rules on warships. - A "warship" means a ship:

The Gulf of Sidra is a maritime area situated north of Libya covering an area of 22,000 sq. mi. In 1973, the Libyan government announced that the Gulf of Sidra is an integral part of the Libyan Arab Republic, with sovereignty thereon having been exercised through history, and thus it constituted internal waters. It proceeded to delimit its claimed territorial waters by drawing the gulf’s closing line 300 miles across its mouth, with the warning that any foreign vessel that would breach the line without authorization would be in violation of Libyan sovereignty. Further, it claimed that its 12mi territorial sea limit was to be reckoned from this line. This position has led to several incidents involving US ships. Libya:

 The gulf is a “historic bay” over which Libya has exercised sovereignty through history. As such, the Gulf’s closing line

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US:

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need not satisfy UNCLOS provisions;  Libya may restrict access to the waters pursuant to its sovereignty.  The gulf cannot be regarded as internal waters;  Requirement of prior authorization for entry is contrary to the international principles of freedom of navigation.

Gulf of Sidra is not a historic bay, and waters within it are not internal waters. It may not validly restrict access thereto. UNCLOS lays down rules on for a body of water to be properly considered as a bay (i.e. semi-circle test, supra.). An exception to this requirement is if a body of water is a “historic bay”. (UNCLOS, Art. 10 *6+) Claims to historic waters in general are relics of an older and by now a largely obsolete legal regime, and the international community has firmly rejected any attempts to establish any new maritime claims. Such claims encroach on what would otherwise be considered the common domain of the international community and would hence deprive the international community of certain portions of the high seas. In the instant case, Libya drew a 300 mile closing line at the mouth of the gulf, well exceeding the 24mi limit set by the UNCLOS., under the premise that the gulf fell under the “historic bay” exception. However, this claimed exception must fail because Libya has failed to offer any evidence to substantiate its claim of historical sovereignty over the gulf. In fact, prior to 1973, it did not claim the gulf as a historic bay. Neither is their mention of the Gulf in the survey of historic bays conducted by the UN. As such, the acts of Libya in restricting access to the waters of the gulf beyond 12mi from its coast (not the Libyandrawn closing line) constitutes illegal interference of international navigation and is incompatible with the international legal regime of the high seas.

ANGLO-NORWEIGIAN FISHERIES CASE (UNITED KINGDOM v. NORWAY) ICJ Reports 1951, p. 116 (1951), supra.

(supra. For an exhaustive discussion, refer to p. 8)

THE CASE CONCERNING THE LAND, ISLAND AND MARITIME FRONTIER DISPUTE (EL SALVADOR v. HONDURAS, with NICARAGUA intervening) (1992), supra.

(supra. For a more exhaustive discussion, refer to p. 34)

UNITED STATES v. CALIFORNIA 382 US 448 (1966)

(This is the third of a line of cases concerning the delimitation of California internal waters as against federal waters.) In a 1947 decision (United States v. California, 332 US 804), the Court granted the US Federal government dominion over submerged lands and mineral rights underlying the Pacific Ocean beyond 3 nautical miles seaward from the ordinary low water mark of the coast of California. Areas within the 3 mile belt would constitute internal waters of the state, and those without would constitute federal waters. This was followed by a 1965 (United States v. California, 381 US 139) decision which included bays and other coastal features which satisfied the semi-circle test (supra. p. 37) as well as historic bays as part of internal waters of California. This 1966 decision is a supplemental decree, which held that the subsoil and seabed of the continental shelf:  Within 3 nautical miles seaward, from the COASTLINE of California (not just from the low water mark as in the 1947 decision) – appertains to CALIFORNIA; and  Those beyond 3 nautical miles – appertains to the UNITED STATES. The Court made use of the following definitions: Coastline

-

-

Line of mean lower low water on the mainland, islands, and on low tide elevations within 3 geographic miles from the line of mean lower low water; or Line marking seaward limit of inland waters; and Includes outermost permanent harbour works that form an integral part of harbour system.

Island It is a naturally formed area of land surrounded by water, which is above the level of mean high water Low Tide Elevation A naturally formed area of land surrounded by water at mean lower low water:  above the level of mean lower low water; but  not above the level of mean high water Mean Lower Low Water The average elevation of all daily lower low tides Mean High Water

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The average elevation of all high tides Inland Water Waters landward of the baseline of the territorial sea, which are recognized as internal waters of the US under the Convention on the Territorial Sea and the Contiguous Zone: a) Any river or stream flowing directly into the sea, landward of a straight line across its mouth; b) Any port, landward of its outermost permanent harbour works and a straight line across its entrance; c) Any “historic bay”, over which the US has traditionally asserted and maintained dominion with the acquiescence of foreign nations; d) Any other bay which satisfies the semi-circle test. (supra)

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The “Inland Water Line” shall be drawn in accordance with the definitions of the ICTS. The ICTS definition of the “inland water line” provides: "The line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters." The case also proceeds to consider whether certain features of Louisiana coastal features or artificial works fell within the term “inland waters.” To wit: Dredged Channels leading to inland harbors:

This case was decided before UNCLOS. The importance of this case is the definitions of terms used in maritime delimitation that it provides. CLASS NOTES

UNITED STATES v. LOUISIANA 394 US 11 (1969) In a previous case between U.S. vs. Louisiana, the Court held that based on the Submerged Lands Act of 1953, U.S. quitclaimed to Louisiana the lands underlying the Gulf of Mexico within 3 geographical miles of the coastline. In that Act, the coast line was defined as the “line marking the seaward limit of inland waters”.

Historic Bays:

NOT INLAND WATERS. The permanent harbor works contemplated are "raised structures" and "installations" which were "part of the land" and which, in some sense enclosed and sheltered the waters within. Historic bays are not defined in the Convention. The national government, may, if it chooses, rely on State action to support its own historic claim as against other nations. But, a State cannot oblige it to do so or accept State action as binding in a domestic case such as the present one

STRAITS AND TRANSIT PASSAGE Straits, In General It is a comparatively narrow passageway connecting two large bodies of water. (Merriam-Webster’s 11th Collegiate Dictionary, 2003)

U.S. and Louisiana asks for a supplemental decree designating the boundary of the lands under the Gulf owned by Louisiana, the parties differing primarily with respect the part of the coastline. US:

Louisiana:

 Location of the line should be determined by definitions of “inland waters” contained in the International Convention on the Territorial Sea and the Contiguous Zone (ICTS) and the US v. California (1966) case (supra.).  Location of the line should be determined by the “Inland Water Line” fixed by the Commandant of the Coast Guard pursuant to a 1895 Federal statute which directed the drawing of “lines dividing the high seas from rivers, harbors, and inland waters”;  ICTS was not intended to be the exclusive determinant of inland or territorial waters or to divest a nation of waters which it had long considered subject of its sole jurisdiction.

Mediterranean Sea

Atlantic Ocean Fig.

Straits used for International Navigation This pertains to water between two areas of the high seas or between two exclusive economic zones. (Art. 37) UNCLOS, Art. 19. Right of transit passage 1. In straits referred to in article 37, all ships and aircraft enjoy the right of transit passage, which

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shall not be impeded; except that, if the strait is formed by an island of a State bordering the strait and its mainland, transit passage shall not apply if there exists seaward of the island a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics. 2. Transit passage means the exercise in accordance with this Part of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. However, the requirement of continuous and expeditious transit does not preclude passage through the strait for the purpose of entering, leaving or returning from a State bordering the strait, subject to the conditions of entry to that State.

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 

the regime of freedom of navigation will come into play) Strait connects the high seas or exclusive economic zone with the territorial sea of a third (foreign) state; (Art. 45 [1b]) Strait is formed by an island of a State bordering the strait and its mainland, and there exists seaward of the island a route through the high seas or through an EEZ of similar convenience. (Art. 38 [1])

Illustrations. –

3. Any activity which is not an exercise of the right of transit passage through a strait remains subject to the other applicable provisions of this Convention. Fig.

Right of Transit Passage It is the right of ships and aircraft to exercise freedom of navigation and overflight solely for the purpose of continuous and expeditious transit through straits used for international navigation (i.e. strait between one part of the high seas or an EEZ and another part of the high seas or EEZ). (Art. 38 [2]) When applicable. – Provisions for transit passage will apply given the following:  The strait is used for international navigation (i.e. provides access between a high sea/EEZ and another high sea/EEZ); (Art. 37)  Such use is an unavoidable consequence of convenience of navigation (i.e. there is no other route of similar convenience); (Art. 36)  The strait lies within the territorial seas of bordering states; (implied from the exception in Art. 36, infra.; see discussion in the illustrations)  The vessel traverses a strait in a continuous and expeditious manner. (Art. 37 [2]) When not applicable. – No right of transit passage exists in the following instances:  Strait is not used for international navigation; (Art. 37)  Passage through the strait is regulated by a longstanding international convention; (Art. 35 [c])  Another route of similar convenience exists in the high seas or exclusive economic zone lying within the strait; (Art. 36) (because in such cases,

In this illustration, a right to transit passage may be invoked because you have a situation where:  The strait (in bracket) provides access between two bodies of high seas/EEZ;  There is no other route of similar convenience save for the use of this strait;  There is no high sea zone/EEZ within the strait that vessels may use. o Hence, in this student’s opinion, the strait cannot have bodies of water not covered by the territorial sea of any bordering state.

Fig.

In this next illustration, there can be no transit passage because “there exists through the strait a route through the high seas or through an exclusive economic zone of similar convenience” (Art. 36). The vessel can thus pass

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through the strait using high sea/EEZ waters by invoking freedom of navigation (“constituting a route of similar convenience”), eliminating the need to use transit passage. Duties of states bordering straits used for international navigation. – Bordering states have the following obligations under the regime of transit passage:  Not to impede or hamper transit passage; (Art. 38 [1]; 44)  Give appropriate publicity to any danger to navigation or overflight within or over the strait of which they have knowledge. (Art. 44) No suspension of transit passage. – Unlike in innocent passage (supra, p. 41), transit passage cannot be suspended unilaterally. (Art. 44) Transit passage is innocent passage.”

basically

“non-suspendible CLASS NOTES

Duties of vessels in transit passage. – Ships and aircraft, while exercising the right of transit passage, shall: a) proceed without delay through or over the strait; b) refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of bordering states, or in any other manner in violation of the principles of international law embodied in the UN Charter; and c) refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress; For Ships:  comply with generally accepted international regulations, procedures and practices for safety at sea, including the International Regulations for Preventing Collisions at Sea;  Comply with generally accepted international regulations, procedures and practices for the prevention, reduction and control of pollution from ships. For Aircraft:  observe the Rules of the Air established by the International Civil Aviation Organization as they apply to civil aircraft; state aircraft will normally comply with such safety measures and will at all times operate with due regard for the safety of navigation;  At all times monitor the radio frequency assigned by the competent internationally designated air traffic control authority or the appropriate international distress radio frequency. (Art. 39)

Authorization for research and survey activities. – Prior authorization from the bordering states is required for foreign vessels, including marine scientific research and hydrographic survey ships, to carry out any research and survey activities during transit passage. (Art. 40) Sea lanes and traffic separation schemes. – Bordering states may designate sea lanes and prescribe traffic separation schemes for navigation in straits where necessary to promote the safe passage of ships. (Art. 41 [1]) They shall:  Such schemes shall conform to generally accepted international regulations; (Art. 41 [3]) and  Must be indicated on charts and given due publicity. (Art. 41 [6]) Such designation or prescription, upon referral by a bordering state, is subject to: 1. adoption by the competent international organization; and 2. agreement by the bordering states (Art. 41 [4]) Laws and regulations by coastal state. – A bordering state may adopt laws and regulations relating to innocent passage relating to any or all of the following: a) the safety of navigation and the regulation of maritime traffic; b) the prevention, reduction and control of pollution, by giving effect to applicable international regulations regarding the discharge of oil, oily wastes and other noxious substances in the strait; c) with respect to fishing vessels, the prevention of fishing; and d) the loading or unloading of any commodity, currency or person in contravention of the customs, fiscal, immigration or sanitary laws and regulations of States bordering straits. The coastal state must give due publicity to such laws and regulations. Flag state/state of registry liability. – Violation of the bordering state’s laws and regulations and other UNCLOS provisions imputes international responsibility on the flag state of a ship or the state of registry of an aircraft for any resulting loss or damage to the bordering states. (Art. 42)

Q: Why cannot we simply rely on the right to innocent passage over territorial seas in passing through the straits? Why bother with transit passage? Application of the regime of innocent passage to situations covered by transit passage (i.e. passage through a strait where there is no other route of similar convenience) would give a coastal state the power to suspend passage over critical straits used

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for international navigation – a power not given to coastal states under the regime of transit passage. Imagine the implication to international navigation if Spain or Morocco were given the power to restrict passage over the Strait of Gibraltar – the body connecting the Mediterranean Sea to the Atlantic Ocean.

Q: How does transit passage differ from innocent passage?

Transit Passage Navigation, overflight Submarines in normal mode Cannot be suspended Sea lanes/traffic separation schemes subject to IO adoption and agreement among bordering states

Innocent Passage Navigation only Submarines surfaced and showing flag Can be temporarily suspended Sea lanes/traffic separation only need to take into account IO recommendations

CORFU CHANNEL CASE ICJ Reports 1949, p. 4 (1949), supra.

(supra. For a discussion on the other aspects of the decision, refer to p.15) (The following discussion pertains to the first of three incidents in the Corfu Channel, i.e. Albania prohibited Royal Navy ships from passing through Corfu Channel and the former fired on the latter during passage.) UK: Albania:

 Innocent passage through straits is a right under international law  While Corfu Channel is a strait geographically, it is not an international highway where right of passage exists because: o It is not a necessary route between two high seas; o Hardly used in international navigation; used exclusively for local traffic.  Foreign warships have no right to pass through Albanian territorial waters without prior authorization from Albania; o Having been at war with Greece at the time, it had a right to restrict the passage of warships; o The Royal Navy ships sailed in combat formation, and number of guns and ships used betrayed an absence of innocence and showed an intention to intimidate Albania

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Corfu Channel is a strait where right of passage exists. The test in determining whether a body of water is a strait as contemplated in international law is:  Its geographical situation as connecting two parts of the high seas; and  The fact of its being used for international navigation. The volume of traffic passing through the strait is not so much of a criterion. Also, it was shown that it is an important route between the Aegean and Adriatic seas used by vessels of different flags, both merchant and military. Warships have a right to transit passage in times of peace. States in time of peace have a right to send their warships through straits used for international navigation between two parts of the high seas without the previous authorization of a coastal state, provided that passage is innocent. While Albania may have been justified in issuing regulations with respect to the passage of warships, it could not prohibit such passage or in subjecting it to the requirement of special authorization. The allegation that the Royal Navy ships’ conduct threatened Albanian security is without basis. The ships passed through the channel in a straight line formation, and guns were not loaded in in proper stowage position. It was only when the mines exploded (second incident) that the group went into combat formation, which was a natural reaction thereto.

ARCHIPELAGOS Archipelago, Defined It is a group of islands, including parts of islands interconnecting waters and other natural features which are so closely interrelated that such islands, waters and natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such. (Art. 46 [b]) Archipelagic State It is a state made up wholly of one or more archipelagos. It may include other islands. (Art. 46 [a]) Straight Archipelagic Baselines; How Drawn An archipelagic state may draw straight baselines by joining the outermost points of the outermost islands and drying reefs of the archipelago. (Art. 47 [1])

Limitation in drawing straight baselines. –

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1)

2) 3)

Within such baselines, the main islands must be included and an area in which the ratio of the area of the water to the area of the land, including atolls is between 1:1 and 9:1; (ibid.) Baselines shall not exceed 100 nautical miles; (Art. 47 [2]) Baselines drawn shall not depart to any appreciable extent from the general configuration of the archipelago; (Art. 47 [5]) (Refer to Art. 47 for other limitations)

The breadths of the following maritime zones are measured from the archipelagic baselines:  Territorial sea  Contiguous zone  Exclusive economic zone  Continental shelf (Art. 48)

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All ships and aircraft are entitled to this right. (Art. 53.2) These include warships and submarines. Navigation of such ships is meant to be in “normal mode”; as such, submarines need not surface (unlike in innocent passage.) No suspension of archipelagic sea lanes passage. – Like in transit passage (supra, p. 47), archipelagic sea lanes passage cannot be suspended unilaterally. (Art. 54, applying 44) Archipelagic sea lanes passage may not suspended by the archipelagic state. This differs from the right of temporary suspension granted to archipelagic states with respect to right of innocent passage over archipelagic waters. CLASS NOTES

Archipelagic Waters This refers to the waters enclosed by the archipelagic baselines, regardless of their depth or distance from the coast. (Art. 49 [1])

Designation of sea lanes and air routes. – It is the archipelagic state that designates sea lanes and air routes, and prescribes traffic separation schemes, subject to the approval of a competent international organization (i.e. International Maritime Organization). (Art. 53 [9])

Archipelagic State Has Sovereignty The sovereignty of the archipelagic state extends to the archipelagic waters, its superadjacent airspace, bed and subsoil, and the resources contained therein. (Art. 49 [1; 2])

If the archipelagic state does not designate such lanes or routes, ships and aircraft may exercise the right through the routes normally used for international navigation. (Art. 53 [12])

Right of Innocent Passage over Archipelagic Waters Ships of all states have the right of innocent passage through archipelagic waters as it applies to territorial seas (supra. p. 47). (Art. 52)

Application of Rules of Transit Passage. – The rules of transit passage governing the following apply to archipelagic sea lanes passage: (Art. 54)  Duties of vessels in transit passage (Art. 39) (supra. p. 47)  Authorization for research and survey activities (Art. 40) (supra. p. 47)  Laws and regulations by coastal state. (Art. 42) (supra. p. 47)  Duties of states bordering straits used for international navigation. (Art. 44) (supra. p. 47)

Right may be suspended. – the archipelagic state may temporarily suspend the right of innocent passage subject to the following conditions: 1. only with respect to specified areas of the archipelagic waters; 2. if it is essential for the protection of the security of the state; and 3. without discrimination among foreign ships. (Art. 52 [2]) Note that what can be suspended is the right of innocent passage over archipelagic waters, NOT the right of archipelagic sea lanes passage. CLASS NOTES Right of Archipelagic Sea Lanes Passage It is the right of all foreign ships and aircraft to have continuous, expeditious and unobstructed passage in designated sea lanes and air routes through or over archipelagic waters and the adjacent territorial sea of the archipelagic state, (Art. 53 [1]) Such passage contemplates “transit between one part of the high seas or an EEZ and another part of the high seas or an EEZ.” (Art. 53 *3+)

Q: How does archipelagic sea lanes passage differ from transit passage?

Archipelagic Sea Lanes Transit Passage Passage Navigation; Overflight Purpose of continuous, expeditious and unobstructed transit Submarines in normal mode Cannot be suspended Over archipelagic waters Over straits used for and superadjacent airspace international navigation and superadjacent airspace Sea lanes/traffic separation Sea lanes/traffic separation schemes subject to IO schemes subject to IO adoption and agreement adoption and agreement between IO and among bordering states archipelagic state

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Other Rights With Respect to Archipelagic Waters  Rights under existing agreement on the part of the third states should be respected by the archipelagic state; (Art. 51 [1])  Archipelagic state shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighboring states; and (Art. 51 [1])  Respect existing submarine cables laid by other States and passing through its waters without making a windfall. (Art. 51 [2])

Protective Jurisdiction; Not Sovereignty A coastal state does not have sovereignty over the contiguous zone, and instead may only exercise jurisdiction for particular purposes laid down by UNCLOS.

UNCLOS rules on archipelagos and archipelagic waters present significant concerns for the Philippines:  It reduces Philippine territorial waters to 12 nautical miles from the archipelagic baselines (from all the waters within the baselines under the RA 3046 or the old baselines law)  Philippine archipelagic waters are subjected to archipelagic sea lanes passage, which conflicts with the Philippine Constitution’s treatment of such waters as “internal waters of the Philippines,” (which precludes the application of innocent passage).

The concept of the Contiguous Zone was based on the historical extent of a coastal state’s sovereignty is that “within the reach of a cannonball.” This exercise of limited protective jurisdiction was deemed necessary in order to combat smuggling. CLASS NOTES

These objections were passed upon by the Supreme Court in the case of Magallona v. Executive Secretary. (supra., p. 39) CLASS NOTES

CONTIGUOUS ZONE

Such protective jurisdiction may only be exercised by the coastal state for: a) Prevention of infringement, and b) Punishment of infringement of customs, fiscal, immigration or sanitary laws and regulations. (Art. 19)

CONTINENTAL SHELF UNCLOS, Art. 76. Definition of the continental shelf 1. The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.

UNCLOS, Art. 19. Contiguous zone 1. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to: a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; b) punish infringement of the above laws and regulations committed within its territory or territorial sea. 2. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. Contiguous Zone, Defined It is a maritime zone adjacent to the territorial sea where the coastal state may exercise protective jurisdiction, whose breadth extends up to a limit not exceeding 24 nautical miles from a coastal state’s baselines.

Continental Shelf, Defined It is the seabed and subsoil of the submarine areas extending beyond the territorial sea of the coastal state throughout the natural prolongation of its land territory up to: 1) A distance of 200 nautical miles from the baselines of the territorial sea where the outer edge of the continental margin does not extend up to that distance; OR 2) The outer edge of the continental margin. Continental Margin It is the submerged prolongation of the land mass of the coastal state, consisting of the:  Continental Shelf Proper  Continental Slope  Continental Rise (Art. 76 [3]) Re: 1)

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Continental margin extends less than 200 nautical miles

Continental shelf will extend up to the maximum 200 nautical miles (by provision of UNCLOS) territorial sovereignty of the coastal state.” (Aegean Sea Continental Shelf Case, infra.)

Fig..

Re: 2) Continental margin extends more than 200 nautical miles:

Continental shelf will extend up to the outer edge of the continental margin

Outer Edge of the Continental Margin. – It shall be determined using either of the following: (Art. 76 [4]) The lines drawn using either of the two options stated above must not exceed: A. 350 nautical miles from the baselines; (Point A) OR B. 100 nautical miles from the 2500 meter isobath (i.e. the point where the waters are 2500 meters deep) (Point B)

Natural resources covered. – The coastal state has rights over the following natural resources:  Mineral and other non-living resources of the seabed and subsoil;  Living organisms belonging to sedentary species (i.e. organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.) Artificial Islands, Installations and Other Structures. – The rights of the coastal state with regard to artificial islands, installations and other structures on the continental shelf are the same as those of coastal states in EEZs.(Art. 80) (refer to Art. 60, infra. p. 59) Drilling. – The coastal State shall have the exclusive right to authorize and regulate drilling on the continental shelf for all purposes. (Art. 81) Marine Scientific Research. – This may only be conducted on the continental shelf with the consent of the coastal state. (Art. 242 [2]) Does Not Affect the Legal Status of the Superadjacent Waters and/or Airspace Note that the continental shelf pertains to the “seabed and subsoil of submarine areas”, and does not involve the superadjacent waters and/or airspace. As such, the coastal state’s rights over the shelf do not affect the legal status of the superadjacent waters or of the airspace above them. (Art. 78 [1])

Fig..

Rights of the Coastal State Natural resources. – The coastal state exercises exclusive sovereign rights over the continental shelf for the purpose of exploring it and exploiting its natural resources. (Art. 77 [1]) They are exclusive in the sense that if the coastal state does not explore the continental shelf or exploit its resources, no one may undertake such activities without its express consent. (Art. 77 [2]) These exist as inherent rights, “ipso facto and ab initio, by virtue of its (coastal state’s) sovereignty over the land, and as an extension of it in an exercise of sovereign rights.” (North Sea Continental Shelf Case, infra.) They are an “emanation from and an automatic adjunct of the

Hence, such rights must be exercised that does not infringe the freedoms of other states provided for by UNCLOS (e.g. navigation and overflight, right to law submarine cables and pipelines [Art. 79]) Right to Law Submarine Cables and Pipelines All States are entitled to lay submarine cables and pipelines on the continental shelf. Non-interference by coastal state. – General Rule: Coastal state may not impede the laying or maintenance of such cables or pipelines Exception: The coastal state may do the following: 1) Take reasonable measures for a. Exploration of the continental shelf; b. Exploitation of natural

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resources; Prevention, reduction and control of pollution from pipelines (For pipelines) Give/withhold consent with regard to the route of such pipelines. c.

2)

Q: What are the differences in rights and duties

existing between the continental shelf and the exclusive economic zone given that both extend 200 nautical miles from the baseline?

Continental Shelf Rights over living and nonliving resources, excluding sedentary species Rights to resources of the superadjacent waters, seabed and subsoil

EEZ Rights over mineral and non-living resources, and sedentary species Rights to resources of the seabed and subsoil only. Duty of the coastal state to conserve or share resources

-

NORTH SEA CONTINENTAL SHELF CASES (GERMANY v. DENMARK; GERMANY v. NETHERLANDS)

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In making delimitations, the factors to be taken into account were to include:  the general configuration of the coasts of the parties, as well as the presence of any special or unusual features;  so far as known or readily ascertainable, the physical and geological structure and natural resources of the continental shelf areas involved;  the element of a reasonable degree of proportionality between the extent of the continental shelf areas appertaining to each state and the length of its coast measured in the general direction of the coastline, taking into account the effects, actual or prospective, of any other continental shelf delimitations in the same region.

CASE CONCERNING THE CONTINENTAL SHELF (LIBYA v. MALTA) ICJ Reports 1985, p. 13. (1985)

By a Special Agreement, Libya (a North African state) and Malta (an island state in the Mediterranean Sea) submitted their dispute concerning the delimitation of the continental shelf between them to the ICJ. Libya:

ICJ Reports 1969, p.5 (1969), supra.

(supra. For a more exhaustive discussion, refer to p. 7)

Germany:

Denmark, Netherlands:

 Delimitation must be based on giving parties their “just and equitable share” in proportion to the length of their coastline;  Use of “equidistance principle” is not a rule of customary international law;  Use of the equidistance principle would lead to inequitable outcomes for Germany (i.e. it would curtail what it deems to be its proper share on the basis of its proportionality to the length of its coastline along the North Sea)  The Geneva Convention does not bind states which are not parties thereto;  Delimitations should be governed by the “equidistance principle”, per Art. 6 (2) of the Geneva Convention on the Continental Shelf;

Points to remember: There is no rule of customary international law requiring the use of the equidistance principle.

Malta:

 Geological criteria should be the basis; o The natural prolongation of their land territories should be used as a basis for the delimitation; o There exists in the area between them a “rift-zone” – a series of features in the seabed (e.g. trenches, troughs) which suggest a geological discontinuity between them; this should be used as the boundary; o Principle of proportionality should be used (i.e. state with a longer coastline should get more vis-à-vis one with a shorter coastline);  Application of the equidistance method is not obligatory.  Distance principle should be the basis; o Equidistance method should be used, by reference to distances from their respective coasts, regardless of the physical characteristics

The delimitation is to be accomplished by using an equitable solution, effected by use of equitable principles and taking into account all relevant circumstances. The Court applied the Article 83 UNCLOS, which was not yet effective at the time but had been already been adopted by an overwhelming majority of states (hence taken as evidence of customary international law). It called for “an equitable solution” in the delimitation of

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continental shelves. This provision sets the goal to be achieved, but is silent as to the method to be used.

line from the low-water marks of the Libyan and Maltese coasts which constitutes the provisional first step.

Libya’s rift-zone argument was rejected. The court noted that according to the UNCLOS, a state is entitled to claim a continental shelf of up to 200 nautical miles, irrespective of the outer limit of the continental margin. Geophysical factors only come into play when the continental margins exceed 200 nautical miles. In the instant case, the distance from the Libyan to the Maltese coasts does not exceed 400 nautical miles; hence each state’s claim cannot exceed 200 nautical miles each. Thus, the situation where geophysical factors (e.g. rift zones) can terminate the extent of claims does not arise.

Next, the Court used the following relevant circumstances for the purpose of adjusting the provisional line in order to arrive at an equitable result:  Coastal lengths of parties; – The relevant portion of the coast of Libya 192 miles long, while Malta’s is only 24 miles. This difference is so great as to justify the adjustment of the median line closer to Malta;  Distance between the coasts;  Placement of basepoints governing any equidistance line;  General geographical context.

The principle of proportionality of coastlines as advanced by Libya is not a general principle providing an independent source of rights to areas of a continental shelf. It is only one of several factors that could be used as a means of correcting inequitable effects produced by particular geographical features in a delimitation. It should not be used on its own.

The court thus arrived at the following delimitation line, as illustrated:

Neither is equidistance a method which MUST be used. The court did not see any state practice that proves the existence of a rule prescribing the use of equidistance. The particular circumstances of the case may still require the adoption of other methods and the application of equitable principles. Examples of equitable principles that may be applied are:  Principle that there is to be no refashioning of geography or compensating of inequalities of nature;  Non-encroachment of natural prolongations;  Equity does not imply equality;  That there is no question of distributive justice. There is no legal limit as to the considerations which states may take into account. However, only those pertinent to the case will qualify for inclusion.

AEGEAN SEA CONTINENTAL SHELF CASE ICJ Reports 1978, (1978)

The court refused to consider the following:  Landmass;  Economic positions of the parties;  Security and defense factors;  Equality of states In arriving at an equitable solution to the delimitation, the process should be done in stages: 1. First, draw a provisional line; 2. Second, examine the provisional line using equitable principles; 3. Third, correct the initial result accordingly. In the instant case, the Court found that the equidistance method is an equitable method which can be used in cases where the delimitation is to be effected between states with opposite coasts. It is thus the drawing of a median

Turkey granted petroleum exploration permits in the Aegean Sea over areas of seabed that Greece claimed belonged to its islands. Greece took this as a unilateral delimitation of the Aegean continental shelf, and thus instituted this present action.

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Greece: Turkey:

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 Greek islands in the Aegean are entitled to their own continental shelves.  Greek islands close to the Turkish coasts do not possess continental shelves of their own;  The sea-bed of the Aegean geographically forms a natural prolongation of the Turkish land mass; hence the Turkish continental shelf should extend further into the Aegean up to the median line.

The Court does not have jurisdiction over the case; hence. it declined to rule on the continental shelf issue. While the Court refused to rule on the substantive issues of the case, the controversy nonetheless presents an interesting case of continental shelf delimitation. This issue remains unresolved to this day. Siding with Greece would significantly diminish Turkey’s rights to the Aegean given their geographical proximity. Siding with Turkey would deprive Greek islands of its waters. Sir’s proposed solution: Give Turkey its continental shelf, but leave small pockets of water as Greek territorial seas. The Portico Doctrine in the Eritrea-Yemen Arbitration Case (supra., p. 31) can find application here. (Karichi Notes, citing Prof. Roque, 2010) CLASS NOTES

ANGLO-FRENCH ARBITRATION CASE ICJ Reports 1979, (1979)

The United Kingdom and France entered into negotiations and s subsequent 1977 arbitration for the delimitation of the continental shelf between them. This decision provided for a:  primary boundary line between the French coast and the UK mainland coast, drawn on the basis of the equidistance principle; (Line A) and  12-mile UK exclave north of the Channel Islands (UK territory), since said islands were located within the French side of the primary boundary line. (Line B)

UK

B A UK:

France:

France

 Technical issue: the chart provided for in and the dispositif of the 1977 decision ignored certain basepoints that should be sued in drawing the median/equidistance line; hence it did not reflect description in the decision itself, which must be corrected.  The mistake is but a minor inconsistency which can be ignored;  The dispositif must be followed; modification is not allowed.

The changes may be effected; the boundary should be rectified so as to take account of the base-points previously not taken into account. Parties agree that there is a discrepancy in the drawing of the boundary. It was a material error which the court has the power to rectify. The court left it to the parties to effect a correction consistent with the decision. Court proceeded to discuss the actual delimitation of the continental shelf. Equidistance-Special Circumstances Method Article 6 of the Geneva Convention on the Continental Shelf of 1958 provides that in the absence agreement between the parties, the boundary between the continental shelves of opposite states is the median line – whose every point is equidistant from the nearest points of the baseline. An exception to this rule is the presence of special circumstances which would justify another boundary line. This would call for the appreciation of special geographical features in drawing a boundary line. “The combined equidistance-special circumstances rule, in effect, gives particular expression to a general norm that, failing agreement, the boundary between States abutting on the same continental shelf is to be determined on equitable principles.” (verbatim) Modified Equidistance Method In a large proportion of delimitations, where a particular geographical feature has influenced the course of a continental shelf boundary, the method of delimitation

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adopted has been some modification or variant of the equidistance principle rather than its total rejection. Here the problem also arises precisely from the distorting effect of a geographical feature in circumstances in which the line equidistant from the coasts of the two States would otherwise constitute the appropriate boundary. (Karichi Notes, 2010) (e.g. in this case, British islands lying within the French side of the equidistance line) The appropriate method is to take account of unique geographical features (e.g. Channel Islands, Sicily Isles) as part of the coastline of the UK but to give them less than their full effect (i.e. Half-effect method) in applying the equidistance method. Just as it is not the function of equity in the delimitation of the continental shelf completely to refashion geography, so it is also not the function of equity to create a situation of complete equity where nature and geography have established an inequity. (ibid.) Half-effect. – This method consists in delimiting the line equidistant between the two coasts, first, without the use of the offshore island as a base-point, and, secondly, with its use as a base-point; a boundary giving half-effect to the island is then the line drawn midway between those two equidistance lines. In order to effect these principles, the Court divided the delimitation into two steps: 1. First, determine the median/equidistant line between the opposing states reckoned from their coasts, ignoring the special geographical features (e.g. islands); then 2. Second, delimit a second boundary line, taking into consideration the special geographical features It is the line drawn midway between those boundary lines which would give half-effect. “Method of half-effect = proceed first as if the island doesn’t exist, then shift the lines.” (ibid.) This case was “a delimitation in a delimitation.” CLASS NOTES

CASE CONCERNING MARITIME DELIMITATION IN THE AREA BETWEEN GREENLAND AND JAN MAYEN (DENMARK v. NORWAY) ICJ Reports 1993, p. 38 (1993)

This case is a dispute regarding the extent of the continental shelves of Denmark and Norway in the area between Greenland (Danish) and the island of Jan Mayen (Norwegian). Denmark:

 Denmark

is

entitled

to

a

Norway:

zone/continental shelf extending up to 200 nautical miles from the coast of Greenland; a single delimitation line should be drawn for the purpose.  A median line drawn from equidistant points between Greenland and Jan Mayen is the proper boundary.

Greenland

Jan Mayen

The Court found that there was no agreement between the parties to draw a single line for the delimitation of their fisheries zone and continental shelf boundaries. Hence, it proceeded to examine the boundaries separately. For the continental shelf delimitation, the Court found the 1958 Geneva Convention to be the applicable law, while the fishery zone shall be governed by the relevant customary law. Also, the court said that special or relevant circumstances, pursuant to the 1958 Geneva Convention and to customary law shall be considered, to the effect that the shifting of the provisionally drawn median line is required. In drawing the delimitation, the following circumstances were taken into account:  the disparity of length of coasts;  the access to fishery resources. The Court did not consider population, socio-economic factors, and the conduct of the Parties. The result thus reached by the Court was that the median line between the coasts shifted in the direction of Jan Mayen - but not as far as reaching the 200 nautical miles line measured from the coast of Greenland - constituted the line to be drawn in this case. Although Norway was of the opinion that the actual line was to be drawn by the Parties on the basis of the decision of the Court, the Court considered its task only fulfilled after having drawn the concrete line. Accordingly, the Court fixed the line in the region situated between the median line and the 200 miles-line by dividing this region into three sectors and taking into account the relevant circumstances, in particular the access to the fishery resources.

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CASE CONCERNING DELIMITATION OF MARITIME AREAS BETWEEN CANADA & FRANCE (ST. PIERRE AND MIQUELON) 31 ILM 1145 (1992)

In the case at bar, the delimitation stated with an identification of the relevant area. The parties have agreed on the area, but failed to settle the issue as regards the relevant coast. In line with this disagreement (on relevant coast), the parties took into consideration the relationship of the coasts to each of the Parties. Canada, on the ground of close contiguity, argues that the coasts are related to it through the adjacency relationship. France, on the other hand, claims on the ground of oppositeness relation. The Court, with this issue, found that it is the adjacency relationship which is to prevail based on two factors: the geographical feature of the coast in dispute and historical evidence. St. Pierre and Miquelon are laterally aligned with the south coast of Newfoundland (in favour of Canada). Also, historically, as proven by the 1713 Treaty of Utrecht, St. Pierre and Miquelon are described as adjacent islands of Newfoundland. France was awarded with a zone which is divided in two parts: the first sector has a boundary set by an equidistant line between the French and Canadian islands, then an additional 24 nautical mile drawn from the west of the islands. The second sector is a long north-south 188nautical mile corridor south of the islands, which allows France to access its EEZ from international waters without passing through Canadian EEZ.

Saint Pierre & Miquelon are two French islands close to the Canadian coast. The trigger of this case is the issuing by the two parties of hydrocarbon exploration permits in the area, with both contending that the other did not have the right to do so. Its territorial maritime boundary with Canada was first delimited by virtue of a 1972 treaty signed by both Canada and France. Towards the 20th century, each country began to extend their claimed territorial limit, first to 12 nautical miles, then to 200 nautical miles; to the end that the parties’ claims began to overlap. Also, the maritime boundaries beyond the territorial sea – the extent of the EEZ (which is determinative of the Parties’ exclusive right to fish) – remained in dispute. France: Canada:

 Delimitation of the continental shelf shall be based on the equidistance principle;  Special circumstances rule should be applicable.

The question on which method of delimitation shall be applied is determined primarily by the geographical circumstances – but rules on international law as well as equitable principles must also be taken in consideration in order to add relevance and weight to the geographical circumstances.

In effect, the delimitation awards approximately 18% of the territory that France had initially been claiming.

CASE CONCERNING PEDRA BRANCA/PULAU BATU PUTEH, MIDDLE ROCKS AND SOUTH LEDGE (MALAYSIA v. SINGAPORE) (*Note: This may be the wrong case. The outline lists “Malaysia v. Singapore” under the topic “Continental Shelf” without any accompanying citation. Upon asking Prof. Roque for a citation, he said “Whatever you can find.” And this case was the only one we could find.) This case relates to the dispute concerning territorial sovereignty over three maritime features in the Straits of

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Singapore. At the eastern entrance of the Strait of Singapore is a granite island called Pedra Branca. In 1979, Malaysia published a map entitled “Territorial Waters and Continental Shelf Boundaries of Malaysia.” The map depicted the island of Pedra Branca as lying within Malaysia’s territorial waters. This was rejected by Singapore who requested Malaysia to correct the map. In effect, the Court considered as the critical date the time of Singapore’s protest in response to Malaysia’s publication of the 1979 map. Singapore argued that the legal status of Pedra Branca was that of terra nullius, Malaysia maintained that it had an original title to Pedra Branca of long standing. Thus, an arising question was whether Malaysia has established its claim over the island. In this respect, a principal issue relates to the question whether the Sultanate of Johor—a predecessor of Malaysia—had sovereignty over Pedra Branca. The Court, through the pieces of evidence considered, held that from at least the 17th century until in the 19th century it was acknowledged that the territorial and maritime domain of the Kingdom of Johor comprised a considerable portion of the Malaya Peninsula, straddled the Straits of Singapore and included islands and islets in the area of the Straits. Thus, such domain included the area where Pedra Branca is located. The Court also noted the fact that throughout the entire history of the old Sultanate of Johor, there is no evidence that any competing claim had ever been advanced over the islands in the area of the Straits of Singapore. Hence, the Court concluded that the Sultanate of Johor had original title to Pedra Branca. In addition, the Court found that the nature and degree of the Sultan of Johor’s authority exercised over the Orang Laut—“the people of the sea” who were engaged in various activities in the waters in the Straits of Singapore—confirms the ancient original title of the Sultanate of Johor to islands in the Straits of Singapore, including Pedra Branca. The next issue is whether Malaysia has retained sovereignty over Pedra Branca or whether the sovereignty has since passed to Singapore. Singapore claims that it acquired sovereignty over Pedra Branca in 1844 when it constructed a lighthouse on the island as well as various other activities. This contention then brought the Court to examine the conduct of the Parties relating to Pedra Branca. In this context, an important element is the construction and commissioning of Horsburgh lighthouse on Pedra Branca by the United Kingdom between 1850-1851. Malaysia argued that the conduct of the United Kingdom and Singapore related only to the construction and commissioning of the lighthouse and later operating it

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with the consent conferred by the Sultan of Johor and the Temenggong in November 1844; and that they were not actions intended to acquire sovereignty over Pedra Branca. By contrast, Singapore contended that the United Kingdom acquired title to the island in the period of 18471851 by taking lawful possession of the island in connection with building the lighthouse on it. Note that the Court did not draw any conclusions about sovereignty on the basis of the construction and commissioning of the lighthouse. Thus, the central question is whether the conduct of the Parties after the construction of the lighthouse on Pedra Branca provides a basis for the passing of sovereignty over the island from Johor to the United Kingdom, Singapore’s predecessor. The Court recalled the position of the Acting Secretary of State of Johor in 1953 that Johor did not claim ownership of Pedra Branca. According to the Court, “*t+hat statement has major significance.” The Court also stressed that the conduct of the United Kingdom and Singapore includes acts à titre de souverain; and that Malaysia and its predecessors did not respond in any way to that conduct. In addition to this, the Johor authorities and their successors took no action at all in respect to the island from June 1850 for the whole of the following century or more. Overall, the Court considered that the relevant facts reflect “a convergent evolution” of the positions of the Parties concerning title to Pedra Branca. Hence, the Court concluded, by twelve votes to four that by 1980 sovereignty over Pedra Branca had passed to Singapore.

ARIGO v. EXECUTIVE SECRETARY (PETITIONERS’ PLEADING) supra.

(For an exhaustive discussion, refer to p. 27)

EXCLUSIVE ECONOMIC ZONE UNCLOS, Art. 55. Specific legal regime of the exclusive economic zone The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention. UNCLOS, Art. 57 Breadth of the exclusive economic zone The exclusive economic zone shall not extend

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beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. Exclusive Economic Zone, Defined It is an area beyond and adjacent to the territorial sea, not extending beyond 200 nautical miles from the baselines. Coastal State Has Sovereign Rights and Jurisdiction; Not Sovereignty The coastal state does not have full sovereignty over the EEZ (c.f. internal waters, territorial sea), but instead possesses limited sovereign rights and jurisdiction. Sovereign rights. – Its sovereign rights are limited to the following purposes:  Exploring and exploiting, conserving and managing the natural resources o living or non-living; o in the superadjacent waters of the seabed, the seabed and its subsoil; o excluding sedentary species (Art. 68)  Other activities for the economic exploitation and exploration of the zone. (e.g. production of energy from the water, currents and winds) (Art. 56 [1a]) Jurisdiction. – It has jurisdiction with regard to:  The establishment and use of artificial islands, installations and structures;  Marine scientific research; and  Protection and preservation of the marine environment. (Art. 56 [1b]) Enforcement measures. – It has the right to enforce all laws and regulations enacted for the conservation and management of living resources in the EEZ. It may:  Board and inspect a ship  Arrest a ship and its crew;* and  Institute judicial proceedings against them.* (Art. 73 [1]) *Flag state must be promptly notified of action taken and penalties imposed. Arrested vessels and their crews shall be promptly released upon the posting of bond or security. (Art. 73 [2]) In the absence of agreement to the contrary by the states concerned, coastal state penalties for violations of fisheries laws in their EEZ may not include imprisonment or any other form of corporal punishment. (Art. 73 [3]) Conservation, Utilization and Management of Living Resources within the EEZ The coastal state has the following primary responsibilities with regard to the living resources within the EEZ;  Conservation. – Duty to ensure through proper conservation and management measures that

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

the living resources are not endangered by overexploitation; (Art. 61) Optimum Utilization. – Duty to promote the objective of optimum utilization of the living resources and, to this end, to determine the allowable catch of such resources in relation to its capacity to harvest the allowable catch. (Art. 62)

Conservation. – The coastal state’s objectives with regard to conservation are as follows:  Determination of the allowable catch of living resources; (Art. 61 [1]) o Allowable catch: catch in any one year which will best achieve the objectives of the coastal state’s conservation objectives o No limit; except by the duty not to overexploit.  Maintenance of the living resources in such a way that they are not endangered by overexploitation; (Art. 61 [2])  Maintenance or restoration of population of harvested species at levels which can produce the maximum sustainable yield; and (Art. 61 [3]) Maximum sustainable yield: level of harvesting a species of fish which can be taken at a maximum from year to year without depleting the stock.  Maintenance of associated or dependent species above levels at which their reproduction may become seriously threatened. (Art. 61 [4]) Utilization. – The coastal state must determine its capacity to harvest the living resources in the EEZ. In the event that it does not have the capacity to harvest the entire allowable catch, it shall give other states access to the surplus of the allowable catch by means of UNCLOSconsistent agreements and arrangements. (Art. 62 [2]) In doing so, the following factors shall be considered:  Its own economic and other national interests;  Requirements of developing states in the region;  The need to minimize economic dislocation in States whose nationals have habitually fished in the EEZ or which have made substantial efforts in the research and identification of stocks in the EEZ. (Art. 62 [3]) In allowing other states access to living resources, the coastal state may regulate the following matters: a) Licensing of fishermen, fishing vessels and equipment, and the payment of fees; b) Determination of species which may be caught, and fixing quotas of catch; c) Regulation of seasons and areas of fishing, the types, sizes and amount of gear and fishing vessels that may be used;

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d) e)

f)

g) h) i) j)

k)

Fixing the age and size of fish that may be caught; Specifying of information required of fishing vessels, including catch and effort statistics and vessel position reports; Requiring, under the authorization and control of the coastal State, the conduct of specified fisheries research programmes and regulating the conduct of such research; Placement of observers or trainees on board such vessels by the coastal State; Landing of all or any part of the catch by such vessels in the ports of the coastal State; Terms and conditions relating to joint ventures or other cooperative arrangements; Requirements for the training of personnel and the transfer of fisheries technology, including enhancement of the coastal State's capability of undertaking fisheries research; Enforcement procedures. (Art. 62 [4])

Rights of Land-Locked States and Geographically Disadvantaged States to EEZ Resources A land-locked state (LLS) is one which does not border the sea and therefore do not have an EEZ. A geographically disadvantaged state (GDS) is a coastal state which can claim no EEZ of its own, or one whose geographical situations make them dependent on the exploitation of the living resources of the EEZ or other coastal states. (Art. 70 [2]) Right of LLS/GDS to EEZ resources of coastal states. – General Rule: An LLS/GDS has the right to participate, on equitable basis, in the exploitation of the surplus of living resources in the EEZ of coastal states of the same sub-region or region. (Art. 69 [1], 70 [1]) Exception: Right does not apply in the case of a coastal state whose economy is overwhelmingly dependent on exploitation of the resources in its EEZ. (Art. 71)

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Terms of LLS/GDS participation in the EEZ. – These terms shall be established by the states concerned through bilateral, sub-regional or regional agreement/s, which shall take into account the following: a) The need to avoid effects detrimental to fishing communities or fishing industries of the coastal State; b) The extent to which the LLS/GDS is participating or is entitled to participate; c) The consequent need to avoid a particular burden for any single coastal State or a part of it; d) The nutritional needs of the populations of the states concerned. (Art. 69 [2], 70 [2]) Artificial Islands, Installations and Other Structures General Rule: A coastal state has the exclusive right to construct, authorize and regulate the construction, operation and use of artificial islands, installations and other structures in the EEZ, pursuant to its jurisdiction under Article 56 (supra). (Art. 60 [1]) Exception: They may not be established where they may interfere with the use of recognized sea lanes essential to international navigation. (Art. 60 [7]) Jurisdiction. – The coastal state’s jurisdiction over artificial islands, installations and other structures is exclusive. It may exercise the same with respect to laws and regulations over the following matters:  Customs;  Fiscal;  Health;  Safety; and  Immigration (Art. 60 [2])

Q: Do artificial islands, installations and structures

constructed in the EEZ have the status of islands in international law?

This right is non-transferrable to third states or their nationals through, among others, lease, license, joint venture, unless otherwise agreed upon by the states concerned. (Art. 72.1)

No, they do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the EEZ or the continental shelf. (Art. 60 [8])

This right only pertains to the surplus of a coastal state’s allowable catch. (Art. 69 [1], 70 [1]) If a coastal state should thereafter approach a point when it can harvest up to the allowable catch:  The right can no longer be exercised;  BUT, the coastal state shall be duty-bound to cooperate in establishing equitable arrangements to allow the participation of a DEVELOPING LLS/GDS in the exploitation of resources. (Art. 69 [3], 70 [4])

Marine Scientific Research While not mentioned in the UNCLOS section on the EEZ, the following principles are applicable on the conduct of marine scientific research in the EEZ:  The search shall be conducted with the consent of the coastal state;  It shall be conducted exclusively for peaceful purposes;  It shall not unjustifiably interfere with activities of the coastal states in the exercise of their

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rights and jurisdiction under the UNCLOS; (Arts. 240, 246) Rights of coastal states with respect to marine scientific research. – Coastal states may withhold their consent to the conduct of a research project under the following conditions: 1) If it is of direct significance to the exploration and exploitation of natural resources; 2) If it involves drilling or use of explosives or other harmful substances in the marine environment; 3) If it involves the construction, operation or use of artificial islands, installations or structures; 4) If it contains inaccurate information regarding the nature and objectives of the research project; or 5) If the proponent state or organization has outstanding obligation to the coastal state for a prior research project (Art. 246 [5]) They also have the following rights:  Right to be provided with information about the research project (Art. 248)  Right to participate or be represented therein (Art. 249 [1a])  Right to be provided with preliminary reports and final results, and access to all data and samples derived therefrom. (Art. 249 [1b and c])  Right to suspend or stop research activities in the EEZ. Rights and Duties of Other States in the EEZ In the EEZ of coastal states, all states enjoy the following freedoms of the high seas: (Art. 87, infra, p.63)  Navigation and overflight;  Laying of submarine cables and pipelines. Nonetheless, states shall have due regard to the rights and duties of the coastal state and shall comply with the latter’s laws and regulations. (Art. 58)

FISHERIES JURISDICTION (SPAIN v. CANADA) ICJ Reports 1998, p. 432 (1998)

(*Note: With respect to the case, the outline contains a notation, “FACTS ONLY.”)

The Spanish fishing vessel “The Estai” was boarded and its master arrested around 245 miles from the Canadian coast by Canadian Government vessels for violating Canada’s Coastal Fisheries Protection Act. This law prohibited fishing by foreign vessels (e.g. Spanish vessels) within the North Atlantic Fisheries Organization [NAFO] Regulatory Area – an area in the high seas defined by the “Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, 1978”. Spain:

Canada:

 Canada does not have jurisdiction over foreign vessels in the high seas, outside its EEZ. The flag state has exclusive jurisdiction over vessels flying its flag in the high seas.  Canada’s boarding of “Estai” was a violation of international law on concerning freedom of navigation and freedom of fishing on the high seas  Court has no jurisdiction over the case.

The Court decided in favor of Canada when it ruled that it had no jurisdiction to hear the case as it fell under Canada’s reservation to ICJ jurisdiction under Article 36. The doctrinal value of the case is its statement on what in international law may be regarded as “conservation and management measures”. Accordingly, only two types of measures taken by a coastal State may be regarded as such: 1. Those relating to the State's exclusive economic zone; and 2. Those relating to areas outside that zone, in so far as these came within the framework of an international agreement or were directed at stateless vessels. Measures not satisfying these conditions were not conservation and management measures but unlawful acts pure and simple.

THE M/V “SAIGA” (NO. 2) CASE (ST. VINCENT AND THE GRENADINES v. GUINEA) ITLOS Judgment, July 1, 1999

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The Tribunal refuted “public interest and necessity” claim, holding that such notion would curtail the rights of other States in the exclusive economic zone. The Tribunal is satisfied that this would be incompatible with the provisions of articles 56 and 58 of the Convention regarding the rights of the coastal State in the exclusive economic zone.

M/V Saiga is an oil tanker provisionally registered in Saint Vincent and the Grenadines (SVG). Saiga travels by sea to sell gas oil as bunker and occasionally they also cater to or sell oil to fishing and other vessels of the coast of West Africa.

Accordingly, the arrest and detention of the Saiga, the prosecution and conviction of its Master, the confiscation of the cargo and the seizure of the ship were contrary to the Convention.

THE “CAMOUCO” CASE (PANAMA v. FRANCE) ITLOS Judgment, February 7, 2000

Saiga supplied gas oil to fishing vessels located in waters near Guinea. Later, when the vessel was near the southern limit of Guinea’s EEZ, Guinean authorities attacked and arrested the Saiga and its Master and crew, on the ground that it illegally imported oil within the Guinean customs radius in violation of its laws.

French authorities in the EEZ of the Crozet Islands arrested “Camouco”, a Panamian vessel for long-line bottom fishing of Patagonian toothfish in South Atlantic international waters. The Camouco’s Master was charged unlawful fishing in the Crozet islands’ EEZ and put under court supervision at Saint-Denis (French territory).

 Art. 56 of the Convention does not give the right to Guinea to extend the application of its customs laws and regulations to its EEZ;  Guinea violated its rights to enjoy the freedom of navigation or other internationally lawful uses of the sea in the EEZ, since the supply of gas oil by the Saiga falls within the exercise of those rights.  Expansion of jurisdiction in EEZ is justified on the ground of public interest and self-protection;  Customary international law principle of “public interest” and “necessity” gives it the power to impede “economic activities that are undertaken in its EEZ under the guise of navigation.

A local French court confirmed the arrest of the Camouco and its master. It also ordered a bond in the amount of 20,000,000 Francs to be paid for the release of the vessel. The Camouco’s owner subsequently appealed this decision.

St. Vincent and the Grenadines:

Guinea:

By applying its customs laws to a customs radius which includes parts of the EEZ, Guinea acted in a manner contrary to the Convention. While a coastal state has the right to enforce customs laws and regulations in the territorial sea and the contiguous zone, such right is qualified with respect to its Exclusive Economic Zone (EEZ). In its EEZ, the coastal state has jurisdiction to apply customs laws and regulations only with respect to artificial islands, installations and structures (Art. 60, par. 2). The Convention does not empower a coastal State to apply its customs laws in respect of any other parts of the exclusive economic zone not mentioned above.

This prompted Panama to bring an action before the International tribunal for the Law of the Sea. Panama:

France:

 Camouco and its Master should be promptly released upon payment of a bond, pursuant to Art. 292 of the UNCLOS;  France failed to notify them of the arrest.  The bond price set by France was unreasonable  Panama has not yet paid the bond; hence it cannot invoke Art. 292 yet;  Panama should first exhaust its remedies before French courts;  Bond amount was reasonable.

Posting of the bond not a precondition for Art. 292 invocation. Posting of a bond or other security is not necessarily a precondition for filing an application under Art. 292. There may be violations of the Art. 292 even before the payment of the bond. In this case, the unreasonable bond amount imposed by French courts was a cause for which reason Panama can invoke Art. 292. No need to exhaust local remedies Moreover, local remedies need not be exhausted in order to file an application because Art. 292 is intended to provide for an independent remedy within a short period.

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Art. 292 is designed to free a ship and its crew from prolonged detention on account of the imposition of unreasonable bonds in municipal jurisdictions, or the failure of local law to provide for release on posting of a reasonable bond, inflicting thereby avoidable loss on a ship owner or other persons affected by such detention. Furthermore, it safeguards the interests of a coastal State by providing for release only upon the posting of a reasonable bond or other financial security determined by a court or tribunal referred to in Art. 292, without prejudice to the merits of the case in the domestic forum against the vessel, its owner or its crew. Bond demanded by France was excessive; should only be 8 million Francs The value of the vessel alone may not be a controlling factor in the determination of the bond, the overall circumstances of the case must be considered.

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entitled to extend its territorial sea beyond the median line, every point of which is equidistant from the nearest points on the baseline from which the breadth of the territorial sea is measured. Exception:

Rules on Delimitation of EEZ and the Continental Shelf between Adjacent or Opposite States Rule: By agreement among states on the basis of international law “in order to achieve an equitable solution”;

The 20 million-Franc demand was found unreasonable. Instead, the tribunal set the bond in the amount of 8 million Francs. “Mustn’t submit vessels guilty of illegal fishing to incarceration, but must promptly release them upon the posting of a cash bond.” (Karichi Notes, citing Prof. Roque, 2010) Art. 292 is an independent remedy that requires no exhaustion of local remedies. CLASS NOTES

DELIMITATION OF MARITIME BOUNDARIES Delimitation, Defined Delimitation is a process which involves establishing the boundaries of an area already, in principle, appertaining to the coastal state. It is not the determination de novo of such an area (i.e. not created out of nothing); rather, it is a process of drawing a boundary line between areas which already appertain to one or other of the states affected. (North Sea Continental Shelf Case, supra., p. 7) It always has an international aspect; it cannot be dependent merely upon the will of the coastal state as expressed in its municipal law. Its validity is hinged on international law. (Anglo-Norwegian Fisheries Case, supra., p. 8) Rules on Delimitation of the Territorial Sea between States with Opposite or Adjacent Coasts General Rule: Left to the agreement between opposite or adjacent coasts; In the absence of agreement, the equidistance rule applies: neither state is

Equidistance rule shall not apply and a different delimitation is required in the following cases:  Historic title;  Other special circumstances. (Art. 15)

In the absence of agreement, matter shall be subject to UNCLOS dispute settlement measures (infra.)(Arts. 74, 83) Negotiations must be meaningful. – Parties must enter into negotiations with a view of arriving at an agreement. They should not insist on their own positions, such that the engagement amounts to mere compliance with a formal requisite. Duty to make provisional arrangements pending agreement. – Pending a final agreement, parties shall make every effort to enter into provisional arrangements which shall govern their conduct. They must refrain from acts which jeopardize or hamper efforts toward a final agreement. (Art. 74 [3]; 83 [3]) Dispute Settlement Procedures When no agreement is reached by the parties with regard to territorial sea, EEZ and continental shelf boundary limitations, the following shall be done:  Reference to third-party settlement of disputes under Part XV of UNCLOS;  If the state declares an exception to acceptance of UNCLOS dispute settlement procedures under Article 298, and the dispute arises subsequent to the entry of force of UNCLOS and there is no agreement between parties – dispute shall be submitted to a conciliation commission, which shall come up with a non-binding report on the basis of which the parties shall negotiate an agreement;  If they still fail to reach an agreement, they are required to submit the dispute to a third-party compulsory procedure (e.g. ICJ, ITLOS, arbitral tribunals)

HIGH SEAS

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UNCLOS, Art. 86. Application of the provisions of this Part The provisions of this Part apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. This article does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone in accordance with article 58. High Seas, Defined These refer to waters which do not constitute the internal waters, archipelagic waters, territorial sea, and exclusive economic zone of a state. (Implied from Art. 86) They are beyond the jurisdiction & sovereign rights of the states. Fundamental Principles on its Legal Status  Freedom of the high seas. – The high seas are open to all states and no state can validly subject any part of the high seas to its sovereignty; (Arts. 87, 89)  Peaceful purposes. – They are reserved for peaceful purposes; (Art. 88)  Freedom of navigation. – It is the right of every State to sail ships flying its flag on the high seas. No state can prevent ships of other states from using the high seas for lawful purposes; (Art. 90)  Flag state jurisdiction. – The flag state has exclusive jurisdiction over ships sailing under its flag in the high seas; (Art. 92) (see exhaustive discussion in Navigation; Flag State Jurisdiction, infra., p. 65) Freedom of the High Seas Both coastal and land-locked states are entitled to the following rights in the high seas, subject to conditions laid down by UNCLOS: 1. Freedom of navigation; 2. Freedom of overflight; 3. Freedom of fishing; 4. Freedom to lay submarine cables and pipelines; 5. Freedom to construct artificial islands and other installations; 6. Freedom of scientific research; These freedoms shall be exercised with due regard for the interests of other states (Art. 87) Freedoms 1, 2 and 4 are those accorded to all states with respect to the EEZ of a coastal state. (Art. 58. supra., p. 63) Freedom of Fishing in the High Seas The right to fish on the high seas pertains to all states, both coastal and land-locked. (Art. 116)

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Conservation of the Living Resources of the High Seas Every state has the duty to take measures for the conservation of living resources of the high seas. (Art. 117) States shall cooperate with each other in the conservation and management of such resources, including the determination of the allowable catch. (Arts. 118, 119)

SOUTHERN BLUE FIN TUNA CASES (NEW ZEALAND & AUSTRALIA v. JAPAN) ITLOS Order, August 27, 1999

Australia and New Zealand initiated arbitration proceedings against Japan alleging that Japan breached its obligation under UNCLOS (Arts. 64, 116-119) in relation to the conversation and management of southern bluefish tuna by implementing a unilateral experimental fishing program. As a result of said experimental program, Japan managed to catch more southern bluefish tuna, to the detriment of other coastal states such as New Zealand and Australia. Furthermore, New Zealand and Australia argue that Japan failed to adopt necessary conservation measures so as to maintain and restore stocks to levels which could produce a maximum sustainable yield. Even though parties to the 1993 Convention on Conservation of Bluefin Tuna, they are not prevented invoke the UNCLOS provisions. According to UNCLOS, the State Parties have to duty to cooperate directly or through international organizations with a view of ensuring the conservation and promoting the objective optimum utilization of highly migratory species, like the SBT. Notwithstanding the absence of urgency in the case, the Tribunal may still prescribe provisional measures to preserve the rights of the parties or to prevent serious harm to the marine environment. Conservation of living resources of the sea is an element of preservation of marine environment. There is no disagreement that the stock of SBT had been severely depleted, thus efforts to conserve shall be intensified.

RIGHT OF ACCESS OF LAND-LOCKED STATES TO AND FROM THE SEA AND FREEDOM OF TRANSIT UNCLOS, Art. 125. Right of access to and from the sea and freedom of transit 1. Land-locked States shall have the right of access to and from the sea for the purpose of exercising the rights provided for in this Convention including those relating to the freedom of the high seas and the common heritage of mankind. To this end,

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land-locked States shall enjoy freedom of transit through the territory of transit States by all means of transport 2. The terms and modalities for exercising freedom of transit shall be agreed between the land-locked States and transit States concerned through bilateral, subregional or regional agreements. 3. Transit States, in the exercise of their full sovereignty over their territory, shall have the right to take all measures necessary to ensure that the rights and facilities provided for in this Part for land-locked States shall in no way infringe their legitimate interests. Right of Access Land-locked states (i.e. a state which has no coast), given their special geographical circumstance, are given a right of access to and from the sea in order to enable it to exercise its rights given by UNCLOS (e.g. rights under freedom of the high seas, rights of landlocked states to the EEZ, etc.).

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Where there are no means of transport in transit States to give effect to the freedom of transit or where the existing means, including the port installations and equipment, are inadequate in any respect, the transit States and landlocked States concerned may cooperate in constructing or improving them. (Art. 129) Measures to Avoid or Eliminate Delays or Other Difficulties of a Technical Nature Transit States shall take all appropriate measures to avoid delays or other difficulties of a technical nature in traffic in transit. Should such delays or difficulties occur, the competent authorities of the transit States and land-locked States concerned shall cooperate towards their expeditious elimination. (Art. 130) Equal Treatment in Maritime Ports Ships flying the flag of land-locked States shall enjoy treatment equal to that accorded to other foreign ships in maritime ports. (Art. 131)

THE AREA The Area, Defined It is the seabed and ocean floor and subsoil thereof beyond the limits of national jurisdiction. No State has Sovereignty No state shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any state or juridical person appropriate any part thereof. (Art. 137 [1]) Fig.. A map of landlocked states (in green).

In order to access the seas, they are given the right of freedom of transit through the territory of a coastal state by all means of transport. This shall be governed by bilateral, subregional or regional agreements. (Art. 125) These provisions apply in cases like the Case Concerning Right of Passage over Indian Territory (Portugal v. India). (supra., p. 13) Customs Duties, Taxes and Other Charges General Rule: Traffic in transit not subject to duties, taxes or other charges Exception: Charges for specific services rendered and facilities provided for use of the landlocked state by the transit state in connection with such transit. Such charges shall not be higher than those levied for use in the transit state. Cooperation in the Construction and Improvement of Means of Transport

Common Heritage of Mankind The Area and its resources are the common heritage of mankind. All rights over its resources are vested in mankind as a whole. (Art. 136) Its exploration and exploitation is carried out for the benefit of mankind by the International Seabed Authority, acting in behalf of all mankind. Resources in the Area This refers to all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules. (Art. 133 [a]) General Rule:

Exception:

No state or natural or juridical person shall claim, acquire or exercise rights with respect to the minerals recovered from the Area In accordance with the UNCLOS (Art. 137 [3])

Use for Peaceful Purposes

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The Area shall be open to use exclusively for peaceful purposes by all states. (Art. 141) International Sea-Bed Authority It is the organization established by UNCLOS which acts on behalf of mankind in governing the regime of resources in the Area. It organizes, carries out and controls the activities of the Area on behalf of mankind as a whole. It possesses international legal personality and such other legal capacity as may be necessary for the exercise of its functions. (Art. 176) Organization. – The following are the entities that form part of the Authority:  The Assembly – All state parties to the UNCLOS are ipso facto members of the Authority and form the membership of its Assembly.  The Council. – It is the executive organ of the authority whose 36 members are elected by the Assembly on the basis of representation. It is responsible for the implementation of the UNCLOS and the Assembly’s general policies, enter into agreements, and approve plans of work of the Enterprise.  The Enterprise. – It is the organ of the Authority directly engaged in the exploration and exploitation of the resources of the Area, including the transporting, processing and marketing of minerals. Activities in the Area The Enterprise carries out mining activities on behalf of the Authority:  Directly; or  By joint ventures with: o State parties; o State enterprises; or o Natural or juridical persons sponsored by state parties. Applicants for license in deep seabed mining are limited to those controlled by states parties to the UNCLOS or by their nationals. (Art. 153)

NAVIGATION Right of Navigation Every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas. (Art. 90) Nationality of Ships is that of Flag State Ships carry the nationality of the state whose flag they are entitled to fly (i.e. flag state). (Art. 91 [1]) There must be a “genuine link” between the state and the ship. (ibid.)

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

In the M/V “Saiga” (No. 2) Case (infra., p. 60), it was explained that the purpose behind including this concept is to secure more effective implementation of the duties of the flag state. It is not a criterion by reference to which the validity of the registration of ships in a flag state may be challenged by other states.

Such state shall have its own conditions for the grant of its nationality to ships, their registration within its territory, and for the right to fly its flag. (Art. 91 [1]) A ship shall sail under the flag of one State only. A ship with two or more states has no nationality, and may not claim any of the nationalities represented by these flags. (Art. 92 [2]) A ship cannot change its flag during voyage or while in a port of call, except in case of transfer of ownership or on the basis of change of registry. (Art. 92 [1]) Flag of Convenience The flag of a state which requires a nominal or no link at all with a ship which is allowed to fly its flag. It is also called open registry state Duties of a Flag State with respect to Ships Flying its Flag 1. Maintain a registry of ships authorized to fly its flag; 2. Take jurisdiction over the internal affairs of the ship; 3. Ensure safety at sea of the ship; 4. Ensure ship is surveyed by a qualified surveyor of ships and is well-equipped; 5. Ensure ship is manned by qualified master, officers and crew; and 6. Ensure the officers and crew are conversant with and are required to observe international regulations. (Art. 94) Duty to Render Assistance in Distress It is the duty of the flag state to require the master of the ship, without serious danger to the ship, to: a) To render assistance to any person found at sea in danger of being lost; b) To proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him; and c) After a collision, to render assistance to the other ship, its crew and its passengers. (Art. 98) Duty with regard to Transport of Slaves It is the duty of the flag state to take effective measures to prevent and punish the transport of slaves in ships authorized to fly its flag, as well as to prevent the unlawful use of its flag for that purpose. (Art. 99) Flag State Jurisdiction in the High Seas

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The flag state have exclusive jurisdiction over a ship which flies its flag on the high seas. (relate to discussion on High Seas, supra., p. 63) General Rule:

Exclusive jurisdiction over all ships sailing its flag in the high seas. It covers all legislative and enforcement jurisdiction over administrative, technical and social matters concerning the ship, its master, officers and crew. In particular, its jurisdiction includes: 1. Penal or disciplinary proceedings against the master or any other person in the service of the ship arising from collision or any other incident of navigation concerning a ship on the high seas; (Art. 97) 2. Prevention or punishment of transport of slaves in ships authorized to fly its flag. (Art. 99)

Exceptions:

1.

2.

3.

4.

5.

In penal or disciplinary proceedings on the master or person in the service as regards to incidents arising from collision or any other incident of navigation – the state of which that person is a national has jurisdiction concurrent with the flag state; Piracy – every state may seize a pirate, ship taken by pirates, seize the pirates and property on board; On persons or ship engaged in unauthorized broadcasting from the high seas – the following states may arrest the person, seize the broadcasting apparatus, and prosecute the offender a. state of registry of the broadcasting installation; b. state of which the offender is a national; c. state where the broadcast transmission is received; or d. any state where authorized radio communication is suffering interference (Art. 109, infra., p. 67) Exercise of the right of hot pursuit – a warship or military aircraft of a state may stop & arrest a foreign ship on the high seas; (Art. 111, infra., p. 67) Pollution from a marine casualty – jurisdiction off the coastal state

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whose coastline is threatened may take and enforce measures beyond the territorial sea, including on the high seas. (Art. 221) Penal jurisdiction in matters of collision or any other incident of navigation. – In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, the following have concurrent jurisdiction over the latter’s person for the institution of penal/disciplinary proceedings:  Flag state; or  State of nationality of the person. (Art. 97 [1]) No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State. (Art. 97 [3]) This rule departs from the decision in the Case of SS Lotus (supra., p. 29), which allowed Turkey (the state with jurisdiction over the place of the incident) to exercise jurisdiction over a French captain (i.e. territorial jurisdiction.) Hence, the rule applicable at present is that it is either the flag state or the state of which such person is a national which may exercise jurisdiction over the person in question. (Art. 91 [1]) CLASS NOTES Complete immunity of ships in the high seas. – The following ships enjoy complete immunity from the jurisdiction of any other state other than the flag state:  Warships; (Art. 95)  Ships owned or operated by a State and used only on government non-commercial service. (Art. 96) Piracy States have the duty to cooperate in the repression of piracy in the high seas or in any other place outside the jurisdiction of the state. (Art. 100) UNCLOS, Art. 101. Definition of Piracy Piracy consists of any of the following acts: a) Any illegal act of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: i. on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; ii. against a ship, aircraft, persons or

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b)

c)

property in a place outside the jurisdiction of any State; Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; or Any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

This definition differs from that found in Art. 122 of the Revised Penal Code. The UNCLOS definition contemplates the presence of two ships, one committing acts of piracy against another. The RPC definition, however, only requires that a person “who, on the high seas, shall attack or seize a vessel or, not being a member of its complement nor a passenger, shall seize the whole or part of the cargo of said vessel, its equipment, or personal belongings of its complement or passengers.” A second ship is not required. CLASS NOTES This may be committed by warships or a government ship, if the crew has mutinied and taken control of the ship. (Art 102) Pirate ship or aircraft. – A ship or aircraft is considered a pirate ship or aircraft if it is intended by the persons in dominant control to be used for the purpose of committing acts of piracy, or has been used to commit acts of piracy and remains under the control of such persons who committed such acts In being classified as such, it may or may not lose its nationality depending on the law of its flag state. Seizure of pirate ship or aircraft. – On the high seas or in any other place outside the jurisdiction of any state, every state may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. (Art. 105) Such seizure may only be effected by:  Warships or military aircraft; or  Other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect. (Art. 107) If seizure effected without adequate grounds, the seizing state shall be liable to the flag state of the seized ship for any resulting loss or damage. (Art. 106)

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All States shall cooperate in the suppression of unauthorized broadcasting from the high seas. “Unauthorized broadcasting” refers to the transmission of sound radio or television broadcasts from a ship or installation on the high seas intended for reception by the general public, contrary to international regulations. Criminal jurisdiction over unauthorized broadcasting. – Any person engaged in unauthorized broadcasting may be prosecuted before the court of: 1. Flag state; 2. State of registry of the installation; 3. State of his nationality; 4. Any state where the transmission can be received; or 5. Any state where authorized radio communication is suffering interference Right to Visit A warship may board a foreign ship not protected by immunity (i.e. warships, state-operated vessels, supra. p. 43) in the high seas if there is reasonable ground of suspecting the foreign ship that it is: 1. Engaged in piracy 2. Engaged in slave trade 3. Engaged in unauthorized broadcasting 4. Without nationality; or 5. Of the same nationality as the warship but flying a foreign flag or refusing to show its flag (Art. 110 [1]) Right of Hot Pursuit It is the right of a coastal state to pursue a foreign ship beyond its territorial sea and contiguous zone when it has good reason to believe that a foreign ship has violated its laws. Requisites. – A coastal state may pursue a foreign ship beyond the maritime zones over which it has jurisdiction (i.e. into the high seas), given the following:  Pursuing ship must have given a visual or auditory signal to stop at a distance which enables it to be seen or hears by the foreign ship; Art. 111 [4])  Pursuit was commenced when the foreign ship is still within the internal waters, archipelagic waters and territorial sea or the contiguous zone of the pursuing state (Art. 111 [1]) *If commenced in the contiguous zone, EEZ or continental shelf, may be pursued only for violations of rights in that zone. (Art. 111 [2])  Pursuit must not have been interrupted; (Art. 111 [1])  May be exercised only by warships or military aircraft or other ships of government service and with authority. (Art. 111 [5])

Unauthorized Broadcasting

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Cessation. – Pursuit ceases as soon as the ship pursued enters the territorial sea of its own state or of a third state.



Liability for stop and seizure without cause. – If pursuit without cause, the foreign ship shall be compensated for the resulting loss or damage

 

Illicit Drug Traffic States have the duty to cooperate for the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships in the high seas. (Art. 108)



Note, however, that UNCLOS does not authorize the boarding, searching or seizure of a foreign ship suspected of engaging in illicit drug traffic. (Magallona, 2005) A state which suspects that a foreign ship is engaged in drug trafficking may only request the cooperation of the ship’s flag state to suppress such traffic This also applies to the boarding if such foreign ships by military aircraft. (Art. 110 [4])

SETTLEMENT OF DISPUTES Duty to Settle Disputes by Peaceful Means It is the right of the parties to resort to peaceful means of their own choice on which they can agree ay time UNCLOS vs. Peaceful Settlement of Parties UNCLOS will only be applicable when the agreement of the parties prove unsuccessful and their agreement does not exclude any further procedure UNCLOS not applicable if party requests submission of dispute to a procedure pursuant to any other general, regional, bilateral agreement Principle of Compulsory Settlement This is applicable when no successful settlement can be achieved or if the parties are unable to agree on the means of settlement Choices for the compulsory means of settlement of disputes. – 1. International Tribunal for the Law of the Sea 2. International court of Justice 3. Arbitral tribunal 4. Special arbitral tribunal Jurisdiction of the court or tribunal. – 1. Interpretation or application of UNCLOS 2. Interpretation or application of an international agreement

Composed of 21 independent members, representing the world’s principal legal systems and equitable geographical distribution May for chambers of three or more members Must have a Seabed Disputes Chamber – with 11 members; shall form an ad hoc chamber of 3 members Jurisdiction on all disputes submitted in accordance with UNCLOS

Seabed Disputes Chamber. –  Jurisdiction over disputes and submissions concerning activities in the Area

PEACEFUL USE OF THE OCEANS UNCLOS, Art. 301. Peaceful uses of the seas In exercising their rights and performing their duties under this Convention, States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations.

ARCHAELOGICAL AND HISTORICAL OBJECTS UNCLOS, Art. 301. Archaeological and historical objects found at sea 1. States have the duty to protect objects of an archaeological and historical nature found at sea and shall cooperate for this purpose. 2. In order to control traffic in such objects, the coastal State may, in applying article 33, presume that their removal from the seabed in the zone referred to in that article without its approval would result in an infringement within its territory or territorial sea of the laws and regulations referred to in that article. 3. Nothing in this article affects the rights of identifiable owners, the law of salvage or other rules of admiralty, or laws and practices with respect to cultural exchanges. 4. This article is without prejudice to other international agreements and rules of international law regarding the protection of objects of an archaeological and historical nature.

International Tribunal for the Law of the Sea. –

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C. Jurisdiction and Immunities

Example: Art. 15, CC – Philippine family and personal laws are binding on citizens, even though living abroad.

JURISDICTION Jurisdiction, Defined It is the competence of a State to prescribe rules of conduct, to enforce its legal processes, and to adjudicate controversies or claims.

3.

Aspects of jurisdiction. – 1. Jurisdiction to prescribe norms of conduct (legislative jurisdiction) 2. Jurisdiction to enforce the norms prescribed (executive jurisdiction) 3. Jurisdiction to adjudicate (juridical jurisdiction) This authority us exclusive over all persons, events and transactions, except as may be limited by:  A state’s consent; and/or Examples: surrender of jurisdiction pursuant to military basing agreements; grant of immunities through hosting agreements  Principles of international law. Example: absence of jurisdiction over soldiers of an occupying force. 5 Traditional Bases of Jurisdiction over Extraterritorial Crimes under International Law 1. Territoriality Principle Jurisdiction is based on whether jurisdiction is based on the place where the offense is committed. The fundamental source of jurisdiction is sovereignty over territory. A state has absolute, but not necessarily exclusive, power to prescribe, adjudicate, and enforce rules for conduct that occurs within its territory. Example: Art. 14, CC – Penal laws are obligatory upon all who live and sojourn in Philippine territory. 2.

Nationality Principle Jurisdiction is based on the nationality of the offender. Every state has jurisdiction over its nationals even when those nationals are outside the state. Each state has the right to decide who are its nationals, using either jus sanguinis or jus soli or naturalization laws. As to corporations, a state has jurisdiction over corporations whose principal place of business or registered office is located in their territories. Effective nationality link doctrine determines which of two states of which a person is a national will be recognized as having the right to give diplomatic protection to holder of dual nationality.

Protective Principle Jurisdiction is based on whether the national interest is injured. A state may exercise jurisdiction over conduct outside its territory, if it threatens its security, as long as that conduct is generally recognized as criminal by states in the international community. Example: Art. 2, RPC – laws on crimes onboard Philippine vessels, forgery of Philippine currency, offenses committed by public officers, and crimes against national security and the law of nations, may be enforced outside of Philippine territorial jurisdiction.

4.

Universality Principle Jurisdiction is conferred in any forum that obtains physical custody of the perpetuator of certain offenses considered particularly heinous and harmful to humanity. The principle recognizes that certain activities universally dangerous to states and their subjects require authority in all community members, to punish such acts wherever they may occur, even absent a link between the state and the parties or the acts in question. Example: Crimes hostes humani generis (e.g. piracy)

5.

Passive Personality Principle Jurisdiction is based on the nationality of the victim. State may apply law to an act committed outside its territory, by a person not its national, where the victim of the act is one of its nationals.

Q: How does jurisdiction differ from “sovereignty?” Sovereignty is all the powers of the state. However in the Las Palmas case, sovereignty was defined in relation to independence, that sovereignty is exercised to the exclusion of all other. Jurisdiction, on the other hand, is a form of power covered by sovereignty, but has narrower scope. It means legal competence, and it may be exercised within territory.

BROWNELL v. SUNLIFE ASSURANCE G.R. No. L-5731 (1954)

Aihara, a Japanese national, and his wife were insured jointly by Sun Life. Brownell, in his capacity as Attorney

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General of the United States, instituted a claim before the CFI saying that he is entitled to the aforementioned insurance proceeds upon its maturity by virtue of the” Trading with the Enemy Act” of the US – an act which, among others, governed the assets of enemy citizens (i.e. Japanese citizens during WW II) Brownell:

Sunlife Assurance:

 The application of the Trading with the Enemy Act in the Philippines is based on the legislation of the Philippine Property Act of 1946.  No law has been enacted to extend the application of the Trading with the Enemy Act in the Philippines especially since the country gained its independence.

The Philippines has consented to the application of the Trading with the Enemy Act within its jurisdiction by enacting the Philippine Property Act of 1946 Section 3 of the PPA of 1946 provides that "The Trading with the Enemy Act of October 6, 1917” as amended shall continue in force in the Philippines after July 4, 1946. According to the court, a foreign law may have extraterritorial effect in a country other than the country of origin, provided the latter, in which it is sought to be made operative gives its consent thereto. As a general rule, the jurisdiction of the nation within its territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power in which would impose such restriction. However, there are exceptions to the full and complete power of a nation within its own territories, which can traced up to the consent of the nation itself. They can flow from no other legitimate source. This consent may be either express or implied. The consent of a Senate to the operation of a foreign law within its territory does not need to be express; it is enough that said consent can be implied from its conduct or from that of its authorized officers. Ratification can be given tacitly as well as expressly. Tacit ratification takes place when a State begins the execution of a treaty without expressly ratifying it. In this case, the application of the Trading with the Enemy Act in the Philippines is based on the enactment of the Philippine Property Act of 1946 as well as the conduct of the Philippine government (act of Pres. Roxas and Sec. of Foreign Affairs).

PEOPLE v. LOL-LO and SARAW G.R. No. 17958 (1922)

Two boats left the Matuta (a Dutch possession) for Peta (another Dutch possession). In one of the boats was 1 Dutch subject and in the other boat 11 men, women, and children, likewise subjects of Holland. When the one of the boats arrived between the Islands of Buang and Bukid in the Dutch East Indies, it was surrounded by six vintas manned by twenty-four armed Moros. The Moros asked for food, took the cargo, attacked some of the men, and brutally raped two women. All of the persons on the Dutch boat, with the exception of the two young women, were again placed on it and holes were made in it, the idea that it would submerge. Two of the Moro marauders were Lollo, who also raped one of the women, and Saraw. They were arrested and charged with the crime of piracy before the CFI when they returned home to Tawi-Tawi, Sulu. Lol-lo and Saraw:

 The crime, having been committed outside the Philippines, is not within the jurisdiction of any court in the Philippine Islands.

Piracy is within the jurisdiction of the CFI since jurisdiction for crimes similar to piracy has no territorial limits. 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. Pirates are in law hostes humani generis. Piracy is a crime not against any particular state but against all mankind. It may 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 all other crimes has no territorial limits. As it is against all so may it be punished by all. Nor does it matter that the crime was committed within the jurisdictional 3-mile limit of a foreign state, "for those limits, though neutral to war, are not neutral to crimes." There is universal jurisdiction over crimes hostes humani generis – literally, enemy of mankind. This categorization includes piracy, torture, genocide, war crimes, and other crimes against humanity. Existence of armed conflict is not required for its invocation. CLASS NOTES

TUBB v. GREISS G.R. No. L-1325 (1947)

George L. Tubb and Wesley Tedrow (citizens of the United States but residents of the Philippines) were under a written contract of employment with the Army of the

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United States. They were serving as civilian employees in the US Army Depot in Manila when were apprehended by the authorities of the United States Army and had been held in army custody. They were formally charged with violations of Articles of War regarding misappropriation of United States Government property destined for military use, said acts having been committed within premises occupied by the United States Army under lease contracts.

Taiwan Bank to cancel the mortgage but the latter refused. Haw Pia filed a suit before the trial court against China Banking and Taiwan Bank. He wanted the defendants to execute a deed of cancellation of the mortgage. Trial court held that the payments Haw Pia made to the Taiwan Bank did not extinguish his obligation since there is no proof under international law that the Japanese Military Administration had authority to liquidate China Banking.

Thus they filed this petition for habeas corpus.

Japanese Military Administration had authority to liquidate China Banking. The Liquidation of China Banking is not a confiscation but a mere sequestration of its assets which required the liquidation of the bank.

Tubb and Tedrow:

Philippine courts have exclusive jurisdiction over their arrest, confinement and imprisonment because  They are civilians not subject to military laws;  Martial law is no longer enforced.

Philippine Courts have no jurisdiction over the case. Not only did they agree in their contracts that they submit themselves to US military law, they are also likened to military personnel who are exempt from the civil and criminal jurisdiction of the foreign state they are assigned to. In their contract of employment, they voluntarily submitted themselves to United States military law while serving said contract, thereby submitting themselves to the full extent of the authority of the United States Army in this area. Petitioners are also American citizens, their position during the subsistence of said contract are no different from that of enlisted men, that in relation to the United States Army in the Philippines and during the subsistence of their employment contract, can be deemed to possess the status of military personnel. The principle of International Law is that 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. The agreement for the stationing of the US Army or a part of its forces in the RP implies a waiver of all jurisdiction over their troops during the time covered by such agreement, and permits the allied general or commander-in-chief to retain that exclusive control & discipline which the government of his army may require.

HAW PIA V. CHINA BANKING CORPORATION G.R. No. L-554 (1948)

Haw Pia obtained credit facilities from China Banking Corp. During the Japanese occupation and under Administrative Ordinance No. 11 dated July 31, 1942, issued by the Japanese occupation authorities, the defendant bank was placed under liquidation, with Taiwan Bank as liquidator. Taiwan bank received partial payments from Haw Pia on account of his outstanding overdraft. Haw Pia asked

The Japanese military authorities had power, under the international law, to order the liquidation of the China Banking Corporation and to appoint and authorize the Bank of Taiwan as liquidator to accept the payment in question, because such liquidation is not confiscation of the properties of China bank, but a mere sequestration of its assets which required the liquidation or winding up of the business of said bank. Thus, there was valid tender of payment to Bank of Taiwan which discharged Haw Pia’s obligation. Confiscation is not allowed under the Hague Regulations. However, there was no confiscation here but a mere sequestration. Under international law, the occupying power can effect a liquidation that is in the form of a mere sequestration. In the effort of occupying powers to control enemy property within their jurisdiction in order to avoid their use in aid of the enemy and to increase their own resources, they had to resort to such measures of prevention which do not amount to a straight confiscation, as freezing, blocking, placing under custody, and sequestrating the enemy private property. Acts of a belligerent military occupant is valid if it is not political. Confiscation is not allowed, only sequestration which is a valid measure of prevention. (Karichi Notes, citing Prof. Roque, 2010) The receiver appointed by a belligerent occupying state has the authority to receive payment by virtue of the rights of such occupying state. Payment to him extinguishes the obligation to the enemy obligor. CLASS NOTES

SOVEREIGN IMMUNITIES Immunity, Generally The general rule is that jurisdiction of a state within its territory is complete and absolute. However, there are two categories of exceptions to this rule: 1. Sovereign immunity, which covers both head of state and the state itself

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2.

Immunity of representative of states diplomatic and consular immunities.

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or

Sovereign Immunity It is the principle by which a state, its agents and property are immune from the judicial process of another state. It is premised on the principle of equality of states, according to which a state may not impose its authority or extend its jurisdiction on another state without the consent of the latter through a waiver of immunity. (Magallona, 2005) It consists of: 1. Immunity of head of state; 2. State immunity The principle, found in the Constitution, that the state may not be sued without its consent, is both municipal and international law. Diplomatic and Consular Immunities Much of the law governing diplomatic relations is customary law. Official representatives of a state are given immunities and privileges when they are within the territory of another state. The immunities are personal, in that they benefit the person. But the purpose is functional, that is, to enable them to perform their functions properly. On the part of the receiving state there lie certain obligations to protect the representative and his property and office.

HILAO v. ESTATE OF FERDINAND MARCOS (*Note: There are several Hilao v Estate cases. This first one has to do with RP’s sovereign immunity.) Ferdinand Marcos and his wife Imelda fled to Hawai'i. Five suits filed in the Northern District of California and the District of Hawai'i by individuals alleging that they or their relatives had been arrested, tortured, or executed by military intelligence personnel acting pursuant to martial law declared by Marcos in 1971. The district courts dismissed all five suits on the ground that the Act of State doctrine precluded liability. In an appeal of those decisions to this court, the Republic filed an amicus curiae brief urging the U.S. courts to exercise jurisdiction over the human rights claims. The human rights cases were eventually consolidated in the Hawaii district court and the consolidated case was certified as a class action suit against the Estate. The Republic also sued the Estate. However, they eventually reached a settlement that included the transfer of some of the Estate assets to the Republic. Meanwhile, Hilao was eventually awarded punitive and compensatory damages against the Estate. He also requested an injunction against the RP, as aiders

and abettors of the Estate to seize from disposing of the latter’s assets. The District Court granted the injunction which the Republic opposed. Republic of the Philippines: Hilao:

District court lacked authority to subject it to the injunction because it enjoys sovereign immunity under the Foreign Sovereign Immunities Act (FSIA). District court need not even assume jurisdiction over the RP. In this case, the FSIA does not govern because Rule 65(d) of the Federal Rules of Civil Procedure makes an injunction binding upon "those persons in active concert or participation with" an enjoined party to the action where those persons have actual notice.

In order to enforce injunction on the Republic of the Philippines, the District Court must have personal jurisdiction over it. Also, none of the exceptions to foreign sovereign immunity under the FSIA is available to Hilao in this case to be able to successfully sue the RP in the District Court of Hawaii. An injunction against the Republic in the absence of personal jurisdiction over it would be futile, as the court would be powerless to enforce its injunction. A court should not issue an unenforceable injunction: "The rule that a court of equity will not issue an unenforceable decree of injunction comprehends as a reason for denying injunctive relief that the court... does not have the means to punish disobedience once discovered.'" Also, the Foreign Sovereign Immunities Act of the US is the sole basis for jurisdiction over a foreign state which Hilao also hinges his case on. Personal jurisdiction over a foreign state depends on subject-matter jurisdiction over the action against the foreign state under the FSIA. It states that "Personal jurisdiction, like subject-matter jurisdiction, exists only when one of the exceptions to foreign sovereign immunity in [the FSIA] applies." However, the court rejected Hilao’s argument that the “commercial activity” exception is applicable to the RP in this case because accordingly, the State was merely acting pursuant to its mandate to recover misappropriated public assets. As a general rule, foreign states are immune from the jurisdiction of courts in the United States unless a claim against them falls within an exception to immunity under the FSIA. Thus, the district court lacked jurisdiction over the Republic absent the existence of an applicable exception under the FSIA. (*Note: This next Hilao case has to do with claims based on the US Aliens Torts Claims Act [ATCA]) Hilao, representing victims of Martial Law sued the Estate of Ferdinand Marcos under the US Alien Torts Claims Act – an act which gave universal jurisdiction to US courts for

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claims for civil damages, provided summons may be served in the US. There is no sovereign immunity against charges of torture. “US Alien Tort Statute provides a forum for claims by aliens for torture that has occurred elsewhere. It requires a claim by an alien, a tort and a violation of international law. The prohibition against official torture carries with it the force of jus cogens norm which enjoys the highest status in international law. All states believe that torture is wrong, all that engage in torture deny it, and no state claims a sovereign right to torture its own citizens. Under international law, any state that engages in official torture violates jus cogens. Note that RP filed a brief stating that its foreign relations with the US would not be adversely affected if claims against Marcos were litigated in the US.” (Karichi Notes, 2010)

Immunity of State from suit is a universally recognized principle. In international law, "immunity" is commonly understood as an exemption of the state and its organs from the judicial jurisdiction of another state. This is anchored on the principle of the sovereign equality of states under which one state cannot assert jurisdiction over another in violation of the maxim par in parem non habet imperium (an equal has no power over an equal). The doctrine of Immunity is restricted to sovereign or governmental activities (jure imperii) and cannot be extended to commercial, private and proprietary acts (jure gestionis) The contract was entered into in the discharge of its governmental functions, the sovereign state cannot be deemed to have waived its immunity from suit. This case enunciated the “purpose test” – immunity can only be applied in cases involving sovereign purposes. CLASS NOTES

Claims under ATCA make it possible to subject sovereign acts to claims. This thus makes it unwise for states to commit violations. (ibid.) CLASS NOTES

JUSMAG v. NLRC G.R. No. 108813 (1994)

Sacramento was a security assistance support personnel working at JUSMAG-Philippines. He was in service from 1969 to 1992. He was dismissed, allegedly because of the abolition of his position. Before his terminated, he was advised that he was under administrative leave until April 27, 1992, although the same was not charged against his leave. During his employment, Sacramento was the incumbent President of JUSMAG PHILIPPINES-FILIPINO CIVILIAN EMPLOYEES ASSOCIATION (JPFCEA), a labor organization duly registered with the DOLE. Because of his termination, Sacramento filed a complaint before the DOLE for illegal suspension and dismissal which eventually reached the NLRC.

UNITED STATES OF AMERICA v. REYES G.R. No. 108813 (1994)

After her duty as an ID checker at the US Navy Exchange (JUSMAG HQ in QC), Montoya went shopping at NEX JUSMAG. On her way to her car after shopping, she was approached by another ID checker saying that the latter needed to search her and her belongings following instructions from Bradford (manager of NEX JUSMAG). The search was conducted in front of many onlookers. Nothing irregular was found in Montoya and her belongings. She later found that she was the only one subjected to such search, contrary to Bradford’s statement that all employees were required to be searched that day. Montoya filed a complaint against Bradford for damages due to the oppressive and discriminatory acts committed by the latter in excess of her authority as store manager.

 It had immunity from suit since it was a US agency.  JUSMAG has waived its right to immunity from suit when it hired the services of Sacramento.

 She had functional immunity for acts done in the exercise of her official functions as employee of a US agency. The suit should also be considered as in effect being against the US government which did not waive its sovereign immunity.

JUSMAG has immunity; it did not waive its immunity when it hired Sacramento as its employee.

Bradford did not have immunity as she was sued in her private or personal capacity.

A suit against such a US agency is a suit against the US Government, albeit the latter was not impleaded in the complaint. Considering that the US has not waived or consented to the suit, the complaint against JUSMAG cannot prosper.

Bradford was sued in her private or personal capacity for acts allegedly done beyond the scope and even beyond her place of official functions, the case falls within the exception to the doctrine of state immunity.

JUSMAG: NLRC:

Bradford:

Unauthorized acts of government officials or officers are not acts of the State, and an action against the officials or

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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 of the State from suit. A public official may be liable in his personal private capacity for whatever damage he may have caused by his act done with malice and in bad faith, or beyond the scope of his authority or jurisdiction, for example, under Art. 31 of the Vienna Convention on Diplomatic Relations which admits of exceptions of the general rule of a diplomatic agent’s immunity from criminal jurisdiction of the receiving state: (c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. No functional immunity with respect to acts outside official duties. The “purpose test” was useless here given the facts of the case because Bradford’s actions were deemed ultra vires (i.e. beyond her powers). CLASS NOTES

WYLIE v. RARANG

against the state itself although it has not been formally impleaded. Public officials can be held personally accountable for acts claimed to have been performed in connection with official duties where they have acted ultra vires or where there is showing of bad faith. The doctrine cannot institutionalize irresponsibility and nonaccountability nor grant a privileged status not claimed by any other official of the Republic. An act or omission that is ultra vires cannot be part of official duty, but is a tortuous act. In this case, there was a finding of negligence since the Office of the Provost Marshal explicitly recommended the deletion of the name “Auring” if the article was to be published. However, despite such recommendation, Wylie and Williams approved and published the same with the name “Auring”. According to the court, such act or omission cannot be part of their official duty. The Court flip-flopped once again in this case. According to Prof. Roque, it would seem that the Court decides cases on the basis of how affected the Filipino was. CLASS NOTES

G.R. No. 74135 (1992)

Aurora Rarang was a merchandise control guard in the Office of the Provost Marshal. Wylie, the assistant administrative officer of the US Naval Base, supervised the publication of the Plan of the Day, a newsletter featuring important announcements and general matters of interest to the personnel of the base. Captain Williams, on the other hand, was the commanding officer of the base. One feature of the Plan of the Day was the Action Line Inquiry. Under the said feature, an article was published alleging that a certain “Auring” appropriated confiscated items for their own consumption or use. Rarang filed a suit for damages (libel against Wylie and Williams for her humiliation because of the article. Wylie and Williams:

 They are entitled to functional immunity because the publication was done in the performance of their duties.

The defendants are not entitled to functional immunity because such is not available with regard to tortious acts. American naval officers who commit a crime or tortuous act while discharging official functions are not covered by state immunity from suit. While 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. The rule is that if the judgment against such officials will require the state itself to perform an affirmative act to satisfy the same, such as the appropriation of the amount needed to pay the damages awarded against them, the suit must be regarded as

UNITED STATES OF AMERICA v. RUIZ G.R. No. L-35645 (1985)

The US held a bidding for some naval repair projects. Eligio de Guzman and Co., Inc submitted bids. Subsequently, the company received from the US two telegrams requesting it to confirm its price proposals and for the name of its bonding company. The company then received a letter which said that the company did not qualify to receive an award for the projects, because of its previous unsatisfactory performance rating on a repair contract with the US. The letter further said that the projects had been awarded to third parties. The company sued the US to allow them to perform the work on the projects. United States:

 Philippine courts do not have jurisdiction over it since it is a foreign sovereign which had not given its consent to the suit.

US is entitled to immunity since sovereign immunity is not lost when a state enters into contracts related to its sovereign functions. State immunity exempts a State from being sued in the courts of another State without its consent or waiver. This rule is a necessary consequence of the principles of independence and equality of States. However, the court said that the rules of international law are not petrified; they are constantly developing and evolving. Thus, it has been necessary to distinguish between sovereign and governmental acts (jure imperii) and private, commercial

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and proprietary acts (jure gestionis). The result is that State immunity now extends only to acts jure imperii.

can be implied that it has given its consent to be sued under the contract.

However, the restrictive application of State immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign, its commercial activities or economic affairs. 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. It does not apply where the contract relates 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 RP, indisputably a function of the government of the highest order; they are not utilized for nor dedicated to commercial or business purposes. The correct test for the application of state immunity is not the conclusion of a contract by a state but the legal nature of the act.

This case is an earlier instance of the application of the purpose test. Since the contract entered into was for a stevedoring service – which the deemed to be a proprietary function – it did not uphold the US’ claim for immunity.

Makasiar, J., dissenting: When the U.S. Government, through its agency at Subic Bay, confirmed the acceptance of a bid of a private company for the repair of wharves or shoreline in the Subic Bay area, it is deemed to have entered into a contract and thus waived the mantle of sovereign immunity from suit and descended to the level of the ordinary citizen. Its consent to be sued, therefore, is implied from its act of entering into a contract.

Compare this with the USA v. Ruiz (supra.), which concerned a case for the repair of wharves – a function which is obviously non-proprietary and can only be exercised by the state. CLASS NOTES

LIANG v. PEOPLE G.R. No. 125865 (2001)

Informations for grave oral defamation were filed against Liang, a Chinese national was employed as an Economist by the Asian Development Bank. On separate occasions, Liang accordingly uttered defamatory words (“bitch!”) to Joyce V. Cabal, an ADB clerical staff. The MeTC judge received an “office of protocol” from the DFA stating that Liang is covered by immunity from legal processes under Sec. 45 of the Agreement between ADB and the Philippines. Judge dismissed the cases without notice to the prosecution. Liang was not entitled to immunity.

HARRY LYONS, INC. v. UNITED STATES OF AMERICA G.R. No. L-11786 (1958)

Harry Lyons, Inc. and the USA entered into a contract for stevedoring service at the US Naval Base in Subic Bay. The said contract is valid until June 30, 1956, and was entered into pursuant to the provisions of Sec. 2 (c) (1) of the Armed Services Procurement Act of 1947 of the USA. Harry Lyons Inc. brought an action to collect several sums of money arising from the contract. United States:

CFI has no jurisdiction over it and over the subject matter of the action since the USA is a sovereign state which cannot be sued without its consent.

(Merits) Court dismissed the case due to Harry Lyons, Inc.’s failure to exhaust administrative remedies. (Obiter) USA is not entitled to immunity. State immunity is lost when a state enters into a proprietary contract. 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

The statements allegedly made by petitioner Liang were not uttered in the performance of his official functions. SC disregarded the “office of protocol” from the DFA stating that Liang is covered by immunity from legal process under Section 45 of the Agreement between the ADB and the RP regarding the Headquarters of the ADB in the RP. The subsequent (2001) MR focused on the diplomatic immunity of officials and staff of ADB from legal and juridical processes in the Philippines and the constitutional and political basis of that immunity. It should be made clear that nowhere in the assailed Decision is diplomatic immunity denied, even remotely. Accordingly, courts cannot blindly adhere and take on its face the communication from the DFA that Liang is covered by any immunity. In receiving ex-parte the DFA’s advice and in motu proprio dismissing the criminal cases without notice to the prosecution, the latter’s right to due process was violated. It has been ruled that the mere invocation of immunity clause does not ipso facto result in the dropping of the charges. The immunity mentioned under Sec. 45 of the Agreement is not absolute, but subject to the exception that the act was done in an official capacity.

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Slandering a person could not possibly be covered by the immunity agreement because our laws do not allow the commission of a crime, such as defamation, in the name of official duty. It is a well-settled principle of law that a public official may be liable in his personal capacity for whatever damage he may have caused by his act done with malice or in bad faith or beyond the scope of his authority or jurisdiction. Under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming Liang is such, enjoys immunity from criminal jurisdiction of the receiving state except in case of an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions. As already mentioned above, the commission of a crime is not part of official duties. Calling someone a “bitch” is obviously a sovereign function. This case shows that the certification made by the DFA that an individual is entitled to immunity is NOT conclusive. Determinations made by the executive as to the grant of immunity are thus subject to judicial review. This is a departure from the rule in WHO v. Aquino (infra.) that Courts are bound to respect executive determination through the DFA of eligibility to immunity. CLASS NOTES

ruled that as a DEA agent allowed by the Philippine government to conduct activities in the country, he is entitled to state immunity from suit. The diplomatic immunity of Scalzo under the Vienna Convention on Diplomatic Relations was not sufficiently established. Only "diplomatic agents," under the terms of the Vienna Convention, are vested with blanket diplomatic immunity from civil and criminal suits. Diplomatic agents are the heads of missions or members of the diplomatic staff, thus impliedly withholding the same privileges from all others. The test is whether or not he performs duties of diplomatic nature. However, it was sufficiently established that, indeed, he worked for the United States Drug Enforcement Agency and was tasked to conduct surveillance of suspected drug activities within the country on the dates pertinent to this case. If it should be ascertained that Arthur Scalzo was acting well within his assigned functions when he committed the acts alleged in the complaint, the present controversy could then be resolved under the related doctrine of State Immunity from Suit. A foreign agent, operating within a territory, can be cloaked with immunity from suit but only as long as it can be established that he is acting within the directives of the sending state. The consent of the host state is an indispensable requirement of basic courtesy between the two sovereigns. The grant of immunity in this case was inconsistent with the Vienna Convention. Scalzo was not a diplomatic agent entitled to such immunity. CLASS NOTES

MINUCHER v. COURT of APPEALS G.R. No. 142396 (2003)

THE HOLY SEE V. ROSARIO Minucher, an Iranian Labor Attaché, filed a case for damages on account of what he claimed to have been trumped-up charges of drug trafficking made by Arthur Scalzo (a US Drug Enforcement Agency agent). Trial court ruled for the Minucher. While the trial court gave credence to the claim of Scalzo and the evidence presented by him that he was a diplomatic agent entitled to immunity as such, it ruled that he, nevertheless, should be held accountable for the acts complained of committed outside his official duties. The CA dismissed the charges against Scalzo upon presentation, among other things, of Diplomatic Note no. 414 which was authenticated by the DFA confirming Scalzo’s diplomatic agent status. Scalzo:

He is entitled to immunity as an agent of the US DEA and the acts complained of by Minucher were performed within his official functions.

Scalzo was not able to sufficiently establish that he has entitled to diplomatic immunity. However, the court

G.R. No. 101949 (1994)

Holy See exercises sovereignty over the Vatican City. A lot in Paranaque was offered to Ramon Licup by sellers Holy See and Philippine Realty Corporation. The agreement to sell provided that in consideration of payment of an earnest money, and the sellers will clear the said lots of informal settlers. Upon payment, Licup assigned his rights to Starbright Enterprises. Msgr. Crilos informed Starbright of the refusal of the informal settlers to vacate the lands, proposing that Starbright undertake the eviction or that the earnest money be returned to it. Starbright returned the earnest money, but discovered that the lot was sold to Tropicana Properties and Development Corporation. Starbright filed an action for reconveyance & damages against the Holy See as represented by the Papal Nuncio. Holy See:

It is entitled to immunity as a foreign sovereign.

Holy See enjoys sovereign immunity.

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The Vatican City represents an entity organized not for political but for ecclesiastical purposes and international objects. Despite its size and object, it has an independent government of its own, with the Pope, who is also head of the Roman Catholic Church, as the Holy See or Head of State, in conformity with its traditions, and the demands of its mission in the world. Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See and not in the name of the Vatican City, one can conclude that in the Pope's own view, it is the Holy See that is the international person. The Philippines has accorded the Holy See the status of a foreign sovereign. While real estate transactions done in the ordinary course of business are acts of jure gestations, such is not the case here.

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customarily extended to each other by its individual member States. (International Catholic Migration Commission v. Calleja, infra.) The theory behind all three propositions is said to be essentially institutional in character. "It is not concerned with the status, dignity or privileges of individuals, but with the elements of functional independence necessary to free international institutions from national control and to enable them to discharge their responsibilities impartially on behalf of all their members. (ibid.) The raison d'etre for these immunities is the assurance of unimpeded performance of their functions by the agencies concerned. (ibid.)

WORLD HEALTH ORGANIZATION v. AQUINO The property in question was initially acquired by the Holy See for use as a site of the Apostolic Palace for the Papal Nuncio, and was subsequently sold the same because it could not be used for the purpose intended. These are undoubtedly acts jure imperii, pursuant to a state’s right to create and maintain a diplomatic mission under the Vienna Convention. This case demonstrates the sovereign immunity of states, which arises as a consequence of the doctrine of sovereign equality. The remedy of a person who feels aggrieved by the acts of a foreign sovereign is to can ask his own government to espouse his cause through diplomatic channels. CLASS NOTES International Organizations While there is no customary norm granting immunity to international organizations, such may be extended to them through a grant in Hosting Agreements (i.e. agreement allowing the international organization to set up an office or headquarters in the territory of a host country.) There are three propositions underlying the grant of international immunities to organizations: 1) international institutions should have a status which protects them against control or interference by any one government in the performance of functions for the effective discharge of which they are responsible to democratically constituted international bodies in which all the nations concerned are represented; 2) no country should derive any national financial advantage by levying fiscal charges on common international funds; and 3) the international organization should, as a collectivity of States members, be accorded the facilities for the conduct of its official business

G.R. No. L-35131 (1972)

Dr. Verstuyft was assigned by the WHO to the Regional Office in Manila as Acting Assistant Director of Health Services. When petitioner Verstuyft's personal effects contained in twelve crates entered the Philippines, they were directly stored at the Eternit Corporation's warehouse in Rizal, pending his relocation into permanent quarters. Upon application of respondents Constabulary Offshore Action Center (COSAC) officers, respondent judge issued a search warrant pursuant Republic Act 4712 amending section 3601 of the Tariff and Customs Code, directing the search and seizure of the dutiable items in said crates. According to said law, bringing into the Philippines of large quantities of dutiable goods beyond his official needs is equivalent to unlawful importation. The trial court judge upheld the search order notwithstanding the protest of Dr. Francisco Dy (WHO Regional Director for the Western Pacific stationed in Manila) and the statement (via letter) of Secretary of Foreign Affairs Carlos P. Romulo to said judge advising that "Dr. Verstuyft is entitled to immunity from search in respect of his personal baggage as accorded to members of diplomatic missions" pursuant to the Host Agreement and requesting suspension of the search warrant order. WHO joined Verstuyft in opposing the search order. WHO:

He is entitled to all privileges and immunities, exemptions and facilities accorded to diplomatic envoys in accordance with international law" under section 24 of the Host Agreement.

Verstuyft is entitled to diplomatic immunity. He is entitled to diplomatic immunity, pursuant to the Host Agreement executed on July 22, 1951 between the Philippine Government and the World Health Organization. Such diplomatic immunity includes personal inviolability,

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inviolability of the official's properties, exemption from local jurisdiction, and exemption from taxation and customs duties.

would impair the capacity of such body to discharge its responsibilities impartially on behalf of its member-states.

When the executive branch affirmed Verstuyft’s diplomatic immunity, it was the duty of the court to accept such claim to avoid embarrassing the executive branch in conducting foreign relations. Diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination of the executive branch.

INTERNATIONAL CATHOLIC MIGARATION COMMISSION v. CALLEJA

This case shows the process by which immunity should be invoked.  First, request from the DFA a certification of your official/diplomatic status and entitlement to immunity; o Determination of immunity is an executive function; o To this, the courts should defer.  Second, present the certification to the Court. Note, however, that the DFA certification is not conclusive as to immunity. Such executive determination is subject to judicial review. (see Liang v. USA, supra.)

SOUTHEAST ASIAN FISHERIES DEVELOPMENT CENTER v. ACOSTA G.R. No. 97468-70 (1993)

Two labor cases were filed against Asian Fisheries Development Center-Aquaculture Department (SEAFDECAQD) before the NLRC. The private respondents claim that they have been wrongfully terminated from their employment by SEAFDEC. SEAFDEC filed a Motion to Dismiss, alleging that it is an international intergovernment organization composed of various Southeast Asian countries, and that therefore, the NLRC does not have jurisdiction over it. SEAFDEC is an international agency entitled to functional immunity. SEAFDEC is an international agency enjoying diplomatic immunity, enjoying functional independence and freedom from control of the state in whose territory its office is located. One of the basic immunities of an international organization is immunity from local jurisdiction, i.e., that it is immune from the legal writs & processes issued by the tribunals of the country where it is found. 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 thru which the host government may interfere in their operations or even influence or control its policies and decisions of the organization; besides, such objection to local jurisdiction

G.R. No. 97468-70 (1993)

Private respondent labor unions operating in the International Catholic Migration Commission – a Vietnam War refugee processing center, non- profit & UN registered – and of the International Rice Research Institute filed petitions for Certification Election for the determination of the sole and exclusive bargaining agents of rank and file employees therein. ICMC and IRRI:

 



They were international organizations registered with the UN and hence enjoy diplomatic immunity. They were also subsequently granted the status of a specialized agency by the Philippine government with also the corresponding immunities and privileges. As such, they could not be subject to certification elections.

ICMC and IRRI have diplomatic immunity. Specialized agencies are international organizations having functions in particular fields. The grant of immunity from local jurisdiction is necessitated by their international character and respective purposes. The objective is to avoid the danger of partiality and interference by the host country in their internal workings. Conduct of certification elections is violative of diplomatic immunity. This immunity grants international organizations immunity from any form of legal process. While certification elections are not suits against these organizations per se, they cannot be viewed as isolated processes; they could trigger off a series of events in the collective bargaining process which can lead to the eventuality of court litigation. Functional immunity is available to international organizations. CLASS NOTES

REGINA v. BARTLE AND THE COMMISSIONER OF POLICE FOR THE METROPOLIS AND OTHERS, EX PARTE PINOCHET [1999] UKHL 17 (24th March, 1999); 38 ILM 581

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(*Trivia: The petitioner in this case is named “Regina” because the action was brought in the name of the Queen of the United Kingdom – Ed.) Pinochet [Pee-no-chet; not -shey] became the head of state of Chile, after a successful coup. During the period of the Pinochet regime, appalling acts of barbarism were committed in Chile and elsewhere in the world: torture, murder, unexplained disappearance of individuals, all on a large scale. After stepping down as President, he assumed a lifetime seat in the Chilean Senate. Sen. Pinochet denied the allegations against him. In 1998, Pinochet came to the UK for medical treatment. The judicial authorities in Spain sought to extradite him in order to stand trial in Spain on a large number of charges. Pinochet:





He was a head of state during the time the alleged acts were committed and therefore subject to sovereign immunity (subject matter jurisdiction/rationae materiae) UK and Spain had no jurisdiction because the acts were committed in Chile (jurisdiction over his person/ rationae personae)

Although Pinochet is entitled to immunity as a former head of state, acts of torture or international crimes are not considered as “OFFICIAL ACTS” and are therefore not covered by his immunity. 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 certain categories of acts performed while he was head of state unless immunity is waived by the current government of the state of which he was once the head. The immunity is accorded for the benefit not of the former head of the state himself but for the state, and any international law obligations are owed to that state and not the individual. The rationale is the same for former heads of state as it is for current heads of state. In each case, the obligation in international law is owed to the state, not the individual, though in the case of a current head of state, he will have a concurrent immunity rationae personae. It is the state alone that can waive immunity, which Chile did not do in this case. As to the double criminality doctrine, not all the crimes as charged are extradition crimes, so, Pinochet can be extradited with regard to charges after Sept. 29, 1988 (date when Torture became a crime in the UK). The Principle of Double Criminality requires that the conduct complained of must constitute a crime under the law of both Spain and of the UK. The relevant date is the conduct date - meaning, that the conduct should be a crime in the

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UK at the time it was committed, and not at the time the extradition was sought (request date). Pinochet as a former head of state enjoys immunity, but torture as defined under the Torture convention cannot be a public function, so he does not enjoy immunity with regard to these acts committed after Sept. 29, 1988. Torture is now an international crime on its own. International Law prohibiting torture has the character of jus cogens or a peremptory norm, i.e. one of those rules which have a particular status. Universal Jurisdiction over torture is justified by its jus cogens nature. Important points from the torture convention:  Torture under the Convention can only be committed by "a public official or other person acting in an official capacity", but these words include a head of state. A single act of official torture is "torture";  Superior orders provide no defense;  If the states with the most obvious jurisdiction (the Art. 5(1) states) do not seek to extradite, the state where the alleged torturer is found must prosecute or, apparently, extradite to another country (universal jurisdiction).  There is no express provision dealing with state immunity of heads of state, ambassadors or other officials.  Since Chile, Spain and the UK are all parties to the Convention, they are bound under treaty by its provisions WON such provisions would apply in the absence of treaty obligation. Chile ratified the Convention with effect from Oct. 30, 1988 and the UK with effect from Dec. 8, 1988.

ATTORNEY GENERAL OF ISRAEL v. EICHMANN 36 ILR 277 (Israel Sup. Ct. 1962)

Eichmann was an important Nazi bureaucrat who oversaw the Final Solution. He was a high-ranking SS officer who played a central role in the planning and implementation of the persecution of Jews in Germany, Poland, Hungary and several other countries before and during World War II. At the end of the war he escaped capture as a war criminal. He fled to Argentina where he lived and worked under an alias. Eichmann was eventually tracked down by Israeli intelligence agents. Israel doubted that Argentina would cooperate in the extradition of Eichmann, so in 1960 Eichmann was kidnapped (he was drugged) and taken secretly to Israel for prosecution. The Eichmann trial heard scores of witnesses about the Nazi atrocities. Eichmann was later convicted, executed, cremated and his ashes scattered on the Mediterranean so as not to create a shrine for his perverse admirers upon orders of the Israeli Supreme Court. Eichmann:



Israel exceeded its jurisdiction when he was abducted and brought before

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 

Israeli’s courts; He is immune from suit since he acted in behalf of his state; He cannot be punished under a retroactive criminal law (Nazi Collaborators Act) since Israel was not yet a state when the alleged offences were committed.

Israel had jurisdiction as crimes against humanity are subject to universal jurisdiction. The State of Israel was entitled, pursuant to the principle of universal jurisdiction and acting in the capacity of guardian of international law and agent for its enforcement, to try the appellant. Israel also acquired the right to try Eichmann upon being a member of the United Nations so that it is immaterial that the State of Israel did not exist at the time the offenses were committed. It was also held that Eichmann’s abduction did not have any bearing on the jurisdiction of the Israeli Court to hear the case. Ultimately, there is an absence of immunity for crimes against humanity. “On jurisdiction: The principle of territorial sovereignty merely requires that the State exercise its power to punish within its own borders, not outside them; that subject to this restriction every State may exercise a wide discretion as to the application of its laws and the jurisdiction of its courts in respect of acts committed outside the State; and that only in so far as it is possible to point to a specific rule prohibiting the exercise of this discretion . . . is a State prevented from exercising it. That view was based on the following two grounds: (1) It is precisely the conception of State sovereignty which demands the preclusion of any presumption that there is a restriction on its independence; & (2) Even if it is true that the principle of the territorial character of criminal law is firmly established in various States, it is no less true that in almost all of such States criminal jurisdiction has been extended . . . so as to embrace offences committed outside its territory. . . “However, it is the universal character of the crimes in question which vests in every State the power to try those who participated in the preparation of such crimes, and to punish them therefor. It follows that the State which prosecutes and punishes a person for that offence acts solely as the organ and agent of the international community, and metes out punishment to the offender for his breach of the prohibition imposed by the law of nations. “On manner of arrest (kidnapping from Argentina): (a) In the absence of an extradition agreement between the State to which a "fugitive offender" has been brought for trial and the country of "asylum" . . . and even if there existed such an agreement . . . but the offender was not

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extradited . . . in accordance therewith, the Court will not investigate the circumstances in which he was detained and brought to the area of jurisdiction (Sir: the “Ma-andPa” doctrine, originally from Ker v. Illinois). (b) This also applies if the offender's contention be that the abduction was carried out by the agents of the State prosecuting him, since in such a case the right violated is not that of the offender, but the sovereign right of the State aggrieved. (c) the aggrieved State may condone the violation of its sovereignty and waive its claims, including the claim for the return of the offender to its territory, and such waiver may be explicit or by acquiescence. “Appellant is a "fugitive from justice" from the point of view of the law of nations, since the crimes that were attributed to him are of an international character and have been condemned publicly by the civilized world; therefore, by virtue of the principle of universal jurisdiction, every country has the right to try him. This jurisdiction was automatically vested in the State of Israel on its establishment in 1948 as a sovereign State. Therefore, in bringing the appellant to trial, it functioned as an organ of international law and acted to enforce the provisions thereof through its own law. Consequently, it is immaterial that the crimes in question were committed when the State of Israel did not exist, and outside its territory The moment it is admitted that the State of Israel possesses criminal jurisdiction both according to local law and according to the law of nations, it must also be conceded that the Court is not bound to investigate the manner and legality of the [arrest and]...detention.” (Karichi Notes, 2010)

KER v. ILLINOIS 119 U.S. 436 (1886)

Ker was charged to have committed Larceny in Illinois. After the commission of the alleged offense, he went to Peru. The Governor of Illinois, made his requisition to the Secretary of State of the US for a warrant requesting the extradition of the defendant to Cook County by the Republic of Peru. The President of the US issued his warrant directed to a messenger (Julian), to receive Ker from the authorities of Peru, in compliance with the treaty between the US and Peru. The messenger, having the necessary papers, arrived in Lima, but, without presenting them to any officer of the Peruvian government or making any demand on that government for the surrender of Ker, forcibly and with violence arrested him, placed him on board the US vessel Essex in which he was carried a prisoner to San Francisco, California. The process of the criminal court was served upon him, and he was held to answer the indictment already mentioned. Ker alleged that he was in fact kidnapped from Peru and brought to the country against his will. According to him, he was also

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refused any opportunity for communication with any person or seeking advice for legal assistance. Ker:

He was denied due process of law and that the abduction violated the US-Peru Extradition Treaty.

Camarena’s life so that others could further torture and interrogate him. The US sought his extradition but the Mexican government did not cooperate. Machain was then forcibly kidnapped by Mexican nationals hired by the DEA from his office in Guadalajara, Mexico, flown by private plane to El Paso, Texas, where he was arrested by DEA officials.

Ker was not denied due process. Due process of law is complied with when the party is regularly indicted by the proper grand jury in the state court, has a trial according to the forms and modes prescribed for such trials, and when in that trial and proceedings he isn’t deprived of rights to which he is lawfully entitled. For mere irregularities in manner in which he was brought into the custody of the law, he isn’t entitled to say that he shouldn’t be tried for the crime with which he is charged in a regular indictment. This treaty of extradition doesn’t provide that a party fleeing from the US to escape punishment for crime becomes thereby entitled to an asylum in the country to which he has fled. It isn’t contended that Peru couldn’t have ordered Ker out of the country on his arrival, or at any period of his residence there. Nor can it be doubted that Peru could, of its own accord, without any demand from the US, have surrendered Ker to an agent of Illinois, and this surrender would’ve been valid within the dominions of Peru. The right of the Peruvian government to voluntarily give a party, in Ker’s condition, an asylum in that country is quite a different thing from his right to demand and insist upon security in such an asylum. The treaty, so far as it regulates the right of asylum, is intended to limit this right in the case of one who is proved to be a criminal fleeing from justice; so that, on proper demand and proceedings had therein, the government of the country of the asylum shall deliver him up to the country where the crime was committed. And to this extent, the treaty does regulate or impose a restriction upon the right of the government of the country of the asylum to protect the criminal from removal. In this case, the treaty wasn’t called into operation or relied upon. The Court pronounced a veritable “Ma- and PaDoctrine” – the manner of arrest is no longer relevant, granted the accused is subjected to a fair and impartial trial. CLASS NOTES

UNITED STATES v. ALVAREZ-MACHAIN 504 US 655 (1991)

Humberto Alvarez-Machain is a medical doctor, indicted for participating in the kidnap and murder of US-DEA special agent Enrique Camarena Salazar and a Mexican pilot working with Camarena, Alfredo Zavala-Avelar. It was alleged that Machain participated by prolonging the

AlvarezMachain:



US courts do not have jurisdiction over the case because the abduction violated the US-Mexico Extradition Treaty.

US courts have jurisdiction over the case notwithstanding the abduction of Machain. The court in interpreting the treaty ruled that there is nothing about the obligation of the US and Mexico to refrain from forcible abductions of people from the territory of the other nation, or the consequences under the Treaty if such an abduction happens. It also found that finds that in the history of negotiation and practice under the treaty, there is no showing that abduction outside of the Treaty constitutes a violation. , Since his abduction was not in violation of the Extradition Treaty, therefore the Ker doctrine is applicable to this case. The fact that Machain was forcibly abducted does not therefore prohibit his trial in a court in the United States for violation of criminal laws of the United States. However, in the end Machain was acquitted for insufficiency of evidence against him.

SOSA v. ALVAREZ 542 US 692 (2004)

Upon his acquittal from the charges lodged by the DEA, Alvarez-Machain sued Sosa and a DEA operative, claiming damages from the US under the Federal Torts Claim Act for his false arrest. FTCA authorizes suits for personal injury caused by a negligent and wrongful act or omission of an employee of the government while acting within the scope of his office (like the DEA operative). He was also seeking damages from Sosa under the Alien Torts Statute for a violation of the law of nations. ATS provides that “district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the US. Alvarez-Machain’s claims based on the ATS and FTCA were rejected by the US SC. According to the court, it cannot exercise jurisdiction over the claim of Alvarez-Machain. Accordingly, the FTCA is provided an insufficient basis for the suit, even if abducting the doctor from Mexico violated customary norms of international law. Accordingly, while the FCTA does provides a waiver of immunity of the US government in personal injury caused by its employee, this is subject to

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the exception that it is not to be made applicable to injuries suffered in a foreign country. In this case, the abduction of Alvarez-Machain occurred in Mexico so the exception clearly applies, hence, the US government cannot be held liable. As for the ATS, the court said that it is a jurisdictional statute creating no new causes of action. The reasonable inference from history and practice is that the ATS was intended to have practical effect the moment it became law, on the understanding that the common law would provide a cause of action for the modest number of international law violations thought to carry personal liability at the time: offenses against ambassadors, violation of safe conducts, & piracy. In deriving a standard for assessing Alvarez's claim, the Court said that history shows that federal courts should not recognize claims under federal common law for violations of any international norm with less definite content and acceptance among civilized nations than the 18th-century paradigms familiar when the ATS was enacted. Accordingly, actionable violations of international must be of a norm that is specific, universal, and obligatory. A single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violates no norm of customary international so well defined as to support the creation of a federal remedy for Alvarez-Machain.

STATE v. EBRAHIM 1991 (2) SALR 553

The South African common law is Roman-Dutch law. The unlawful removal of a person from one jurisdiction to another is regarded as abduction and as a serious breach of the law in Roman-Dutch law. The individual must be protected against illegal detention and abduction, the bounds of jurisdiction must not be exceeded, sovereignty must be respected, the legal process must be fair to those affected and abuse of law must be avoided in order to protect and promote the integrity of the administration of justice. This applies equally to the state. When the state is a party to a dispute, as for example in criminal cases, it must come to court with "clean hands". When the state itself is involved in abduction across international borders, as in the present case, its hands are not clean.

JOHN DOE I, et.al. v. UNOCAL 963 F. Supp. 880 (1997)

Plaintiffs are farmers from Burma. They brought a class action against Unocal, Total, the Myanmar Oil and Gas Enterprise (MOGE), the State Law and Order Restoration Council (SLORC), and individual officers of Unocal. They allege that SLORC is a military junta that seized control in Burma in 1988, and MOGE is a state-owned company controlled by SLORC that produces and sells energy products. Plaintiffs seek injunctive, declaratory and compensatory relief for alleged international human rights violations perpetrated by defendants in furtherance of defendants Unocal, Total and MOGE's joint venture, the Yadana gas pipeline project. UNOCAL:

Ismail Ebrahim is a South African citizen who was a member of the military wing of the African National Congress (ANC). In 1964, he was convicted of several acts of sabotage and sentenced to 15 years imprisonment and released in 1979. Thereafter, he was restricted by executive order to the district of Pinetown in Natal. He fled to Swaziland while the restriction order was still in force. He was forcibly abducted from his house in Swaziland by two men who informed him that they were members of the South African Police. He was bound, blindfolded and gagged and taken across the border into South Africa to a group of armed white men. They questioned him about the activities of the ANC. He inferred they were members of the security police because they were permitted to pass through an army road blockade without search or questioning. In South Africa, he was formally arrested, and was charged with treason. Ebrahim:



The court did not have jurisdiction over his case because he was abducted by agents of the South African government

The court does not have jurisdiction. Thus, Ebrahim’s conviction and sentence cannot stand.



Moved to dismiss plaintiffs' complaint for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1)

MTD was GRANTED as to SLORC and MOGE because they are entitled to sovereign immunity pursuant to the Foreign Sovereign Immunities Act (FSIA). Under the FSIA, a foreign state is immune from suit, and federal courts lack subject matter jurisdiction over claims against the foreign state, unless one of the enumerated exceptions applies. The FSIA provides a general exception to jurisdictional immunity where: [1] the action is based upon a commercial activity carried on in the United States by the foreign state; or [2] upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or [3] upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. In this case, plaintiffs contended that SLORC and MOGE are not entitled to immunity because this case falls within clauses 2and 3 of the commercial activity exception. However, the court found that plaintiff’s allegations were not enough to sustain a finding that the two exceptions applied in this

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case. Hence, the case was dismissed as to SLORC and MOGE because of their sovereign immunity. District Court has subject-matter jurisdiction over UNOCAL under the Alien Tort Claims Act (ATCA). As for the plaintiffs’ ACTA claim, said law provides that the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. The ATCA requires: 1) a claim by an alien; 2) alleging a tort; and 3) a violation of international law. In this case, the first two requirements were established however, there was a dispute whether plaintiffs may assert claims based on violations of international law against the private defendants. Under the ATCA, jurisdiction may be based on a violation of a jus cogens norm which enjoys the highest status within international law. The prohibition against official torture (as plaintiffs allege, have been committed by defendants in concert with SLORC) rises to the level of a jus cogens norm, and jurisdiction against UNOCAL may be premised on a violation of that norm.

CASE CONCERNING THE ARREST WARRANT OF 11 APRIL 2000 (DEMOCRATIC REPUBLIC OF CONGO v. BELGIUM) ICJ Reports 2002, p. 3 (2002)

Belgium's Parliament voted a "law of universal jurisdiction", allowing it to judge people accused of war crimes, crimes against humanity or genocide. An investigating judge issued "an international arrest warrant in absentia" against Mr. Abdulaye Yerodia Ndombasi, the then Minister of Foreign Affairs of the Democratic Republic of the Congo, charging him, as perpetrator or co-perpetrator, with offences constituting grave breaches of the Geneva Conventions of 1949 and of the Additional Protocols thereto, and with crimes against humanity. Congo, in response, instituted proceedings against Belgium for issuing said warrant. Congo:





The international warrant issued by Belgium constituted a violation of the principle that a State may not exercise its authority on the territory of another State; Diplomatic immunity of the Minister of Foreign Affairs of a sovereign state.

Belgium violated exceeded its authority when it issued the international warrant of arrest against the former Minister of Foreign Affairs of Congo. The latter is also entitled to diplomatic immunity.

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The Court found that the issue of the arrest warrant against Mr. Abdulaye Yerodia Ndombasi, and its international circulation, constituted violations of a legal obligation of the Kingdom of Belgium towards the Democratic Republic of the Congo. They failed to respect the immunity from criminal jurisdiction and the inviolability which the incumbent Minister for Foreign Affairs of the Democratic Republic of the Congo enjoyed under international law. The functions of a Minister of Foreign Affairs are such that throughout the duration of his or her office, he or she, when abroad enjoys full immunity from criminal jurisdiction. That immunity and inviolability protects the individual against any act of authority of another state which would hinder him or her in the performance of duties. No distinction can be drawn between acts performed in an official capacity and those claimed to have been performed in a private capacity or for that matter, between acts performed before the person concerned assumed office and acts committed during that period. However, the immunity from jurisdiction enjoyed by incumbent Ministers for Foreign Affairs does not mean that they enjoy impunity in respect of any crimes they might have committed, irrespective of their gravity. Immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts. While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law. 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. 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:  Such persons enjoy no criminal immunity under international law in their own countries, and may thus be tried by those countries' courts in accordance with the relevant rules of domestic law.  They will cease to enjoy immunity from foreign jurisdiction if the State which they represent or have represented decides to waive that immunity.  After a person ceases to hold the office of Minister for Foreign Affairs, he or she will no longer enjoy al1 of the immunities accorded by international law in other States.  An incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction

UNITED STATES v. PURGANAN G.R. No. 148571 (2002)

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The DOJ received from the DFA NOTE VERBALE NO. 0522 containing a request for the extradition of Mark Jimenez to the US. Attached to the note were the warrant of arrest issued by the US district court and other supporting documents. Secretary of Justice Drilon issued DO 249 designating and authorizing a panel of attorneys to handle the case. Pending evaluation, Jimenez requested copies of the official extradition request form the US Government, as well as the documents attached thereto. Drilon denied the requests saying that it is premature to furnish Jimenez with a copies pending he evaluation, that the evaluation is not a preliminary investigation since it is merely a procedure to determine the requirements under the relevant law and treaty have been complied with by the requesting government (US); thus, the constitutionally guaranteed rights of the accused in all criminal prosecutions are not available to Jimenez.

available. It is more akin, if at all, to a court’s request to police authorities for the arrest of the accused who is at large or has escaped detention or jumped bail. Having once escaped the jurisdiction of the requesting state, the reasonable prima facie presumption is that the person would escape again if given the opportunity. Potential extraditees do not have the right to a hearing for the issuance of a warrant of arrest nor the right to bail granted by the RTC.

Jimenez filed a case against Drilon claiming that his due process rights were violated. He won in the first case but lost in the second one (Secretary of Justice v. Hon. Lantion)

The Extradition Procedure is as follows: 1. The Extradition Request – The request is made by the Foreign Diplomat of the Requesting State addressed to the Sec of Foreign Affairs (Philippines) which contains the copy of the criminal charge, recital of the acts for which extradition is requested, the text of the applicable law, and such other supporting documents. It t is the task of the executive authority to evaluate the sufficiency of the request pursuant to Sec 5 of PD 1069 and the corresponding provision in the extradition treaty (Article 7 RP-US Treaty). 2. The Extradition Petition – upon the finding made by the SFA that he extradition request is sufficient and complete in form and substance, he shall deliver the same to the SOJ (Drilon) who shall immediately designate and authorize the attorney to handle the case. The lawyer so designated shall file a written petition with the RTC for the court to take consideration of the extradition request. The judge shall summon the extraditee and he may issue a warrant of arrest if it appears that the arrest will best serve the ends of justice. 3. The Extradition Hearing – The treaty does not specify the procedure but merely state that the proceeding shall in so far as practicable be not inconsistent with summary proceedings. The trial court determines WoN the offense mentioned is (1) extraditable based on the application of dual criminality rule and (2) if the offense for which extradition is requested is a political one.

The US government then filed this third case for a petition for the extradition of Jimenez. A warrant of arrest was subsequently issued. Jimenez:



He was entitled to basic due process rights of notice and hearing during the evaluation stage of the extradition proceedings (subject of first two cases) and before a warrant of arrest can be issued against him.

Jimenez was not entitled to the basic due process rights of notice and hearing during the evaluation stage of the extradition proceedings and before warrant of arrest could be issued against him. The ultimate purpose of extradition proceedings is to determine whether the request expressed in the petition, supported by its annexes & the evidence that may be adduced during the hearing of the petition, complies with the Extradition Treaty and Law; and whether the person sought is extraditable. The proceedings are intended merely to assist the requesting state in bringing the accused - or the fugitive who has illegally escaped - back to its territory, so that the criminal process may proceed therein. By entering into an extradition treaty, RP is deemed to have reposed its trust in the reliability or soundness of the legal and judicial system of its treaty partner, as well as in the ability and the willingness of the latter to grant basic rights to the accused in the pending criminal case therein. Extradition proceedings are not equivalent to a criminal case in which guilt or innocence is determined. Consequently, an extradition case is not one in which the constitutional rights of the accused are necessarily

Accordingly, extradition is the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities, to enable to requesting state to hold him in connection with any criminal investigation directed against him, or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or govt.

The court also laid down five postulates of extradition in this case: 1. Extradition is a major instrument for the suppression of crime. With the advent of easier and faster means of international travel, the flight of affluent criminals from one country to another for the purpose of committing crime and evading prosecution has become more frequent. Accordingly, governments

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2.

3.

4.

5.

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are adjusting their methods of dealing with criminals and crimes that transcend international boundaries. The Requesting State Will Accord Due Process to the Accused. A duly authorized representative’s signature on an extradition treaty signifies our confidence in the capacity and the willingness of the other state to protect the basic rights of the person sought to be extradited. That signature signifies our full faith that the accused will be given, upon extradition to the requesting state, all relevant and basic rights in the criminal proceedings that will take place therein; otherwise, the treaty would not have been signed, or would have been directly attacked for its unconstitutionality. The proceedings are Sui Generis. As pointed out in Secretary of Justice v. Lantion extradition proceedings are not criminal in nature. Compliance shall be in GF. Fulfilling our obligations under the Extradition Treaty promotes comity with the requesting state. Failure to fulfill our obligations thereunder paints a bad image of our country before the world community. Such failure would discourage other states from entering into treaties with us, particularly an extradition treaty that hinges on reciprocity. We are bound by pacta sunt servanda to comply in good faith with our obligations under the Treaty. There is an underlying risk of flight. Persons to be extradited are presumed to be flight risks. This prima facie presumption finds reinforcement in the experience of the executive branch: nothing short of confinement can ensure that the accused will not flee the jurisdiction of the requested state in order to thwart their extradition to the requesting state.

CLINTON v. JONES 520 U.S. 681 (1997)

Clinton was the Governor of the Arkansas before he became the President of the US. Jones worked as an employee of the Arkansas Industrial Development Commission. According to Jones, when that she was working as a state employee staff at the registration desk in an official conference, Ferguson, a former State Police officer, persuaded her to leave her desk and to visit the Governor in a business suite at the hotel, where he made "abhorrent" sexual advances that she vehemently rejected. She filed a complaint against Clinton. Clinton:



He filed a motion to dismiss claiming presidential immunity (as he was already the US President at that time)

Clinton is not immune from the suit filed by Jones. The president has immunity from damages claims arising out of official acts extending to the outer perimeter of his

authority. The immunity serves the public interest in enabling such officials to perform their designated functions effectively without fear that a particular decision may give rise to personal liability. The sphere of protected action must be related closely to the immunity's justifying purposes. However, presidential immunity does not extend to unofficial conduct, which is what is involved in this case. The court also said that with respect to acts taken in his public character (official acts), the President may be disciplined principally by impeachment, not by private lawsuits for damages. Other than that, he is otherwise subject to the laws for his purely private acts.

FORBES v. CHUOCO TIACO G.R. No. L-6157 (1910)

Forbes (then Governor- General of the Philippines) at the request of the Imperial Government of China ordered the deportation of Chuoco, a Chinese National, along with 11 others. Chuoco Tiaco returned to the Philippines and filed a complaint against Forbes and the officials he instructed to carry out the deportation (Harding and Trowbridge) for damages. Forbes:

 The CFI lacked jurisdiction over him and his officials pursuant to immunity.

The action was brought against Forbes and the others in their official capacities. Consequently, the CFI lacked jurisdiction over them. The Governor General, in his official capacity, being one of the coordinate branches of the Government, is entitled to the same protection against personal actions for damages by those who feel themselves aggrieved by acts which he performs in carrying out what he honestly deems to be the duties of his office as are the other coordinate branches of the Government. The court also explained that the executive department has the power to expel undesirable aliens from the country. Moreland, J., concurring: In explaining the Principle of Non-liability, he said that it is undoubted that neither the Legislature, nor a member thereof is liable in damages for any act which it performs, believing that it had the power so to act, even though it ultimately appears that such act is entirely outside of its powers and jurisdiction and is wholly and utterly void. It is equally undoubted that neither the courts, constituting another coordinate branch of the Government, nor members thereof, are, under similar circumstances, liable in damages. He believed that what the Governor-General exercised were functions essentially judicial overlapping with executive functions. Thus, if a judge acted in place of the GG, he would not be civilly liable. Therefore, so must the Governor-General. The subject matter is the same, the

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mental process involved is the same and the discretion used is the same. Whenever, therefore, the State confers judicial powers upon an individual, it confers them with full immunity from private suits. This is also rooted in the separation of powers in our government. According to the court, the civil responsibility of the chief executive would produce in him an inevitable tendency, insidious in character, constant in pressure, certain in results, to protect himself by following lines of least resistance and to temper the force of his executive arm in places and upon occasions where there was strong opposition, either by powerful and influential persons or by great federated interests, and where public prejudice was intense, active, and threatening.

DAVID v. MACAPAGAL-ARROYO G.R. No. 171396 (2004)

Arroyo issued PP 1017 declaring a state of national emergency, considering the acts and activities of the extreme Left and the extreme Right to be a clear and present danger to the safety and the integrity of the Philippine State and of the Filipino people. On the same day, she issued G. O. No. 5 implementing PP 1017 "to immediately carry out the necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence." One week after the declaration of a state of national emergency, she lifted PP 1017. She issued Proclamation No. 1021, declaring that the state of national emergency has ceased to exist. Petitioners assailed the constitutionality of Arroyo’s acts before the SC. Incidental to the determination of WON the petitioners had locus standi to file the case, the SC also occasioned to rule on the propriety of impleading President Macapagal-Arroyo in the suit. It was improper to implead President Macapagal-Arroyo in the suit as she is entitled to Presidential Immunity. According to the SC, settled is the doctrine that the President, during his tenure of office or actual incumbency, may not be sued in any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court litigations while serving as such. Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction to enable him to fully attend to the performance of his official duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive branch and anything which impairs his usefulness in the discharge of the many great and important duties imposed upon him by the Constitution necessarily impairs the operation of the Government. However, this does not mean that the President is not accountable to anyone. Like any other official, he remains

accountable to the people but he may be removed from office only in the mode provided by law and that is by impeachment.

JURISDICTIONAL IMMUNITIES OF THE STATE (GERMANY v. ITALY: GREECE INTERVENING) ICJ Judgment of 3 February 2012

Italy allowed civil claims to be brought against Germany in the Italian courts, seeking reparation for injuries caused by violations of international humanitarian law committed by the German Reich during the Second World War. According to Germany, Furthermore, Italy has breached Germany’s jurisdictional immunity. Germany filed an Application instituting proceedings against Italy before the ICJ, in respect of a dispute originating in violations of obligations under international law allegedly committed by Italy through its judicial practice “in that it has failed to respect the jurisdictional immunity (or state immunity) which Germany enjoys under international law”. Germany:

Italy:

Italy violated its immunity through the following:  By instituting the proceedings;  By taking measures of constraint against Villa Vigoni, a German State property situated in Italian territory;  By declaring enforceable in Italy decisions of Greek civil courts rendered against Germany on the basis of acts similar to those which gave rise to the claims brought before Italian courts  Territorial tort principle should be applied in this case;  Serious violations of the principles of international law applicable to armed conflict;  Violation of jus cogens norms, which have greater value than rules of international law; and  As a measure of last resort, since the claimants in the cases filed before the Italian courts had no other means of redress, they had to entertain them

Italy violated Germany’s jurisdictional immunity. Although there has been much debate regarding the origins of State immunity and the identification of the principles underlying that immunity in the past, the ILC concluded in 1980 that the rule of State immunity had been “adopted as a general rule of customary international law solidly rooted in the current practice of States”. That conclusion was based upon an extensive survey of State practice and is confirmed by the record of

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national legislation, judicial decisions and the comments of States on what became the United Nations Convention on the Jurisdictional Immunities of States and their Property. It believes that practice to show that, whether in claiming immunity for themselves or according it to others, States generally proceed on the basis that there is a right to immunity under international law, together with a corresponding obligation on the part of other States to respect and give effect to that immunity.

state immunity. Furthermore, jus cogens norms prevail over state immunity. State immunity being procedural in character, does not involve determining the lawfulness of the actions brought before a state’s courts. Lastly, nothing in international law shows that the entitlement of a State to immunity depends on the existence of effective alternatives to securing redress.

The customary international law in force when the claims were filed before Italian courts should apply because of Article 13 of the International Law Commission Articles on Responsibility of States for Internationally Wrongful Acts. The article states that the compatibility of an act with international law can be determined only by reference to the law in force at the time when the act occurred. Regarding the matter of Villa Vigoni, the ICJ held that based on Article 19 of the UN Convention, measures of constraint may only be taken against property belonging to another state if the property is being used for nongovernment commercial purposes. As a center for cultural exchange, Villa Vigoni is clearly being used for governmental non-commercial purposes. Thus, Italy violated Germany’s immunity. Regarding the matter of allowing Greek decisions to be enforced in Italy, the ICJ held that such an act also amounts to exercising jurisdictional power. Since Italy exercised jurisdictional power in granting exequatur, it violated Germany’s immunity.

According to him, jus cogens cannot be deconstructed into substantial and procedural. In order to avoid denial of justice and impunity, jus cogens must stand above the prerogative or privilege of state immunity. The tension between State immunity and the right of access to justice should be resolved in favor of the latter, particularly in cases of international crimes. The “threshold of gravity” of the breaches of human rights and of international humanitarian law removes any bar to jurisdiction, in the quest for reparation to victimized individuals. In relation to this, he said that all mass atrocities should be considered in light of the “threshold of gravity”. Furthermore, states cannot waive rights which are inherent to human beings. In reality, what jeopardizes international legal order are international crimes, not individuals’ quest for reparation. Grave breaches of human rights and international humanitarian law are antijuridical acts amounting to breaches of jus cogens. Since they are breaches of jus cogens, they cannot simply be disregarded by relying on State immunity.

As for the territorial tort principle, it cannot apply because customary international law shows that a state should be accorded immunity for torts committed by its armed forces on the territory of another state. The territorial tort principle is based on Article 11 of the European Convention, which provides that State A cannot claim immunity from State B in proceedings which relate to redress for injury, if such injury occurred in State A while State B was present in the former’s territory. Article 11 must be read in conjunction with Article 31, which precludes the actions of armed forces from affecting the immunities or privileges enjoyed by a state. Article 12 of the United Nations Convention provides that a state cannot invoke immunity if it caused injury within another state. This article does not make any express mention of the acts of armed forces, but the International Law Commission’s commentary says that it does not apply to situations involving armed conflicts. It cannot be held that the acts of the German military affected Germany’s state immunity.

Moreover, international crimes perpetrated by states (such as the German Third Reich in this case) are neither acts jure gestionis (commercial acts) nor acts jure imperii (governmental acts). They are delicta imperii (crimes of the government), which cannot be given immunity. What cannot be waived in delicta imperii is the individual’s right of access to justice. This includes the right to reparation for the grave violations of the rights inherent to him as a human. The term “immunity” was never meant to be a principle or a norm of general application. It was never intended to except jurisdiction on and cover up international crimes. A finding of particularly grave violations of human rights and of international humanitarian law is a valuable test for the removal of any bar to jurisdiction. He emphasized that it is absurd to remove State immunity in trade relations or local personal tort (e.g. traffic accidents) but not in international crimes. State immunity is not supposed to stand in the way of the realization of justice. Securing justice to victims includes enabling them to seek and obtain redress for the crimes they suffered.

As for Italy’s remaining defenses, they are not applicable because the acts were committed in the course of an armed conflict, and the current status of customary international law has not developed to the point where actions of armed forces which amount to serious violations of international human rights are excluded from

Judge Trinidade, dissenting:

One cannot embark on a wrongfully assumed and formalist lack of conflict between procedural and substantive rules, in effect unduly depriving jus cogens of its legal consequences. Contrary to legal positivism, law

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and ethics go together and this must be kept in mind to realize justice at both the national and international levels. •Court: covered by immunity •Sir: •Could not file under domestic laws, because forced labor is not absolutely prohibited. •The case is controversial because we don't know if the court was correct. •Italy and dissenting •Jus cogens prohibition should not be precluded by procedural law. Substantive shall prevail over procedural. •Duty to provide redress for violation: •Reparation - not limited to compensation •Restoration of status quo ante •Satisfaction - formal apology •Duty to prosecute and punish CLASS NOTES

QUESTIONS RELATING TO THE OBLIGATION TO PROSECUTE OR EXTRADITE (BELGIUM v. SENEGAL) ICJ Judgment of 20 July 2012

Mr. Habré was President of Chad for 8 years, during which large-scale violations of human rights were allegedly committed, including arrests of actual or presumed political opponents, detentions without trial or under inhumane conditions, mistreatment, torture, extrajudicial executions and enforced disappearances. After being overthrown, he was granted political asylum by the Senegalese government and he subsequently settled in Dakar. Complaints were filed against Mr. Habré with a Belgian investigating judge, for serious violations of international humanitarian law, crimes of torture and the crime of genocide. The complaints were based on crimes covered by the Belgian Law of 1993 concerning the punishment of serious violations of international humanitarian law, as amended by the Law 1999, and by the Convention against Torture. The Minister of Justice of Chad stated that the Sovereign National Conference had officially lifted from the former President all immunity from legal process. However, when Belgium sought to extradite Mr. Habré, the Dakar Court of Appeals held that, as “it could not extend its jurisdiction to matters relating to the investigation or prosecution of a Head of State for acts allegedly committed in the exercise of his functions”; that Mr. Habré should “be given jurisdictional immunity”, which “is intended to survive the cessation of his duties as President of the Republic”; and that it could not therefore “adjudicate the lawfulness of *the+ proceedings and the validity of the arrest warrant against a Head of State”.

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Senegal:

Belgium:

 Charges concerned crimes committed outside the territory of Senegal by a foreign national against foreign nationals and that they would involve the exercise of universal jurisdiction, while the Senegalese Code of Criminal Procedure then in force did not provide for such jurisdiction  The complaints filed before the Belgian courts were based on crimes covered by the Belgian Law of 1993 concerning the punishment of serious violations of international humanitarian law, as amended by the Law 1999 and by the Convention against Torture (CAT). The Convention was ratified by Senegal on 21 August 1986, without reservation, and became binding on it on 26 June 1987, the date of its entry into force. Belgium ratified the Convention on 25 June 1999, without reservation, and became bound by it on 25 July 1999.

Senegal is bound to extend its jurisdiction relating to the prosecution of a Head of State of a foreign country under the Convention against Torture. Senegal’s failure to enact implementing legislation for the CAT delayed the submission of this case to Senegalese authorities, thus causing Senegal to breach its obligation under Article 6 of the CAT to “immediately make a preliminary inquiry into the facts” as soon as a suspect is identified in the territory of the state party. The first complaint against Habré was filed in Dakar, Senegal. It “became imperative” for Senegal to conduct the preliminary inquiry. Senegal failed to include any materials demonstrating that it had carried out such an inquiry with respect to Habré’s involvement. Senegal breached CAT Article 7, which requires the state party having jurisdiction over the territory where a person accused of offenses under the CAT is found, to submit the case to its competent authorities for prosecution or to extradite him. The prohibition on torture is part of customary international law and has become a peremptory norm (jus cogens). However, the obligation to prosecute alleged perpetrators of torture only arises after the Convention has entered into force for that state party. Senegal’s obligations under the Convention date back to June 1987 when Senegal joined the CAT. There were a number of complaints regarding serious offenses committed by Habré after that date for which Senegal is obligated to prosecute. Belgium is entitled to invoke Senegal’s compliance with the Convention beginning in 1999 and has, in fact, requested Senegal’s compliance since 2000 when the first complaint against Habré was filed in Senegal.

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CASE CONCERNING ARMED ACTIVITIES ON THE TERRITORY OF THE CONGO (DEMOCRATIC REPUBLIC OF THE CONGO v. UGANDA) ICJ Reports 2005, p. 168 (2005)

Congo filed an Application instituting proceedings against Uganda in respect of a dispute concerning “acts of armed aggression perpetrated by Uganda on the territory of the Democratic Republic of the Congo, in flagrant violation of the United Nations Charter and of the Charter of the Organization of African Unity”. Uganda allegedly violated principles of conventional and customary law by engaging in military and paramilitary activities against Congo, by occupying its territory and by actively extending military, logistic, economic and financial support to irregular forces having operated there, by committing acts of violence against nationals of the Congo, and by engaging in the illegal exploitation of Congolese natural resources. Uganda filed a counter-claim alleging involvement by Congo in armed attacks against Uganda and in an attack on the Ugandan Embassy and on Ugandan nationals in Kinshasa. Accordingly, this was a violation of the immunity accorded to diplomats pursuant to the Vienna Convention on Diplomatic Relations.

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It is the necessary corollary of a right, such that rights of an international character involve international responsibility. Thus, if a state violates an international obligation, it bears responsibility for that violation. (Higgins, Chapter 9) The basis of the rules on state responsibility, at present, is the Draft Articles on Responsibility of States for Internationally Wrongful Acts, prepared by the International Law Commission. Elements of Internationally Wrongful Acts ILCDA, Art. 2. Elements of an internationally wrongful act of a State There is an internationally wrongful act of a State when conduct consisting of an action or omission: a) is attributable to the State under international law; and b) constitutes a breach of an international obligation of the State. 1.

Congo violated its obligations under the Vienna Convention on Diplomatic Relations by launching attacks on the Ugandan Embassy. Through the attacks by members of the Congolese armed forces on the premises of the Ugandan Embassy in Kinshasa, and their maltreatment of persons who found themselves at the Embassy at the time of the attacks, the Congo breached its obligations under Article 22 of the Vienna Convention on Diplomatic Relations. Furthermore, by the maltreatment by members of the Congolese armed forces of Ugandan diplomats on Embassy premises and at Ndjili International Airport, Congo also breached its obligations under Article 29 of the Vienna Convention.

D. International Responsibility ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts (ILCDA), Art. 1. Responsibility of a State for its internationally wrongful acts Every internationally wrongful act of a State entails the international responsibility of that State. International Responsibility, Generally International responsibility arises as a consequence of illegal acts or for failure of a state to observe obligations under international law. (Magallona, 2005)

Attribution to state. Owing to a state’s lack of physical being, it can only act by and through its agents and representatives. (Higgins, Chapter 9) As such, a state can be subject to international responsibility by “attribution”, that is, by considering the acts or omissions committed by a person or state organ which can be attributed to the state. The rules on attribution to a state are discussed, infra.

2.

Breach. There is a breach when a State violates a rule contained in any source of international law. This includes treaty provisions, customary norms as well as general principles of international law. The breach may relate to an obligation under a customary norm or a conventional rule. (Magallona, 2005)

Eight (8) Instances of State Attribution Acts and omissions of certain persons or individuals are attributed to the state as its own act in determining its responsibility for an internationally wrong act. (Magallona, 2005) The ILC provides for rules governing such attribution. They may be categorized as follows: 1. Those pertaining to state organs or officials  State organs; (ILCDA, Art. 4)  State organ placed at the disposal of another state (ILCDA, Art. 6)

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

2.

State organ acting in excess of authority (Art. 7) Those pertaining to other individuals or groups  Non-state organ or person empowered by state’s domestic law; (ILCDA, Art. 5)  Person or group under direction or control of a state; (ILCDA, Art. 8)  Person or group acting under color of authority; (ILCDA, Art. 9)  Insurrectional movement eventually becoming the new government; (ILCDA, Art. 10)  State ratification. (ILCDA, Art. 11)

State organ. – ILCDA, Art. 4. Conduct of organs of a State

This deals with the limited situation in which an organ of one state (A) is effectively put at the disposal of another state (B) so that the organ may temporarily act for B’s benefit and under its authority. In this case, the organ acts exclusively for the purposes of and on behalf of B and its conduct is attributed to B State alone. State organ acting in excess of authority. – ILCDA, Art.7. Excess of authority or contravention of instructions The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.

1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State. 2. An organ includes any person or entity which has that status in accordance with the internal law of the State.

Even if a state organ, acting in its official capacity, committed an act or omission ultra vires or contrary to the instructions of the state, such state will still incur responsibility.

The state organ contemplated is not limited to organs of the central government. It extends to organs of whatever classification, function or rank in the hierarchy. This includes the armed forces, police, local government units and administrative divisions. (Brownlie, Chapter 21)

Non-state organ or person empowered by state’s domestic law. –

Acts of the legislature are likewise covered. Responsibility may arise when a legislature fails to incorporate certain rules in domestic law per a treaty obligation. Acts of the judiciary may also give rise to state responsibility, such as when it declines to give effect to a treaty. (ibid.) Acts of officials or state agents are also covered, whatever may be their particular status or rank under domestic law State organ placed at the disposal of another state. – ILCDA, Art.6. Conduct of organs placed at the disposal of a State by another State The conduct of an organ placed at the disposal of a State by another State shall be considered an act of the former State under international law if the organ is acting in the exercise of elements of the governmental authority of the State at whose disposal it is placed.

Thus, a state, in attempting to evade responsibility, cannot invoke the defense that the organ went beyond its lawful orders in committing the act or omission constituting the breach.

ILCDA, Art. 5. Conduct of persons or entities exercising elements of governmental authority The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance. This is intended to take account of the increasingly common phenomenon of parastatal entities, which exercise elements of governmental authority in place of state organs, as well as situations where former State corporations have been privatized but retain certain public or regulatory functions. Example: private security firms contracted to act as prison guards.

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Some writers (e.g. Crawford) are of the position that a law which clothes entities with such powers is not required. What is essential is the existence of state authorization. CLASS NOTES

Person or group under direction or control of a state. – ILCDA, Art. 8. Conduct directed or controlled by a State The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of that state in carrying out the conduct. This contemplates cases where state organs supplement their own action by recruiting or instigating private persons or groups who act as “auxiliaries” while remaining outside the official state structure. Control. – In order to determine whether there is a “real link” between the private persons or groups and the state, it becomes necessary to consider the degree of control exercised by the latter over the former. There are two tests for this purpose: 1. Effective Control Test Control must have been exercised in respect to each individual act or omission which constitutes the breach. The private persons or groups must have been mere agents of the state who were told what had to be done at all stages. This presents a higher threshold for attribution. A general situation of dependence and support would thus be insufficient to justify attribution. This test was enunciated in the Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), supra. 2.

Overall Control Test Control must have gone “beyond the mere financing and equipping of such forces” and must have involved “participation in the planning and supervision of military operations.” This presents a lower threshold for attribution. There need be no showing of actual or direct control. This test was enunciated in the case of Prosecutor v. Tadid, supra, and was applied in the Case Concerning Application of the

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Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), infra. These apparently conflicting tests may be reconciled:  When dealing with the matter of individual criminal responsibility and the application of the rules of international humanitarian law (e.g. in the case of Tadid), use the Overall Control Test;  When dealing with the matter of state responsibility, use the Effective Control Test. CLASS NOTES Person or group acting under color of authority. – ILCDA, Art. 9. Conduct carried out in the absence or default of the official authorities The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority. This deals with the exceptional case of conduct in the exercise of elements of the governmental authority by a person or group of persons acting in the absence of the official authorities and without any actual authority to do so. The exceptional nature of the circumstances envisaged in the article is indicated by the phrase “in circumstances such as to call for”. Such cases occur only rarely, such as during revolution, armed conflict or foreign occupation, where the regular authorities dissolve, are disintegrating, have been suppressed or are for the time being inoperative. They may also cover cases where lawful authority is being gradually restored, e.g. after foreign occupation. (ILC, Comments on the Draft Articles, 2001) Insurrectional movement eventually becoming the new government. – ILCDA, Art. 10. Conduct of an insurrectional or other movement 1.

2.

The conduct of an insurrectional movement which becomes the new Government of a State shall be considered an act of that State under international law. The conduct of a movement, insurrectional or other, which succeeds in establishing a new State in part of the territory of a preexisting State or in a territory under its administration shall be considered an act of the new State under international law.

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3.

This article is without prejudice to the attribution to a State of any conduct, however related to that of the movement concerned, which is to be considered an act of that State by virtue of articles 4 to 9.

No government can be held responsible for the conduct of rebellious groups committed in violation of its authority. Hence, if an insurrection is successfully abated, the state cannot be held liable for any culpable violation of international law committed by the insurrectionists (granted the State was itself not guilty of bad faith or negligence). This article applies in cases where the insurrection is successful and the original government is overthrown. Such movement which had installed itself as the new government or establishes a new state will be liable for the acts it committed during the insurrection which would constitute breaches of international law. State ratification. – ILCDA, Art. 11. Conduct acknowledged and adopted by a State as its own Conduct which is not attributable to a State under the preceding articles shall nevertheless be considered an act of that State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own. While purely private conduct cannot generally be attributed to a state, this article covers situations where such attribution can be made “to the extent that the state acknowledges and adopts the conduct in question as its own.” Note that this does not cover mere support or endorsement. It must consist in acknowledgement or adoption of the acts as the state’s own by way of official act. In the Case Concerning United States Diplomatic and Consular Staff in Tehran (United States Of America v. Iran), supra, the ratification was done by a decree issued by Ayatollah Khomeini, in which he announced that no release of the US hostages were to be made unless the US turned over the Shah of Iran to them. By that decree, the Court ruled that the act of occupation of the US Embassy in Tehran by militants was effectively transformed into an act of the Iranian State itself. CLASS NOTES

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Rules on Breach There is a breach of an international obligation when an act or omission of a state is not in conformity with what is required of it by that obligation, regardless of its origin or character. (ILCDA, Art. 12) It can arise from breaches of bilateral obligations, obligations owed to some states or to the international community as a whole. (ILC, Comments on the Draft Articles, 2001) In the context of state responsibility, there is no distinction between contractual and tortious responsibility. (Rainbow Warrior Arbitration, infra.) In considering the breach, the following rules must be considered:  The state must be bound by the obligation in question at the time the act occurs. (ILCDA, Art. 13)  The breach occurs at the moment the act is performed, even if its effects continue. (ILCDA, Art. 14 [1])  A breach of a continuing character extends over the entire period during which the act continues and remains not inconformity with the international obligation. (ILCDA, Art. 14 [2])  A breach committed through a series of actions or omissions defined in aggregate as wrongful occurs when the aggregate of acts or omissions is already sufficient to constitute the wrongful act prohibited by the obligation. (ILCDA, Art. 15) o The fact of breach continues for as long as the actions or omissions are repeated and remain not in conformity with the international obligation. (ibid.) Principle of Objective Responsibility. – This principle provides that, provided agency and causal connection are established, there is a breach of duty by result alone. Responsibility arises for acts committed by a state despite the absence of fault or culpa. (Brownlie, Chapter 21) This in effect gives rise to “strict liability.” All a claimant needs to show is the fact of breach, fault or negligence on the part of the state notwithstanding. This is not to say, of course, that fault or negligence is immaterial. They may be considered in determining the extent of reparation that must be made. CLASS NOTES Responsibility in connection with the act of another state. – A state may also be held responsible in relation to internationally wrongful acts of other states in the following instances:



When a state aids or assists another state in the commission of an internationally wrongful act by the latter, if:

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o

o





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That state does so with knowledge of the circumstances of the internationally wrongful act; and The act would be internationally wrongful if committed by that State. (ILCDA, Art. 16)

When a state directs and controls another state in the commission of an internationally wrongful act, if: o That state does so with knowledge of the circumstances of the internationally wrongful act; and o The act would be internationally wrongful if committed by that S\state. (ILCDA, Art. 17) When a state coerces another state to commit an act, if: o The act would, but for the coercion, be an internationally wrongful act of the coerced state; and o The coercing state does so with knowledge of the circumstances of the act. (ILCDA, Art. 18)

Defenses; Circumstances Precluding Wrongfulness A state may invoke the following circumstances in order to preclude the wrongfulness of the act or omission imputed against him:  Party alleging the breach had actually consented to the commission of a given act; (ILCDA. Art. 20)  The act was taken as a lawful measure of selfdefense in conformity with the UN Charter; (ILCDA, Art. 21)  The act was taken as a countermeasure; (ILCDA, Art. 22)  It was impossible for the state to comply with the obligation due to force majeure; (ILCDA, Art. 23)  The author of the act was in a situation of distress, and had no other reasonable way to save his life and those of others entrusted to his care apart from the allegedly wrongful act; (ILCDA, Art. 24)  Necessity o The act was the only means of the State to safeguard an essential interest against a grave and imminent peril; and o The act does not seriously impair an essential interest of the State/s towards which the obligation exists, or of the international community as a whole; (ILCDA, Art. 25) Legal Consequences of an Internationally Wrongful Act The state responsible for the internationally wrongful act is under an obligation:

a) b) c)

d)

To observe its continued duty to perform the obligation breached; (ILCDA, Art. 29) To cease the act, if it is continuing; and (ILCDA, Art. 30) To offer appropriate assurances and guarantees of non-repetition, if circumstances so require. (ibid.) To make full reparation for the injury caused by the act. (ILCDA, Art. 31)

Reparation. – The responsible state is under an obligation to make full reparation for the injury caused by the internationally wrongful act. (ILCDA, Art. 31) The payment of reparation is the “corollary of the violation of the obligations resulting from an engagement between states.” (Factory at Chorzow, supra.) Essential principle of reparation. – The Court in the Factory at Chorzow case (supra.) laid down the essential principle in reparations. “Reparation must, so 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 the act had not been committed.” (ibid.) Forms of reparation. – Full reparation for the injury caused by the internationally wrongful act shall take the form of the following, singly or in combination: 1. Restitution This is the responsibility of the responsible state to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution:  Is not materially impossible; and  Does not involve a burden out of proportion to the benefit deriving from restitution instead of compensation. (ILCDA, Art. 35) It is the restoration to status quo ante. It may take the form of material restoration, or the reversal of some juridical act. 2.

Compensation Insofar as the damage is not made good by restitution, the responsible state is under an obligation to compensate for any financially assessable damage, including loss of profits insofar as it is established. (ILCDA, Art. 36) It is the “…payment of a sum corresponding to the value which restitution in kind would bear.” (Factory at Chorzow, supra.)

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It excludes “moral damage” to a state, i.e. the affront or injury caused by a violation of rights not associated with actual damage to property or persons (which is the subject matter of “Satisfaction”, infra.). 3.

Satisfaction The responsible state is under a duty to give satisfaction for the injury caused insofar as it cannot be made good by restitution or compensation. (ILCDA, Art. 37 [1]) It consists in the following:  an acknowledgement of the breach;  an expression of regret;  a formal apology; or  another appropriate modality. It should not be out of proportion to the injury and may not take a form humiliating to the responsible state. (ILCDA, Art. 37 [2]) This is a remedy for those injuries which are not financially assessable (hence not covered by restitution or compensation). This includes “moral damage” to a state, i.e. the affront or injury caused by a violation of rights not associated with actual damage to property or persons. (ILCDA, Art. 37 [3])

Countermeasures Countermeasures are those self-help remedies undertaken by states affected by internationally wrongful acts. These are not associated with armed conflict, and are not inconsistent with other international obligations. They are temporary measures justified as necessary and proportionate responses to an internationally wrongful act which terminated once the end is achieved. Example: suspension of flights to and from the responsible state, tightening of trade, etc.

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Article 49 of the ILC Draft Articles lays down the following guidelines with regard to the use of countermeasures. To wit: 1. The taking of countermeasures must only be used to induce the responsible state to comply with its obligations to cease the act, to offer assurances of non-repetition, and to provide reparation. 2. It must be limited to the non-performance for the time being of the affected state’s international obligations to the responsible state. 3. It must, as far as possible, be taken in such a way as to permit the resumption of performance of the obligations in question. Use of countermeasures should not affect the following: a) The obligation to refrain from the threat or use of force as embodied in the Charter of the United Nations; b) Obligations for the protection of fundamental human rights; c) Obligations of a humanitarian character prohibiting reprisals; d) Other obligations under peremptory norms of general international law. (ILCDA, Art. 50 [1]) A state taking countermeasures is not relieved from fulfilling its obligations: a) Under any dispute settlement procedure applicable between it and the responsible State; b) To respect the inviolability of diplomatic or consular agents, premises, archives and documents. (ILCDA, Art. 50 [2]) Termination. – Countermeasures shall be terminated as soon as the responsible state has complied with its obligations (i.e. cessation, reparation) in relation to the internationally wrongful act. (ILCDA, Art. 53)

CORFU CHANNEL CASE ICJ Reports 1949, p. 4 (1949), supra.

Not a form of punishment. – They are not intended to be a form of punishment for wrongful conduct; it is an instrument for achieving with the obligations of the responsible state under these draft articles. Use with risk. – A state which resorts to countermeasures based on its unilateral assessment of the situation does so at its own risk and may incur responsibility for its own wrongful conduct in the event of an incorrect assessment. Must be commensurate to the injury. – Countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question.

(supra. Refer to p. 15)

RAINBOW WARRIOR ARBITRATION (Lifted from Karichi Notes, 2010) French agents destroyed a Greenpeace, Int’l vessel, the Rainbow Warrior, while in harbour in New Zealand. New Zealand prosecuted 2 captured French agents of the Directorate General of External Security. Acts of organs of state. A communiqué from the Prime Minister of France confirmed that agents acted under its instructions, & promised reparation. Dispute over France’s

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demand for release & New Zealand’s claim for compensation. The UN Secretary General's ruling required France to pay US $7 million to New Zealand and to undertake not to take certain defined measures injurious to New Zealand trade with the European Communities. The ruling also provided that Major Mafart and Captain Prieur were to be released into French custody but were to spend the next 3 years on an isolated French military base in the Pacific.

CASE CONCERNING UNITED STATES DIPLOMATIC AND CONSULAR STAFF IN TEHRAN (UNITED STATES OF AMERICA v. IRAN) ICJ Reports 1980, p. 3 (1980), infra

(infra. Refer to discussion in p. 116)

THE FACTORY AT CHORZOW (GERMANY v. POLAND) 1928 PCIJ (ser. A) No. 17 (1928), supra.

(supra. Refer to p. 15) How much is the damage: To wipe out all the consequences of the illegal act The court made a distinction between legal and illegal taking The problem in IL is that the only way that a taking can be illegal is if there is no just, adequate and prompt compensation. (Cielo Notes, 2013) CLASS NOTES

LEGAL CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OCCUPIED PALESTINIAN TERRITORY (ADVISORY OPINION) ICJ Reports 2004, p. 176 (2004)

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Israel constructed a wall Occupied Palestinian Territory Israel wanted to make it as a defense buffer against Muslims in order to prevent rocket attacks into Israeli territory. It was built in such a way that OPT will be annexed. Thus, the UN Secretary-General communicated to the Court the GA decision to submit a question for an advisory opinion. The question was: “What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the SecretaryGeneral, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?” The building of the wall is illegal and must be removed. The building of wall is illegal for being a violation of humanitarian law. Humanitarian Law is a law for the protection of the civilian in times of armed conflict. The wall limited the liberty of movement. Civilians during armed conflict must never be displaced. Basic human rights were also violated. • Work, housing, children, health • Liberty of movement is affected; they cannot access their workplace, schools, hospitals Legal Consequences • Third party states must not recognize the building of the wall; • Israel must make reparation for damages, and remove the wall, pursuant to the doctrines of international responsibility.

CASE CONCERNING APPLICATION OF THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE (BOSNIA AND HERZEGOVINA v. SERBIA AND MONTENEGRO) ICJ Reports 2007, p. 43 (2007)

Bosnia and Herzegovina accused Yugoslavia of responsibility for the commission of genocide in Bosnia. In its application, Bosnia asked the Court to grant, as provisional measures, that Yugoslavia cease all acts of genocide and cease providing support for any group engaging in military or paramilitary activities against Bosnia, and requested that the Court indicate that Bosnia had the right to seek and receive assistance in defending itself.

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The acts of genocide committed in Srebrenica were not perpetrated by “persons or entities” having the status of organs of the Federal Republic of Yugoslavia (as Serbia was known at that time) under its internal law, as then in force. There is no showing that the Federal Republic of Yugoslavia (FRY) army took part in the massacres, nor that the political leaders of the FRY had a hand in preparing, planning or in any way carrying out the massacres. While it is true that there is much evidence of direct or indirect participation by the official army of FRY, along with the Bosnian Serb armed forces, in military operations in Bosnia and Herzegovina in the years prior to the events in Srebrenica, it was not shown that there was such any participation in relation to the massacres committed at Srebrenica. Furthermore, neither the Republika Srpska nor the VRS were de jure organs of the FRY, since none of them had the status of organ of that State under its internal law. The acts were not committed by persons who, while not organs of Serbia, did nevertheless act on the instructions of, or under the direction or control of Serbia. The Court, citing Nicaragua v. US, held that the applicable rule is that the conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State carrying out the conduct. Under this test, it must be shown that this “effective control” was exercised, or that the State’s instructions were given, in respect of each operation in which the alleged violations occurred, not generally in respect of the overall actions taken by the persons or groups of persons having committed the violations. Bosnia has not proved that the instructions were issued by the federal authorities in Belgrade, or by any other organ of the FRY, to commit the massacres. Although the decision to kill the adult male population of the Muslim community in Srebrenica was taken by some members of the VRS Main Staff, it is without instructions from or effective control by the FRY. The Court therefore held that the acts of those who committed genocide at Srebrenica cannot be attributed to Serbia under the rules of international law of State responsibility. Thus, the international responsibility of Serbia is not engaged on this basis.

TRAIL SMELTER CASE In 1896, a smelter was started under American auspices near the locality known as Trail, B.C. In 1906, the

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Consolidated Mining and Smelting Company of Canada, Limited, acquired the smelter plant at Trail. This facility resulted in sulphur dioxide fumes and higher concentrations being emitted into the air. About 300-350 tons of sulphur were being emitted daily in 1930. From 1925, at least, to 1937, damage occurred in the State of Washington, resulting from the sulphur dioxide emitted from the Trail Smelter. The Court held Canada responsible for the conduct of the Trail Smelter and enjoined it to pay compensation to United States. The court also provided for future monitoring of the effects of the factory's activities on the environment, to prevent possible future damages to the United States environment. Under the principles of international law, as well as of the law of the United States, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the proper- ties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence. Considering the circumstances of the case, the Tribunal holds that Canada is responsible in international law for the conduct of the Trail Smelter. Apart from the undertakings in the Convention, it is, therefore, the duty of the Government of Canada to see to it that this conduct should be in conformity with the obligation of the Dominion under international law as herein determined. This is unique because the effect of pollution transcends other states. The case did not use any treaty or convention.  The principle used is not environmental BUT not to allow its territory to be used in such a manner as to cause injury by fumes in or to the territory of another  This is a precedent for TRANSBOUNDARY ENVIRONMENTAL HARM  States must ensure that corporations existing in their territory must comply with these laws CLASS NOTES

UNION BRIDGE COMPANY CLAIM (UNITED STATES v. GREAT BRITAIN) (1924)

Union Bridge claims damages arising out of the removal of the material from Port Elizabeth to the Imperial Military Railways, Bloemfontein, by Harrison, the storekeeper of the Cape Gov’t Railways at Port Elizabeth, an agent of the British gov’t, without Union Bridge’s consent, and its subsequent sale.

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Act of state organ. Harrison purported to act upon instructions given to him, and in doing so, he committed 2 mistakes in as much as it 1) was neutral property; and 2) was intended for a road, an not a railway bridge. The consignment of the material to Blomfontein was a wrongful interference with neutral property, and it was within Harrison’s duty, as railway storekeeper, to forward material by rail, and he did so under instructions which fix liability on the British gov’t. This liability is not affected by the fact that this was done under a mistake, or that the British had no intention to appropriate the material.

YOUMANS CLAIM (US v. MEXICO) (1926)

(Lifted from Karichi Notes, 2010)

A mob killed 3 US nationals & Mexican police’s attempt to quell the mob, under the Mayor’s instructions, led to the open firing upon the house & more killings. Act of state organ; failure to protect aliens in territory. Mexico is liable for the acts of the soldiers whether 1) outside the scope of their authority; or 2) done in a private capacity. Clearly, it is not intended by the rule to say that no wrongful act of an official acting in the discharge of duties entrusted to him can impose responsibility on a gov’t under IL because such wrongful act must be considered to be “outside the scope of his competency.” If this were the meaning intended by the rule, then no wrongful act committed by an official could ever be considered as acts for which the gov’t could be held liable. The soldiers’ participation in the murder cannot be considered as acts in their private capacity when it is clear that at the time of the commission of these acts, the neb were on duty under the immediate supervision and in the presence of a commanding officer. Duty: to exercise due diligence to protect the person and property of aliens.

crew at the time when the real damage took place. The nature of the crew, the absence of civil or military control ashore, and the situation of the neutral property, were circumstances calling for diligence on the part of those in charge of the Chinese crew to see to it that they were under control when they went ashore in a body.

BOLIVAR RAILWAY COMPANY CLAIM (GREAT BRITAIN v. VENEZUELA) (1903)

(Lifted from Karichi Notes, 2010) Claims were brought by Bolivar arising out of the revolution in Venezuela that brought Castro to power & against Castro himself, after his assumption to power. Successful insurrectionists. Claims in respect of contractual obligations incurred by both the old and new governments were allowed, but claims incurred by an unsuccessful revolution against Castro were not allowed. If the personal responsibility of Castro were the question for decision, it might be possible to hold him responsible for the claims incurred by the 2nd revolution as growing out of the revolution he had led. However, such is not the ground on which successful revolutions are charged, through the gov’t, with responsibility. Responsibility comes because it is the same nation. Nations do not die when there is a change of government. These are but expressions of a change of national will. The nation is responsible for the debts contracted by its titular government until the obligation is discharged. The nation is responsible for the obligations of a successful revolution from its beginning, because, it represented ab initio a changing national will, crystallizing in the finally successful result — success demonstrated that from the beginning it was registering the national

NEER CLAIM (US v. MEXICO) (1926)

ZAFIRO CLAIM (GREAT BRITAIN v. US) (1925)

(Lifted from Karichi Notes, 2010) Claim WRT acts of a Chinese crew of the Zafiro, a private ship commissioned by the US military, in looting houses in Cavite during the Spanish-US War of 1898; defense: soldiers on shore leave. Act of state organ. US is liable for the whole damage as the Chinese crew of Zafiro are shown to have participated to a substantial extent, and the part chargeable to unknown wrongdoers cannot be identified. But interest is not allowed because a considerable, though unascertainable part of the damage is not chargeable to the Chinese crew of the Zafiro. There was no effective control of the Chinese

(Lifted from Karichi Notes, 2010) US claims damages for Mexico’s failure to exercise due diligence in prosecuting the murderer of an American. Standard of treatment of aliens in territory. The proprietary of governmental acts should be put to the test of international standards, and that the treatment of an alien, in order to constitute an international delinquency, should amount to an outrage, to bad faith, to wilful neglect of duty, or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency. Whether the insufficiency proceeds from deficient execution of an intelligent law or from the fact that the laws of the country do not empower the

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authorities to measure up to international standards is immaterial.

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whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. (Vienna Convention on the Law of Treaties [TC], Art. 2 [1a])

STARETT HOUSING CORPORATION v. IRAN 4 Iran-US Claims Report (1983)

(Lifted from Karichi Notes, 2010, and subsequently edited) Starett Housing Corporation was contracted by the Iranian Government for the construction of a 6000-unit apartment complex. It contends that their property interests in the housing Project have been unlawfully taken by the postrevolution Government of Iran through the appointment of a temporary manager which has deprived them of the effective use, control and benefits of their property by means of various actions authorizing, approving and ratifying acts and conditions that prevented Starrett from completing the Project. Expropriation Even Without Nationalization Law. The Court noted that the Government of Iran did not issue any law or decree according to which the Zomorod Project or Shah Goli expressly was nationalized or expropriated. However, it is recognized in international law that measures taken by a State can interfere with property rights to such an extent that these rights are rendered so useless that they must be deemed to have been expropriated, even though the State does not purport to have expropriated them and the legal title to the property formally remains with the original owner. Assumption of control over property by a government does not automatically and immediately justify a conclusion that the property has been taken by the government, thus requiring compensation under international law. In this case it cannot be disregarded that Starett has been requested to resume the Project. It has been proved that at least by the end of January 1980 the Government of Iran had interfered with the Claimants' property rights in the Project to an extent that rendered these rights so useless that they must be deemed to have been taken.

While the definition excludes unwritten agreements, such exclusion does not mean that those have no legal force and effect.



Covered Agreements between states





Those in writing





Those governed by international law



No Substantive Requirements of Form and Name The definition also covers simplified agreements which are not in the form of formal treaties but have become of common use, such as: exchange of notes, agreed minutes, memoranda of understanding, among others. Its form will vary according to usage. Nomenclature is likewise insignificant. It can be called: “treaty”, “covenant”, “pact”, etc. Conclusion and Entry into Force of Treaties Representatives of a state. – A person may be said to be representing a state for purposes of adopting or authenticating the text of a treaty, or for expressing the consent of the state to be bound by a treaty, given the following:  He produces a “full powers” instrument; or “Full powers.” – A document from a state designating a person/s to represent it for: o negotiating, adopting or authenticating the text of a treaty; o Expressing a state’s consent to be bound by a treaty; or o For accomplishing any other act with respect to a treaty. (TC, Art. 2 [1c])

There is no actual taking; instead, there was CREEPING taking. It does not have to be a complete taking as long as there is serious interference with the property. CLASS NOTES 

E. Vienna Convention on the Law of Treaties Treaty, Defined It is an international agreement concluded between states in written form and governed by international law,

Not Covered Agreements between states and other actors of international law Those not in written form Those governed by the national law of one of the parties or any other national law system

If it appears from the intention of states considered to consider him so and to dispense with the production of full powers. (TC, Art. 7 [1])

However, there are three (3) categories of representatives who are considered in international law as representatives of the state without having to produce “full powers.” To wit:

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a)

b)

c)

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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; 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; 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. (TC, Art. 7 [2])

Acts relating to treaties performed a person who fails to satisfy the “full powers” requirement or does not fall under any of its exceptions are void and without legal effect. (TC, Art. 8) Adoption. – Adoption of the text of a treaty takes place after the form and content of a treaty has been settled by the negotiating states. This is preparatory to the authentication of the text of a treaty and to its signature. This is not an expression of an agreement to be bound. Authentication. – This is the step wherein the definitive text of a treaty is established as the correct and authentic one. It enables states to know finally and definitively what is the content of the treaty to which they might subscribe to. After this step, the treaty is no longer susceptible to alteration. Expression of consent to be bound. – The means by which a state should express its consent to be bound by a treaty depends on the treaty itself or on the agreement of the parties thereto. The TC provides for the following means through which this is accomplished: (TC, Art. 11) 1. Signature A signature can ordinarily express such consent to be bound. However, if the treaty contains a stipulation requiring other means (e.g. ratification) in order for states to be bound thereto, such signatures will not have a binding effect. 2.

Exchange of instruments constituting a treaty

3.

Ratification Ratification shall be used by a state to express its consent to be bound in the following instances: 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;

c) d)

the representative of the State has signed the treaty subject to ratification; or 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. (TC, Art. 14)

The consent to be bound by a state is established upon: a) exchanges of the instrument of ratification between the parties; or b) deposit of the instrument of ratification with the depositary agreed upon. (TC, Art. 16) 4.

Acceptance, Approval, Accession This occurs when a state which did not sign a treaty, already signed by other states, formally accepts its provisions. (Brownlie, Chapter 26) It gives flexibility to the process of becoming bound to a treaty. (Magallona, 2005) The consent to be bound by a state is established upon: c) exchanges of the instrument of acceptance, approval or accession between the parties; or d) deposit of the instrument of acceptance, approval or accession with the depositary agreed upon. (TC, Art. 16)

Deposit with a depositary. – the parties to a treaty may agree to appoint a depositary who shall be charged with, among others, keeping custody of the original text, preparing certified copies of the instrument, receiving signatures, and informing the parties of acts, notifications and communications relating to the treaty. (TC, Art. 77) The depositary may be any of the following: 1. One or more states; 2. An international organization; or 3. The Chief Administrative Officer of such organization. In the case of expression of consent through ratification, acceptance, approval or accession, the consent to be bound is only established upon the deposit of the instrument of ratification, acceptance, approval or accession with the depositary so designated by the parties. (TC, Art. 16) In most cases, it is the Secretary-General of the United Nations who is designated as depositary. CLASS NOTES

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Entry into force. – It is the fixed date or periods reckoned from certain events as agreed upon by the parties which mark the beginning of the binding force of a treaty as law. Example: TC, Art. 84 (1) – “The present Convention shall enter into force on the thirtieth day following the date of deposit of the thirtyfifth instrument of ratification or accession.” Provisional application. – A treaty or an agreement among the parties may provide for the application of certain provisions before a treaty’s entry into force. (TC, Art. 25 [1]) Reservation It is “a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.” (TC, Art. 2 [1d]) Right to formulate reservations; Exceptions. – A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation. (TC, Art. 19) It is a right that pertains to the sovereignty and independence of a state in regulating its foreign relations. It aids the development of international relations by enabling states to ratify treaties which they would not have otherwise ratified had they not been able to make reservations thereto. (Magallona, 2005) There are three (3) exceptions to this grant: 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 failing under subparagraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty. (TC, Art. 19) Consent/acceptance by other state parties. – General Rule: Acceptance by other parties not required for reservations expressly allowed by the treaty. (TC, Art. 20) Exception: Acceptance will be required in the following cases: 1. 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; (TC, Art. 20 [2]) 2. When a treaty is a constituent instrument of an international

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organization. (TC, Art. 20 [3]) (For the effect of reservations to multilateral treaties, see Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, infra.) No reservation of peremptory norms. – Reservations that offend jus cogens norms would not be compatible with the object and purpose of the covenant. Accordingly, provisions therein which represent customary international law may not be the subject of reservations. (Brownlie, Chapter 26) Observance of Treaties Pacta Sunt Servanda. – Literally, “pacts must be respected,” it is the fundamental principle of the law of treaties. Every treaty in force is binding upon the parties to it and must be performed by them in good faith. (TC, Art. 26) Cannot invoke internal law to evade treaty obligations. – General Rule: A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. (TC, Art. 27) Exceptions:  The violation concerns the state’s competence to conclude treaties; or  The violation concerned a rule of internal law of fundamental importance. (TC, Art. 46, infra.) Retroactivity. – General Rule: No retroactive application. It cannot bind a party in relation to any act or fact which took place or ceased to exist before the fate of the entry into force. (TC, Art. 28) Exception: Unless a different intention appears from the treaty. (ibid.) Treaties and Third States General Rule: Pacta tertiis nec nocent nec prosunt – A treaty does not create either obligations or rights for a third State without its consent. (TC, Art. 34) Exceptions:  Express acceptance. – Parties to the treaty establish an obligation therein, and the third state expressly accepts the obligation in writing; (TC, Art. 35)  Stipulations pour autrui. – Treaty gives third states rights, and a third state gives his assent thereto. (TC. Art. 35)  Treaty as customary international law. – A treaty may become binding on non-parties if it becomes a part of international custom. (Brownlie, Chapter 26) (TC, Art. 38) Interpretation of Treaties

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TC, Art. 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 with the 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; 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. TC, Art. 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. Invalidity, Termination and Suspension of Treaties The validity and continuance in force of a treaty and of consent to be bound is presumed. (TC, Art. 42) However, a state may invoke certain grounds in for the invalidity, termination and suspension of treaties.

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Grounds for invalidity. – 1. Violation of provisions of internal law regarding competence to conclude treaties; (TC, Art. 46) This ground concerns constitutional limitations which may affect the validity of a state’s consent to a treaty under international law 2. Representative’s lack of authority (TC, Art. 47) A state representative acting under specific restrictions, such restrictions being known to the other state parties, who acts beyond them in giving his consent to a treaty, renders the state’s consent defective. Such an incident can be used as a ground for the invalidation of that state’s consent. 3. Error (TC, Art. 48) This error must relate to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty. However, this ground cannot be invoked if circumstances existed that should have put such state on notice of a possible error. 4. Fraud (TC, Art. 49) If a state has been induced to conclude a treaty by the fraudulent conduct of another negotiating state, the former may invoke the fraud as invalidating its consent to be bound by the treaty. 5. Corruption of a state representative (TC, Art. 50) If the expression of a State’s consent to be bound by a treaty has been procured through the corruption of its representative directly or indirectly by another negotiating State, the State may invoke such corruption as invalidating its consent to be bound by the treaty. 6. Coercion of state representatives (TC, Art. 51) The expression of a State’s consent to be bound by a treaty which has been procured by the coercion of its representative through acts or threats directed against him shall be without any legal effect. 7. Coercion of a state by threat or use of force (TC, Art. 52) The expression of a State’s consent to be bound by a treaty which has been procured by the coercion of its representative through acts or threats directed against him shall be without any legal effect. 8. Conflict with jus cogens (TC, Art. 53) A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. Grounds for termination. – 1. State succession Treaties may be affected when one state succeeds whole or partly to the legal personality and territory of another. This would be

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2.

3.

4.

5.

dependent on the form of succession and the type of treaty concerned. War and armed conflict While hostile relations do not automatically suspend or terminate treaties, it is possible for war conditions to lead to termination of treaties on grounds of impossibility or fundamental change of circumstances. Operation of treaty provisions (TC, Art. 54 [a]) The treaty may be terminated pursuant to conductions for such specified therein. Termination by agreement (TC, Art. 54 [b]) Termination of or withdrawal from a treaty may take place at any time by consent of all parties. Material breach (TC, Art. 60) A material breach consists in:  Repudiation of the treaty not sanction by the present Convention;  Violation of a provision essential to the accomplishment of the object or purpose of the treaty. In bilateral agreements, a breach by one entitles the other to invoke such breach as a ground for termination.

6.

7.

In multilateral agreements, a breach by one may lead to:  Removal of the state in breach from the treaty relation;  Termination of the treaty;  Suspension of the treaty only between a specially affected state and the one in breach; Supervening impossibility of performance (TC, Art. 61) A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. Example: submergence of an island, drying of a river Fundamental change of circumstances (TC, Art. 62) Principle of clausula rebus sic stantibus – 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

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b)

8.

the effect of the change is radically to transform the extent of obligations still to be performed under the treaty. Emergence of a conflicting jus cogens norm (TC, Art. 64) If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.

Voidable treaties. – Certain grounds of both invalidity and termination must be invoked by a party and so such treaties concerned are simply voidable. These are:  Invalidity: o Violation of provisions of internal law regarding competence to conclude treaties; o Representative’s lack of authority; o Error; o Fraud; o Corruption of Representative.  Termination: o Material breach; o Impossibility; o Fundamental change in circumstances.(Brownlie, Chapter 26) Void treaties. – The following grounds render a treaty void:  Coercion of a state  Conflict with jus cogens (ibid.) In the case of the Philippines, the treaty-making process consists of the following steps: 1. Negotiation 2. Signature 3. Ratification Note that affixation of the Philippine representative’s signature does not constitute consent to be bound. This is due to the requirement in Art. VII, Sec. 21 for the 2/3 concurrence of the Senate for a treaty to be valid and effective. Ratification in the Philippines comprises of the following steps: 1. A treaty is signed by the Executive; 2. The treaty is concurred with by the Senate via a 2/3 vote; 3. The treaty is then deposited with the authority designated by the treaty itself. CLASS NOTES

DEFINITION OF TREATY ABAYA v. EBDANE, JR. G.R. No. 167919 (2007)

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DPWH awarded a contract for a road rehabilitation package to China Road and Bridge Corporation (CRBC). The road project is funded under a Loan Agreement which was provided by an Exchange of Notes between Japan and the Philippines. Abaya:

DPWH:

The contract with CRBC is void ab initio.  Award of the project to CRBC violates the Government Procurement Reform Act (RA 9184) which provides that the Approved Budget Contract shall be the upper limit or ceiling for the bid prices.  Under the law, all bids or awards should not exceed the ceilings or upper limits, otherwise the contract is void.  DPWH recommended the award to the Chinese corporation whose bid was more than 200M overpriced based on the ABC. RA 9184 is inapplicable.  Executive Order No. 40 exempts from the scope and application of RA 9184 government commitments with respect to bidding and award of contracts financed partly or wholly with funds from international financing institutions as well as from bilateral and other similar foreign sources.

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“Section 4. Scope and Application.- x x x Any treaty or international or executive agreement affecting the subject matter of this Act to which the Philippine government is signatory shall be observed.” The Loan Agreement being in the nature of an executive agreement falling under the purview of Section 4, it is exempt from the application of RA 9184 bid-ceiling requirements. That an exchange of notes is in the nature of an executive agreement is a mere obiter dictum. CLASS NOTES

DEPARTMENT OF BUDGET AND MANAGEMENT PROCUREMENT SERVICE v. KOLONWEL TRADING G.R. No. 175608 (2007)

DepEd requested the services of the DBM-PS to undertake a procurement project which is to be jointly funded by the World Bank and the Asian Development Bank through an International Bank Reconstruction and Development (IBRD) Loan Agreement. The award of the World Bank-ADB book project for the Department of Education to Vibal, et. al is now being contested despite earlier finding of conflict of interest.

The contract is valid. The Loan Agreement is in the nature of an executive agreement because it is an integral part in the Exchange of Notes between Japan and the Philippines. Under the UN Treaty Collection, an exchange of notes is a record of a routine agreement that has many similarities with the private law contract. The agreement consists of the exchange of two documents, each of the parties being in the possession of the one signed by the representative of the other. Under the usual procedure, the accepting State repeats the text of the offering State to record its assent. The signatories of the letters may be government Ministers, diplomats or departmental heads. The technique of exchange of notes is frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid the process of legislative approval. Treaties, agreements, conventions, charters, protocols, declarations, memoranda of understanding, modus vivendi and exchange of notes all refer to "international instruments binding at international law. Both the 1969 Vienna Convention and the 1986 Vienna Convention do not distinguish between the different designations of these instruments. Instead, their rules apply as long as they meet the common requirements. Section 4 of RA 9184 states that:

The trial court held that it lacked jurisdiction to try the case because there was a failure to comply with the protest mechanism under RA 9184, namely that the protest must be: 1) in writing, in the form of a verified position paper 2) submitted to the head of the procuring entity; and 3) payment of a non-refundable protest fee. The trial court also held that the World Bank Guidelines on Procurement under IBRD Loans are not in any way superior over the local laws. Foreign loan agreements with international financial institutions such as the IBRD Loan Agreement partake of an executive or international agreement within the purview of Section 4, RA 9184 as held in the Abaya case. All interested bidders were notified by DepEd that the procurement of the project was to be funded from the proceeds of the RP-IBRD Loan Agreement which stipulates that the goods shall be procured in accordance with the World Bank guidelines. Doctrine: Even if there is a conflict between the World Bank procurement guidelines and municipal procurement law (RA 9184), the WB guideline prevails. Prof. Roque commented that the ruling was “stupid” for the following reasons:

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 

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This contravenes the sovereignty of the state; The World Bank is not a state that could be a party to a treaty; its guidelines were not even in the form of a treaty; There is no conflict between PH and WB rules regarding conflict of interest; In fact, the WB guidelines are the basis of the procurement law in the Philippines but there is a penal clause in our law (that is the only difference)

executive agreements must comply with the laws they implement. Only a treaty, upon ratification of the Senate, acquires the status of municipal law.

In ruling that this is an executive agreement, Abaya was used but the court cited a portion of Abaya which does not exist.

Also, an executive agreement is generally governed by international law. However the ZTE Contract itself provides that it shall be governed by Philippine law. Thus, the ZTE contract is not an executive agreements but simply a commercial contract, which must comply with the public bidding mandated by the governing Philippine law.



Note that in Abaya, what was deemed an executive agreement was the Exchange of Notes, not the loan agreement itself. CLASS NOTES

That the Chinese government handpicked ZTE Corporation to supply the goods and services does not make the ZTE Supply Contract an executive agreement. ZTE Corporation is not even a government agency but a business enterprise performing purely commercial functions.

CNMEG v. HONORABLE SANTA MARIA G.R. No. 185572 (2012)

SUPLICO V. NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY G.R. No. 178830 (2008)

The Philippine government through the DOTC entered into a project with the Chinese government known as the ZTE National Broadband Network Project or the ZTE-DOTC NBN deal. Suplico sought to enjoin NEDA from pursuing, entering into indebtedness, disbursing funds and implementing the ZTE-DOTC Broadband Deal Suplico’s petition was dismissed because the issue was already moot. Prior to Suplico’s action, it was shown that in the Notes of Meeting between Philippines and China, the Philippine government conveyed its decision not to continue with the project due to several constraints. The same Notes also contained President Hu Jintao’s expression of understanding of the Philippine Government decision. Carpio, J., dissenting: The NBN Project should be declared null and void for its failure to comply with requirements set by law: 1. an appropriation law funding the contract; 2. certification of appropriation and fund availability

CNMEG and North Luzon Railways Corporation entered into an agreement that the latter will conduct a feasibility study and construct the Northrail Project. A complaint was filed for the annulment of the contract and loan agreement on the ground that it is unconstitutional and it also violated RA 9184. It is alleged that the contract and the loan agreement is an executive agreement and therefore its validity cannot be questioned before the local courts. The Vienna Convention on the Law of Treaties defines a treaty as 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. To be considered an executive agreement, the following three requisites provided under the Vienna Convention must concur: a) the agreement must be between states; b) it must be written; and c) it must governed by international law. This case lacks the first and third requisites.

Also the Government Procurement Reform Act states that all procurement of infrastructure, goods and services shall be done through Competitive Bidding. ZTE’s argument that there is no provision in the executive agreement between China and the Philippines for the conduct of public bidding will only be tenable if executive agreements can amend or repeal a prior law. However, executive agreements cannot amend or repeal a prior law.

The agreement is not between states. The Contract Agreement was not concluded between the Philippines and China, but between Northrail and CNMEG. CNMEG is neither a government nor a government agency. Northrail and CNMEG entered into the Contract Agreement as entities with personalities distinct and separate from the Philippine and Chinese governments, respectively. Neither can it be said that CNMEG acted as agent of the Chinese government.

An executive agreement has the force and effect of law. But like implementing rules of executive agencies,

It is not governed by international law. Since the Contract Agreement explicitly provides that Philippine law shall be

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applicable, the parties have effectively conceded that their rights and obligations thereunder are not governed by international law. It is merely an ordinary commercial contract that can be questioned before the local courts. Therefore it is not an executive agreement and the case can be tried by Philippine (local courts).

To settle the ambiguity, the Court made reference to the Draft Terms of Reference (TOR) relating to the exercises, which expressly prohibit US involvement in combat operations without prejudice to self-defense. Hence, the Balikatan cannot be said to have authorized US involvement in combat operations.

The Court in effect introduced a fourth test to consider an agreement an executive agreement – the purpose of the contract. The contract must have been undertaken for a purpose consistent with jus imperii (i.e. that it must be for a sovereign purpose)

The ambiguity of the meaning of the word “activities” was deliberately made that way to give both parties a certain leeway in negotiation. Thus, visiting US forces may sojourn in Philippine territory for purposes other than military. As conceived, the joint exercises may include training on new techniques of patrol and surveillance to protect the nation’s marine resources, sea search-and-rescue operations to assist vessels in distress, disaster relief operations, civic action projects such as the building of school houses, medical and humanitarian missions, and the like.

In the instant case, it was a mere supply agreement. Hence, it must be governed by Philippine law. CLASS NOTES

DEFINITION OF RATIFICATION LIM v. EXECUTIVE SECRETARY G.R. No. 151445 (2002)

As part of the Global War on Terror, US Armed Forces, in conjunction with the Philippine military, held the Balikatan exercises – a simulation of joint military maneuvers pursuant to the Mutual Defense Treaty (MDT) and the Visiting Forces Agreement (VFA). Petitioners argue that the VFA does not authorize US forces to engage in combat operations in Philippine territory. However, through the Balikatan exercises, US forces were engaged in combat operations against the Abu Sayaff. As such, they charged that the exercises were unconstitutional. The Balikatan Exercises fall under the umbrella of sanctioned or allowable activities in the context of the VFA. The holding of the Balikatan Exercises must be viewed in line with the Mutual Defense Treaty and the Visiting Forces Agreement. The VFA permits United States personnel to engage, on an impermanent basis, in “activities,” the exact meaning of which was left undefined. Since the terminology used in the VFA is ambiguous, the Court referred to the Vienna Convention on the Law of Treaties which contains provisos governing interpretations of international agreements. It clearly provides that the cardinal rule of interpretation must involve an examination of the text, which is presumed to verbalize the parties’ intentions. The Convention also dictates what may be used as aids to deduce the meaning of terms, which it refers to as the context of the treaty, as well as other elements may be taken into account alongside the aforesaid context.

On the question of whether American troops are actively engaged in combat alongside PH troops under the guise of an alleged training, the Court said that it cannot rule on this as it involves a question of fact which is not a fit topic for certiorari. Balikatan exercises were entered into in relation to the kidnapping of Burnham spouses in Dos Palmas. The Balikatan, if found to be a rescue mission, is unconstitutional. But this is a question of fact which the Court refused to rule on. CLASS NOTES

BAYAN v. ZAMORA G.R. No. 138570 (2000)

BAYAN challenges the constitutionality of the Visiting Forces Agreement (VFA). The VFA is constitutional. The constitutional provision which governs the VFA is Section 25, Article XVIII of the 1987 Constitution: “After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except 1) under a treaty 2) 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 3) recognized as a treaty by the other Contracting State.” The VFA is constitutional because it has met all the requisites laid down by Section 25, Article XVIII.

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Whether US recognizes the VFA as a treaty is inconsequential. Even if the US merely treats the VFA as an executive agreement it is still binding because under international law, an executive agreement is as binding as a treaty. In international law, there is no difference between treaties and executive agreements in their binding effect upon states so long as negotiating functionaries have remained within their powers. Also, the US government, through Ambassador Hubbard, stated that the US has fully committed to living up to the terms of the VFA. As long as the US acknowledges the VFA as a treaty and binds itself to further comply with its obligations, there is compliance with the mandate of the Constitution. rd

The Court in effect said that the 3 requisite in Section 25 is satisfied so long as the US says the VFA is binding on them, and that it is no longer our business to look into US ratification practices. Prof. Roque pointed out pertinent points raised by Justice Puno in his dissent:  The US Senate did not ratify the agreement. Hence, in light of sovereign equality, why should the Philippine Senate ratify it?  Treaties enjoy the force of domestic law. Because the US treated is an executive agreement, we have a situation where the VFA is binding as domestic law in the Philippines, while in the US it is not;  The VFA may involve bases because it is for an indefinite period. CLASS NOTES

BAYAN MUNA v. EXECUTIVE SECRETARY G.R. No. 159618 (2011)

The Philippines signed the Rome Statute, a treaty which establishes the International Criminal Court (ICC) with the power to exercise its jurisdiction over persons for the most serious crimes of international concern (considered grave under international law, such as genocide, crimes against humanity, war crimes, and crimes of aggression) and shall be complementary to the national criminal jurisdictions. However, no ratification was made. Consequently, a non-surrender bilateral agreement was executed between the RP and the US, which aims to protect what it refers to and defines as “persons” of the RP and US from frivolous and harassment suits that might be brought against them in international tribunals. The Agreement prevents the State-parties from surrendering a national of the other to a third party or to the international tribunal without the consent of the said other State.

The Non-Surrender Agreement is sought to be nullified because it contravenes the Rome Statute. The Non-Surrender Agreement does not contravene the Rome Statute because the Philippines is only a signatory State and not yet a State-Party because it had not ratified yet. Under the Vienna Convention on the Law of Treaties, a signatory state is only obliged to refrain from acts which would defeat the object and purpose of a treaty; whereas a State-Party, on the other hand, is legally obliged to follow all the provisions of a treaty in good faith. The Philippines is only a signatory to the Rome Statute and not a State-Party for lack of ratification by the Senate. Thus, it is only obliged to refrain from acts which would defeat the object and purpose of the Rome Statute, and it is not obliged to follow any provision therein. Regarding the non-surrender agreement between the US and the Philippines:  The bilateral agreement between US and PHL defeats the purpose of the ICC or Rome Statute which is to put an end to impunity o SC: we are not a state party here  In violation of jus cogens norm: that all who commits international crimes should be punished o SC: It is an executive agreement so still binding to us (even if not treaty)  We are violating our obligation under Rome statute o SC: it is complementary to Rome Statute because as a signatory our role is only to refrain from acts which would defeat the object and purpose of a treaty o Why are we not violating impunity which is customary norm: (a) Complementary  because the state can still prosecute  Sir: It seems that the Supreme Court is saying that signing a treaty without ratification has no effect (?)  The Philippines is not bound by the command of the International Criminal Court to surrender to its jurisdiction  Because what is involved here is an impunity agreement so even if states had not ratified it, because it is a customary norm. CLASS NOTES

PIMENTEL v. EXECUTIVE SECRETARY G.R. No. 158088 (2005)

Senator Pimentel et. al filed a mandamus to compel the Executive Secretary and the DFA to transmit the signed copy of the Rome Statute to the Senate for its concurrence in accordance with Section 21, Article VII of the 1987 Constitution, which provides that “no treaty or international agreement shall be valid and effective

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unless concurred in by at least two-thirds of all the Members of the Senate.”

agents and brought to the US Embassy. The VFA is being assailed for being void and unconstitutional.

The Executive Secretary and the DFA do not have the ministerial duty to transmit to the Senate the signed copy of the Rome Statute even without the signature of the President.

The VFA is constitutional.

Pimentel et al erroneously interpreted Section 21 to mean that the power to ratify treaties belongs to the Senate and that the signing of the treaty at the United Nations headquarters meant that it was already ratified. The power to ratify belongs to the President, but this power is limited by the Senate. Signing a treaty is merely a mark of authentication and a symbol of good faith. It is a different step from ratification. The Philippines is not bound by treaty law or international law to ratify the treaty it has signed. The signature on the Rome Statute does not signify final consent. Ratification is what will bind the Philippines to the Statute’s provisions. The Statute itself requires that the signature of the representatives of the states be subject to ratification, acceptance or approval of the signatory states. There is no legal obligation to ratify a treaty, but a refusal to ratify must be based on substantial grounds. The treaty-making process involves the following steps  Negotiation: submissions of proposals and counter-proposals  Signature: authenticates the draft instrument and symbolizes the good faith of the parties. However, this does not indicate final consent of the state  Ratification: the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives.  Exchange of the instruments of ratification: signifies the effectivity of the treaty. CLASS NOTES

In Bayan vs. Zamora, the SC upheld the constitutionality of the VFA stating that the VFA was duly concurred in by the Philippine senate and has been recognized as a treaty by the US. Though the VFA was not submitted for advice and consent of the US Senate, it is still a binding international agreement or treaty recognized by the US because:  Only policymaking agreements are submitted to the US Senate;  Those that carry out or further implement policymaking agreements are submitted to Congress under the provisions of Case-Zablocki Act. Submission of this kind of agreement to the US Senate is not necessary;  The RP-US Military Defense Treaty is the policymaking agreement, while the VFA is its implementing agreement. The RP-US Military Defense Treaty has been ratified & concurred by both Philippine & US senates. The VFA is different from Medellin vs. Texas because in that case, the US Supreme Court held that treaties entered into by the US are not automatically part of their domestic law unless these treaties are self-executing or there is an implementing legislation to make them enforceable. Comparing the VFA with the Vienna Convention on Consular Relations & the Avena decision of the International Court of Justice (which is subject matter of the Medellin decision), the VFA is a (1) self- executing agreement because the parties intend its provisions to be enforceable and (2) it is covered by implementing legislation which is the Case-Zablocki Act. These two characteristics are absent in the subject matter of the Medellin decision. 

SALONGA et. al v. SMITH et. al G.R. No. 176051 (2009)

Daniel Smith was a member of the US Armed Forces who was charged for the rape of Suzette Nicolas. Pursuant to the Visiting Forces Agreement, US was granted custody of Smith pending the proceedings. RTC found Smith guilty. Pursuant to the VFA, he shall serve his sentence in a facility that shall be agreed upon by the Philippines and US authorities. The Romulo-Kenney agreement was entered into which provided that Smith will be detained at the 1st floor, Rowe (JUSMAG) Building, US Embassy. The Philippine police & jail authorities shall have access to the place of detention in order to ensure the compliance of the US with the terms of the VFA. Therefore, Smith was taken out of the Makati jail by Philippine law enforcement

 

Bayan Muna may be overturned due to change of circumstances  in Salonga, this is an actual case or controversy unlike in Zamora which involves a declaratory relief Salonga: Mutual Defense Treaty is no longer in effect because of the UN Charter (against the use of force) SC:  the first ruling is that there is a treaty: MDT is a treaty to which VFA depends (even if VFA is not treaty)  even if there is no treaty, it is still binding because of an implementing legislation (Case-Zablocki act)  but it applies only to executive agreements  There is no distinction between treaties and executive agreements

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

Dissent: Medellin v. Texas discussed that a treaty does not automatically bind the US  The treaty must be self-executory;  There must be a domestic enabling legislation. CLASS NOTES

RESERVATIONS TO THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE ICJ Reports1951, p 15 (1951)

The General Assembly of the United Nations requested the International Court of Justice for an Advisory Opinion on the following questions: I. Can the reserving State be regarded as being a party to the Convention while still maintaining its reservation if the reservation is objected to by one or more of the parties to the Convention but not by others? II. If the answer to Question I is in the affirmative, what is the effect of the reservation as between the reserving State and: (a) The parties which object to the reservation? (b) Those which accept it? III. What would be the legal effect as regards the answer to Question I if an objection to a reservation is made: (a) By a signatory which has not yet ratified? (b) By a State entitled to sign or accede but which has not yet done so? I. YES. A State which has made and maintained a reservation which has been objected to by one or more of the parties to the Convention but not by others, can be regarded as being a party to the Convention if the reservation is compatible with the object and purpose of the Convention; otherwise, that State cannot be regarded as being a party to the Convention. II. (a) if a party to the Convention objects to a reservation which it considers to be incompatible with the object and purpose of the Convention, it can in fact consider that the reserving State is not a party to the Convention; (b) if, on the other hand, a party accepts the reservation as being compatible with the object and purpose of the Convention, it can in fact consider that the reserving State is a party to the Convention No State can be bound by a reservation to which it has not consented, therefore, it necessarily follows that each State objecting to it will or will not, on the basis of its individual appraisal within the limits of the criterion of the object and purpose stated above, consider the reserving State to be a party to the Convention. Such a

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decision will only affect the relationship between the State making the reservation and the objecting State. III. (a) an objection to a reservation made by a signatory State which has not yet ratified the Convention can have legal effect only upon ratification. Until that moment it merely serves as a notice to the other State of the eventual attitude of the signatory State (b) an objection to a reservation made by a State which is entitled to sign or accede but which has not yet done so, is without legal effect. 1.

2. 3.

4.

5. 6. 7.

In relation to WWII genocide; scenarios:  If the reservation is allowed and ALL accept –it will be binding  If the object of the treaty is subject of the convention – not allowed  In case of reservation, the other states can object – OPPOSABILITY A jus cogens norm is a peremptory norm A country is bound even without ratification:  If it codifies CIL  If the agreement is entered a third state without that a third state gave its consent to be bound thereto (not pour autrui where benefits are involved and that the third state accepts) It is the same with contract law:  Mutuality (only the parties are bound)  Autonomy (like pacta sunt servanda) A party cannot automatically opt out of the effect of treaty  as in Nicaragua In traveaux preparatoires  aid to interpretation When it can be declared void:  Void due to jus cogens  Fraud and inducement  No full powers  Error in fact and situation  Coercion  Corruption

Rebus sic stantibus  a legal doctrine allowing for a treaty to become inapplicable and not binding on a party because of fundamental changes in the circumstances CLASS NOTES

CASE CONCERNING MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA (NICARAGUA v. USA) ICJ Reports 1986, p.14 (1986), supra.

The United States questions the jurisdiction of the ICJ since Nicaragua had not yet ratified the instruments relating to

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the compulsory jurisdiction of the PCIJ (predecessor of the ICJ). There was a valid declaration on the part of Nicaragua of its intent to ratify. The declaration had a certain potential effect which could be maintained for many years. Having been made unconditionally and being valid for an unlimited period, it had retained its potential effect at the moment when Nicaragua became a party to the Statute of the new Court. The constant acquiescence of Nicaragua constitutes a valid mode of manifestation of its intent to recognize the compulsory jurisdiction of the Court.

women for compensation had already been fully satisfied by Japan’s compliance with the Peace Treaty between the Philippines and Japan. The Supreme Court held in this case that the Executive Department has the exclusive prerogative whether or not it is going to espouse the claims of the Malaya Lolas. Since the Executive Department has determined that taking up comfort women’s cause would be inimical to our country’s foreign policy interests, to overturn the Executive Department’s determination would mean an assessment of the foreign policy judgments by a coordinate political branch to which authority to make that judgment has been constitutionally committed.

AKBAYAN v. AQUINO G.R. No. 170516 (2008)

AKBAYAN et. al requested for the full text of the JapanPhilippines Economic Partnership Agreement (JPEPA) including the offers made by both parties during the negotiation process and all pertinent attachments and annexes. Undersecretary Aquino did not grant this request. Aquino said that they shall be provided with a copy once the negotiations are completed and as soon as thorough legal review of the proposed agreement has been conducted. AKBAYAN et. al argues that the President cannot exclude the Congress since whatever power and the authority the President has now pertaining to negotiations is only delegated by the Congress through the Constitution. The treaty making power of is exclusive to the President, subject only to the concurrence of at least 2/3 of all Members of the Senate for the validity of the treaty. As head of the State it is constitutionally vested in the office as well as inherent that the President is the sole organ and authority in the external affairs of the country.

VINUYA v. EXECUTIVE SECRETARY G.R. No. 162230 (2010)

The “Malaya Lolas” is a group whose members were victims of mass rape and sexual slavery in the Philippines during World War II. The women sued in Japan for compensation as a consequence of Japan’s internationally wrongful act of sanctioning rapes during the war. The Japanese courts dismissed their complaint on the ground that the women had no personality to sue because only states could sue for compensation on behalf of victims of war crimes. They have approached the Executive Department through the DOJ, DFA, and OSG, requesting assistance in filing a claim against the Japanese officials and military officers who ordered the establishment of the "comfort women" stations in the Philippines. Officials of the Executive Department declined to assist the Malaya Lolas, and maintained that the individual claims of the comfort

The conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative – the political – departments of the government and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision. Also, when negotiating peace accords and settling international claims, governments have dealt with private claims as their own, treating them as national assets, and as counters, chips, in international bargaining. Settlement agreements have lumped, or linked, claims deriving from private debts with others that were intergovernmental in origin, and concessions in regard to one category of claims might be set off against concessions in the other, or against larger political considerations unrelated to debts. Except as an agreement might otherwise provide, international settlements generally wipe out the underlying private claims, thereby terminating any recourse under domestic law.

F. Vienna Conventions Diplomatic Relations Consular Relations, Optional Protocols VIENNA CONVENTION DIPLOMATIC RELATIONS

on and and

ON

Diplomatic Mission Establishment. – Diplomatic missions are established by mutual consent. (Vienna Convention on Diplomatic Relations [DC], Art. 2) Not same as establishing diplomatic relations. – A state may establish diplomatic relations with another without agreeing to establish a diplomatic mission therein. It may

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likewise withdraw a diplomatic mission necessarily severing diplomatic relations.

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without

 

Head of mission; and Members of the diplomatic staff.

Functions. – The functions of a diplomatic mission are: a) Representing the sending State in the receiving State; b) Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law; c) Negotiating with the Government of the receiving State; d) Ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State; e) Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations. (DC, Art. 3 [1])

The distinction is essential because they are the only ones covered by diplomatic immunities and privileges.

Diplomatic missions may also perform consular functions, (DC, Art. 3 [2]) which are regulated by the Vienna Convention on Consular Relations. (infra.) Consent of a receiving state to the establishment of diplomatic relations also implies the establishment of consular relations. (CC, Art. 2 [2])

The receiving state may refuse agrément, and is not obliged to give a reason therefor.

The primary function of the mission is basically “legitimate espionage” – that is, to collect information on the receiving state. CLASS NOTES Duties of the diplomatic mission to the receiving state. – These include: 1. Duty to respect the laws and regulations of the receiving state; 2. Duty not to interfere in the internal affairs of that state. Members of the Mission The following are the members of a diplomatic mission: 1. Head of mission a. That of ambassadors or nuncios accredited to Heads of State, and other heads of mission of equivalent rank; b. That of envoys, ministers and internuncios accredited to Heads of State; c. That of chargés d’affaires accredited to Ministers for Foreign Affairs. 2. Staff of the mission a. Diplomatic staff – staff having diplomatic rank. b. Administrative and technical staff – employed in the administrative and technical staff of the mission. (e.g. secretaries, receptionists) c. Service staff – employed in the domestic service of the mission. (e.g. driver, maid, security guards)

Commencement of diplomatic functions. – The process with regard to heads of mission is as follows: 1. Initiation of agréation [ah-gre-ya-shawn] – sending state inquires with receiving state regarding the acceptability of the head of mission proposed to be accredited. 2. Issuance of the agrément [ah-gre-mahnt] – if the receiving state finds the proposed head acceptable, the receiving state issues an agrément (i.e. approval given by the receiving state to the proposed head.)

3.

Agrément may be withdrawn by the receiving state only when the head of mission is not yet present in its territory. Once that threshold is crossed, it may:  Ask the receiving state of his withdrawal; or  Declare him persona non grata. Formal nomination and public announcement – the head of state presents his diplomatic credentials (i.e. authorization from the sending state) to the head of state of the sending state in a ceremony.

As to members of the staff of the mission, the sending State may freely appoint them. (DC, Art. 7) Cessation of diplomatic functions. – Functions of a diplomatic agent come to end: 1. On notification by the sending state to the receiving state that his function has ended. (DC, Art. 43) 2. On notification by the receiving state to the sending state that the agent has been declared persona non grata and the receiving state refuses to recognize him as a member of the mission. (ibid.) Persona non grata – Literally, “an unwelcome person”; a receiving state may declare a diplomatic agent or other staff member as such at any time, without any obligation to explain its decision. (DC, Art. 9)  The sending state has the duty to either (1) recall the person concerned or (2) terminate his services in the mission.

Diplomatic agents. – This term refers to the:

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

3. 4.

Failing at this, the receiving state may refuse to recognize the person as a member of the mission.

Death of the diplomatic agent; and Severance of diplomatic relations, resulting in permanent or temporary recall of the mission.

No practice of professional/commercial activity. – A diplomatic agent shall not practice for personal profit any professional or commercial activity in the receiving state. (DC, Art. 42) Members of the family not agents. - Members of the family of a diplomatic agent forming part of his household are not diplomatic agents themselves. However, they are nonetheless entitled to the same personal rights of diplomatic agents. (DC, Art. 36 [1]) Diplomatic Immunities and Privileges Basis. – There are three theories that form the basis of the grant of diplomatic immunities and privileges: 1. Extraterritoriality theory – premises of the diplomatic mission represent an extension of the territory of the sending state; 2. Representational theory – the mission personifies the sending state; and 3. Functional necessity theory – it ensures the efficient performance of its functions. Inviolability of the diplomatic premises. – The diplomatic premises consist of:  Buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission; and  The residence of the head of the mission; (DC, Art. 1 [i]) The premises of the mission shall be inviolable. It consists of three elements: 1. The agents of the receiving state may not enter them, except with the consent of the head of the mission. (DC, Art. 22 [1])  No legal writ may be served inside without consent. 2. Special duty of the receiving state to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. (DC, Art. 22 [2]) 3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution. (DC, Art. 22 [3])

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

Continues even if diplomatic ties are severed, and even in times of armed conflict (DC, Art. 45 [a]) Extends to archives and documents of the mission, wherever they may be (DC, Art. 24) Extends to all official correspondence relating to the diplomatic mission (DC, Art. 27 [2]) Extends to the private residences of diplomatic agents (DC, Art. 30 [1])

  

It was this duty to protect the premises of the diplomatic mission that the Government of Iran failed to discharge in the Case Concerning United States Diplomatic and Consular Staff in Tehran (United States Of America v. Iran), (infra.) CLASS NOTES Personal privileges, at a glance. – Diplomatic agents and family members forming part of their household enjoy the following rights:  Personal inviolability; (Art. 29)  Immunity from jurisdiction; (Art. 31)  Exemption from social security provisions; (Art. 33)  Exemption from dues and taxes; (Art. 34)  Exemption from personal services; (Art. 35)  Exemption from customs duties and related charges; (Art. 36) Classes of immunities. – The application of the succeeding immunities is qualified by the designation of the person concerned. To wit: Diplomatic Staff and their Families

 

   

Administrative and Technical Staff:

 



Personal inviolability; (Art. 29) Immunity from jurisdiction; (Art. 31)  Criminal: FULL IMMUNITY  Civil: FULL IMMUNITY, with exceptions (1-3) Exemption from social security provisions; (Art. 33) Exemption from dues and taxes; (Art. 34) Exemption from personal services; (Art. 35) Exemption from customs duties and related charges; (Art. 36) Personal inviolability; (Art. 29) Immunity from jurisdiction; (Art. 31)  Criminal: FULL IMMUNITY  Civil: FUNCTIONAL IMMUNITY Exemption from social security provisions; (Art. 33)

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 

Service Staff:

  

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Exemption from dues and taxes; (Art. 34) Exemption from personal services; (Art. 35) Immunity in respect of acts performed in the course of their duties (FUNCTIONAL) (Art. 37 [3]) Exemption from dues and taxes on the emoluments they receive by reason of their employment Exemption from social security provisions; (Art. 33)

Personal inviolability of the diplomatic agent. – The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity. (DC, Art. 29)

discharge of his duties, he may be held liable for the same.

Q: If a diplomatic mission rents a lot for its

embassy, but the lot is subject to a deed of restriction which was breached by the former, can the restriction be enforced against the mission? Theoretically, you can sue the lessor (i.e. owner of the lot) and receive judgment. However, it would not be possible to enforce the judgment against the mission since the premises of the embassy, leased or otherwise, is inviolable and no legal writ may be served therein.

This immunity from jurisdiction may be waived by the sending state, by way of express waiver. But, this does amount to waiver of immunity with respect to execution of judgment, for which a separate waiver shall be necessary. (DC, Art. 32)

This covers: 1. His private residence 2. Papers and correspondence; 3. Property, except for measures of execution due to cases not covered by the agent’s immunity from criminal and civil jurisdiction of the receiving state. (infra.) (DC, Art. 30)

A diplomatic agent cannot be obliged to give evidence as a witness. (DC, Art. 31 [2])

Immunity from jurisdiction. – A diplomatic agent enjoys immunity from the following: 1. Criminal jurisdiction; 2. Civil and administrative jurisdiction;  Exceptions: i. A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission; ii. An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State; iii. An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. (DC, Art. 31 [1])

Exemption from all dues and taxes. – A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional or municipal, except: a) Indirect taxes of a kind which are normally incorporated in the price of goods or services; b) Dues and taxes on private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission; c) Estate, succession or inheritance duties levied by the receiving State; d) Dues and taxes on private income having its source in the receiving State and capital taxes on investments made in commercial undertakings in the receiving State; e) Charges levied for specific services rendered; f) Registration, court or record fees, mortgage dues and stamp duty, with respect to immovable property; (DC, Art. 34)

Q: If the secretary of the Ambassador were to be charged administratively with harassment, would he be immune?

sexual

No. The secretary falls under “administrative and technical staff,” and thus only has FUNCTIONAL civil and administrative immunity. Since the sexual harassment was not part of the

Exemption from social security provisions. - Diplomatic agent shall with respect to services rendered for the sending State be exempt from social security provisions which may be in force in the receiving State. (DC, Art. 33)

Exemption from personal services. – The receiving State shall exempt diplomatic agents from all personal services, from all public service of any kind whatsoever, and from military obligations such as those connected with requisitioning, military contributions and billeting. (DC, Art. 35) Exemption from customs duties and related charges. The receiving State shall, in accordance with such laws and

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regulations as it may adopt, permit entry of and grant exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar services, on: a) Articles for the official use of the mission; b) Articles for the personal use of a diplomatic agent or members of his family forming part of his household, including articles intended for his establishment. (DC, Art. 36 [1])

Consular Relations Establishment. – Consular relations are established by mutual consent. (Vienna Convention on Consular Relations [CC], Art. 2 [1])

Some diplomatic officers abuse this privilege by importing local goods duty-free, then selling them in their areas. “Maliit sweldo nila e. Pero at least may natitirhan ako for free when I’m abroad.” (Roque, 2013) CLASS NOTES

This makes the following possible: • Establishment of diplomatic relations without consular relations, by express declaration; and • Establishment of consular relations initially, ahead or as a preliminary step to diplomatic relations.

Period of enjoyment. – The privileges and immunities shall be enjoyed:  FROM the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs;  TO when he leaves the country after the basis for his immunity ends. o It subsists for a reasonable time even after his functions end, up the time he leaves the receiving state. o But, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist. Immunity while in transit. - If a diplomatic agent passes through or is in the territory of a third State in the process of:  proceeding to take up or to return to his post; or  when returning to his own country, Such third State shall accord him inviolability and such other immunities as may be required to ensure his transit or return. This does not include vacations to third states. CLASS NOTES This right also applies with regard to:  Any members of his family enjoying privileges or immunities who are accompanying the diplomatic agent, or travelling separately to join him or to return to their country;  Official correspondence and communications;

VIENNA CONVENTION ON CONSULAR RELATIONS

Arises with diplomatic relations. - Consent given to the establishment of diplomatic relations between two States implies, unless otherwise stated, consent to the establishment of consular relations. (CC, Art. 2 [2])

Functions. – Consular functions consist in: a) Protecting in the receiving State the interests of the sending State and of its nationals; b) Furthering the development of commercial, economic, cultural and scientific relations between the sending State and the receiving State and otherwise promoting friendly relations between them; c) Ascertaining by all lawful means conditions and developments in the commercial, economic, cultural and scientific life of the receiving State, reporting thereon to the Government of the sending State; d) Issuing passports and travel documents to nationals of the sending State, and visas or appropriate documents to persons wishing to travel to the sending State; e) Helping and assisting nationals, both individuals and bodies corporate, of the sending State; f) Acting as notary and civil registrar, and performing certain functions of an administrative nature; g) Safeguarding, within the limits imposed by the laws and regulations of the receiving State, the interests of minors and other persons lacking full capacity who are nationals of the sending State; h) Representing or arranging appropriate representation for nationals of the sending State before the tribunals and other authorities of the receiving State; i) Transmitting judicial and extrajudicial documents or executing letters rogatory or commissions to take evidence for the courts of the sending State; j) Exercising rights of supervision and inspection in respect of vessels having the nationality of the sending State, and of aircraft registered in that State, and in respect of their crews, and extending them assistance; k) Performing any other functions entrusted to a consular post. (CC, Art. 5, paraphrased) Consular officers may also perform diplomatic functions or acts granted these conditions: • The sending state has no diplomatic mission in the receiving state; • The sending state is not represented by a diplomatic mission of a third state therein;

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The receiving state consents to the arrangement. (CC, Art. 17 [1])

2.

Note, however, that the performance of diplomatic acts does not alter the legal status of the consular officer and does not confer upon him diplomatic privileges and immunities. (ibid.)

3.

Consular Post. It is a consulate-general, consulate, vice-consulate, or consular agency which exercises consular functions over a particular consular district. (CC, Art. 3)

Transmission of consular commission – The consular commission is transmitted to the receiving state for consideration. (CC, Art. 11 [2]) Issuance of exequatur – If the receiving state is in agreement, it shall issue an exequatur – an authorization from the receiving state by which the head of a consular post is admitted to the exercise of consular functions. (CC, Art. 12 [1]) A receiving state may refuse to issue an exequatur, and is under no obligation to explain itself. (CC, Art. 12 [2])

Consular district. – It is a geographic area assigned or defined by the sending state for the exercise of consular functions. (CC, 1 [1b])

The exequatur covers the members of the consular staff working under the head’s orders and responsibility. But the receiving state may nonetheless require an exequatur for consular staff if it wishes. (CC, Art. 19 [1])

Establishment. – They may be established in the territory of the receiving State only with that State’s consent. In particular, the following are subject to the approval of the sending state: • Seat of the consular post, and subsequent changes thereto; • Opening of a vice-consulate or consular agency in different consular seat; • Opening of an office forming part of an existing consular post elsewhere than at the seat thereof. (CC, Art. 4)

A head is not allowed to exercise consular functions without an exequatur. There are, however two exceptions to this rule: • Admission on a provisional basis, pending delivery of the exequatur; (CC, Art. 13) • Appointment of an acting head of the consular post, in the event that the head can no longer discharge his functions or in case of vacancy. (CC, Art. 15)

Consular functions may also be undertaken by a diplomatic mission. (CC, Art. 3)

Appointment of the consular staff. – The sending state may freely appoint the members of the consular staff.

Members of the Post The following are the members of a consular post: 1. Heads of the post a. Consuls=General b. Consuls c. Vice-Consuls d. Consular agents (CC, Art. 9) 2. Staff of the post a. Consular employees – any person employed in the administrative or technical service of a consular post; b. Members of the service staff – means any person employed in the domestic service of a consular post.

Cessation of consular functions. – Functions of a consular agent come to end: 1. On notification by the sending state to the receiving state that his function has ended. (CC, Art. 25) 2. On notification by the receiving state to the sending state that the officer or staff member has been declared persona non grata and the receiving state refuses to recognize him as a member of the mission. (CC, Art. 23) The sending state has the duty to either (1) recall the person concerned or (2) terminate his services in the post. (ibid.)  Failing at this, the receiving state may (1) withdraw the exequatur or (2) cease to consider the person as a member of the consular staff. (CC, Art. 23 [2])

Consular officers are of two categories, • Career consular officers; and • Honorary consular officers. Appointment of heads of consular posts. – 1. Issuance of a consular commission – He is appointed by the sending state via the issuance of a consular commission – a document which certifies to his official capacity and indicates his full name, category or class, consular district, and the seat of his consular post. (CC, Art. 11 [1])

3. 4.

5.

On withdrawal of the exequatur; (CC, Art. 25 [b]) On notification by the receiving State to the sending State that the receiving State has ceased to consider him as a member of the consular staff; (CC, Art. 25 [c]) Closure of the consulate;

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6. 7.

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Death of the consular staff member; and Severance of consular relations, resulting in permanent or temporary recall of the post.

any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. (CC, Art. 36)

Members of the family enjoy privileges. - Members of the family of a member of a consular post forming part of his household shall enjoy the same privileges and immunities accorded to him. (CC, Art. 53 [2])

It was this duty to inform the consular agents of Mexico that the United States failed to discharge in the Case Concerning Avena and other Mexican Nationals (Mexico v. United States Of America), infra. CLASS NOTES

Duties of the Receiving State Freedom of movement. - The receiving State shall ensure freedom of movement and travel in its territory to all members of the consular post. (CC, Art. 34) Freedom of information. – The receiving state shall permit and protect freedom of information on the part of the consular post for all official purposes. (CC, Art. 35 [1]) In communicating with the Government, the diplomatic missions and other consular posts, wherever situated, of the sending State, the consular post may employ all appropriate means, including diplomatic or consular couriers, diplomatic or consular bags and messages in code or cipher. (ibid.) The official correspondence of the consular post shall be inviolable. (CC, Art. 35 [2]) Give information on death, guardianship, shipwrecks and air crashes. - If the relevant information is available to the receiving State, such authorities shall have the duty to inform the post without delay of the following: a) Death of a national of the sending State, to the consular post in whose district the death occurred; b) Any case where the appointment of a guardian or trustee appears to be in the interests of a minor or other person lacking full capacity who is a national of the sending State; c) if a vessel, having the nationality of the sending State, is wrecked or runs aground in the territorial sea or internal waters of the receiving State, or if an aircraft registered in the sending State suffers an accident on the territory of the receiving State, to the consular post nearest to the scene of the occurrence. (CC, Art. 37) Duties and rights with regard to nationals of the sending state in the custody of the receiving state. - If the national so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit

Consular Immunities and Privileges Inviolability of the consular premises. – The consular premises are the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used exclusively for the purposes of the consular post. (CC, Art. 1 [1j]) Consular premises are inviolable to the extent of the following: (CC, Art. 33 [1]) 1. The authorities of the receiving State shall not enter that part of the consular premises which is used exclusively for the purpose of the work of the consular post • Except with the consent of the head of the consular post or of his designee or of the head of the diplomatic mission of the sending State. • Such consent may be assumed in case of fire or other disaster requiring prompt protective action. (CC, Art. 33 [2]) 2. The receiving State is under a special duty to take all appropriate steps to protect the consular premises against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity; (CC, Art. 33 [3]) • This extends to the consular archives and documents, wherever they may be. (CC, Art. 33) 3. The consular premises, their furnishings, the property of the consular post and its means of transport shall be immune from any form of requisition for purposes of national defense or public utility. • If expropriation is necessary for such purposes, all possible steps shall be taken to avoid impeding the performance of consular functions, and prompt, adequate and effective compensation shall be paid to the sending State. (CC, Art. 33[4]) Exemption from taxation of consular premises. - Consular premises and the residence of the career head of consular post of which the sending State or any person acting on its behalf is the owner or lessee shall be exempt from all national, regional or municipal dues and taxes whatsoever,

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o

other than such as represent payment for specific services rendered. (CC, Art. 32) Personal inviolability of consular officers. – Consular officers enjoy the following rights as to their personal inviolability: 1. They are not liable to arrest or detention pending trial; • Except in case of grave crime and pursuant to a decision of a competent judicial authority; (CC, Art. 41 [1]) 2. They shall not be committed to prison not be subject to any other form of restriction to personal freedom; • Except in case of grave crime and pursuant to a decision of a competent judicial authority, or in the execution of a final judicial decision. (CC, Art. 41 [2]) Immunity from jurisdiction; Functional immunity. – Consular officers and employees are immune from the jurisdiction of administrative and judicial authorities with respect to acts performed in the exercise of consular functions. (CC, Art. 43) This exemption, however, does not apply in the following civil cases: • Arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or • By a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft. (CC, Art.43) This immunity from jurisdiction may be waived by the sending state, by way of express waiver. (CC, Art. 45 [1]) Exemption from certain requirements of the receiving state. – Members of the consular post are entitled to the following exemptions: • Registration of aliens and residence permits; (CC, Art. 46 [1]) • Work permits for employment of foreign labor, with respect to services rendered by them for the sending state (CC, Art. 47 [1]) • Social security provisions, with respect to services rendered by them for the sending state (CC, Art. 48 [1]) • All dues and taxes, personal or real, national, regional or municipal, except: (CC, Art. 49 [1]) o Indirect taxes normally incorporated in the price; o Taxes or dues on private immovable property in the territory of the receiving state; o Estate succession or inheritance taxes and duties on transfers;

• •

Taxes on private income, including capital gains, and investment income, and sourced from the receiving state; o Charges on specific services rendered; and o Registration, court or record fees, mortgage dues, and stamp duties in private transactions. Customs duties and inspection; All personal services, public services of any kind, and military obligations. (CC, Art. 52)

The above exemptions do not apply to the following: • Consular employees and members of the service staff who carry on private gainful occupation in the receiving state; (CC, Art. 57 [2a]) • Members of the family of said employees and staff members; (CC, Art.57 [2b]) • Members of the family of consular post members who themselves carry on private gainful occupation in the receiving state; (CC, Art. 57 [2c]) • Members of the family of honorary consular officers; (CC, Art. 58 [3]) • Members of the family of consular employees in the consular posts headed by honorary consular officers (CC,Art. 58 [3] )

CASE CONCERNING UNITED STATES DIPLOMATIC AND CONSULAR STAFF IN TEHRAN (UNITED STATES OF AMERICA v. IRAN) ICJ Reports 1980, p. 3 (1980)

The US instituted proceedings against Iran arising out of an armed attack at its Embassy and Consulates in Iran and the seizure and detention as hostages of its diplomatic and consular staff and two more US citizens. Iran breached its obligations under the Vienna Conventions on Diplomatic Relations and Consular Relations. Under the Vienna Convention on Diplomatic Relations and Consular Relations, Iran was obligated to take appropriate steps to protect the US Embassy and Consulates. However, it did nothing to prevent the attack, stop it before it reached its completion or oblige the militants to withdraw from the premises and release the hostages. This inaction is a clear and serious violation of Iran’s obligations under the said Conventions. The obligations laid on States by the two Vienna Conventions are of cardinal importance for the maintenance of good relations between States in the interdependent world of today. There is no more fundamental prerequisite for the conduct of relations between States than the inviolability of diplomatic envoys and embassies, so that throughout history nations of all creeds and cultures have observed reciprocal obligations for that purpose. The institution of diplomacy has proved to be an instrument essential for effective Cooperation in

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the international community, and for enabling States, irrespective of their differing constitutional and social systems, to achieve mutual understanding and to resolve their differences by peaceful means.

CASE CONCERNING AVENA AND OTHER MEXICAN NATIONALS (MEXICO v. UNITED STATES OF AMERICA) ICJ Reports 2004, p. 12 (2004)

52 individuals were convicted and sentenced to death in the United States. Mexico alleged that all 52 were Mexican nationals at the time of arrest and that these individuals were not informed of their rights under Art 36 of the Vienna Convention on Consular Relations. Mexico instituted proceedings against the United States for violations of the Vienna Convention on Consular Relations. Mexico asks the Court to declare that the United States, in arresting, detaining, trying, convicting and sentencing the 54 Mexican nationals on death row, violated its international legal obligations to Mexico, in its own right and in the exercise of its right of consular protection of its nationals, as provided by Articles 5 and 36 of the Vienna Convention. The United States violated its obligation under Art 36 of the Vienna Convention. The Court noted that the Vienna Convention did not provide a definition of the phrase “without delay.” By looking at the object and purpose of the Convention, the phrase “without delay” means there is a duty upon the arresting authorities to give to an arrested person information of the rights under Article 36 as soon as it is realized that the person is a foreign national, or once there are grounds to think that the person is probably a foreign national. The three elements under Art 36, paragraph 1(b) are: a) right of individual concerned to be informed without delay of his rights; b) right of the consular post to be notified without delay of the individual’s detention, if he so requests; c) obligation of the receiving State to forward without delay any communication addressed to the consular post by the detained person. Mexican nationals have never been informed of their rights under Art 36, par 1(b). Thus, in each of these 47 cases, the duty to inform “without delay” has been violated. Thus, the United States violated its obligation under Art 36 par 1(b). In view of these violations, the US is under an obligation to permit review and reconsideration of the conviction and sentence of these nationals’ cases by the US courts ascertaining whether in each case the violation of Art 36 committed by the competent

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authorities caused actual prejudice to the defendant in the process of administration of criminal justice.

International Organizations A. The UN Charter and the Use of Force UN Charter, Art. 2 The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles. xxx (3) All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. (4) All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. Membership UN Charter, Art. 4 1. Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations. 2. The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council. Requisites for Admission as UN Member: 1) a State; 2) peace-loving; 3) must accept the obligations of the Charter; 4) must be able to carry out these obligations; 5) must be willing to do so. This list is exclusive. No additional requirements may be required by any state. (Competence of the General

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Assembly for the Admission of a State to the United Nations [Advisory Opinion], infra.) The Security Council UN Charter, Art. 24 Chapter V: The Security Council Functions and Powers 1. In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. xxxx UN Charter, Art. 25 The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. UN Charter, Art. 23 Composition 1. The Security Council shall consist of fifteen Members of the United Nations. The Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America shall be permanent members of the Security Council. The General Assembly shall elect ten other Members of the United Nations to be non-permanent members of the Security Council, due regard being specially paid, in the first instance to the contribution of Members of the United Nations to the maintenance of international peace and security and to the other purposes of the Organization, and also to equitable geographical distribution. UN Charter, Art. 27 (3) Voting xxx 3. Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting

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Article 1, UN Charter • States the purposes of the United Nations • Purposes: o Maintenance of peace o Settlement of disputes o Promotion of social, economic, and humanitarian welfare • Full recognition that if disputes are not settled, the peace may not be maintained • Injustice and economic and social deprivation provide the ground for instability and international terrorism • UN as the key institution to avoid, contain, and resolve disputes • UN shall act on the basis of certain prescriptions in the Charter: 1. Promotion and development of international law 2. Role in the settlement of disputes 3. Intended to play a certain role in the provision of collective security The Formal Consideration of International Law within the United Nations • The study of legal issues within the UN: Different from the immediate disputes before the General assembly or Security Council • Legal issues being considered by the Sixth committee of the General Assembly 1. Strengthening the role of the organization 2. Status of national liberation movements 3. Status of the Protocols and the Geneva Conventions relating to the protection of victims of armed conflict 4. Consideration of how the security of diplomatic and consular missions and representatives could be better protected 5. General problem if peaceful settlement of disputes 6. Question of an additional Protocol to the Vienna Convention on Consular Relations • Tasks of the Sixth Committee 1. Make a report on all the above mentioned topics 2. Examine reports on legal matters that other bodies present to the UN (ex: when International Law Commission reports on its work to the General Assembly) Article 13, UN Charter • The ILC was set up in fulfillment of the task of the General Assembly to initiate studies and make recommendations • Subject matter of the studies and recommendations: promoting international co-operation in the political field and encouraging the progressive development of international law and its codification • For a long time already, ILC focused on the codification of state responsibility. Related to this

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•

•

topic is the ILC's significant progress when it comes to state immunity and the law of non-navigational uses of international watercourses. o ILC was also able to pass a first draft of a code of crimes against the peace and security of mankind Topics for codification, with a necessary element of development, must also be selected with care. For example, after starting with the topic on Relations between States and International Organization, the ILC eventually decided not to pursue it. However, there is the recent tendency to go for topics of manageable dimensions in order to conclude them within a reasonable time-scale. Now that the Commission has been enlarged, it is expected to be able to cover more topics and be more productive.

Peaceful Settlement of Disputes • Chapter VI: contains provisions on the Pacific Settlement of Disputes • Who may bring disputes before the Security Council and General Assembly o Secretary-General (art. 99) - on any matter which in his opinion may threaten the maintenance of international peace and security o Members of the UN - whether they are parties to the dispute or not (art. 35) o States which are not members of the UN, but is a party to the dispute - art. 35 (2) • Non-members of the Security Council shall be allowed, under various conditions, to participate in the debates of the Security Council (arts. 31 & 32) On the Fact-Finding Mission of the Security Council • The Security Council can investigate any dispute and enter into fact-finding missions • The neutral verification of the facts has been proven to be successful and is used as a means of containing and defusing a situation • There seems to be a resolution that the SecretaryGeneral may himself establish a fact-finding mission, without the need for an authorization by the Security Council • Dispute settlement possibilities (art. 33) 1. Negotiation 2. Mediation 3. Conciliation 4. Arbitration 5. Judicial settlement 6. Resort to regional agencies 7. Sometimes, the Secretary-General himself will put proposed solutions to the Security Council 8. Usually, the Security Council devises the proposals • The Security Council sometimes suggests assistance in the pursuit of the measures enumerated above

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On Third-Party Methods • The Security Council may ask the Security-General to provide conciliators and mediators • Art. 33 does not insist that only the UN provides the personnel who will participate in third-party methods • Art. 33 focuses on pacific settlement o Emphasizes the important role of regional organizations in the maintenance of international peace and security o some are of the opinion that the creation of dispute-settlement mechanisms by regional organizations are expression of a regional desire for local resolution of the dispute, to the exclusion of any interference by the Security Council o Sometimes it is also the UN that wishes to avoid dealing with an issue. The Western Sahara and the Chad vs. Libya case may be used as examples to prove the point. • On the relationship of regional agencies to the UN in matters of peaceful settlement. o No indicia to serve as guide when it is more appropriate to go for regional, rather than the global • Disadvantage of regional bodies: the desire for regional stability will often cause regional bodies to seek to accommodate the more powerful of the two protagonists, at the expense of the other Peace and Collective Security: Intention and Innovation • The UN, by virtue of Chapter VII, has an important role in the containment of disputes • The provision of collective security by the Big Powers o The keystone of international peace o Big Powers: the Soviet Union, US, China, France, and the UK o Through the collective security, it would be unnecessary for states to act in self-help and their unilateral use of force would be restricted to self-defense and such would be monitored by the Security Council o However, when the Cold War happened, the intentions of the collective security came into nothing o Until now, no real machinery for collective security through enforcement measures is in place • Veto power of the Big Powers o The power to defeat a decision of the Security Council by a single negative vote o Mirrors the intention that the collective military action cannot be used against the Big Powers o Intention during the drafting of the Charter: veto power to be used only if the passage of a resolution could otherwise culminate in military action against one of the Big Powers o The practice in using the veto power: to stop the possibility of any sanction directed against an

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•

•

•

•

•

•

ally and to stop a mere critical resolution directed against an ally It was from these circumstances when the Security Council became increasingly impotent to act, either militarily and politically View of the US and the West on the UN's role in peace keeping o Because of the failure of the Security Council to agree on the establishment of the UN Force, peace cannot be enforced nor could the UN members be compelled to offer troops o As an alternative, they are of the view that if peace could not be kept by enforcing it, it may be done by policing a territory at the request of a State and if the UN members volunteered for such force View of the Soviet Union and its allies o The provisions for the use of force by the UN are very specific and if those procedures could not be acted upon, alternatives not provided for in the Charter were necessarily unlawful o Since the Charter contemplates on the control given to the intended Military Staff Committee (by virtue of the veto power), a police force acting outside the Charter would consequently then be beyond the control by veto. In effect, the Secretary-General would then be forced to control in a day-to-day basis – something which is contrary to the intentions of the founding instrument There is also an idea that a UN police force could be ordered not only by the Security Council, but even by the General Assembly in cases where the veto power make it impossible for the Security Council to act o This view is acceptable to the West but not to the Soviet Union o It was against this background that the first UN peace-keeping force, the UN Emergency Force (UNEF) was established in 1956 to oversee the cease-fire and to monitor the withdrawal of the British, French, and Israeli forces from Egyptian territory. The Soviet Union & its allies, as well as France, refused to pay contributions for the costs of the UNEF. From then on, the Soviet Union has always refused to pay its share. The other States took advantage of this situation and refused to pay as well. From the outset, the financing of UN peace-keeping was insecure and problematic. Despite of these circumstances, the UN forces were successfully established. Even if, because of the veto, the UN could not control the use of force by the Big Powers, it seemed that it had a constructive role to play in controlling force by smaller states It was only in the 1980s when the Soviet Union started to see the advantages of the UN. Its payment of its past and present dues is a clear indication that there was a legal obligation to pay. On the other hand,

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the US became relatively unsupportive and made reservations about withholding funds for the UN. Reforms in the UN o Weighted voting system  The weighted voting in the General Assembly would represent an affront to an underlying principle on which the UN is based - the sovereign equality of all its member States  The European Community was of the opinion that the weighted voting system is selective adherence to the principle 'pacta sunt servanda' and such erodes the very foundation of the international order  Gives the states that contribute a greater share to the UN coffers greater influence in the determination of the budget o New agenda of achieving greater efficiency in the use of resources o A paralyzing contradiction in the UN affairs o States proclaim their desire for expansion in the role of the UN in areas such as the maintenance of international peace and UN peace-keeping, and on the other hand, the lack of provision of finances to achieve the greater possibilities that now exist is accepted as a reality of international politics.

Political Bodies and Quasi-Judicial Activities All the routine political activities of the UN must comply not only with the specific requirements of the Charter, but with general international law decisions of the political organs of the UN, in the context of dispute resolution, often make determinations of international law Example: the Security Council has passed resolutions claiming some independent government as having no validity or as illegal regimes It is desirable that the Security Council upholds and invokes international law. However, some considerations shall be made: 1. When determinations that purport to pronounce authoritatively on international law are made  Must be made with an understanding of the issues  Higgins is of the opinion that there is little evidence in the debates that the Security Council reached its determinations by careful legal analysis 2. The extent to which quasi-judicial determination by the Security Council is in fact appropriate  Quasi-judicial determination occurs when the Security Council does not merely point the parties towards the various options open to them for the political settlement of disputes, but makes its own proposals for the substance of the solution. Hence, some claims on which is right or wrong are

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implicitly passed on in the context of decisions and are subsequently deemed as international law Conclusion • The UN Charter is an extraordinary instrument • Peace-keeping is not fully envisaged by the Charter but is now an important reality • There are various indications that the Security Council is setting out on other new paths, however, such paths significantly risk legal incoherence • Peace-keeping will not go away, together with more orthodox international cooperation even further variations of the intentions of Chapter VII o the responsibilities of the UN will only be realized if the states want to do so

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History o Grotius insisted that the law of nations limited the use of force to three justifiable causes: defense, recovery of property, and punishment o Covenant of the League of Nations sought further to control and contain the use of force, without prohibiting it o After World War II, the UN Charter limited permitted uses of force to self-defense or the collective enforcement action The UN was given powers which were intended to allow states to avoid unilateral reliance on the military instrument to guarantee their own security Problem: the Charter was formulated to address the problem of military hostilities between states and before the development of the atomic bomb. Its provisions were not only predicated upon a collective security system that was never a reality, they did not envisage the new types of violence, and the social conditions that were their origin and their consequence.

The Relationship between Article 2(4) and Article 51  Article 2(4): All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the UN  Article 51: indicates that there are certain uses of force that will not contravene the prohibitions in Article 2(4) o On one hand, a state may act in self-defense without first securing the permission of the Security Council, while on the other hand, the

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Security Council retains its responsibility to take such action as it deems fit Article 2(4) explains what is prohibited, Article 51 what is permitted Issue: Can there be a use of force that is not against the territorial integrity or political independence of a state (not violative of Art 2) but is also not individual or collective self-defense (permitted under Article 51) o It is unlikely because most uses of force violate a state’s territorial integrity o Applicable case: Corfu Channel Case  Self-help – use of force to obtain legal rights improperly denied. It is unlawful under the Charter. Reprisals o Reprisals consist of action in response to a prior unlawful military attack, aimed not at defending oneself against an attack as it happens, but rather at delivering a message of deterrence against the initial attack being repeated. o Under customary international law, reprisals were lawful if certain criteria were met o Reprisals would necessarily involve a violation of Article 2(4), however, and, not being selfdefense, are not brought within the permissive use of force in Article 51. o The texts of articles 2(4) and 51 clearly do not allow reprisals; and the study of other instruments and practices and judicial decisions does not allow one to conclude that there has been any de facto amendment of the Charter on this point- notwithstanding the fact that, in the absence of effective means of self-protection, reprisals may be expected to continue.

Anticipatory Self-Defense  Article 51 allows self-defense only when an armed attack has occurred  Under customary international law, self-defense must be tested in the criteria laid down in the Caroline Case of 1842 o Caroline Case doctrine: that anticipatory selfdefense must be restricted to those cases where the necessity is instant, overwhelming, and leaving no choice of means, and no moment for deliberation o While the UN Charter have its own procedure for dealing with international threats to peace, one that may be contained or turned aside through calling an emergency meeting of the Security Council consequently does not pass the Caroline Case doctrine o The Caroline Case doctrine, according to Higgins, provides the required balance between allowing a state to be obliterated and encouraging abusive claims of self-defense; also, it has a great operational relevance

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The nuclear age made it impossible that an ambiguous provision be interpreted in a way that requires a state passively to accept its fate before it can defend itself Because of the decentralized legal order, abusive claims may always be made by states claiming to act in anticipatory self-defense

What Constitutes „the State‟ for Purposes of SelfDetermination  By virtue of Article 2(4), the use of force is prohibited against a state’s dependent territories overseas, as much as against the metropolitan state itself  On use of force against one’s nationals abroad o It may only be justified as self-defense if there has been an attack upon ‘the state’ o Professor Bowett, invoking the General Assembly’s 1970 Declaration of Principle on Friendly Relations, suggested that use of force against one’s nationals abroad may be justified on the ground that population is an essential ingredient of the state o Justification in customary international law: the right to humanitarian intervention on behalf of threatened citizens abroad Humanitarian Intervention  Customary international law tolerates a state military’s intervention in another territory to rescue citizens under threat. However, when it come to the question whether the same is allowed by the Charter, an examination on the legal and policy issues shall be made.  Note that Article 2(4) declares as unlawful any use of force, even minor military incursions. However, the following must be taken into consideration: o What Article 2(4) prohibits is the use of force against the territorial integrity or political independence of a state, or in any other manner inconsistent with the purposes of the UN  It is only upon proof that humanitarian intervention does not violate the prohibition against the use of force against a state’s territorial integrity, then one can declare that no other prohibition in Article 2(4) is being violated  If, on the other hand, the question is viewed in the light of Article 52, the issue translates into something simpler: WON a state can claim that military action to rescue one’s citizens is an exercise of self-defense  Judge Waldock says that a state could use force to rescue nationals as an aspect of selfdefense if the threat of injury was

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imminent, if there was a failure or inability on the part of the territorial sovereignty to protect them, and if the measures of protection were strictly confined to the object of protecting them against injury  A claim on humanitarian intervention based on selfdefense could only be advanced in respect of nationals, because it is predicated on the argument that the state is being harmed through injury to its nationals, and can therefore respond in selfdefense Given our decentralized legal order, claims may either be made in good faith or abusively. Norms will never be able to remove the possibility of abusive claims; they (norms) are only for the achievement of values for the common good. To determine the validity of claims, contextual analysis by appropriate decision makers is always required. Claims determined to be valid should not a priori be allowed or disallowed because they may be unjustly invoked.

What Constitutes an Armed Attack?  Article 51 does not provide for any self-defense against a threat of force, although the threat is a violation of Article 2(4)  Self-defense is not permitted for other prohibited acts; it is only permitted in an armed attack. This leads to a couple of questions: o Whether any non-military coercion can be deemed to trigger the right to self-defense  Answer: Nothing in Article 2(4) deals with economic or diplomatic duress. The Charter implicitly accepts that it cannot regulate political influence and economic pressure, however, it also gives no suggestion on whether or not such economic pressure may give rise to any right of military response o Whether all uses of force are in fact armed attacks  Applicable case: Nicaragua vs. US  Law-making resolutions of the UN have consistently opposed indirect military hostile uses of force o Examples: General Assembly Declaration of 1965 on the Inadmissibility of Intervention; Friendly Relations Declaration o Internal self-determination became the continuum of wars of national liberation, in the sense that each strongly depended on outside training, finance, and arming. o Different countries engaged in various indirect military activities, regardless of the general

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prohibitions, and while also denouncing the legality of the action of the other in lending such assistance An armed attack could take place directly, through the use of one’s own forces, or indirectly, through armed bands or irregulars o Key: scale of the activity  If it is not very substantial, it may still be an unlawful use of force, but it will not be an armed attack- and hence no self-defense may be used against it o Higgins observes two points:  The Court was purporting to deal with customary international law rather than the Charter  The Court in terms avoided pronouncing upon the implications of all this for the question of whether there exists a right of anticipatory self-defense

The Doctrinal Debates  Issue: whether the failure of the international system, coupled with fundamentally changed circumstances since the time when the relevant texts were agreed, makes preferable unilateral action for the common good even if it is at variance with the norms articulated in the Charter and elsewhere o Answered in the affirmative by Professor Reisman o Professor Reisman: norms are instruments devised by human beings to precipitate desired social consequences. One should not seek a point-for-point conformity to a rule without constant regard for the policy for principle that animated its prescription, with appropriate regard for the factual constellation in the minds of the drafters o Higgins: there is a distinction between noncompliance and interpretation infra legem to achieve certain outcomes  For Higgins, the application of Article 2(4) and Article 51 has been very unsatisfactory. However, he is not convinced that they have no useful purpose to perform or that unilateral outcome-directed action without reference to common norms is not dangerous. o The use of indirect force is prohibited by the relevant legal instruments, and that the common good is best served by terming the indirect use of force unlawful, regardless of the objectives in a particular case

HIGGINS, CHAPTER 15: THE USE OF FORCE BY THE UNITED NATIONS

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UN Action for, or Authorization of, enforcement Measures for Humanitarian Purposes  Article 2(7) provides that the UN may not intervene in matters which are essentially within the domestic jurisdiction of any state. Also, Article 2(7) itself says that its provisions do not prejudice the application of enforcement measures under Chapter VII  Articles 41 and 42 are for the maintenance or restoring of international peace and security. It is clear that measures under these Articles depend upon there having been a finding under Article 29 of the existence of any threat to the peace, breach of the peace, or act of aggression. The only way in which economic or military sanctions for humanrights purposes could lawfully be mounted under the Charter is by the legal fiction that human-rights violations are causing a threat to international peace.  Higgins is of the opinion that we may say that there may be an increasing tendency for the Security Council to characterize humanitarian concerns as threats to international peace- and thus bring them within the potential reach of Chapter VII of the Charter. However, it is too early to say that a norm about it has clearly emerged.  It is clear that opening the door to military intervention for humanitarian purposes around the world will place an unbearable burden on the UN enforcement mechanisms, whether through direct UN action or through UN-authorized action. The Use of Force to Support UN Resolutions  Issue: whether the Security Council can call for the use of force to compel compliance with its own resolutions  Applicable provision: Article 41  Implication: force could be authorized to implement economic sanctions without that use of force being viewed as military sanctions under Article 42 o Just as a minimal use of force by UN peacekeeping operations may be authorized by reference to article 41 of the Charter, so limited force may apparently be authorized by reference to Article 41 – even though neither article envisages that possibility  There is no entitlement in the hands of individual members of the UN to enforce prior Security Council resolutions by the use of force The Relationship of Military Sanctions under Article 42 of the Charter to Self-Defense under Article 51  2 circumstances in which the use of force is envisaged in Chapter VII o Use of force through the Security Council under Article 42 o Use of force not by the Security Council, but by individual members or members acting collectively

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Action under Article 42 will only take place when measures provided in article 41 are proven to be inadequate. Article 42 actions would require a further resolution of the Security Council, and, as such, would be subject to the veto of any Permanent Member As regards Article 51, action in self-defense could be taken without prior authorization of the Security Council, thus avoiding a possible veto. Action under Article 41 would bind the UN membership as a whole but it would be subject to the veto Action 51 provides that self-defense may be relied on until the Security Council has taken measures necessary to maintain international peace and security. We could say that Article 51 does not speak of measures effective to restore international peace, but of measures necessary to do so. In this light, economic sanctions may find justification as they are clearly necessary. o However, the intention was that, members should be free to act in collective self-defense until the Security Council was in a position to take over the task and secure the common objective. Nonetheless, such idea is faced with difficulties:  It may be argued that if economic sanctions have been ordered, but not yet military sanctions, and an armed attack has not yet been repelled, that not all action necessary has yet been taken and Article 51 remains available.  States may act both as Security Council members and as members who respond to a request for collective self-defense.

The Relationship between Military Sanctions under Article 42 and the Means Envisaged for Providing them under Article 43  Under Chapter VII, the Security Council, once it has determined the existence of a threat to the peace, breach of the peace, or act of aggression, will recommend or decide upon enforcement measures to maintain or restore international peace and security.  Article 42 allows for military action by air, sea, or land forces  Article 43 then provides that all UN members undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities.  Issue: the authority of the Security Council to act under Article 42 given the failure of the Security Council to be able to proceed as envisaged under the said Article

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Left open: whether enforcement action under Article 42 could, as a matter of Charter law, occur in the absence of agreements under Article 43 o Applicable case: ICJ advisory opinion in 1962 to address certain legal problems concerning the financing of UN peace-keeping o On the question on whether peace-keeping action was permissible in the absence of Article 43 agreements, the Court answered in the affirmative. It cannot be said that the Charter has left the Security Council impotent in the face of an emergency situation when agreements under Article 43 have not been concluded. It must lie within the power of the Security Council to police a situation even though it does not resort to enforcement action against a State. Higgins is of the opinion that it would remain a matter of political judgment for the Security Council to decide if it was preferable to provide for peacekeeping or for military enforcement under Article 42. In the absence of Article 42 agreements, no UN member can be compelled to provide military forces or assistance; but action under Article 42, by those who are willing to participate, can properly be authorized by the UN and carried out under UN command. It is also possible for such action to be authorized by the Security Council as an enforcement action under Article 42, even if it was to be carried out by UN members not under a unified UN command.

“THE SECURITY COUNCIL UNDER CHAPTER VII OF THE UN CHARTER: PROBLEMS UNDER THE RULE OF LAW” by H. Harry Roque

Legal Framework  On the establishment of the existence of threat or any act of aggression, the Security Council may act as follows: o The Council may call upon the parties to comply with provisional measures or remedies, as it deems necessary or desirable (Article 40) o The Council may decide which measures, not involving the use of armed forces, are to be employed. Economic sanctions, including nonmilitary sanctions, may be called upon the members of the UN (Article 41) o In the event that the provisions in Article 41 prove to be inadequate, the Council may take the military action necessary to maintain or restore international peace. The air, sea or land forces of the members of the UN shall conduct such military action (Article 42) o To implement Article 42, Article 43 provides that all members of the UN shall make available to the Security Council, in accordance with a special

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agreement/s, armed forces, assistance and facilities necessary for the purpose of maintaining international peace and security. Article 47 o the maintenance of international peace shall be under the command of the Military Staff Committee consisting of the Chief of Staff of the permanent members of the Security Council or their representatives o the Committee will be responsible for the strategic direction of any armed forces placed at the disposal of the Security Council Article 27 (3) o Provides for the veto power of the permanent member states of the Council o The exercise of collective security is made subject to the condition that such measure must bear the unanimous vote of all the permanent members of the Council

Implementation  Chapter VII was implemented only once when the Security Council authorized the deployment of a UN military force in Korea  Higgins: international law is not just a body of rules that governs relations between states, but a dynamic process of identifying normative conduct by competent authorities when power and authority coincide  Formation by the UN General Assembly of peacekeeping forces, while analogous to the provisions of Chapter 7, were in fact different and distinct from it  The United Nations Emergency Force (UNEF) o Example of peacekeeping forces that were created in lieu of Chapter 7 o Its presence was expressly requested by both the governments of Egypt and United Arab Republic. If there was not such request, the presence of the UNEF would constitute a breach of the territorial sovereignty of at least two member nations o Had the same purpose as the collective security measures provided for under Chapter VII o Difference from Chapter VII  It was not authorized by the Security Council but by the General Assembly  It was not participated in by the forces or members of the UN whose composition needed to be provided for by a special agreement  It was not under the Council or the Military Staff Committee. Instead, it was composed of volunteers from the member nations of the UN  Advisory Opinion regarding the expenses incurred as a result of the UN involvement in Congo and the UNEF in the Suez Canal

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The ICJ upheld the assessments on the ground that the Security Council had only primary and not exclusive responsibility for the maintenance of international peace and security o Did not give actual ruling that the volunteer forces were constitutional under the UN Charter o Emphasized that since the General Assembly is authorized under Article 14 to recommend measures for the peaceful adjustment of any situation that it deems likely to impair the general welfare, it is also authorized to organize peacekeeping operations at the request and consent of the States concerned. Article 35 may be the applicable provision in such cases. o The only form of action within the jurisdiction of the Security Council were those which were indicated in the title of Chapter 7 itself – actions with respect to threats to peace, breaches of peace and acts of aggression Peacekeeping forces is also distinct from Chapter 7 in terms of who shall comprise the peace-keeping force and of whose command the force shall be under The creation of peacekeeping forces is justified on the ground that it was directed towards a charterobjective which is the attainment of peace

Sanctions  Issue: some Resolutions passed by the Security Council seem to violate the municipal law concept of undue delegation of power  Nicaragua vs. US case o Qualified that collective self-defense may not be invoked except if:  There exists a valid exercise of the right to self-defense; and  If there is request from the alleged victim state o In addition to the requirement that there by a request made by the alleged victim state, the pre-requisites for an act of self-defense must first be shown to exist  Conventional public international law requires an actual armed attack as a pre-requisite for self-defense Humanitarian Intervention  Issue: how does one determine if a prevailing situation warrants intervention on grounds of humanitarian reasons  The Security Council justified the use of enforcement measures under Chapter 7 as valid exercises of humanitarian intervention o Example: in the recent cases of Rhodesia, Somalia and Iraq o The use of gross human misery, be it man-made or otherwise, are threats to international peace o Legal basis: interventions of these nature so authorized by the Security Council, does not violate the UN Charter’s domestic jurisdiction

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clause because human rights, of which the right to life is paramount, is an issue not confined to the domestic jurisdiction of any state o Applicable provision: Article 2 (7) Issue: in cases where the unilateral use of force without the authority of the Security Council o Applicable case: the NATO bombing of Kosovo which were justified on the basis that NATO countries could not stand idly as thousands of human beings were being killed o Brownlie & Henkin argue against the lawfulness of humanitarian intervention because the past has widely abused this right o Those who argue in favor of humanitarian intervention do so on the basis that norms are instruments devised by human beings to precipitate desired social consequences  Reisman: One should not seek a point for point conformity to a rule without constant regard for the policy or principle that animated its presumption o Higgins  in a decentralized legal order, facts must be looked at legal views applied in context  Each claim of a valid exercise of humanitarian intervention, be it made in good faith, or otherwise, should require individual and contextual analysis  International law is capable of deciding on the facts at disposal, which interventions were bona fide, and which, were not for reasons of humanitarian necessity o Murase  There are circumstances where the unilateral use of force is not only permitted but also perhaps required in order to prevent the worse conceivable situation from taking place  We should try to make every effort for accommodating the ethical consideration for necessity and legitimacy, as well as the normative elements reflecting the actual power relations, into the practice of international law Despite the prohibition on the use of force in the conduct of international relations under Article 2(4), countries continue to unilaterally use force either for alleged humanitarian purposes, or in order to protect their nationals o Relation to current events: 2 Americans kidnapped by the Abu Sayaff o Effect: RP government allowed US forces in the territory  Two theoretical violations of such presence  Of territorial sovereignty  Of the proscription against the use of force under Article 2(4)

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But, one cannot expect US to do nothing while its citizens are being held captive for ransom and possibly raped by bandits

Prospects  The end of Cold War has ushered the beginnings of increased cooperation at least among the permanent members of the Security Council o Effect  The enforcement measures against Iraq  The peacekeeping forces in East Timor  Creation of War Crimes tribunals in Yugoslavia and Rwanda  The Security Council has committed its involvement on issues such as women and AIDS Conclusion  Challenges on the enforcement of the measures provided under Chapter 7 o Conflict between international practice and the literal provision of the Charter o The effectiveness of non-military sanctions given its history of being failures o The validity of measures provided under Chapter 7 for humanitarian purposes o Question of the unilateral use of force on the ground of humanitarian purposes o Unless this dynamic process of International Law is translated in terms of amendments in written obligations, the definition of what the law is would be obscured in a cobweb of uncertainty and ambiguity

CASE CONERNING MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA (NICARAGUA v. UNITED STATES) ICJ Reports 1986, p.14 (1986), supra.

(This discussion deals with the aspect of self-defense as a justification of US use of force in Nicaragua) United States:

 US argues that its use of force is justified as it was a collective self-defense in behalf of El Salvador.

The US is in breach of, among others, its obligations under customary international law not to use force against another State. General rule: use of force is prohibited  Requirements to be exempted from the general rule (requirements for a valid use of force): o Armed attack o Necessity o Proportionality

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 In cases of an armed attack, States have the inherent right to both collective and individual self defense  In both cases, the right to self-defense is subject to the State who is a victim of the armed attack  Note that request for the exercise of collective self-defense is needed. Such requirement is due to the fact that there is no rule in customary international law that permits the exercise of collective self-defense in the absence of a request by the State which regards itself as the victim of an armed attack.  Requisites for the exercise of collective selfdefense: o State should have declared itself to have been attacked o Request by such State for the exercise of collective self-defense The Principle of non-intervention & the principle of non-use of force  Principle of non-intervention – the right of every sovereign State to conduct its affairs without outside interference  There is only intervention as regards the matters in which each State is permitted, by the principle of its sovereignty, to decide freely. In this light, intervention may be deemed as coercion. 

Acts which are in violation of both the principle of non-intervention & the non-use of force o Direct form of military action o Indirect form of support to subversive or terrorist armed activities within another State

Whereas an armed attack would make collective selfdefense valid, such validity cannot arise in cases of use of force of a lesser degree of gravity. In said cases (use of force of lesser degree), the determining factor for the validity of counter-measures is proportionality.

LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS (ADVISORY OPINION) ICJ Reports 1996, p. 226 (1996), supra.

This request for an advisory opinion was made by the UN General Assembly. It principally asked: “Is the threat or use of nuclear weapons in any circumstance permitted under International Law?” The main substantive issues regarded sources of international legal obligation and the interaction of various branches of international law, particularly the norms of international humanitarian law (jus in bello) and the rules governing the use of force (jus ad bellum).

The Court considered the existence of a State’s mere “threat” to use nuclear weapons under certain circumstances on a potential enemy or an enemy. As regards this matter, the Court held that such threat will only be legal if it is consistent with military necessity and proportionality.

On the possession of nuclear weapons  The Court emphasized that there is a difference between the mere possession of nuclear weapons and its actual use. While the UN Charter and some other treaties prohibit the actual use of weapons as it amounts to the use of force, there are however no specific prohibition on the possession of nuclear weapons.  Bases for the conclusion that there is insufficient evidence that the possession of nuclear weapons had come to be universally regarded as illegal o Hague Conventions - the Court does not find any specific prohibition of recourse to nuclear weapons in treaties expressly prohibiting the use of certain weapons of mass destruction, such as the use of bacteriological or chemical weapons as prohibited by the Hague Conventions o International Customary Law - the court was unable to find an opinio juris that nuclear weapons are illegal to possess Applicable provisions: Art. 2, par. 4, UN Charter & Art. 51  General rule : A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of the United Nations Charter and that fails to meet all the requirements of Article 51, is unlawful  Exception: 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-defense, in which the very survival of a State would be at stake. Doctrine: the elements of necessity & proportionality should always be taken into consideration

CASE CONCERNING THE LEGALITY OF THE USE OF FORCE (YUGOSLAVIA v. UNITED STATES OF AMERICA), REQUEST FOR PROVISIONAL MEASURES ICJ Reports 1996, p. 226 (1996)

On deterrence and threat

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Yugoslavia applied for provisional measures to stop the US from using force against it. The US, along with other NATO-member countries bombed various targets in Yugoslavia affecting both the military and the civilians. Furthermore, there were destructions in properties, including oil refineries and chemical plants resulting in serious environmental issues. Also, the use of weapons containing depleted uranium is having far-reaching consequences for human life. Yugoslavia:

United States:

 The acts of US are deliberately creating conditions calculated at the physical destruction of an ethnic group, in whole or in part. And that the US is taking part in the training, arming, etc. of the Kosovo Liberation Army, in violation of its obligation on non-intervention in the internal affairs of another State.  Yugoslavia asks the court to grant them provisional measures, particularly the cessation of US’ use of force. It made use of Art. IX of the Genocide Convention and Art. 38 as the bases for the ICJ Jurisdiction in the case at bar 1. The ICJ has no jurisdiction pursuant to the reservation made by the US to Art. IX 2. Yugoslavia failed to provide sufficient proof required by the Genocide Convention that the US has the intent to destroy the ethnic group. US claimed that such intent cannot be inferred from the conduct of conventional military operations against another State.

The Court did not grant provisional measures for Yugoslavia because it does not have jurisdiction over the case The reservation to the Genocide Convention made by the US is valid – reservations are not prohibited, and Yugoslavia did not object when US made the reservation The US also did not consent to Art. 38 In the event that the dispute amounts to threat to the peace, breach of the peace or act of aggression, the Security Council has special responsibilities under Chapter VII of the UN Charter

“THE RELATIONSHIP BETWEEN THE UN CHARTER AND GENERAL INTERNATIONAL LAW REGARDING NON-USE OF FORCE: THE CASE OF NATO’S AIR CAMPAIGN IN THE KOSOVO CRISIS OF 1999” by Shinya Murase

Context

Milosevic engineers changes in the Serbian constitution that vastly reduce the provincial autonomy of Kosovo. Other measures put tens of thousands of Kosovar Albanians out of work and restrict the activities of their cultural organizations. As Western alarm over treatment of the Albanians in Kosovo grew, the US envoy was sent to try to negotiate peace. President Clinton ordered him to leave, after President Milosevic refused to accept an autonomy plan for Kosovo's Albanians secured by NATO troops. NATO Secretary-General Javier Solana ordered air strikes after the failure of the diplomatic efforts. Lecture Murase believes there are circumstances where the unilateral use of force is not only permitted but also perhaps required in order to prevent the worst conceivable situations from taking place. Under such circumstances, international lawyers, cannot and should not merely say that the actions were illegal but were necessary and legitimate. Murase believes that we should try to make every effort for accommodating the ethical considerations for necessity and legitimacy, as well as the normative elements reflecting the actual power relations, into the province of international law Important points The elements of opposability 1. Effectiveness Factor of power needed to guarantee realization of a measure in question. If a measure is not implemented effectively, it is simply nonopposable. 2.

Legitimacy The measure must conform to the general interest of the international community in a manner that outweighs the special interest or interests of a particular State or a group of States.

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Good faith The principle of “good faith” is very important as the subjective standard in evaluating whether the measures in question can be considered opposable under an imminent situation in which there are no available alternatives.

Murase is of the opinion that the actions by NATO shall be seen as unilateral measure taken by a group of States, and as such, must be regarded as having opposability vis-à-vis the Federal Republic of Yugoslavia. NATO’s actions, being opposable ones, may be considered as measures undertaken to prevent further deterioration of the situation as there are no effective measures forthcoming from the Security Council. In light of this, the NATO bombings can be considered as an “opposable” use of force taken as an unavoidable measure for the purpose of preventing the worsening of conditions in an emergency

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situation where large-scale human rights violations were being committed, and the UN Security Council measures had no effect.

THE CAROLINE CASE (Note: There is no actual case entitled “Caroline Case”. The following discussion dissects the events in the 19th century regarding a ship called “The Caroline”) In 1837, settlers in Upper Canada rebelled against the British colonial government. The United States remained officially neutral about the rebellion, but American sympathizers assisted the rebels with men and supplies, transported by a steamboat named “the Caroline”. In response, a British force from Canada entered United States territory at night, seized the Caroline, set the ship on fire, and sent it over Niagara Falls. At least one American was killed. Great Britain: United States:

The attack was an act of self-defense;  A self-defense claimant would have to show that the necessity of self-defense was instant, overwhelming, leaving no choice of means, and no moment of deliberation 3. All the acts of the US are reasonable and not excessive, since their acts are justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it

Principle of Self-Defense The terms "anticipatory self-defense", "preemptive selfdefense" and "preemption" traditionally refers to a state's right to strike first in self-defense when faced with imminent attack. The Caroline Test “…necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation. It will be for it to show, also, that the local authorities of Canada,- even supposing the necessity of the moment authorized them to enter the territories of the United States at all,- did nothing unreasonable or excessive; since the act justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it.” 1.

Necessity “Instant, overwhelming, leaving no choice of means, and no moment for deliberation.”

The use of force must be necessary because the threat is imminent and thus pursuing peaceful alternatives is not an option 2.

Proportionality The response must be proportionate to the threat Until now, the Caroline Test is the one being used to determine the legality of acts of self-defense. CLASS NOTES

“ASSESSING CLAIMS TO REVISE THE LOSS OF WAR” by M.W. Reisman

The development of weapons resulted in the creation of laws about national defense. However, the effectivity of such laws became doubtful as the development on weapons became more progressive. Hence, Reisman tackles the possibility of a regime change, questioning the settled doctrine in armed conflict, to align international law to the modern times. First is the enumeration and discussion of the armed conflict or self-defense regimes • Proactive military force – lawful before the UN Charter • Reactive military force – consistent with the Caroline test (necessary & proportional) • Anticipatory self-defense – do unto others before they do unto you Test before the attack: when the state believes that it is about to become a target; such must be palpable, imminent and prospectively destructive to require defense as prevention As Reisman observed, the rules of the game/war has always been a regime of mutually assured destruction and system of minimum world order. However, such regime creates a context of intense suspicion and distrust. As a challenge to the prevailing rule is the Antiballistic missile (ABM) weapon. Reisman claimed that a comprehensive and effective ABM system in one superpower would have defeated the deterrence mechanism by tempting that state to strike first and then hunker down behind its shield, which would cause the second striker’s nuclear missiles to bounce off harmlessly. Consequently, ABM enhances the ability of the major nuclear and other potentially targeted states to protect themselves from limited nuclear attack by other states. On the other hand, there is also the preemptive selfdefense as brought about by the proliferation of atomic,

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biological, and chemical weapons (ABC weapons) and by the diffusion of non-state actors (not superpowers). • Preemptive self-defense – a claim to use unilaterally, and without prior international authorization, high levels of violence to arrest an incipient development that is not yet operational and not yet directly threatening. Reisman favors the ABM system as it is an entirely passive self-defense to combat states likely to be targets of surprise ABC missile attacks. On Regime Change Reisman says that because the context has changed – wherein necessity, proportionality, and discrimination are no longer the sole factors to be considered – the legal arrangements to implement policies of international law must change as well.

CASE CONCERNING OIL PLATFORMS (ISLAMIC REPUBLIC OF IRAN v. UNITED STATES OF AMERICA) ICJ Reports 1996, p. 803 (1996)

Great Britain:

United States:

By destroying Iranian oil platforms, the US breached its obligations under the Treaty of Amity, Economic Relations and Consular Rights regarding ‘freedom of commerce’ between the territories of the two States Iranian attacks on naval and commercial vessels in the Persian Gulf constituted a breach of the Treaty’s provisions on ‘freedom of commerce’ and ‘freedom of navigation’. All the acts of the US are reasonable and not excessive, since their acts are justified by the necessity of selfdefense, must be limited by that necessity, and kept clearly within it

The US did not violate the Treaty. Although the US attacks were not justified under a separate provision of the Treaty as “measures necessary to protect the essential security interests”, they did not violate the Treaty. The US did not claim to have been exercising collective self-defense on behalf of the neutral States. As regards its individual self-defense, the US must show that attacks were actually made upon it for which Iran was responsible. Furthermore, US must also show that its actions were necessary and proportional to the armed attack. However, no evidence was submitted to support the contentions of the US.

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CLASS NOTES

B. International Court of Justice UN Charter, Art. 92 The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter.

UN Charter, Art. 93 All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice. A state which is not a Member of the United Nations may become a party to the Statute of the International Court of Justice on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council. UN Charter, Art. 94 Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment. UN Charter, Art. 96 1. The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question. 2. Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.

ICJ Statute, Art. 1 The Court used a technicality in the Treaty in order to allow the US to escape liability.

The International Court of Justice established by

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the Charter of the United Nations as the principal judicial organ of the United Nations shall be constituted and shall function in accordance with the provisions of the present Statute. ICJ Statute, Art. 34 1. Only states may be parties in cases before the Court. xxxx ICJ Statute, Art. 35 1. The Court shall be open to the states parties to the present Statute. xxxx

APPLICABLE LAW ICJ Statute, Art. 38, supra. 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. International conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. International custom, as evidence of a general practice accepted as law; c. The general principles of law recognized by civilized nations; d. Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. ICJ Statute, Art. 59 The decision of the Court has no binding force except between the parties and in respect of that particular case.

JURISDICTION ICJ Statute, Art. 36 1. The jurisdiction of the Court comprises all cases

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which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. 2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a. the interpretation of a treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of an international obligation; d. The nature or extent of the reparation to be made for the breach of an international obligation. 3. The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time.

ADVISORY OPINIONS HIGGINS, CHAPTER 11: DISPUTE SETTLEMENT AND THE INTERNATIONAL COURT OF JUSTICE When the parties to a legal controversy believe that the preferred solution is to have the issue resolved authoritatively by a third party, there arises the possibility for an international tribunal to act. Three kinds of data that are worth looking at are: (1) the potential for the International Court of Justice taking jurisdiction over various states, (2) the actual use of the Court by various states, and (3) the subject-matter upon which cases have been brought before the Court. The Potential for Jurisdiction The competence of international tribunals is founded on consent. Consent of principle rather than a consent in relation to a particular dispute with a particular opponent is increasingly being tolerated. Standing international courts such as the International Court of Justice are established by international treaty. It is the founding treaty itself (e.g. UN Charter) which elaborates how it is that a court may have jurisdiction in a particular dispute. The Inter-American and European Courts on Human Rights, and the Court of the European Community, are construed and their restricted by their founding treaties as to subject-matter and states who may bring claims. But the ICJ is viewed as the senior of all the International Courts because any state that is a party to the Statute (including any other state that has made special application to be a party to the Statute) can potentially come before it. And

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the Court can deal with any question of international law. Article 38 of the ICJ Statute stipulates its function (to decide in accordance with international law such disputes as are submitted to it) and what it will apply to fulfil it (sources of international law). There is thus an enormous potential for the use of the Court as to parties and subjectmatter. Actual Use of the Court Article 36 (1) provides that the jurisdiction of the ICJ comprises cases which the parties refer to it and all matters specially provided for in the UN Charter or in treaties or conventions in force. Parties can bring before the Court a case ad hoc and on the basis of agreement (e.g. ELSI Case). Since 1983 it has been increasingly used in several cases (Gulf of Maine, Libya vs. Malta, Denmark v. Norway, etc.). Article 36 (1) also provides treaties as basis of jurisdiction. Any treaty, bilateral or multilateral, can include a clause which stipulates that disputes that arise about the interpretation and application of the treaty are to be referred for judicial resolution. One example is the Vienna Convention on Diplomatic Relations. The tendency to include jurisdiction clauses in either multilateral or bilateral treaties is markedly declining. This may partly reflect a growing variety of alternative dispute-settlement procedures. Article 36 (2) provides for the 'Optional Clause' jurisdiction, stipulating that a state party to the Statute may at any time declare that it recognizes as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in legal dispute. This is like signing a blank cheque. The acceptance may be indefinite, or upon notification of termination, or for a fixed period of years. Although there is a declining emphasis on the Optional Clause, the participation of third-world countries is increasing. The Subject-Matter of Litigation before the Court The Court can deal with any legal dispute, but there is nothing in the Statute that requires the Court not to accept jurisdiction if the parties agreed to use alternative dispute-resolution procedures. Although several countries, by their statements, have welcomed the jurisdiction of the ICJ on various legal issues, including those involving human rights, a problem arises because these countries are parties to the International Covenant of Human Rights, which treaty has its own quasi-judicial procedures for the settlement of legal disputes concerning human rights. There is also a suggestion that only a range of preidentified/defined categories of dispute should be issued by the Court. But these issues are at a standstill. The Question of Reservations Article 36 (3) states that declarations of acceptance under the Optional Clause may be made unconditionally or on condition of reciprocity, on the part of several or certain

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states (e.g. I accept, on condition States A and B accept also to settle disputes with me), or for a certain time (e.g. I accept, for the next five years). The Optional Clause has also been treated as a treaty engagement, which led to the possibility of reservations as a matter of general treaty law. In Nicaragua vs. US the Court said that if it were acceptance under the Optional Clause were considered treaties, a declaration of acceptance could not be withdrawn without reasonable notice of termination. Reservations are permitted. In the Rights of Passage Case, the Portuguese reserved the possibility of terminating acceptance immediately on notification. Normally, a reservation to a treaty can only be made upon ratification of or accession to a treaty. But some states, such as Malta, have made a reservation which purports to allow them to make further reservations. The legality of this has yet to be tested. Three types of reservations are usually acceptable: 1. relating to other parties / ratione personae (e.g. I accept the Court's jurisdiction, but I will not agree to litigation of disputes with States Y and Z) 2. relating to time / ratione temporis; (e.g. I accept in 1990 the jurisdiction of the Court except those concerning 1985 events) and 3. As to subject-matter / ratione materiae (e.g. I accept the Court's jurisdiction, but not for the settlement of aviation disputes) –> of doubtful legal status, because the Court must determine its own jurisdiction. The jurisdiction of the Court exists only in respect of what is common between the two states, taking into account each state's reservations and conditions. Thus, the Court spends a lot of time in determining its jurisdiction, as controversies about it often arise in litigation. The increased tendency to ad hoc reference to the Court will hopefully reduce the time spent by the Court on its own jurisdiction. Legal Disputes Article 36 (2) provides that the matter brought before it is a 'legal dispute'. The Court has said that the only requirement is that there are issues that involve any of the matters listed in Article 36 (2). It also said that it is irrelevant if the matters arose in a politically charged context. The South West Africa cases, where the Court said that the issues brought were 'really' political and better determined by the Security Council, is out of line with this consistent attitude of the Court. The issue often arises as to whether or not there is a 'dispute' between them (i.e. one exists starts litigation under the Optional Clause, and the other insists there is no 'dispute'), The ICJ has adhered to the definition first held in the Mavrommatis Case that 'A dispute is a disagreement on a point of law or fact, a conflict of legal view or interests between two persons'. The differing views of the

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parties regarding the existence of a dispute between them are not determinative, and it is for the Court to decide based on the facts of the case. In advisory jurisdiction, a state may claim that the advice should not be given because there actually exists a 'dispute', and that it is not appropriate to give advice to a UN body that would entail the determination of a dispute between states. In the UN Headquarters Case, the Court held that neither the fact that different views existed within the US administration, nor the fact that the PLO office, which was subject for closing based on a US law that was passed, had not actually been closed down, meant that a dispute did not exist between the UN and the US. Some Issues Relating to Advisory Opinions Article 65 of the Statute provides that the Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the UN Charter to make such a request. There are no adversarial proceedings and there will be no judgment binding on the parties, but only advice as to the state of the law. But Article 68 of the Statute provides that the Court shall apply the same procedures as in contentious cases 'to the extent to which it recognises them to be applicable'. State parties to the Statute get notified under Article 66 of the request and can present their views even though they are not parties to the case. The principle of audiatur et altera pars, which states that the Court will not determine in their absence the rights of third parties, applies to advisory opinions, and it underlies consent as basis for the Court's jurisdiction. This has been applied to contentious jurisdiction in the Monetary Gold Case and also applied in the Phosphates Case. The test used by the Court in that case is whether the legal interests of the third party that was not before the Court was 'the very subject matter of the decision'. In the Eastern Carelia Case, the Permanent Court declined to give an advisory opinion because the issue is related the main point of a pending dispute between the two states, such that answering the question means deciding the dispute. As far as contentious litigation is concerned, Article 62 of the Statute allows a state not party to a litigation in the Court to intervene should it consider that 'it has an interest of a legal nature which may be affected by the decision in the case'. In cases under Article 63 which entails the construction of a Convention to which other states are parties, these states are to be notified, and have the right to intervene. However, the Court often points to Article 59 whereby a judgment only binds the parties to a case to deny the applicant's legal interest which could be affected by the case. Intervention under Articles 62 to 63 presents new problems such as new elements to the case, the issue about the right to intervene when the state has no jurisdictional connection to the subject-matter or the other states, whether the proper stage to intervene is at the jurisdictional stage or at

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the stage of the merits. As to the last issue, the Court has found an application at the jurisdictional stage 'premature'. In several cases such as Certain Expenses of the UN and the Western Sahara Case, the Court, despite the claims of a State-party that giving an advisory opinion would be equivalent to settling a dispute, gave an opinion nonetheless. In the Western Sahara Case, the Court agreed that there was a legal dispute between Morocco and Spain at the time of the request for advisory opinion, but it still proceeded with the opinion but allowed Morocco an ad hoc judge on the Bench, as there was already a Spanish judge. The Court also distinguished the Eastern Carelia Case, noting that in that case one of the key states was neither a party to the Statute, nor a member of the League, while in the case of Spain and Morocco they were both members of the UN. The issue of third-party rights has arisen not bilaterally but in the context of the work of the requesting organ. The ICJ has shown that it will rather robustly preserve its right to provide advice to authorized requesting organs. Dispute Settlement and Law Development The determination of specific disputes and the provision of specific advice by the ICJ develop international law. It is hard to point to a case where the Court has just applied rules to facts. Although decisions of the Court are said to be a subsidiary source of international law (Article 38 (1) (c) of the Statute) and any judicial determination is only binding upon the parties before it (Article 59), in reality, the judgments and opinions of the Court are treaty as authoritative pronouncements upon the current state of international law. Even advisory opinions have a role of great importance. Very often, the organ requesting an advisory opinion will then pass a resolution 'appreciating' or 'accepting' that opinion. This was done in the Reservations Case an in Legal Expenses of the United Nations. It does not give rise to a legal obligation, but it is a public affirmation of the advice's authoritative quality. Many resolutions of disputes have been assisted by advisory opinions (e.g. Admissions Cases). Higgins opines that the Court, even though it is necessarily choosing, explaining, and refining rules, should still do so in respect of the particular issue it is required to decide or upon which it is asked to advise.

CASES ON JURISDICTION CASE CONERNING MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA (NICARAGUA v. UNITED STATES) ICJ Reports 1986, p.14 (1986), supra.

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(This discussion deals with the jurisdictional aspect of the case.) Nicaragua:

United States:

The Court had jurisdiction over its application because both Nicaragua and the US had accepted the compulsory jurisdiction of the Court under the Optional Clause.  Nicaragua's acceptance of the compulsory jurisdiction of the PCIJ was not in force in 1945, because it failed to ratify the Statute of the PCIJ, such that Art. 36 (5) of the ICJ Statute did not apply to it;  Three days before the application had been filed, the US filed a notification, to take effect immediately, stating that the compulsory jurisdiction shall not apply to disputes with any Central American State; and  US made a reservation in its Optional Clause whereby disputes arising under a multilateral treaty, which could affect third states which are parties to the treaty but are not participating in the proceedings before the Court, were excluded from the jurisdiction of the Court.

The ICJ held that it had jurisdiction. Nicaragua's ratification of the ICJ Statute gave its previous declaration under the PCIJ Statute the binding force which it previously lacked. The US declaration could only be terminated upon reasonable notice. Although a declaration under the Optional Clause was a unilateral and voluntary act, once made, it creates a legal obligation binding upon the State which made it. It would be impossible for a ruling not to affect third parties such as El Salvador. Therefore, the reservation of the US prevented the Court from entertaining the claims based on violations of multilateral treaties such as the UN Charter and the OAS Charter. However, the effect of the reservation did not exclude the application of principles of international customary law enshrined in treaty law provisions.

CASE CONCERNING QUESTIONS OF INTERPRETATION AND APPLICATION OF THE 1971 MONTREAL CONVENTION ARISING FROM THE AERIAL INCIDENT AT LOCKERBIE (LIBYA v. UNITED STATES)

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the airplane. The US Grand Jury brought murder charges for murder against two Libyan nationals suspected of having caused the bomb to be placed aboard the aircraft. US requested the extradition of the two alleged offender. Libya:

United States:

The ICJ held that it had jurisdiction. A dispute is defined as 'a disagreement on a point of law or fact, a conflict of legal views or of interest between two persons'. The parties in this case differed on the question of whether the destruction of the aircraft was governed by the Montreal Convention. The UN SC Resolutions were adopted after Libya filed its application. In accordance to 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.”

CASE CONCERNING ELETTRONICA SICULA S.P.A. (ELSI) (UNITED STATES OF AMERICA v. ITALY) ICJ Reports 1989, p. 15 (1989)

The US claimed in its diplomatic claim against Italy that the latter violated the provisions of the Friendship, Commerce and Navigation (FCN) Treaty between the two when Italian authorities seized and requisitioned the assets of ELSI, an American-owned corporation stationed in Palermo Italy, which was under liquidation. Italy:

ICJ Reports 1998, p. 115 (1998)

Pan Am flight 103, while flying over Lockerbie, Scotland, was destroyed by an explosion due to a bomb placed inside

The Montreal Convention (on Hijacking), under which Libya has the right to investigate the alleged offense and exercise domestic jurisdiction, is applicable to this dispute.  the Court lacks jurisdiction because: o Libya failed to show that  there exists a legal dispute between the Parties; and that  Such dispute, if any, concerns the interpretation or application of the Montreal Convention.  Even if a dispute existed, the UN Security Council (UN SC) Resolutions which required Libya to surrender the two accused prevailed over the provisions of the Montreal Convention.

United States:

The ICJ has no jurisdiction because of the failure of the US to exhaust local remedies. The claims should have been brought before Italian municipal courts. The FCN Treaty did not categorically refer to the local remedies rule in cases of diplomatic protection.

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ICJ Reports 1992, p. 240 (1992)

The ICJ held that it had jurisdiction. The Court's jurisdiction is based on the Statute of the Court and the FCN Treaty. The doctrine of exhaustion of local remedies was a fundamental rule of customary international law and was not rendered inapplicable simply because of the absence of words making it specifically applicable to a certain type of action. But the claim was still deemed admissible since Italy failed to establish that a remedy existed under municipal law which was available to the US corporations.

Nauru was placed under UN Trusteeship, with the Joint Administering Authority being Australia, New Zealand and the UK. Australia was given full powers of legislation, administration and jurisdiction over Nauru on behalf of the Administering Authority. Nauru instituted proceedings against Australia, alleging the breach of its trusteeship obligations by failing to rehabilitate parts of Nauru from which phosphates had been extracted. Australia:

SOUTH WEST AFRICA CASES (ETHIOPIA v. SOUTH AFRICA; LIBERIA v. SOUTH AFRICA), SECOND PHASE ICJ Reports 1966, p.6 (1966), supra.

(For a more exhaustive discussion, refer to p. 8) Ethiopia's and Liberia's applications alleged the contravention of duties by South Africa as Mandatory under the League of Nations Mandate for South West Africa. The mandates contained a jurisdictional clause providing for a reference of disputes to the PCIJ (now ICJ) by virtue of Article 37 of the ICJ Statute. South Africa:

Since the League of Nations and PCIJ were dissolved, the rights and obligations under the Mandate relating to the administrative supervision by the League and submission to the PCIJ had become extinct.

The ICJ held that it had jurisdiction. The obligation of South Africa to submit to compulsory jurisdiction was effectively transferred to the ICJ. Although the League was dissolved in 1946, the UN Charter entered into force in 1945, and all three parties became UN members by ratifying the Charter. By the effect of Art. 92 and 93 of the UN Charter and Art. 37 of the ICJ Statute, South Africa had bound itself to accept the compulsory jurisdiction of the ICJ in lieu of the PCIJ. The individual member States of the League such as Ethiopia and Liberia had no right of direct intervention relative to the mandatories, since this was the prerogative of the League organs. Though States retained the rights which they possessed as members of the League despite its dissolution it did not mean that by and upon such dissolution they acquired rights which they never did individually possess.

CASE CONCERNING CERTAIN PHOSPHATE LANDS IN NAURU (NAURU v. AUSTRALIA)

The Court lacks jurisdiction because:  The case involved the responsibility of third States which had not consented to the Court’s jurisdiction; and  It made a reservation in its declaration that jurisdiction does not apply to any dispute where the parties have agreed or shall agree to have “recourse to some other method of peaceful settlement.”

The ICJ held that it had jurisdiction. The fact that New Zealand and the UK were not parties to the proceedings did not render the application inadmissible. The present case differed from the Monetary Gold case since the interests of New Zealand and the UK did not constitute the very subject matter of the decision which the Court would give. A finding by the Court regarding the responsibility attributed to Australia by Nauru might have implications for the legal situation of the two other States concerned, but no finding in respect of that legal situation would be needed as a basis for the Court’s decision in this case. The interests of New Zealand and the UK are protected by Article 59 of the ICJ Statute, which provides that "The decision of the Court has no binding force except between the parties and in respect of that particular case."

CASE CONCERNING EAST TIMOR (PORTUGAL v. AUSTRALIA) ICJ Reports 1995, p. 90 (1995)

Portugal commenced proceedings against Australia, claiming that Australia infringed the rights of the people of East Timor to self-determination and permanent sovereignty over their natural resources and the rights of Portugal as administering power by entering into an agreement with Indonesia over the delimitation of the continental shelf between Australia and East Timor, which eventually evolved into an treaty creating a “Zone of Cooperation” between Australian and Indonesia in the exploitation of natural resources in the said continental shelf.

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Australia:

The Court could not rule upon the application without ruling on the rights and obligations of Indonesia, which had not consented to the jurisdiction of the Court.

The ICJ held that it had no jurisdiction. The Court agreed with Portugal that the right of selfdetermination is an erga omnes right and that states had a duty to respect this right is an erga omnes obligation. However, the Court could not rule upon the dispute between Australia and Portugal without having to rule upon whether Indonesia’s entry into East Timor was lawful. 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. This case is an authority on the erga omnes obligation of states to respect the right to self-determination. The doctrine applies to both contentious cases and advisory opinions. CLASS NOTES

CASES ON PROVISIONAL MEASURES

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only indicate provisional measures to be taken by the parties but not by third States who would not be bound by the eventual judgment.

CASE CONCERNING QUESTIONS OF INTERPRETATION AND APPLICATION OF THE 1971 MONTREAL CONVENTION ARISING FROM THE AERIAL INCIDENT AT LOCKERBIE (LIBYA v. UNITED STATES) ICJ Reports 1998, p. 115 (1998), supra.

Libya requested the Court for provisional measures to enjoin the US from the use of any force against Libya. There was a previous resolution by the Security Council (Resolution 748) determining the failure of Libya to surrender the two accused as a threat to international peace and security. The Court denied the request for provisional measures. Since Libya and the US are UN members, they are obliged to accept and carry out the decisions of the Security Council. Such obligation prevails over the duty of the parties under the Montreal Convention. An indication of the measures requested by Libya would be likely to impair the rights, which appear prima facie to be enjoyed by the United States by virtue of the Security Council Resolution.

CASES ON DISPUTE CASE CONCERNING APPLICATION OF THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE (BOSNIA AND HERZEGOVINA v. SERBIA AND MONTENEGRO) ICJ Reports 2007, p. 43 (2007), supra.

Bosnia and Herzegovina accused Yugoslavia of responsibility for the commission of genocide in Bosnia. In its application, Bosnia asked the Court to grant, as provisional measures, that Yugoslavia cease all acts of genocide and cease providing support for any group engaging in military or paramilitary activities against Bosnia, and requested that the Court indicate that Bosnia had the right to seek and receive assistance in defending itself. The Court granted the request for provisional measures. The Court should not indicate such measures unless the provisions invoked by the applicant or found in the ICJ Statute appeared, prima facie, to afford a basis on which the jurisdiction of the Court might be established. The object of the power to indicate provisional measures of protection was to ensure that irreparable prejudice should not be caused to rights which might subsequently be adjudged to belong to one of the parties. The Court could

COMPETENCE OF THE GENERAL ASSEMBLY FOR THE ADMISSION OF A STATE TO THE UNITED NATIONS (ADVISORY OPINION) ICJ Reports 1950, p. 4 (1950)

The UN GA asked the Court to give an advisory opinion regarding the conditions of admission of a State to membership in the UN found in Article 4 of the Charter, particularly with regard to the following issues: 1. Whether or not a UN Member is juridically entitled to make its consent on the admission of a State dependent on conditions not expressly provided by Art. 4, Par. 1 2. Whether or not a UN Member, which recognizes the conditions in Art. 4 to be fulfilled by the State seeking admission, can subject its affirmative vote to the additional condition that other States be admitted together with the concerned State A Member is not legally entitled to make admission dependent on conditions not expressly provided by the Article. Art. 4, par. 1 is exclusive. Art. 4, Par. 1 enumerates five conditions: a candidate must be:

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6) 7) 8) 9) 10)

a State; peace-loving; must accept the obligations of the Charter; must be able to carry out these obligations; must be willing to do so.

All these are subject to the judgment of the Organization. The Court held that these conditions were exhaustive as the provision would lose significance if other conditions could be demanded. “The term ‘Membership in the United Nations is open to all other peace-loving States’ indicates that States which fulfill the conditions stated have the qualifications requisite for admission . . . They are not merely the necessary conditions, but also the conditions which suffice.” However, the Court added that the exhaustive nature of Art. 4 does not prohibit the taking into account of any factor reasonably, and in good faith, connected with the conditions laid down. The taking into account of such factors is implied in the very wide and elastic nature of the conditions. No relevant political factor, that is to say, none connected with the conditions of admission, is excluded.” The Court held that any additional condition would be contrary to the letter and spirit of the Charter as it would “prevent each application for admission to be examined and voted on separately on its own merits.” The Court said that it constitutes a new condition because it is “entirely unconnected with those prescribed in Art. 4.” Finally, it makes admission dependent not on the conditions required, but on extraneous ones concerning other States.

THE MAVROMMATIS PALESTINE CONCESSIONS PCIJ, Ser. A, No. 2, (1924), supra.

(For an exhaustive discussion on the merits, refer to p. 22) Whether or not the Court has jurisdiction to entertain the case in accordance with Art. 26 of the Mandate YES TO THE JERUSALEM CONCESSIONS; NO TO THE JAFFA CONCESSIONS The Court first looked at the conditions laid down by Art. 26 to determine whether it had jurisdiction or not. It found that: 1) there was a dispute between the Mandatory (Britain) and another Member of the League of Nations (Greece); 2) the dispute cannot be settled by negotiation; and 3) the dispute related to the interpretation or the application of the provisions of the Mandate.

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entered into a new phase – it entered into the domain of international law, and became dispute between two states. “Once a State has taken up a case on behalf of one of its subjects, which it is entitled to protect under international law, before an international tribunal, in the eyes of the latter, the State is the sole claimant.“ “The fact that Britain and Greece are the opposing parties to the dispute arising out of the Mavrommatis Concessions is sufficient to make it a dispute between two States within the meaning of Article 26.” As regards the second condition, the Court found that the correspondence between the two countries proved that they could not settle the matter through negotiation. To determine if the third condition was fulfilled, the Court relied on Art. 2, Par. 1 of the Mandate( which provides that the Administration of Palestine shall have full power to provide for public ownership or control of any of the natural resources of the country or of the public works, services and utilities established or to be established therein, subject to international obligations accepted by the Mandatory). Using the Rutenberg Concessions (which partially overlaps with the Mavrommatis Concessions), the Court found that they constitute an application by the Administration of Palestine of the system of “public control” with the object of developing the natural resources of the country and of operating public works, services and utilities. Thus, these concessions fall within the scope of Art. 2 of the Mandate and, consequently, Art. 26. But since the two concessions only partially overlap, the Court had to determine which of the Mavrommatis Concessions fall under the provisions of the Mandate. The Court held that the phrase “the international obligations accepted by the Mandatory” includes the obligations arising out of Protocol XII of the Lausanne Treaty. This Protocol concerns concessionary contracts duly entered into before Oct 29, 1914. Since the Jerusalem Concessions were dated from before the Protocol, they fall under Art. 2 of the Mandate. However, the Jaffa Concessions, although dated January 17 and March 6, 1914, were not confirmed by the Imperial Firman. Therefore, they do not fall under the Protocol. In sum, the Court held that it had jurisdiction to entertain the claim relating to Jerusalem only.

APPLICABILITY OF THE OBLIGATION TO ARBITRATE UNDER SECTION 21 OF THE UNITED NATIONS HEADQUARTERS AGREEMENT OF 26 JUNE 1947 PCIJ, Ser. A, No. 2, (1924), supra.

The Court found that there was a dispute or a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons. The dispute in this case was first between a private person and a State. When the Greek government took up the case, the dispute

The UN GA adopted a resolution on 2 March 1988 to request the Court for an advisory opinion. The question was: “In the light of facts reflected in the reports of the Secretary-General, is the United States of America, as a

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party to the Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations, under an obligation to enter into arbitration in accordance with section 21 of the Agreement?” In order to answer the question put to it, the Court first considered whether there existed between the United Nations and the United States a dispute as contemplated by section 21 of the Headquarters Agreement, which provided: “(a) Any dispute between the United Nations and the United States concerning the interpretation or application of this agreement or of any supplemental agreement, which is not settled by negotiation or other agreed mode of settlement, shall be referred for final decision to a tribunal of three arbitrators, one to be named by the Secretary-General, one to be named by the Secretary of State of the United States, and the third to be chosen by the two, or, if they should fail to agree upon a third, then by the President of the International Court of Justice.” If there was a dispute, the Court had to determine whether that dispute concerned the interpretation or application of the Headquarters Agreement and had not been settled by negotiation or other agreed mode of settlement. A dispute is disagreement on a point of law or a conflict of legal views or interests is a matter for objective determination and cannot depend upon the mere assertions or denials of parties. The Court found the opposing attitudes of the UN and the USA showed the existence of a dispute. The Court then considered whether the dispute was one "not settled by negotiation or other agreed mode of settlement", in the terms of section 21 (a). The Court found that, taking into account the United States' attitude, the Secretary-General had in the circumstances exhausted such possibilities of negotiation as were open to him, nor had any "other agreed mode of settlement" been contemplated by the United Nations and the United States. In particular, the current proceedings before the United States courts could not constitute and "agreed method of settlement" within the meaning of section 21, considering that their purpose was the enforcement of the AntiTerrorism Act and not the Agreement. Furthermore, the United Nations had never agreed to a settlement in the domestic courts. The Court held that the United States was bound to respect the obligation to enter into arbitration. That conclusion would remain intact even if it were necessary to interpret the settlement that the measures against the Mission were taken "irrespective of any obligations" of the United States under the Headquarters Agreement as intended to refer not only to any substantive obligations under sections 11-13 but also to the obligation to arbitrate provided for in section 21. It was sufficient to recall the

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fundamental principle of international law that international law prevailed over domestic law, a principle long endorsed by judicial decisions.

CASES ON ADVISORY OPINIONS LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS (ADVISORY OPINION) ICJ Reports 1996, p. 226 (1996), supra.

(This section deals with the jurisdictional aspect of the case. For a discussion on the merits of the case, refer to p. 12) Jurisdictional issue: Whether or not the Court had jurisdiction to entertain this request for an advisory opinion submitted by the WHO, a specialized agency. The WHO failed to satisfy the requisites for asking an advisory opinion. There are three conditions that must be satisfied for the Court to acquire jurisdiction to entertain a request for an advisory opinion submitted by a specialized agency. 1. First, the agency requesting the opinion must be duly authorized under the UN Charter to request opinions from the Court. 2. Second, the opinion requested must be on a legal question. 3. Third, the question must be one arising within the scope of the activities of the requesting agency. The first two conditions were met; however, the Court found that “although according to its Constitution the World Health Organization (WHO) is authorized to deal with the effects on health of the use of nuclear weapons, or of any other hazardous activity, and to take preventive measures aimed at protecting the health of populations in the event of such weapons being used or such activities engaged in, the question put to the Court in the present case relates not to the effects of the use of nuclear weapons on health, but to the legality of the use of' such weapons in view of their health and environmental effects.” The Court pointed out that whatever these effects may be, the competence of WHO to deal with them is not dependent on the legality of the acts that caused them. The Court also held that the responsibilities of WHO are necessarily restricted to the sphere of public “health” and cannot encroach on the responsibilities of other parts of the UN system, and that there is no doubt that questions concerning the use of force, the regulation of armaments and disarmament are within the competence of the UN and lie outside that of the specialize agencies like the WHO.

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Therefore, the request for an advisory opinion submitted by WHO thus does not relate to a question which arises "within the scope of [the] activities" of that Organization.

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entitled to the gold in accordance with the Washington Statement. Court has no jurisdiction to adjudicate the issue based on Italy’s application.

CASE OF THE MONETARY GOLD REMOVED FROM ROME IN 1943 (ITALY v. FRANCE, UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND AND UNITED STATES OF AMERICA) ICJ Reports 1954, p. 19 (1954)

France, UK, USA, Albania and other states signed the Agreement on Reparation from Germany (14 January 1946), on the Establishment of an Inter-Allied Reparation Agency and on the Restitution of Monetary Gold in Paris in 1946. Italy adhered to its provisions by a Protocol in 1947. The Agreement provided that the monetary gold found in Germany should-be pooled for distribution among the countries which can establish that a definite amount of monetary gold belonging to them “was looted by Germany or, at any time after 12th March, 1938, was wrongfully removed into German territory”. The implementation of the Agreement was entrusted to France, UK, and the USA, which formed a Tripartite Commission. Albania and Italy claimed that the gold belonged to them thus the Tripartite Commission, by signing the Washington Statement in 1951, decided to submit to an arbitrator the issue of whether the gold belonged to Albania or to Italy or to neither. The Arbitrator opined that the gold in question belonged to Albania and the opinion was communicated to the Commission and to Italy and Albania. However, Albania made no application. Therefore, Italy, within the ninety-day period, made an Application to the ICJ instituting proceedings against France, UK and USA, submitting that: 1) the Governments of France, UK and USA should deliver to Italy any share of monetary Gold that may be due to Albania in partial satisfaction for the damage caused to Italy by the Albanian Law of 1945; and 2) it’s right to receive the gold must have priority over the claim of UK. Five months after, Italy filed a document entitled “Preliminary Question” drawing the attention of the Court to the fact that its first Submission invited the Court to pass upon the international responsibility of Albania to Italy hence the jurisdiction of the Court to adjudicate such question without Albania’s consent is doubtful. It submitted that the Court had no jurisdiction. On the other hand, UK submitted that: 1) in view of Italy’s Objection the Italian Application does not conform or no longer conforms with the Washington Statement and is accordingly invalid and void hence there is no longer before the Court any Application; and in the alternative; 2) the Italian Objection amounts to a withdrawal or cancellation of its Application and disqualifies Italy from proceeding any further under the Tripartite Washington Statement; and 3) therefore, it is

The Court held that Italy’s first submission (that the gold must be delivered to her) required the determination of whether Albania has committed any international wrong against Italy and whether Albania is under an obligation to pay compensation. Going into the merits of the case without Albania’s consent would violate the wellestablished principle of international law that the Court could not exercise its jurisdiction over a State without the latter’s consent. In the present case, Albania’s legal interests would not merely be affected but would form the very subject matter of the decision. Hence, any decision of the Court would not be binding upon any party (even upon States which submitted to its jurisdiction i.e., France, UK, USA, Italy). Likewise, Italy’s second submission (that priority should be given to her over the UK) cannot be resolved by the Court as it is predicated on the determination that as between Albania and Italy, the gold should go to Italy.

CERTAIN EXPENSES OF THE UNITED NATIONS (ARTICLE 17, PARAGRAPH 2, OF THE CHARTER) (ADVISORY OPINION) ICJ Reports 1962, p. 151 (1962), supra.

(This section deals with the jurisdictional aspect of the case. For a discussion on the merits of the case, refer to p. 22) Jurisdictional issue: Whether or not the Court had jurisdiction to entertain this request for an advisory opinion. The Court agreed to give an advisory opinion. It held that its power to give advisory opinions is derived from Art. 65 of the Statute. It is of a discretionary character. However, the Court can only give an advisory opinion on a legal question.

WESTERN SAHARA (ADVISORY OPINION) ICJ Reports 1975, p. 12 (1975), supra.

(This section deals with the jurisdictional aspect of the case. For a discussion on the merits of the case, refer to p. 34) Jurisdictional issue: Whether or not the Court had jurisdiction to entertain this request for an advisory opinion. The Court has the competence to render an advisory opinion in this case. Under Art. 65, Par. 1, of the Statute, it is stated that:

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“The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.”

authorized to do so by Article 96, paragraph 1, of the Charter, which provides: “The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.”

The Court noted that the UN GA is suitably authorized by Art. 96, Par. 1 of the Charter. The Court also found that the two questions submitted are framed in terms of law and raise problems of international law. 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 is accordingly competent to entertain the request.

It observed that Article 10 of the Charter has conferred upon the General Assembly a competence relating to “any questions or any matters” within the scope of the Charter, and that Article 11, paragraph 2, has specifically provided it with competence on “questions relating to the maintenance of international peace and security brought before it by any Member of the United Nations . . .” and to make recommendations under certain conditions fixed by those Articles.

On the objection of Spain that the question involved a historical question, the Court found that there was nothing in the UN Charter or the Statute to limit either the competence of the GA to request an advisory opinion, or the competence of the Court to give one, to legal questions relating to existing rights or obligations. As to the objection of Spain that it had not given its consent to the submission of the case, the Court said that Spain is a Member of the UN and has accepted the provisions of the Charter and the Statute by virtue of which it has, in general, given its consent to the exercise by the Court of its advisory jurisdiction. The Court also deemed it fit to construe the principle of consent as permissive rather than directive in that the Court still recognized that the lack of consent might constitute a ground for declining to give the opinion requested if, in the circumstances of a given case, considerations of judicial propriety should oblige the Court to refuse an opinion. In short, the consent of the State continues to be relevant, not for the Court’s competence, but for the appreciation of the propriety of giving an opinion.

LEGAL CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OCCUPIED PALESTINIAN TERRITORY (ADVISORY OPINION) ICJ Reports 2004, p. 176 (2004), supra

(This section deals with the jurisdictional aspect of the case. For a discussion on the merits of the case, refer to p. 95) The Court has the competence to render an advisory opinion in this case. The Court noted first that its competence in this regard is based on Article 65, paragraph 1, of its Statute, according to which the Court “may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request”, and secondly that the General Assembly, which seeks the advisory opinion, is

Israel contended that the GA acted ultra vires under the Charter because its request was not in accordance with Article 12, Paragraph 1. The Court first observed that a request for an advisory opinion is not a “recommendation” by the General Assembly “with regard to *a+ dispute or situation”, within the meaning of Article 12, but considers it appropriate to examine the significance of that Article, having regard to the practice of the United Nations. It notes that, under Article 24 of the Charter, the Security Council has “primary responsibility for the maintenance of international peace and security” and that both the Security Council and the General Assembly initially interpreted and applied Article 12 to the effect that the Assembly could not make a recommendation on a question concerning the maintenance of international peace and security while the matter remained on the Council’s agenda, but that this interpretation of Article 12 has evolved subsequently. The Court held that the GA did not exceed its competence by submitting the request. The Court also emphasized that, in the course of the Emergency Special Session in which the resolution to make the request was made, the General Assembly could adopt any resolution falling within the subject-matter for which the Session had been convened, and otherwise within its powers, including a resolution seeking the Court’s opinion. It was contended that the request for advisory opinion did not raise a legal question within the meaning of Article 96, Paragraph 1 of the Charter and Article 65, Paragraph 1 of the Statute. The Court observed that this question is directed to the legal consequences arising from a given factual situation considering the rules and principles of international law, including the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (hereinafter the “Fourth Geneva Convention”) and relevant Security Council and General Assembly resolutions. The Court further pointed out that lack of clarity in the drafting of a question does not deprive the Court of jurisdiction. Rather, such uncertainty will require clarification in interpretation, and such necessary clarifications of interpretation have frequently been given by the Court. Therefore, the Court would, as it

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has done often in the past, “identify the existing principles and rules, interpret them and apply them . . ., thus offering a reply to the question posed based on law” (Legality of the Threat or Use of Nuclear Weapons, supra). It was also contended that the abstract nature of the question raised an issue of jurisdiction. The Court held that “to contend that it should not deal with a question couched in abstract terms is ‘a mere affirmation devoid of any justification’ and that ‘the Court may give an advisory opinion on any legal question, abstract or otherwise’” (Legality of the Threat or Use of Nuclear Weapons). The Court also rejected the argument that it had no jurisdiction due to the political character of the question involved. As is clear from its long-standing jurisprudence on this point, the Court considered that the fact that a legal question also has political aspects, “does not suffice to deprive it of its character as a ‘legal question’ and to ‘deprive the Court of a competence expressly conferred on it by its Statute’, and the Court cannot refuse to admit the legal character of a question which invites it to discharge an essentially judicial task” (Legality of the Threat or Use of Nuclear Weapons).

The Individual International Law is a system that provides normative indications for states in their relations with each other. Although there is no reason to exclude individuals from its reach, the main participants are sovereign states. However, how can it be guaranteed that the needs of individuals who comprise the states are not ignored? The classical international law has relatively little to offer in this regard. The individual is left with no direct access to a forum, no legal right that he can call his own, no redress against his own state. (Higgins, Chapter 6)

A. Human Rights HIGGINS, CHAPTER 6: RESPONDING TO INDIVIDUAL NEEDS: HUMAN RIGHTS Human Rights Law stipulates that obligations are owed directly to individuals, and not to the national government of an individual. It provides for individuals to have access to tribunals and for the effective guarantee of those obligations. Once it is recognized that obligations are owed to individuals, there is no reason why the obligation should be owed only to foreign individuals and not to nationals. It is unsustainable to regard the treatment of nationals as

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matters falling essentially within domestic jurisdiction, and unreviewable by the international community. Obligations are owed directly to individuals, because they have human rights. Human Rights are rights held simply by virtue of being a human person. They are part of the integrity and dignity of the human being. They cannot be given or withdrawn at will by any domestic legal system. Although they may most effectively be implemented by the domestic legal system, that system is not the source of the right. International human rights law is the source of the obligation, albeit reflected in the content of the domestic law. It follows that the right will be the same in all jurisdictions. Argument: There can be no fully universal concept of human rights, taking into account the diverse cultures and political systems of the world. This is a point advanced by states and liberal scholars. This is rarely advanced by the oppressed. The nonuniversal, relativist view of human rights is in fact a very state-centered view and loses sight of the human aspect of human rights, which is not dependent on how states may behave differently from each other in politics, economic policy, and culture. The universality of human spirit dictates that individuals everywhere want the same essential things. There is nothing in these that is dependent upon culture, religion, or stage of development. This has been a debate over the political and cultural relativism in human rights. The International Covenant on Civil and Political Rights has now provided for an international monitoring mechanism, through the Committee on Human Rights. Argument: It is to be expected that the manner of implementation would vary according to the particular political system. While states may indeed implement rights in different ways, the content of what is to be implemented depends on the international standard and will not vary. Cultural and Religious Diversity The standards were adopted in principle of universal application. The texts were adopted with general approval, and states of varying political and religious systems have had a free choice as to whether to become a party to the Covenants. If particular elements were regarded as incompatible with a religious or political point, the correct course of action was to enter a reservation as to those elements, but this had not been done. What are the Human Rights? The answer depends on the approach on the nature and sources of international law. If the source rights and obligations are the various international instruments,

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whatever rights they contain and designate as human rights are thereby human rights, at least for the ratifying parties. They may in time be reflected in customary international law, and thus become human rights more generally. Others say that human rights are vehicle for expressing the obligation and providing the detail about the way in which the human right is to be guaranteed. It is an interaction of demands by various actors, and the state practice in relation thereto, which leads to the generation of norms and the expectation of compliance in relation to them.

Rights, has stated that these are present rights, not longterm aspirations. States are under immediate obligation to do what they can to provide these rights.

Civil and Political Rights Human Rights was traditionally viewed as limited to the field of civil and political rights. This view is supported by the principle that rights suppose a correlative obligation on the part of the state. All states are in a position to comply with civil and political rights - ex. abstention from torture, toleration of free speech, liberty of religion.

Sources of Rights Existence of treaties may not be the only test as to whether a right exists. Rights may exist in customary international law. The claim that a right exists in customary law will need to be established by reference to the normal criteria of that source, including state practice, which may be expected to be evidenced in resolutions and declarations of international bodies.

Economic, Social, and Cultural Rights Claims to education, paid holidays, food and housing are often not within the ability of the state to provide. This is particularly true of poorer states. However, to say that such inability would negate the view that such are human rights, would be to define a right by reference to the ability of the party upon whom the obligation lies to provide it immediately. This echoes the aphorism that without a remedy, there is no right. This approach looks at things from the perspective of the state, rather than of the individual. It is also claimed that such cannot be rights because “rights” implies something in respect of which, legal claims can be brought and economic and social rights are not justiciable. However, the absence of a possibility of recourse to third-party judicial procedures is certainly not the test of whether the right exists or note. The existence of the right is tested by reference to the sources of international law. It is further suggested that these are not real rights for they are imprecise as to content, and they are mostly incapable of immediate delivery, and they must be recognized as mere aspirations. The real difference is that the state’s duties in respect of civil and political rights are covered in terms of abstention from prohibited acts, whereas the economic and social rights usually require specific action by the state. In order to effectively guarantee rights, it is frequently necessary for states to take positive measures. Problems remain as to economic and social rights. There remains the underlying problem that, even if known what has to be provided, many states are not in a position to deliver the right at the present. The Committee on Human Rights, acting under the International Covenant on Economic, Social, and Cultural

Collective Rights There is no reason why an entitlement held by a group cannot be termed a human right. However, not all collective or third-generation rights are in fact rights. The right of peoples to peace seems indeterminate. The holders of the rights are identifiable, but it is not clear upon whom the obligation lies and what duties are owed.

Human Rights The line between what human rights are and what are not is more than academic. However the answer depends upon one’s perception of what constitutes a human right. For some it is all civil and political rights. For others, the economic and social rights could be included on a basic needs basis. Identification and Articulation of the Right Customary international law has had a role to play in this. There is an interplay between the standard-setting UN Declaration on HR and its acceptance in many national constitutions and before may courts. The greatest push in the formulation of human rights has been through the treaty process. The international covenants on Civil and Political Rights and on Economic, Social, and Cultural Rights provide instruments that deal with comprehensive range of rights on a universal basis. The idea is that rights may be formulated on a basis that will allow command confidence in the region, and that in turn will allow effective enforcement measures. The universal and regional instruments have been supplemented by universal instruments directed towards the elaboration of single rights. UN Commission on Human Rights The Commission is a body specifically mandated to deal with human rights questions. It is political, in that those who serve on it are representatives of states, but together with the Subcommittee on Non-Discrimination and Minorities, it has laid down some important methods and procedures. It has also made significant contributions to fact finding through the establishment of special rapporteurs. Human Rights Committee The HRC has considerable experience of state reporting and of hearing cases. States are required to submit reports.

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The Committee has the right to call for further reports. State parties attend an examination of their reports. The examination proves to be a useful means of monitoring compliance and encouraging progress. Committee members will prove as to what is said in the reports, what is missing, and what is known from other sources. At the end of the examination, Committee members will offer comments on how they find the state of human rights in the country concerned. The Committee has also considerable jurisprudence under its case law. It has also recently introduced certain procedures in order to better follow-up on compliance with its case law.

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The establishment of the International Tribunal falls squarely within the powers of the Security Council under Chapter VII, Article 41 of the UN Charter. The International Tribunal has been established in accordance with the rule of law. The fair trial guarantees in Article 14 of the International Covenant on Civil and Political Rights have been adopted almost verbatim in Article 21 of the Statute. Other fair trial guarantees appear in the Statute and the Rules of Procedure and Evidence. The International Tribunal has primacy over national courts. The International Tribunal has subject-matter jurisdiction over the current case.

DIZON v. COMMANDING GENERAL

B. International Criminal Law LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS (ADVISORY OPINION) ICJ Reports 1996, p.226 (1996), supra.

(For an exhaustive discussion, refer to p. 12)

PROSECUTOR v. TADIĆ (IN THE APPEALS CHAMBER) ICTY Judgment of 15 July 1999

(*Note: this judgment was rendered four years after the from the 1995 Prosecutor v. Tadid decision *supra., p. 17].) Tadid was the first to be tried by the International Criminal Tribunal for the Former Yugoslavia (ICTY). He was tried for war crimes and was accused of committing atrocities at the Serb-run Omarska concentration camp in BosniaHerzegovina in 1992. Trial Chamber II of the ICTY denied Appellant's motion challenging its jurisdiction. Appellant had launched a three-pronged attack: (a) illegal foundation of the International Tribunal; (b) wrongful primacy of the International Tribunal over national courts; and (c) lack of jurisdiction ratione materiae. The ICTY was duly constituted under Chapter VII of the UN Charter. The important consideration in determining whether a tribunal has been “established by law” is not whether it was pre-established or established for a specific purpose or situation. What is important is that it be set up by a competent organ in keeping with the relevant legal procedures, and should that it observes the requirements of procedural fairness. The International Tribunal is empowered to pronounce upon the plea challenging the legality of the establishment of the International Tribunal.

81 Phil. 286 (1948)

An Agreement was concluded between the Philippines and the US whereby the US was authorized to occupy and use certain Philippine territory as military bases and to exercise jurisdiction over certain offenses committed within and outside the bases. Dizon allegedly committed an offense at the main storage area at one of the bases. He was prosecuted in and convicted by a General Court Martial appointed by the Commanding General of the Philippine Ryukus Command of the U.S. Army, and accordingly sentenced to confinement and hard labor for five years. Dizon filed a petition for habeas corpus, contending that the General Court Martial had no jurisdiction over the alleged offense, as it was committed not in a U.S. base, as defined by the Agreement. Alternatively, even if the offense was committed in a base, the Agreement is unconstitutional because it deprives the Philippine courts of jurisdiction over all offenses exclusively vested in them by the Constitution. Art. XIII of the Agreement stipulates that the Philippines consents that the United States shall have the right to exercise jurisdiction over any offense committed by any person within any base except where the offender and offended parties are both Philippine citizens (not members of the armed forces of the United States on active duty) or the offense is against the security of the Philippines." The case not falling under any of the two exceptions, the offense falls under the jurisdiction of the U.S. Generally accepted principles of international law are adopted as part of Philippine law. 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. Likewise, if bases may be validly granted to the U.S. under the Constitution, there is no plausible reason while the lesser attribute of the jurisdiction cannot be waived.

GUANTANAMO DETAINEES CASES

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Following the September 11 attacks, the assumption of the Bush Administration was that international terrorism presented a legal tabula rasa. IHL could not have been applicable given that the opposite belligerent was not a state, nor an armed group brandishing their weapons publicly. Its armed campaign against terrorism led to the arrest and subsequent detention of hundreds of suspected Taliban and al Qaeda elements. Their detention has been characterized as violative of IHL, such that they have been subjected to criminal treatment, and deprived of rights that should be accorded to prisoners of war. The following cases revolve around the question of the eligibility of detainees to avail themselves of US habeas corpus statutes in their attempt of seeking a review of their status as detainees. (These cases are chronologically arranged, and are meant to be understood as a line of decisions following a singular sequence of events. These represent a tit-for-tat interaction between the US Government and the US Supreme Court with respect to the rights of detainees.)

Base, and may continue to do so permanently if it chooses. Considering that §2241 draws no distinction between Americans and aliens held in federal custody, there is little reason to think that Congress intended the statute’s geographical coverage to vary depending on the detainee’s citizenship. This ruling allowed lower courts to review the designation of Guantanamo Bay prisoners as “enemy combatants” and determine if they are entitled to prisoner-of-war status. Also, pending such review, they should be accorded the rights of prisoners-of-war under the IHL. The response of the Bush administration to this ruling was to pass the Detainee Treatment Act of 2005 – a law divesting federal courts of jurisdiction to hear challenges by Guantanamo detainees based on their treatment or living conditions, and eliminated federal courts’ jurisdiction to consider habeas corpus claims by aliens challenging their detention at Guantanamo. CLASS NOTES

HAMDI v. RUMSFELD 542 U.S. 507 (2004)

RASUL v. BUSH 542 U.S. 466 (2004)

Four individuals, British and Australian nationals, were detained by the US military in Pakistan and Afghanistan as a result of the War on Terror. The detainees were taken to Guantanamo Bay military base in Cuba. Their families sued the government in federal district court seeking a writ of habeas corpus that would invalidate their detention. They argued that the denial of the rights was tantamount to violation of the Due Process Clause. The government argued that the federal courts lacked jurisdiction to hear the matter because the prisoners were not American citizens, and they were not being held in the United States, but in Cuba, where the U.S. did not maintain sovereignty. The District Court has jurisdiction to hear petitioners’ habeas challenges, which authorizes district courts, within their respective jurisdictions, to entertain habeas applications by persons claiming to be held in custody in violation of the laws of the United States. Such jurisdiction extends to aliens held in a territory over which the United States exercises plenary and exclusive jurisdiction, but not “ultimate sovereignty.”

Petitioner Hamdi, an American citizen whom the Government has classified as an “enemy combatant”, for allegedly taking up arms with the Taliban during the conflict, was captured in Afghanistan and was detained. Hamdi filed for a writ of habeas corpus. He asserted that he went to Afghanistan to do “relief work” less than two months before September 11 and could not have received military training. In an opinion backed by a four-justice plurality and partly joined by two additional justices, Justice O'Connor wrote that although Congress authorized Hamdi's detention through its Authorization for use of Military Force (AUMF) in response to the 9/11 attacks, Fifth Amendment due process guarantees give a citizen held in the United States as an enemy combatant the right to contest that detention before a neutral decision-maker. The plurality also rejected the government's argument that the separation-of-powers prevents the judiciary from hearing Hamdi's challenge.

HAMDAN v. RUMSFELD The presumption, that legislation is presumed not to have extraterritorial application, is not applicable to habeas statute with respect to persons detained within the US territorial jurisdiction. By the express terms of its agreements with Cuba, the United States exercises complete jurisdiction and control over the Guantanamo

548 U.S. 557 (2006)

In this ruling, the Court interpreted the provisions of the Detainee Treatment Act of 2005 as being inapplicable to habeas cases pending at the time the DTA was enacted.

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Also, it ruled that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949.” As a result, Congress passed the Military Commissions Act of 2006, which amended the federal habeas statute to expressly eliminate court jurisdiction over all pending and future causes of action, other than pursuant to the limited review permitted under the DTA. CLASS NOTES

BOUMEDIENE v. BUSH 553 U.S. 723 (2008)

This is a submission made in a civilian court of the United States on behalf of Lakhdar Boumediene, a naturalized citizen of Bosnia and Herzegovina, held in military detention by the United States at the Guantanamo Bay detention camps in Cuba. Petitioners designated as enemy combatants are entitled to seek the writ of habeas corpus. Court held that the prisoners had a right to habeas corpus under the United States Constitution, and that the Military Commissions Act of 2006 was an unconstitutional suspension of that right While the Detainee Treatment Act of 2005 provides procedures for review of the detainees’ status, these procedures are not an adequate and effective substitute for habeas corpus. Therefore Section 7 of the Military Commissions Act of 2006, operates as an unconstitutional suspension of the writ. The immediate impact of the Boumediene decision is that detainees at Guantanamo may petition a federal district court for habeas review of the circumstances of their detention. CLASS NOTES

C. Foreign Investments Natural Resources

and

HIGGINS, CHAPTER 8: NATURAL RESOURCES AND INTERNATIONAL NORMS

The approach to studying the international law of natural resources is not singular. It is most conveniently done based on specific resources or categories of natural resources being analyzed. This is because not only the answers, but also the questions that is necessary to ask, will depend upon the specific resource being studied. In this chapter, three examples were taken to illustrate this point: the mineral resources of the deep sea-bed; water, including water as it is carried along by the great international rivers; and petroleum found on the shore, beneath a state’s territorial waters, or on its continental shelf. The Resources of the Deep Sea-Bed From the earliest days of international law there was developed the idea of the freedom of the high seas. This was first codified in the UN Convention on the High Seas of 1958. Freedom of the high seas is firmly established in customary international law and this also entailed a freedom to remove the resources that were found in those waters. Indeed, fishing on the high seas required no one’s permission because no one had title over the high seas (treated as res nullius). However, the matter became complicated upon the discovery of other resources (mineral resources, manganese, cobalt, nickel, etc.) beneath the waters. The question arose as to how these newly discovered resources were to be exploited. In response, the Government of Malta introduced to the UN in 1967 the important concept of deep sea-bed resources as being ‘common heritage of mankind’. This was different from the res nullius treatment of fish in the high seas in that a resource termed a ‘common heritage’ in principle could be exploited by anyone – but only with the permission of the world community an upon such conditions as the institutions representing that community would lay down. This difference in regime in treating different resources is compelled by many economic and political considerations. While the 1982 UNCLOS was not yet in force at the time this chapter was written, the author already noted that the notion of ‘common heritage of mankind’ was by that time an emerging norm due to repeated invocations before various organs, repetition in the texts of various instruments, and analysis by scholarly writing. However, while the UNCLOS remained unenforced, various questions were still raised as to how deep sea-bed resources were to be exploited. One such question is WON it was really unlawful under general international law for a state to unilaterally attempt to exploit deep seabed resources. If one applied the test offered by Professor Dupuy in the BP-Texaco Case, where the UN resolutions had to have the support of the major actors in the practice in question (i.e. the capital-investing countries), the case would not seem to be made for the ‘common heritage of mankind’ to be regarded as a compulsory norm. However, according to the author, the BP-Texaco Case is not squarely at point as the support for the common-heritage

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approach was evidenced by the text of a negotiated treaty which was supported by a great majority of UN members many of which are of industrialized governments. Still, the issues revolving the ‘common-heritage approach’ are still far from being resolved. These key issues largely concern questions of jurisdiction and law development. Water as a Resource International rivers carry water – the most important of all resources, providing the basis for life and sustenance, as well as sources of energy – through the territories of two or more states. Essential as the aforementioned resource is, it has also been the topic of many controversies especially relating to who exercises control over rivers that pass through several state jurisdictions. While the issues surrounding control over international rivers have remained complicated, certain key principles have emerged:  A state does indeed have sovereignty over the water resource in its own territory – but within the limits of what is permitted by international law.  International law requires that, in the exercise of sovereignty, regard must be had to legitimate interests of other users of the water,  Legitimate interest is defined as an equitable share in the beneficial use of the resource.  In identifying ‘beneficial use’ reference may be had on various international instruments which will lead to the following questions that must be answered: o What is the purpose of the use? Is it to provide drinking water; or irrigation; or an energy source; or is it recreational? o Is the particular use to be provided for in a wasteful or conserving way? Has there been past waste of this precious resource? o Are there alternative water resources elsewhere in the country, or is said country solely or primarily dependent on the proposed use of the particular stretch of the international river. Accordingly, the answers to all the aforementioned questions will have to be compared, in a given case, with the same questions asked of a competing user of the resource. Petroleum Deposits The context of international law in relation to petroleum is also different. Although there may well be petroleum deposits beneath the deep sea-bed, it has so far proved neither necessary nor attractive to seek to recover these. Virtually all known commercial petroleum deposits are either on-shore or under territorial waters (and clearly within state territory), or in the continental shelf (asserted jurisdiction for the purpose of resources exploitation is

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rapidly becoming a permissive rule under customary international law and adopted in the 1958 Geneva Convention on the Continental Shelf). It is important to note that petroleum reserves beneath the continental shelf are different from those beneath a desert in the interior of a state. While there is clear sovereignty over all of one’s land mass, the coastal state has sovereign jurisdiction over the continental shelf only for purposes of the exploration and exploitation of resources. In short, it merely exercises functional sovereignty as can be gleaned from the Continental Shelf Conventions of 1958 and 1982. The legal implications of this distinction are as follows:  States have had to take care that any legislation they pass which purports to have an application on the shelf (criminal legislation, civil legislation, and tax legislation) is limited to matters relating to the exploration and exploitation of shelf resources.  While on-shore mineral resources have been vested in the state (making it clear that it owns them), there is no right of ownership in the resources in situ in the continental shelf. The state may grant licenses for the purpose of exploring and exploiting resources in the continental shelf, but it does not itself own the petroleum. Since the government that grants the licenses do not have title to the petroleum, it follows that the license grantee also does not have title. It gets, instead, an entitlement to explore and exploit (which action would otherwise be illegal) and to reduce into possession. It is the actual reduction to possession that gives the licensee title. There are also problems that have emerged in relation to state intervention. From the perspective of the foreign investor, it can be summarized as follows:  How can he be sure that, given the vast investment he will be required to make, he will be allowed to reap the benefits of his investment and work effort, and that the rewards will not be taken from his just as his fulfillment of the contract terms begins to bear fruit? From the perspective of the host government, the problem can be summarized as follows:  How can any arrangement entered into with a foreign oil company in respect of what is, all said and done, one’s own natural resource, remain flexible enough so that one is not locked into terms that over a long period turn out to bear little relationship to changing market conditions?  How can one ensure that, notwithstanding contractual arrangements with the foreign investor, concerns for health, safety, regulatory standards, etc. of the government are met?

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However, the author once again points out that there is no easy way to resolve these questions. As a preliminary matter, it is important first to determine WON international law or national law will be applicable in answering these questions. A survey of various arbitral cases while varied in results, provide the following views: whether there is only a domestic-law-proper law clause; or whether there is a ‘mixed’ international law and domestic law clause, international arbitrators are very likely to find international law relevant. If international law will be applied, several considerations should be emphasized: first, states have a very special position in regard to their own resources; second, nationalizations (of exploitation and exploration etc.) do require compensation, and will only be lawful if they are not discriminatory and serve a public purpose; and third, the concept of permanent sovereignty over natural resources does not leave a state free to ignore contracts it has voluntarily entered into.

KARICHI REVIEWER (2010): BASIC FOREIGN INVESTMENTS LAW (Note: This section has been lifted in toto from the Karichi Reviewer [2010] since the subject matter of this subsection was no longer discussed in class. – Ed.) Expropriation Law As one of the most dynamic fields of international commercial law today, foreign investment law has undergone a rapid evolution in state practice within the recent past. There are many centers of controversy within the larger field of foreign investment law, but arguably the most contentious issue remains that of expropriation. The context of international expropriation rules is: the home state (where the investment is located) expropriates the rights of ownership of the investor state (who introduced the investment and to whom such investment belongs) who, as an alien, may rely on international law for the standard of treatment that should be accorded to it. We must remember that expropriation, although recognized as one of the inherent attributes of sovereignty, assumes an international and therefore more complex dimension when exercised against foreign property because (1) the investor state, being a subject of a foreign state, cannot be deemed to have been completely subsumed under the authority and sovereignty of the home state by virtue merely of their contractual relations (2) the relationship of home and investor states are clearly defined under an investment contract which, according to its verbiage, may or may not make reference to international law in cases of conflict, in the former case the ideally absolute exercise of the home state’s sovereignty becomes limited to a certain extent by the standards of international law. In navigating through the turbulent waters of expropriation rules, one

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may be guided by the following principles which, to date, may be said to govern foreign investment law: 1. The norm remains to be the harmonization of all sources of legal obligations. One party to an investment contract cannot therefore renege on the duties it voluntarily assumed on the pretext of complying with a duty or exercising a right if the source of such duty or right comes into conflict with the obligations laid down in the investment contract and/ or customary law. The home state is therefore not allowed to unilaterally revoke investment agreements on the basis of its absolute sovereignty over its natural resources, because such exercise of sovereignty must as much as possible be consonant with the duty to comply with obligations validly entered into. 2. If harmonization is not possible, the norm remains to be the expropriability of every property. Although investment contracts must be complied with in good faith, all states recognize the validity of the exercise of a home state of its prerogative to expropriate. The home state can therefore take foreign property, and there are no established absolute exceptions to this rule (meaning there are no cases wherein the home state can be said to be absolutely barred or precluded from expropriating). The only difference lies in the legal consequence of every act of taking, which would depend on whether the taking was lawful or not, or whether the parties expressly provided in the investment contract for the processes to be complied with during such expropriatory acts. 3. For every act of expropriation, the norm remains to be the compensability of every act of taking. If the home state takes, it is bound to pay. This is the prevailing rule in current state practice and opinion juris. The home state may exercise its prerogative to expropriate, but it cannot do so without compensating the investor state or at least reinstating the status quo ante (meaning the considerations paid for and benefits received under the contract would be restored to the respective parties). The duty to pay compensation may take various forms. It may be (1) a necessary legal consequence of the expropriatory act, as provided expressly in the investment contract (2) a necessary legal consequence of the expropriatory act, in accordance with customary law (3) an alternative form of extinguishment of a legal obligation (instead of performing the obligations under the contract, the home state chooses to reinstate the status quo ante by giving back, as compensation, the consideration for the contract plus other incidental adjustments), or (4) in the form of punitive damages, where the taking was adjudged to be unlawful, in which case the contract may be enforced or, if performance is already impossible, the home state may be required to pay compensation in an amount that would approximate the value of the property taken and the damage caused by the unlawful taking. The fact that compensation must be paid is generally accepted as a

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norm; the only point of contention is the QUANTUM of such compensation. How much should be paid is often a subject of debate and there is as yet no fixed rule in determining the value of compensation that must be paid. In practice, however, what the home state pays the investor would usually be a matter of negotiation and conditioned upon the financial circumstances of the home state. There are some cases where the norm of compensability is believed to be inapplicable, although such exemptions are found in the writings of publicists and no authoritative decision has yet been rendered recognizing these exemptions as such. The examples are the taxing power of the state, regulatory takings, and police powers. 4. In any case, the norm remains to be enforceability of every international legal obligation, regardless of the source. The investment contract may be primarily the law between the parties. However, by virtue of the fact that investment agreements are often concluded between states or between private entities pursuant to a trade agreement concluded by their respective states, international legal obligations would inevitably come into play. As such, from the time the investor state introduces the foreign property into the home state’s territory, both would have to be guided by the obligations which both are bound to under international law. As a consequence, the home state cannot be permitted to undertake an expropriation in such manner as to be violative of other international legal obligations like (1) the duty to observe pacta sunt servanda under customary law (2) the duty to accord foreign investors with the international minimum standard of treatment under customary law(3) the duty to expropriate for a public purpose, on a non-discriminatory basis, and with4payment of just compensation under customary law, or (4) the duty to observe elementary rules of contractual relations as embodied in general principles of law relating to contracts. In dealing with the issue of expropriation, one must be guided by basic UN texts touching on expropriation: ARTICLE 4 Nationalization, expropriation or requisitioning shall be based on grounds or reasons of public utility, security or the national interest which are recognized as overriding purely individual or private interests, both domestic and foreign. In such cases the owner shall be paid appropriate compensation, in accordance with the rules in force in the State taking such measures in the exercise of its sovereignty and in accordance with international law. ARTICLE 8 Foreign investment agreements freely entered into by or between sovereign States shall be observed in good faith; States and international organizations shall strictly and conscientiously respect the

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sovereignty of peoples and nations over their natural wealth and resources in accordance with the Charter and the principles set forth in the present resolution.

---United Nations Resolution on Permanent Sovereignty over Natural Resources Adopted by the United Nations General Assembly, 14 December 1962 ARTICLE 2, Par. 2, Subpar. C To nationalize, expropriate or transfer ownership of foreign property, in which case appropriate compensation should be paid by the State adopting such measures, taking into account its relevant laws and regulations and all circumstances that the State considers pertinent. In any case where the question of compensation gives rise to a controversy, it shall be settled under the domestic law of the nationalizing State and by its tribunals, unless it is freely and mutually agreed by all States concerned that other peaceful means be sought on the basis of the sovereign equality of States and in accordance with the principle of free choice of means. ---Charter of Economic Rights and Duties of States GA Res. 3281(xxix), UN GAOR, 29th Sess., Supp. No. 31 (1974) 50 As Harris notes, the Charter has not attained the status of custom because developed states have effectively mounted a resistance to the clause which does not require a public purpose precondition to expropriation. The same is true with the Declaration on the Establishment of the New International Economic Order, another UN GA Resolution backed by developing countries, which was overridden, according to Walde, by the historical inclination towards market liberalism. The formula of developing states, according to him, was simply incompatible with the tendency towards promotion of foreign investment, the latter requiring adequate and stable protections as an inducement to risk-averse foreign investors. The following survey of case law on expropriation represents the views taken by international tribunals in interpreting the different operative terms of the aforequoted texts. ---

TEXACO v. LIBYA 53 ILR 389 (1978), supra.

In 1973 and 1974, the Libyan government pursuant to several legislations decided to nationalize the properties of two American companies which were granted concession contracts to exploit and extract oil. As a result, the properties, rights, and assets of the oil companies were appropriated by the Libyan Government and were to be transferred to the Libyan National Oil Company. The two oil companies, Topco and Calasiatic, wanted to submit the

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matter to international arbitration which the Libyan Government opposed. However, the ICJ, upon the request of the oil companies, appointed a sole arbitrator to resolve the matter. The contention centers on the following clauses in the concession contracts: (1) STABILIZATION CLAUSE – provides that the contractual rights expressly created by the concession shall not be altered except by mutual consent of the parties, and (2 GOVERNING LAW CLAUSE - provides that the concession shall be governed and interpreted in accordance with the principles of the law of Libya common to the principles of international law, and in the absence of such common principles, then by and in accordance with the general principles of law including those which have been applied by international tribunals. In sum, the appointed sole arbitrator Dupuy had to determine whether Libya failed to perform its obligations under the concession contracts entered into with the oil companies by pursuing its nationalization measures and which law to apply in determining the various rights and obligations of the parties. Libya failed to perform its obligations under the Deeds of Concession by adopting nationalization measures. The arbitrator first determined that the standards of international law applied in this case. He found that that the very fact that there was to be international arbitration ‘internationalized’ the contract, making it inevitable that international law would have a role to play. This also meant that the case would be taken out of the ambit of domestic law. Dupuy reasoned that this had to be the case because a foreign investor would be nervous to put himself solely at the mercy of a domestic law, which definitionally a government would be able to change; and that sole reliance on domestic law was avoided by ensuring that the case went to international arbitration. Internationalization of contracts therefore results in the protection of investors against the risks of contractual modification or abrogation resulting from changes in municipal laws or governmental measures. Dupuy then ruled that by unilaterally nationalizing the assets of the oil companies, Libya has breached its obligations under the concession contracts which logically gave rise to a cause of action in favor of the oil companies. According to him, although the right of the State to nationalize is recognized as an expression of the State’s sovereignty, the same is not an absolute recognition. There are limits to such sovereignty, such as when a contract is internationalized which meant that the agreement will also carry international consequences. The arbitrator found that there is no established state practice of disregarding international commitments in favor of nationalization. Thus, if a state bound itself to a contract

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which is international in character and burdened with stabilization clauses, such state is deemed to have waived its prerogative to expropriate contrary to the terms of such contract. In this case, since the expropriation was deemed to have been contrary to the stabilization clause of an internationalized contract, it was set aside and the oil companies were awarded a remedy of restituto in interregnum (restoration to the original state) which called for a performance of the terms of the deeds of concession (to allow the oil companies to extract oil, etc.).

BRITISH PETROLEUM v. LIBYA 53 ILR 297 (1978), supra.

British Petroleum Exploration had a contract with the Libyan Government to extract, process and export oil in an area called Concession 65 in the heart of the Sarir desert. However, in 1971, Libya passed the BP Nationalization Law which restored ownership of all properties, rights, assets and shares to the state and transferred them to the Arabian Gulf Exploration Company. Accordingly, the nationalization was undertaken by Libya as a reaction to the British Government’s failure to react to Iran’s occupation of three islands in the Gulf which were under British protection. The Libyan government apparently blamed Britain for the loss of the islands. Under the nationalization law passed by Libya, the State should pay compensation to BP Exploration which was to be determined by a committee established by the Minister of Petroleum. However, due to delays in the determination of the matter of compensation, the nationalization law already took effect without the issue being resolved. As a result, BP Exploration’s were brought to a complete halt and their staff were immediately excluded from the premises as Arabian Gulf Exploration Company took over Concession 65. Similar to the Texaco case, the concession contract in this case also contained a governing law clause which says that Libyan law would be applicable only to the extent that it coincides with international law. The arbitrator in this case had to determine: 1. WON the injured party to a concession agreement has the right to deem the contract as valid and enforceable even after the alleged wrongful exploration, and 2. WON the injured party may claim reparations in the form of specific performance or restitutio in interregnum. Libya breached its obligation to BP Exploration by expropriating the latter’s properties. However, BP Exploration was entitled only to damages and to specific performance and restitutio in interregnum.

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According to the arbitrator, as a general rule under international law, the wrongful breach of contract would entitle the injured party to terminate the contract at its option. This means that until and unless such injured party elects to do so, the contract should be deemed as valid and binding and it can compel the other party to continue performing its obligations under it. However, this is not applicable, as in this case, where the other (expropriating party) is a sovereign state. Thus, the right to deem the contract as continuing to be binding and the consequent right to demand restitutio in interegnum is not available to BP exploration under international law. This recognizes the almost plenary power of the home state to expropriate and that the home state cannot be precluded under international law to expropriate when it wishes to. Thus, the home state may expropriate when it desires to, and even if it does so in breach of contract, the home state cannot be compelled to reinstate the operability of the contract (restitutio in interegnum), at most, it can only be compelled to pay damages. In the end, the arbitrator did indeed order the Libyan government to pay damages. Note: The circumstances under which the expropriation took place in this case constitute one of the first instances where an arbitral court classified state actions as (1) in breach of obligations, (2) discriminatory, and (3) confiscatory. This is because the expropriation was apparently motivated by extraneous political reasons and BP Exploration’s Concession 65 was singled out. The wrongfulness of the expropriatory act is important to establish because this would determine the quantum of compensation that would be awarded to the injured party.

SAUDI ARABIA v. ARABIAN AMERICAN OIL COMPANY (ARAMCO) 27 ILR 117, supra.

This case involved the arbitration relating to the interpretation of a concession agreement made in 1933 between the Government of the State of Saudi Arabia and the Arabian American Oil Company (ARAMCO). The controversy arose when the Government of Saudi Arabia concluded another concession agreement with Mr. Onassis and his company Saudi Arabian Maritime Tankers Ltd. in 1954 wherein the aforementioned company was given a 30 year “right of priority” for the transport of Saudi oil. This right came into conflict with the agreement with ARAMCO wherein it was also given the exclusive right to transport oil which it had extracted from its concession in Saudi Arabia. ARAMCO was justified in resisting any infringement of the rights granted to it under the concession as the agreement revealed its exclusive right to transport oil. In interpreting the concession agreement, the arbitrator did not rely on Saudi Arabian law alone. Accordingly, the

interpretation of juridical acts is not made according to the same methods as the interpretation of statutes, for it does not aim merely at specifying the meaning of general and abstract principles laid down by the legislator, but ascertaining what was the common intention of the parties at the time the agreement was signed. The tribunal rejected Saudi Arabia’s claim that ARAMCO’s right to transport only included that from the site of extraction to the refinery. According to it, the parties cannot have intended such a limited meaning of the word ‘transport’. One of the modalities of oil development consists in sending crude oil abroad, to consuming countries, where it is refined outside of Saudi Arabia; in such a case, the term ‘transport’ necessarily implies sending oil abroad, wither by land or by sea. The terms in the agreement must be understood in their plain, ordinary, and usual sense, which is the sense accepted by the oil industry. The tribunal further explained that this right to transport extended to maritime transportation. The arbitral tribunal also rejected Saudi Arabia’s contention that for the sole reason that a State is a party to a contract with a private person, the rights of the latter must be interpreted restrictively. The rights of the parties must be evaluated in a spirit of complete equality. This is because the rights of one party are increased as a result of restrictive interpretation to the extent that the rights of the other party are restricted. It is only when the exact meaning of such a contract is impossible to determine that the interpretation most favorable to the freedom of the State may be adopted. Restrictive interpretation may only be justified when the sovereign rights invoked by the State concern interests of a general nature which cannot be defended otherwise than by disregarding the doubtful clauses of a contract. In relation to the conflict of rights between ARAMCO and Mr. Onassis, the tribunal said that the principle of respect for acquired rights is one of the fundamental principles both of public international law and of the municipal law of most civilized States. Valid contracts bind both parties and must be performed, for rights resulting from agreements concluded for due consideration are absolutely secure; when one party has granted certain rights to the other contracting party, it can no longer dispose of the same rights, totally or partially, in favor of another party.

THE FACTORY AT CHORZOW (GERMANY v. POLAND) 1928 PCIJ (ser. A) No. 17 (1928)

This was a suit for reparation against Poland by Germany instituted before the PCIJ for Poland’s taking possession of a nitrate factory in Chorzow, Upper Silesia which resulted in damage to two German-controlled companies. The taking was done in violation of Article 6 of the Geneva Convention which was a convention entered into by the two states. Germany brought action in behalf of the

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companies against Poland for the taking of the companies in violation of the Geneva Conventions. Poland’s acts were made in violation of a treaty (Geneva Convention between the parties) and were therefore wrongful under international law entitling Germany to compensation. In this case, it was held that the reparation of a wrong may consist in an indemnity corresponding to damages which the nationals of the injured state have suffered as a result of the act which is contrary to international law (Germany in this case). Reparation is the indispensible complement of a failure to apply a convention. Also, the taking of property requires compensation. The ruling of the court in this case also provided for the quantum of compensation required to be paid in cases of wrongful takings by the home state, also known as the CHORZOW STANDARD in international law. The Chorzow Standard provides that the essential principle contained in the actual notion of an illegal act is that reparation must, as far as possible, wipeout 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. The principles which should serve to determine the amount of compensation due for an act contrary to international law are as follows: 1. Restitution in kind, or if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; 2. Award of damages for loss sustained which would not be covered by restitution in kind or payment in place of it. General principle of law: reparation for the taking of property requires compensation. Reparation is due when there is a breach of obligation.

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remedial award, as in the BP Exploration v. Libya case. The continuing validity of this assertion is still a matter of debate, and of course, although investor states do settle in time to mere payment of compensation, it never hurts to have the Chorzow Standard as the starting point of every negotiation as far as the investor state is concerned.” (Karichi Notes, 2010) CLASS NOTES

LIAMCO v. LIBYAN ARAB REPUBLIC 62 ILR 140

In 1973 and 1974, Libya nationalized both LIAMCO’s rights under their concession agreements and the latter’s oil drilling equipment. Due to unsuccessful negotiations regarding compensation, LIAMCO rejected the terms of the nationalization and initiated proceedings under the arbitration clause. The sole arbitrator Mahmassani was appointed and he was tasked to determine whether Libya was in breach of its obligation by pursuing its nationalization program and consequently, damages etc. were due to LIAMCO. Libya acted lawfully acted when it nationalized LIAMCO’s concession rights before the expiration of the term. However, compensation must be duly paid to LIAMCO. The arbitrator made it clear that the concessions were both contractual obligations and incorporeal property. On the one hand, sanctity of contract is an integral part both of international law and Islamic law. On the other hand, the dominant trend of international opinion allowed states substantial rights over their natural resources.

Where an expropriation is legal, the amount of the reparation is the logistical value of the property taken at the time of the expropriation. However, where there is an unlawful taking, the amount of reparation includes the intangible assets (loss of profits). (Karichi Notes, citing Prof. Roque, 2010)

Unlike in the cases above (Texaco v. Libya, etc.), Mahmassani took separately the remedies for premature termination of contract and for the taking of property by nationalization. In fully accepting that the nationalization required compensation, he readily found that the damages should include, as a minimum, the damnum emergens, which he described as ‘the value of the nationalized corporeal property including all assets, installations, and various expenses incurred.

“The Chorzow Standard is often invoked by investor states to justify their claims of compensation because it is sufficiently vague as to evade exact quantification but sufficiently liberal and inclined towards investors’ interests as to be adequately justificatory of claims of full compensation (“full” meaning nearly everything the value of the property, forgone profits, future profits, incidental expenses, committed profits, and damages). However, the Chorzow Standard does contemplate restitutio in interegnum as a remedy for unlawful expropriations, contrary to subsequent arbitral decisions precluding the propriety of any such

As to the more controversial question of whether the compensation due should also include lucrum cessans or the loss of profits, he felt that the answer would depend on whether the taking was lawful or not, and that lucrum cessans might be payable if the nationalization was unlawful. However, since the evolution of international law meant that states had the sovereign right to nationalize their natural resources, he concluded that it is lawful for Libya to nationalize concession rights before the expiry of the concession term, provided that the measure be not discriminatory nor in breach of treaty, and provided that compensation be duly paid.

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As to the question of lucrum cessans for a lawful nationalization, Mahmassani found the primary applicable law (international law or Libyan law) unclear on the point, and resorted to the formula of ‘equitable compensation’ by reference to which claims of lucrum cessans were in effect excluded.

STARETT HOUSING CORPORATION v. IRAN 4 Iran-US Claims Report (1983), supra.

In 1974, Starett, operating through its Iranian subsidiary company Shah Goli, entered into an agreement with the Bank of Omran (Iranian development bank) to buy land in Tehran and build houses upon it. The project initially proceeded on schedule, however, due to 1979 revolution in the area, Shah Goli’s American and other foreign personnel withdrew from the project. This event, coupled with general revolutionary disruption and government intervention (i.e. making Shah Goli forgo contractual payments and freezing of its bank accounts), caused the project to fall behind schedule and Shah Goli to be in financial difficulties. In January 1980, Iran’s Ministry of Housing placed Shah Goli under the control of a temporary manager. Starett filed a suit for compensation, alleging that the acts of the Iranian Government constitute an expropriation of its property rights under the contract. The acts of the Iranian government constituted expropriation despite the fact that no law was passed to that effect and that no physical taking of property took place. According to this landmark ruling in foreign investment law, the concept of ‘indirect expropriation’ should be recognized. This is synonymous with ‘virtual expropriation’, ‘effective expropriation’, or ‘act tantamount or equivalent to expropriation’. The tribunal recognized in this case that while strictly speaking, no expropriation took place because no law was passed by Iran expropriating the assets of Starett (unlike in the cases of Texaco, BP Exploration, and LIAMCO). However, it ruled that it is recognized in international law that measures taken by a State can interfere with property rights to such an extent that these rights are rendered so useless that they must be deemed to have been expropriated, even though a the State does not purport to have expropriated them and the legal title to the property formally remains with the original owner. In this case, the interference of the Iranian government led to the bankruptcy and placement under receivership of Shah Goli. By doing so, Iran has effectively taken the property rights of Starett in the housing project and deprived it of its reasonable expectations as an investor. To reiterate, expropriation does not need a law to be deemed as such. Any act that would result in the

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deprivation of ownership rights and therefore effect an indirect or virtual taking would be classified as expropriation nonetheless. The tribunal in this case also departed from the view established in the LIAMCO case when it held that contractual rights are deemed property for purposes of expropriation law. According to the ruling in this case, measures of expropriation or taking, primarily aimed at physical property, have been deemed to comprise also rights of a contractual nature closely related to the physical property. Such contractual rights include intangible assets as management rights, legitimate investment-backed expectations in the completion of the venture, and right to proceeds. In sum, expropriation may be direct or indirect, and that it may be undertaken through the literal taking of a physical asset, or through a deprivation of ownership rights closely related to a physical property.

KUWAIT v. AMINOIL 66 ILR 518.

Aminoil is an American oil company which was granted a concession by Kuwait. However, Kuwait passed a Decree which terminated the agreement with Aminoil before its expiry and transferred the concession to the government itself. AMINOIL:

Kuwait:

It questions the legality of the termination relying on the stabilization clauses of the contract which prohibit a nationalization of the oil venture:  Article 17: “no alternation shall be made in terms of this Agreement except in the event of the Sheikh and the Company jointly agreeing that it is desirable in the interest of both parties to make certain alterations, deletions or additions.  Article 11 (B): “save as aforestated, this Agreement shall not be terminated before the expiration of the period specified…except by surrender as provided in Article 12 or if the Company shall be in default under the arbitration provisions of Article 18.  The State invoked the principle of sovereignty over natural resources, which according to it is an imperative rule of jus cogens. This principle prohibits States from giving guarantees against the exercise of the public authority over natural resources.

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Kuwait’s expropriation was not unlawful. Aminoil must be compensated by Kuwait.

However,

Unlike arbitrator Dupuy’s ruling in the Texaco v. Libya case, the arbitral court here expressly reiterated that there is no rule in international law that absolutely precludes a home state from expropriating. The only limitations (and not absolute exceptions) to this rule are three-fold: a. It is for a serious undertaking; b. It is expressly stipulated for; c. It covers a limited period. In short, a home state may validly waive its expropriatory prerogative only for a limited period of time such that it cannot be perpetual, only upon serious undertakings (other investments of a smaller scale may be expropriated more expeditiously), and in any case such limitations must be embodied in a contract. The expropriatory power of the state is the general rule, and therefore any limitations to its exercise cannot be implied. In considering legal consequences of an expropriatory act, consideration must be given to whether the investor has been adequately protected by express provisions of the contract relating to compensation. The compensability of an expropriatory act strongly militates against the presumption that the home state can take property without necessary legal consequences in the exercise of its sovereignty. In interpreting Articles 17 and 11 (B) of the contract, the tribunal said that these do not absolutely forbid nationalization because it impliedly requires that nationalization shall not have a confiscatory character. The arbitral tribunal also credited the fact that the act of Kuwait was in pursuance of a legitimate state policy. It considered the undertaking (the extraction of oil) of Kuwait directed to narrow patrimonial ends in the beginning as it was a financial venture entered into by the government for its purposes. However later, it became an essential instrument in the economic and social progress of the state as evidenced by the progressive development of Kuwaiti law with a view of taking an active role in the development of its own resources within its territory. As such, the expropriation was deemed not unlawful and the tribunal merely awarded Aminoil compensation.

SAPPHIRE INTERNATIONAL PETROLEUMS LTD. v. NATIONAL IRANIAN OIL CO. 35 ILR 136 (1967).

The National Iranian Oil Company (NIOC) and Sapphire Petroleums Ltd (Canadian Company), entered into a contract to expand the production and exportation of Iranian oil. The parties set up the Iranian Canada Oil Company (IRCAN), a “joint stock company and non-profit corporation”, to carry out the operations under the contract on behalf of the two parties. Their contract

distinguished 2 periods: the PROSPECTING PERIOD wherein Sapphire would act through IRCAN in which case it would be reimbursed for its expenses and the WORKING, EXTRACTION and SALE OF THE OIL period wherein IRCAN would act for both parties. After the first period, NIOC refused to reimburse Sapphire and as a consequence, the latter refused to proceed to the second period of the contract. Sapphire wrote the Shah of Iran requesting for a refund of their losses however the Prime Minister of Iran replied that the former had not fulfilled its obligation under the contract and as a result, NIOC was entitled to refuse the refund. Sapphire initiated arbitration proceedings requesting the following as damages: 1. Compensation for expenses incurred before the contract plus interest; 2. Compensation for expenses incurred after the contract plus interest; 3. Loss of profit; 4. Refund of the $350,000 indemnity. Federal Judge Pierre Cavin of Lausanne was appointed as sole arbitrator. NIOC breached its obligations under its contract with Sapphire entitling the latter to damages. The arbitrator first determined that general principles of law were applicable in this case. The choice of applicable law was not explicit in the contract, but the characteristics of the contract were such that they excluded the application of the traditional rules of private international law and reduced the likelihood that Iranian law would be applied to the interpretation and performance of the contract. Also, the contract contained an arbitral clause which entrusted the task of arbitrating any possible dispute to an arbitrator chosen by the President of the Supreme Court of Switzerland, Denmark, Sweden or Brazil from which it could be drawn specifically that the clause rejected the exclusive application of Iranian law. According to the arbitrator, it was NIOC and not Sapphire who failed to fulfil its obligations when it refused to reimburse the latter. The arbitrator also observed that there was a general rule of private law that the failure of one party to a synallagmatic contract to perform its obligations releases the other party from its obligations and gives rise to a right to pecuniary compensation in the form of damages. This rule could not be set aside even in the case where the contract contained elements which had their origin in administrative law (public law). Accordingly, the deliberate failure of NIOC to carry out its obligations in breach of contract, and having particular regard to the circumstances in which the refusal was made, justified Sapphire’s non-performance of the contract.

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As to the award, the arbitrator used the principle of ex aequo et bono or by considering all circumstances to quantify the compensation for loss of profit. He applied the general rule that the object of damages is to place the party to whom they are awarded in the same pecuniary position that they would have been in if the contract had been performed in the manner provided for by the parties at the time of its conclusion. He observed that the rule is simply a direct deduction from the principle pacta sunt servanda, since its only effect is to substitute a pecuniary obligation for the obligation which was promised but not performed. This compensation includes the loss suffered (damnum emergens), for example the expenses incurred in performing the contract, and the profit lost (lucrum cessans), for example the net profit which the contract would have produced. On the issue of determining compensation for loss of profits, arbitrator Cavin established 2 steps: determination whether compensation for the loss of opportunity is recognized in law; and if so recognized, determination of the amount of compensation to be awarded. Exact damage is not necessary to be proven in order to obtain an award for damages. In fact, the behaviour of the author of the damage is enough for the judge to be able to admit with sufficient probability the existence and extent of the damage. In this case, the arbitrator held that Sapphire had satisfied the legal requirement of proof by showing a sufficient probability of the success of the prospecting undertaken if they had completed the process as testified by Sapphire’s expert witness notwithstanding NIOC’s claims that they did not think that there were serious chances of discovering oil.

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Though the Court did not make an explicit pronouncement as to whether or not the expropriation was unlawful, it said that if the Court considered it necessary to consider such issue, it would have ruled that the expropriation was unlawful because Iran ignored its international legal obligation under the Treaty of Amity, Economic Relations, and Consular Rights between the U.S. and Iran (that they should make adequate provision at or prior to the taking of property for the determination and payment of just compensation).

AMOCO INTERNATIONAL FINANCE v. IRAN 27 ILM 1314

Amoco is a Swiss company which is also a wholly owned subsidiary of the American company Standard Oil. Amoco entered into a joint venture with NPC (Iranian company controlled by the Iranian government) to form Khemco, an Iranian company jointly owned and managed by Amoco and NPC. The goal of the venture was to process and sell Iranian natural gas, each contracting party having 50% shares in the profits to be realized. In 1980, the Khemco Agreement, which was by its terms valid for 35 years, was declared null and void by the Iranian government following the 1979 Iranian revolution and the implementation of the Single Article Act of 1980 that was intended to complete the nationalization of the Iranian oil industry. Amoco then filed a suit for compensation for the taking of its interests in Khemco. Iran’s expropriation of AMOCO’s interests in Khemco was lawful, entitling the latter only to compensation and not damages.

WHEN LAWFUL STARETT HOUSING CORPORATION v. IRAN 4 Iran-US Claims Report (1983), supra.

(For facts, refer to p. 152) The Court ruled that there was “constructive expropriation” or indirect expropriation. Despite the fact that Iran did not issue any law or decree to nationalize or expropriate Shah Goli or the residential housing project expressly, it is recognized in international law that measures taken by a State can interfere with property rights to such an extent that these rights are rendered so useless that they must be deemed to have been expropriated, though legal title to the property formally remains with the original owner and the State does not purport to expropriate them. The nature of the measures taken by Iran was aimed at Shah Goli, and the property interest involved comprised the physical property and the right to manage the project and complete the construction in accordance with the agreements entered into.

In relation to foreign investment law, it was held in this case the ground for expropriation which was formerly limited in the Chorzow case to public utility has been expanded to the more general term public purpose. Therefore, it is not needed for the expropriating home state to prove that it wanted to exercise ownership over the property taken for the use of the public. It is enough that the taking be done in pursuance of some public purpose. The case also reiterated the LIAMCO doctrine that a taking satisfies international standards of lawfulness when it provides for a mechanism for the payment of compensation. In this case, the Single Article Act mandated that a special commission will be constituted to determine the amount of the compensation due to the foreign investor, any disagreement over the quantum of which may be submitted to arbitration. The fact that Amoco did not avail of this remedy cannot be said to equate to the expropriation being unlawful per se just because Kuwait did not grant compensation in such

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manner and within such time as to satisfy the investor. According to the ruling in this case, what would make an act of taking unlawful under international law would be the absence of any provision for compensation. This case is also instructive in relation to the issue of discriminatory takings. In comparison to the BP Exploration v. Libya case, there it was held that there was discriminatory expropriation because it was undertaken by Libya only against BP Exploration and not against other similar ventures of other nationalities. However, in this case of Amoco, the tribunal held that an expropriation is not per se unlawful just because it is directed only against a particular entity within a larger industry. According to the arbitration tribunal, the act of expropriation is the prerogative of the home state and may be undertaken in such manner as to be determined by the home state in pursuance of its policies. The non-expropriation of an entire branch of economic activity is not in itself discrimination, absent any evidence of patent bad faith or discriminatory designs. It explained that reasons specific to the non-expropriated enterprise, or to the expropriated one, or to both, may justify such a difference of treatment. Furthermore, a coherent policy of nationalization could anyway be reasonably operated gradually in successive stages. The tribunal also held in this case that stabilization clauses must be clear in demanding from the home state obligations which the investor state can enforce against it. Absent such unequivocal stipulation in the contract, the home state cannot be deemed to have been a party to the contract and cannot therefore be held liable under its terms. In this case, no clear obligation was imposed by the concession contract on the Iranian government. There was no showing that the contract contained a “stabilization clause” that would have obligated Iran to insulate the contract from any change in domestic law that would affect the contract’s operation. As such, the Iranian government cannot be said to have expropriated Amoco’s property in breach of its obligations because no obligation exists on its part. The tribunal concluded that Iran’s expropriation was a lawful on under international law which meant that only compensation and not damages would be the consequence of its actions. Professor Virally of the Anglo-Iranian Tribunal in this case took the analysis several stages further from the LIAMCO case. Whereas Mahmassani, like every arbitrator before him, had emphasized the sanctity of contracts and had accepted that a nationalization required compensation from a prematurely ended contract, Professor Virally simply rejected that sovereign states are bound by contracts with private parties as, in his view, this would allow ‘private interests to prevail over duly established public interest, making impossible actions required for the public good. Professor virally also concluded in this

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case that in a lawful expropriation only ‘the just price of what was expropriated’, representing the ‘value at the moment of dispossession’ should be paid. Thus there would be damnum emergens (actual loss) but no lucrum cessans (loss of profits). Note however that Higgins herself does not agree with Professor Virally’s view. According to her, a state may still engage in what it sees as actions in the public good that violate contracts; but there is no reason why the foreign investor should underwrite this exercise in state sovereignty. CLASS NOTES

PHILLIPS PETROLEUM COMPANY IRAN v. ISLAMIC REPUBLIC OF IRAN 21 Iran-US Claims Report

Phillips entered into a Joint Structure Agreement with Iran to exploit oil. In 1978, Imam Khomeini sparked a revolution, which succeeded in toppling the former regime. The revolutionary government decided to withdraw all oil contracts with foreign companies under the guise of nationalization. The foreign companies asked for just compensation, citing the deprivation of their contractual rights. Iran countered this by invoking the defense of force majeure and that the workers’ refusal to work for foreigners. The court held that due to the lack of proof that workers refused to follow the orders of Iranian authorities (which refusal forms the basis of Iran’s defense of force majeure), the foreign companies’ rights were not obliterated by force majeure. As regards expropriation, the court held that an expropriation does not need to be in a specific form (by a law or de facto). It must be noted that the control over property by a government does not automatically justify a conclusion that the property has been taken by the government. However, such a conclusion of a take-over by the government is warranted when events demonstrate that the owner was deprived of fundamental rights of ownership and that the deprivation is not merely ephemeral. According to the court, “the intent of the government is less important than the effects of the measures on the owner, and the form of the measures of control or interference is less important than the reality of their impact.” Because the court recognized that the foreign companies were deprived of their contractual rights, it ruled that Iran must pay just compensation from the point of deprivation (i.e., the date when it was said/declared that there was no reasonable prospect of a return and that the Joint Structure Agreement must be regarded as terminated). Note that the point of deprivation or taking, when the taking is through a chain of events, is “when the interference has deprived the claimant of fundamental

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rights of ownership and such deprivation is not merely ephemeral or when it becomes an irreversible deprivation.” Regarding the compensation due, it must be in an “effectively realizable form” which represents “the full equivalent of the property taken.” The compensation may not be for less than the full value, despite Iran’s invocation of the dynamic nature of customary international law and recent trades, since the court ruled that this fact cannot prevail over specific terms of the treaty. (Remember, lex specialis). On Iran’s argument that, based on the Chorzow case, the amount of the compensation must be mitigated since the expropriation is lawful, the court said that the legality of the taking is of no moment since the treaty in this case does not distinguish between lawful and unlawful taking. Chorzow does not provide any basis for the assertion that a lawful taking requires less compensation than an unlawful taking.

“THE TAKING OF PROPERTY BY THE STATE: RECENT DEVELOPMENTS IN INTERNATIONAL LAW” by Rosalyn Higgins

Some important definitions:  Indirect takings – deprivation of property rights through acts of the State other than outright takings [Form: nationalization, expropriation, confiscation, requisition, or sequestration]  Property rights as human rights – jurisprudence in this area is not in line with international law on the taking of property The Concept of Property Property is defined by the municipal legal system. The concept of property provides the owner with the protection of the law in certain key respects. In “The Theory of Nationalization”, Katzarov identified the positive and negative aspect of property.  Positive: Right of disposal which is both absolute and unlimited in point of time  Negative: Exclusive; the holder of the property has the power to prevent another person from performing an act of disposal Property includes chattels and land, as well as contractual rights (as a species of property), if the said rights can be transferred from one person to another. In English, they are referred to as things, and in French, as “choses in action”. Aside from these, property may also consist of abstract things such as debts, shares, patents and copyrights. International law cases accept that property is both choses and choses of action; tangibles and intangibles.

Legal and classification)

Social

Property

(Ackerman‟s

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Social Property: A person’s right to control the use of his property is generally recognized in his dealings with individuals

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Legal Property: An appeal to the opinion of a legal specialist is necessary for a person to believe himself justified in claiming something as his.

On Assessing Compensation for Loss of Choses in Action There is a difficulty in classifying bundles of rights and assessing compensation for loss of choses in action, as shown by the treatment of the legal nature of petroleum concessions (as to whether they are property rights or contractual rights). This classification affects the right of the state to interfere with the said right. Some new property theorists, with an aim to broaden the matters covered as property, argue that “property” should include non-proprietary rights that fulfill the same economic and social functions as rights of property. Entitlement to Property Katzarov describes two fundamental instincts in man – the drive to appropriate and the instinct, which drives him to seek the company of his fellows. The two instincts have taken form in the social institutions of property and State. Social Function of Property Higgins mentioned the following with respect to the social function of property

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property is a particular freedom the owner is enjoying in his activities, which ultimately depends on the assistance that a claimant receives from the community

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Property is subject to overriding powers of the state

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International law affirms that property rights be exercised in a manner that is not dangerous and does not harm others.

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Private property may be used by the state for authorized punitive purposes. (notion accepted both at municipal and international level)These takings are for purposes of state authority widely perceived as legitimate and do not enrich society as a whole. It is required that the taking only be for a public purpose, and with compensation.

On Public Use and Compensation Requirements Compensation measures must be interpreted to encourage the even distribution of benefits and burdens over the long run. Tolerated Takings There exists a basic prohibition with respect to interference by one state in the property of another.

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If there is a treaty between two states in respect of property, it will not be lawful to interfere with property even if it is located within one’s territory.

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The principles of territorial jurisdiction give way to the precept of pacta sunt servanda. This holds even with respect to what the author said are normal permitted exceptions to the prohibition on interference.

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Domestic legislation cannot be used to justify a violation of an international obligation.

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In the event of the existence of a state of war between parties, the protection of the treaty might be removed but it is removed not just because of the existence of war but because of the rule of international law that certain treaties become suspended or cancelled after the outbreak of war. The determining factor is always international law.

Relations between States and Private Parties in respect of Property Matters Whether or not a State is entitled to interfere with foreign property rights by virtue of its territorial sovereignty depends on the nature of the property and attendant circumstances. Acquired rights Acquired rights are protected by international law. Acquired rights include: a) those acquired under municipal and international law,; b) Historic rights or historic title; c) In the context of intertemporal law: International tribunals have sought to identify whether at a critical time sovereignty has been acquired [a juridical fact must be appreciated in light of contemporary law]; AND d) In context of succession of States: successor States must respect rights acquired under its predecessor Permanent Sovereignty over Natural Resources General Assembly Resolution 1803 (XVII): International law and the national legislation in force shall govern capital imported to exploit and develop natural resources, as well as the earnings on that capital. Profit-sharing shall be in accordance with the agreement of the investors and the recipient state, and the state’s sovereignty over its natural wealth and resources must not be impaired. Par. 4 of this resolution states, among others, that nationalization, expropriation or requisitioning shall be based on grounds or reasons of public utility, security or the national interest, both domestic and foreign. International law requires that taking be for a public purpose – public utility or otherwise.

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Par. 4: The owner shall be paid appropriate compensation, in accordance with the rules in force in the State taking such measures in the exercise of its sovereignty and in accordance with international law. In any case where the question of compensation gives rise to a controversy, the national jurisdiction of the State taking such measures shall be exhausted. However, upon agreement by sovereign States and other parties concerned, settlement of the dispute shall be made through arbitration or international adjudication. Assessment of quantum of compensation is a solely domestic matter Resolution 3171, par. 3 provided for the state’s discretion with respect to the determination of the amount of possible compensation (as opposed to appropriate compensation) and the mode of payment. It also provided that in the event of disputes, these should be settled in accordance with the national legislation of each state. Compensation due to developing states was for “exploitation and depletion of and damages to their natural resources and all other resources.” International legal standards are deemed irrelevant on the ground that they are preferential. It is said that if domestic law chooses not to compensate nationals for a taking of property, then foreign investment shall also not be entitled to compensation, a point to which Higgins does not agree. It was also said that not all takings of property are in the form of nationalizations or expropriations. Act of State doctrine The courts of the forum may be party to a deprivation of property that may or may not have been lawful, but it is incorrect for an international tribunal to offer as a reason for rejecting restitution the fact that nationalization is qualified as an Act of State immune from control. Deference given by some courts to nationalization of foreign states does not equate to immunity of nationalization in general to judicial or other control at the international level. Recent trends in the international law of petroleum concession and licenses A State may in principle take the property of a foreign private person within its own jurisdiction, provided: - That it does so for a public purpose and in the absence of discrimination

- That compensation is paid Deeds of concession often have the appearance of a contract, in which there is an agreed identification of mutual benefits and obligations between the State and the concession holder. Essential features of a concession are that a) it is a state act, and b) It is a vesting of property rights in the concessionaire.

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Types of Concessions  Public service concession - concessionaire undertakes a public service and obtains profit from charges incurred by users of the service  Public works concession - concessionaire undertakes to build and maintain a public work On Different Tribunals‟ Rulings on the Question of the Status of Certain Concessions.  Aramco case: mining and oil concessions have remained in the rudimentary stage in Moslem law and is not the same in different schools  Texaco v. Libyan Arab Republic: Texaco concession was not an administrative law contract – it was not for a public service, not entered into by administrative authority, did not confer upon the administrative authority the unusual powers of alteration or abrogation.  Liamco-Libya Arbitration: concessions were essentially contractual in nature, but were not administrative contracts. The stabilization clause emphasized the contractual basis of the concession  BP v. Libya: the government could alter or terminate such contracts unilaterally, but they could only do so in pursuance of a true public interest Legal Effect of Stabilization Clauses on Permanent Sovereignty over Natural Resources The greater the incompatibility of State action with stabilization clauses, the more necessary it is for specific provisions to have been written in if they are to be found unlawful under the concession. Governments seek to introduce changes into its relationship with concessionaires, reasoning that those changes are for the public good and it has the tax or regulatory power to do so, or that such changes are compatible with obligations under the concession. In light of this, holders of concessions should resist and protest every change introduced by the government. The Taking of Property and Human Rights International law on the rights of states over property located in their jurisdictions has becomes overlaid with parallel legal considerations, such as those arising from the notion of property rights as human rights. Human rights here represent a set of widely shared demands, expressed with a high level of intensity about the rights of individuals or groups vis-à-vis the state. - Powerful trend is to accord special status to the entitlement to property, at least as a matter of treaty-based human rights law. o UN Declaration on Human Rights, Art. 17 provides that everyone has a right to own property alone as well as with

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others, and that no on shall be arbitrarily deprived of his property.

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In the 1960’s, the concept of permanent sovereignty over natural resources was pressed as a legal obligation, which ran counter to the notions of property entitlement as a human right. As a consequence, neither the Int’l Covenant on Economic, Social and Cultural Rights nor the Int’l Covenant on Civil and Political Rights had private property protection clauses.

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With respect to the European Convention on Human Rights, the approval of a provision on property rights as human rights was heavily disputed, particularly as to compensation (e.g., w/n the phrase “such possessions cannot be subject to arbitrary confiscation” of itself implies a right to compensation. o To solve this, a formula was evolved where there continued to be no reference to arbitrary takings of property or to the duty to compensate but reference to general principles of international law was introduced. Art. 1 of the 1st Protocol to the European Convention begins with a statement of entitlement to legal and natural persons to peaceful enjoyment of possessions, but no mentioned entitlement to ownership. It also contains a prohibition against deprivation of possessions, which deprivation shall be subject to conditions provided for by law and by the general principles of international law. o All parties to the European Convention accepted that a taking of foreigners’ property entails a requirement to pay compensation.

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Standard of compensation: For the UK, Adequate, prompt and effective compensation. The European Convention’s organs have not had occasion to pronounce whether the general principles of international law require such a standard.

[MOST IMPORTANT] W/N Compensation is due only to foreigners, or to nationals as well: The silence on compensation in the Protocol entails that as a matter of practice, all persons whose property is nationalized is taken to be compensated and that there is an obligation to make such payment in the case of foreigners. The precise standard of compensation depends upon one’s appraisal of the requirements of contemporary general principles of international law.  This was confirmed by the case of Gudmundsson v. Iceland before the European Commission on Human Rights. In this case, the Commission

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



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found that the measures taken by a state with respect to the property of its own nationals are NOT subject to the general principles of international law in the absence of a particular treaty clause specifically so providing, and that the records of the preparatory work as to the drafting and adoption of Article 1 of the Protocol confirm that the contracting parties in the said protocol had no intention of extending the application of these principles to the case of taking the property of nationals. Higgins said that none of the subsequent case law on Article 1 of the Protocol indicates a change of heart from the pronouncement quoted above. In the Handyside case, it was held that Art. 1 of the Protocol requires member States to respect the property of every natural or legal person within their jurisdiction, which includes nationals. There is no statement of an express departure from the holding in Gudmundsson but an affirmation that national and non-national alike are entitled to protection from the arbitrary confiscation of their property. In the case of Sporrong, the Court, interpreting Art. 1 of the Protocol, held that interferences with property may occur that are neither deprivations nor control for a public purpose; the test to see whether such an interference violates the right to property is a determination as to whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (Balancing Test) o According to Higgins, the effect of this is that the State is permitted to interfere with property rights beyond the limits expressed in Art. 1, contingent upon a further balancing test the content of which is uncertain.

On the Public Purpose Requirement A public purpose is an objective test. This requirement has been understood as a means of differentiating takings for purely private gain on the part of the ruler from those for reasons related to the economic preferences of the country. With respect to international law, the controversy as to the meaning or scope of takings for a public purpose is as to whether it includes retaliatory takings. According to Higgins, in the case brought against the UK with respect to its nationalization of the Iron and Steel Industry in 1967, the pronouncement of the court was very close to saying that what the democratically elected Parliament decides is needed is definitionally in the public interest.

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Higgins said it is difficult for an international tribunal to say that a proposal is NOT in the public interest if a parliament elected by the people, operating within democratic principles of accountability decides on the said proposal after careful debate. On the Control of the Use of Property The right of a State to enforce laws to control the use of property (as stated in par. 2 of Art. 1 of the Protocol) in accordance with the general interest is not impaired by the proscription of Art. 1 of the Protocol against deprivation of possession of property. The difficulty as regards this matter of control is that it can at times be so substantial as to amount to a taking of property. As regards the requirement of par. 2 of Art. 1 of “general interest” as distinguished from the “public interest” in par. 1, there is yet no authoritative pronouncement, but a suggestion exists that public interest is contrasted with private, personal interests while general interest, is contrasted with sectional group interests. But based on case-law, matters are still unclear as there is unexplained cross-referring with respect to the 2 terms. Conclusion Property rights as human rights are still in a very formative stage. The European Convention is likely to provide the major focus for developments. Questions of permanent sovereignty over natural resources, compensation, public interest, concessions, regulatory controls, and human rights are all intertwined. If we isolate them, we exclude relevant factors from consideration.

“STATE RESPONSIBILITY FOR THE NATIONALIZATION OF FOREIGN-OWNED PROPERTY” by Eduardo Jimenez De Arechaga

Contemporary international law recognizes the right of every state to nationalize foreign-owned property as a corollary of the permanent sovereignty which the state possesses even if a predecessor state or previous government engaged itself by treaty or contract not to do so.

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Sovereignty as permanent: state never loses its legal capacity to change the status or method of exploitation of those resources, despite any arrangements which may have been made.

Traditional international law view: nationalization as unlawful and as violative of acquired rights which are internationally protected; in the event of such a nationalization, the state must make restitution or pay a sum of money with damages. The compensation must be just or adequate and prompt and effective. On Unjust Enrichment

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What must be taken into account is the beneficial gain obtained by the nationalizing state and not the loss suffered by the owner of the expropriated property. There are thus instances where there is no duty to compensate, as when nothing is gained by the nationalizing state, like in the suppression of a detrimental industrial activity. Compensation under the UN Charter Art. 2, par. 2: Each State has the right: (c) To nationalize, expropriate or transfer ownership of foreign property, in which case appropriate compensation should be paid by the State adopting such measures, taking into account its relevant laws and regulations and all circumstances that the State considers pertinent. In any case where the question of compensation gives rise to a controversy, it shall be settled under the domestic law of the nationalizing State and by its tribunals, unless it is freely and mutually agreed by all States concerned that other peaceful means be sought on the basis of the sovereign equality of States and in accordance with the principle of free choice of means. According to the author, Art. 2, par. 2 does not mention “prompt, adequate and effective compensation” nor is it based on a position which denies the existence of any obligation to pay compensation. Rather, it is rooted in equitable considerations. Appropriate compensation under the UN charter allows a domestic or international decision-maker to consider elements of unjust enrichment in the background of investment to determine what constitutes appropriate compensation. As such, the UN charter cannot be said to have utterly rejected international law. Doctrine of “prompt, adequate and effective compensation” was simply replaced by the equitable principle. On Investment Agreement between States and Private Persons There was a disagreement as to the legal status of investment agreements between States and private companies. Industrialized States’ view: agreements concluded by a state with private foreign companies are on the same footing as inter-state agreements Countries of the Group of 77 view: Agreements between states and private foreign companies are not international agreements and because they were not concluded between states, they are governed by the domestic law of the state concerned; such agreements did not have international status because private companies are not subjects of international law.

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Reason behind this view: fear that giving such agreements the status of international agreements might give the character of general

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international law to solutions like the one sponsored by the World Bank. Result of this disagreement: A dispute whether a compensation is appropriate is to be settled in an arbitration which places the private company and the developing States on the same level of adversary proceedings rather than in litigation between interested States Anglo-Iranian Oil Co. case: Investment agreements cannot be considered international treaties. The cancellation of such agreements by the nationalizing state is not a breach of international obligation, but it is subject appropriate compensation. On Stabilization Clauses A stabilization clause is a clause which states that the agreement will not be altered during its term w/o the consent of both parties. According to the author, despite such clauses, the state still has the right to nationalize due to its permanent sovereignty. The only consequence is that such nationalization must have been paid with special compensation. On Calvo Clauses Calvo Clauses are those which state that “commercial companies, national or foreign, are subject, without restrictions, to the laws of the Republic. In every state contract with foreigners or in the concession contracts granted in their favor, it must be expressly stated that they will submit to the laws and courts of the republic and renounce all diplomatic claims.” In effect, the private party agrees not to call on his state of nationality in any issues arising out of the said clauses. Industrialized states have disputed the validity of these clauses, saying they constitute a waiver by a private party f a state’s inalienable right to protect its citizens abroad. However, the author said that as a governmental party is expected to comply with an arbitration or stabilization clause of a contract, a Calvo clause must be observed on the basis of the principle of good faith. As such, the equitable balancing nature of the provision and the concept of good faith as applied to international obligations must be considered in interpreting the rights and duties of States under Art. 2, par. 2 of the UN Charter. Absence of an express reference to the principle of good faith in the said Article does not mean the duty to perform contractual obligations in good faith has been excluded from the Charter. International law may act as a factor to limit the freedom of a state when an alien’s interest is affected, even if Art. 2 of the Charter does not expressly say so.

“ISSUES OF COMPENSATION AND NATONALITY IN THE TAKING OF ENERGY

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INVESTMENTS” By Eli Lauterpacht (1990)

(Note: The article is a review of the ICJ and the Iran-US Claims Tribunal decisions regarding disputes arising out of the expropriation of energy investments. The main issue here is compensation for when a corporation of one nationality enters into relations with a foreign State to develop and use the latter’s energy resources, and the latter decides to take the investment.) The qualification of nationality necessary before a company or its shareholders can lodge an international claim is what establishes the locus standi of the protecting State. Barcelona Traction Co. – nationality of the corporation rather than the nationality of the shareholders is what matters in the protection of corporate investment abroad, in terms of customary international law

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Exception in favor of the shareholder: where the company is incorporated in the wrongdoing state.

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Caveat by Lauterpacht: Exception must be regarded with caution due to the doubt raised in the ELSI case; only safeguard lies in a treaty between the investment-receiving State and the State whose nationals are likely to be the effective investors confirming the right of the latter State to intervene on behalf of its nationals, even if they own their interest in the investment-receiving State through a corporation established in that or a third country

ELSI case – treaty involved did not contain an express clause providing for protection of the corporations wholly owned by foreign corporations, with the closest form of protection being a substantive provision which permits corporations of one party to organize, control and manage corporations of the other party.

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Judge Oda: it was possible that ELSI could’ve suffered wrongs that did not necessarily affect Raytheon (ELSI’s parent company; Raytheon is a US company) and thus, the US and Raytheon couldn’t have lodged an international claim.

In sum, the wide power shareholders of one nationality to bring claims on behalf of companies of another nationality must be expressly spelled out, as was done in the Claims Settlement Declaration in the Iran-US Claims Tribunal where the claims of nationals were characterized as being “owned indirectly by such nationals through ownership of capital stock or other proprietary interests in juridical persons, provided that the ownership interests of such nationals were sufficient at the time the claim arose to control the corporation or other entity.”

Normally, the risks to which investments are exposed are political in nature (principally expropriation or nationalization). 2 types of risk are (a) direct, express and obvious [when it occurs because of legislation] or (b) indirect, covert, or creeping interference with investor’s freedom to control his enterprise and derive economic benefit from it. When the taking by the State of a foreign investment NOT unlawful: (a) for a public purpose, (b) not discriminatory, (c) accompanied by compensation. The third is the most important and the most controversial, particularly with respect to the amount. Lauterpacht says that customary international law is uncertain about the amount of compensation needed. ICJ has no jurisprudence on the matter, and its predecessor (PCIJ) only has one judgment (but not explicit in its treatment of the level of compensation for lawful taking); only the Iran-US Claims Tribunal has jurisprudence. As a result, and because of differing views of neutral members of the tribunal, there is a certain lack of uniformity in relevant jurisprudence. With respect to the question of compensation between Iran and the U.S., the prescribed compensation as regulated by the Iran-US Treat of Amity of 1955 is that which is in an “effectively realizable form” and which represents the “full equivalent of the property taken”. On Reaching a Cash Figure to Reflect a „Full Equivalent‟ The traditional Roman law distinction between damnum emergens (associated with intrinsic value of the property unrelated to its earning capacity) and lucrum cessans (identified with loss of profits) has long dominated international legal thinking on this subject. Development in recent years: International tribunals have shown willingness to appreciate that the value of an asset is not something separable from its revenue-generating capacity. In the case of the Iran-US Claims Tribunal, it has adopted this view through the Discounted Cash Flow (DCF), where the earning capacity of an asset during its productive life is determined, deducting from such the cost of its doing so then using an appropriate discount rate to produce a capital sum representing the present value of the future flow of earnings. Aside from these, Lauterpacht noted that there is inclination to introduce equity as an element in the calculation of compensation. Lauterpacht pointed out that despite the attractiveness of the concept of equity, t it is not a concept that “can be sprinkled like salt on every part of the law”, particularly in situations where the law prescribes absolute rules not qualified by equitable requirements. He said that qualifications that an absolute rule is subject to equity or equitable considerations must be expressly stated, lest these weaken the legal effect of clear rules.

Nature of Risk to Investments

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When must equitable principles be taken into account? o In converting the established value of an asset into a specific sum to be awarded as compensation or damages

M. MEDELSON – WHAT PRICE EXPROPRIATION? COMPENSATION FOR EXPROPRIATION: THE CASE LAW by M. Medelson (1985)

Thesis: The formula used by international case law for lawful expropriations by the government of an alien’s property, is the Hull formula or the “prompt, adequate, effective compensation”  The paper is in response to an Editorial Comment written by Professor Schachter that the use of the Hull formula is questionable and that the case law actually uses a flexible standard that is not necessary full compensation, so long as it is “just”. In analyzing the case law, Medelson first examined the prewar cases (also cited by Schachter in his Comment):  Chorzow Factory case – contrary to Schachter’s claims that the Court only required payment of “fair compensation”, a perusal of the decision shows that the court required, as a matter of obiter dicta, that Poland should pay the “just price of what was expropriated and the value of the undertaking at the moment of the undertaking at the moment of dispossession o (consistent with the full compensation standard) o The Court here also differentiated the pecuniary obligations in a lawful and unlawful taking o if the payment is unlawful, if restitution in integrum is impossible, then compensation for consequential loss is also necessary  Norwegian Shipowner’s Claims (1922) – applicable standard used here is “just compensation” but Medelson stressed that this just compensation is based on the notion of just compensation as used in the US. Based on the Fifth Amendment of the US constitution, just compensation is the fair valuation of the property based on what a willing buyer is willing to pay a willing seller. Again, this is full compensation. In addition to these cases, Medelson also listed some international cases that used the standard of full compensation:  Administrative Decision No. 2 decided by USGermany Mixed Claims Commission – Germany

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is required to pay full, adequate and complete compensation for the losses suffered by Americans Goldenberg case – based on the Treaty of Versailles, full compensation should be made even in case of lawful taking (not 1/5 of its value, otherwise, there will be wrongful compensation for the unpaid 5/6) De Sabla case – taking by the government of an alien’s property constitutes an international responsibility and the state should pay full compensation

Postwar cases:  LIAMCO cases (in relation to Libya’s nationalization decrees confiscating foreignowned oil concessions in Libya as also discussed in Texaco v. Libya, BP v. Libya) – the nationalizing state should pay full compensation for the loss sustained based on the fair market value of the plant and properties. The Court also awarded an equitable compensation with some elements of compensation for loss profits due to the confiscation of the concession.  AMINOIL case – taking for nationalization purposes is not per se unlawful but the former owner is entitled to full compensation or the depreciated replacement value of its assets  American International Group v. Iran – the Tribunal did not decide on the applicability of the Treaty of 1955 to decide the amount of compensation but held that customary law provides for the standard of prompt, adequate and effective compensation. The Tribunal required Iran to pay the fair market value of the shares at the time of nationalization, including loss of future profitability and good will.

WORLD TRADE ORGANIZATION “THE PHILIPPINES AND THE WTO: SURVEY OF CURRENT PRACTICES WITH EMPHASIS ON ANTI-DUMPING, COUNTERVAILING DUTIES AND SAFEGUARD MEASURES” by H. Harry Roque

Constitutional Framework The Philippines is the only World Trade Organization (WTO) member whose Supreme Court has pronounced on the constitutionality of the country’s entry into the WTO.  Tañada v. Angara: Petitioners contended that the WTO provisions, such as the most-favorednation (MFN) clause, the national treatment principle and the Agreement on Trade-Related Investment Measures (TRIMS Agreement)

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provisions violated Articles II and XII of the 1987 Constitution. The Court ruled that the WTO was not in violation of the aforesaid constitutional provisions for these are not self-executing provisions which will give rise to a cause of action in court if disregarded. The SC also said that the WTO will not wipe out local industries as the WTO has a built-in protection against unfair trade practices (e.g., anti-dumping, safeguard measures against import surges) which developing countries (like the Philippines) may avail of. Prof. Roque said that the decision may be criticized on the basis that the Court only considered arguments in support of the WTO without necessarily examining the antithetical arguments SC in effect ruled on the country’s unequivocal commitment to the WTO as a matter of treaty obligation. Its provisions furthermore, are enforceable in the entire territory of the country as forming part of the law of the land. Case Study on Compliance: Anti-Dumping, Countervailing, and Safeguard Measures

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Anti-dumping, countervailing, and safeguard measures are duties which may be imposed as tools of fair trade to correct instances of dumping, unfair advantage because of subsidies, and surges in imports of commodities. These measures are intended to promote fairness in the regime of free trade among nations. o Article VI, GATT 1994 on Dumping: when the export price of a commodity is less than its normal value in the exporting state. o Agreement on Subsidies and Countervailing Measures (ASCM): a subsidy is a financial contribution by a government body or any public body where there is either a direct fund transfer, a revenue which otherwise due is foregone or not collected, or when a government provides goods or services (also, when a state maintains any form of income or price support and a benefit is conferred)

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Safeguard measures: used when there is a dramatic increase in the imports of a particular commodity.

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The WTO does not prohibit the imposition of these duties, though it regulates the conditions under which these may be imposed. It seeks to achieve this by requiring Member nations to amend their domestic laws and regulations to conform to the provisions of the Marrakesh Agreement.

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Substantially, the Agreements seek to achieve consistency in the laws of Member nations by: (a) due process requirement before measures are imposed, (b) requirement of a local body established by member nations to conduct the required procedure before resorting to the imposition of these measures, (c) setting the kind of evidence that would justify the imposition of the measures, and (d) amount of duties that may be imposed. For the Antidumping Agreement and ASCM, the following are required before imposition of measures: (a) an instance of dumping, or a subsidy, (b) an injury to the domestic industry, (c) a causal relationship between either the dumping, or the subsidy. The Philippines enacted Republic Act 878233 to implement the Antidumping Agreement, Republic Act 875134 to implement the ASCM, and Republic Act 8800 to implement the AS. The said laws comply substantially with the WTO provisions (substantially, not completely, because of protectionist elements in Congress). The differences are below: 1. Dumping and countervailing measures were proper even for alleged dumping which might injure or likely to injure the domestic industry. The WTO requires an actual material injury and not a mere likelihood; 2. Domestic industry was merely the “major proportion of total domestic production”; 3. Provisional duties could be issued earlier than 60 days from date of initiation of the investigation; 4. Dumping duties were twice the dutiable value;
 5. The test for like products was merely that it be substantially the same, a substitute, or serves the same or similar purpose. Under the WTO, test of like product is only identical in all respects or characteristics resembling product under consideration. Tariff Commission Rulings The Tariff Commission has had the opportunity to rule on at least six investigations; to wit: anti-dumping investigations against Cold Rolled Coils/Sheets (CRC’s) from Taiwan and Malaysia, Steel Billets from Russia, figured glass from China, and polypropylene resins from Korea.

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It found positive evidence of dumping against the CRC’s from Malaysia, steel billets from Russia and resins from Korea. In all three cases, though, the collections of the anti-dumping duties were suspended.

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CRC’s from Malaysia and Steel Billets from Russia investigations: the collections were suspended until such time that the Protestant, the National Steel Corporation, resumes its operations.

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o

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An anti-dumping duty was levied on CRC’s from Malaysia only by reason of default since both the Malaysian exporter and the Malaysian Embassy refused to participate in the investigation

Resins from Korea case: collection of the duty was suspended, in response to consultations against the duty requested by Korea in Geneva pursuant to the WTO dispute resolution mechanism.

In the other cases, the Tariff Commission refused to impose the duty even if Protestants in all instances were able to prove dumping and even material injury, because the Protestants failed to prove the required causal connection between dumping and the material injury. Safeguard Measures Requirement by the WTO for safeguard measures = proof of a surge of imports either because of unforeseen circumstances OR the implementation of the provisions of the WTO (e.g., tariff reduction), a serious injury or threat to domestic industry. The threshold for safeguards is lower than dumping duties and countervailing duties (only a serious injury or a threat of it and not material injury may resort to safeguards temporarily, and solely to give them the chance to compete against the sudden surge of imports) 2 Factors Which Tempers the Resort to Safeguard Measures: 1. Measures are applied on commodities regardless of origin 2. Stringent reportorial requirements where member nations have to report even the start of a safeguard investigation Safeguard measures, by way of a case study on the Philippines’ compliance with the WTO, are illustrative of Philippine State Practice and how much our competent authorities know about the WTO.

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Portland cement investigation finding: safeguard measures were not imposed

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Cement tile investigation finding: imposed safeguards

Criteria for the two findings: a) existence of a surge in imports as result of unforeseen developments, b) that product in consideration was being imported in such increased quantities as to cause or threaten to cause a serious injury, c) domestic product is a like product (relative or absolute likeness), d) presence and extent of serious injury or threat to the domestic industry of the like product, and e) existence of a causal relationship between increased imports and the serious injury or threat thereof.

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The difference in the 2 cases was in the issue of the existence of increase imports of the relevant commodities and in the elements of serious injury and causal relationship: Ceramic tile case: There was a dramatic increase in imports and increase relative to domestic production from 17% to 68%. Also noted was the decline in market share of the domestic industry and an erosion of its competitive position (which equates to serious impairment of the overall market position for domestically produced like products) Portland Cement case: The Tariff Commission determined the existence of a surge in imports from 1996 to 2000 but concluded there was no serious injury or a threat of injury to the domestic industry and thus, no need to prove a causal relationship. The Commission noted that the decline in domestic consumption and not the entry of imports caused the decline in domestic sales of local products, that there was no significant decline in production and total goods sold, no underutilization of capacity and no uniformity in the financial performance of domestic producers (as only the complainants in this case suffered losses, according to the commission). The decision not to impose safeguard measures was based on positive evidence that one of the elements required for the imposition of the measures was lacking. DTI Sec. Mar Roxas described the decision as wrong and declared he would impose permanent safeguard measures or extend the provisional duty on cement. Under the law, he couldn’t do either because such power is granted to the Tariff Commission. Prof. Roque said this episode demonstrates the need to educate our highest ranking competent authorities not only on the issue of compliance but also with respect to our treaty obligations under the WTO. Roxas ended up promulgating a decision stating that he was bound by the negative finding of the Tariff Commission and has no alternative but to abide by the Tariff Commission’s recommendations. The application of safeguard measures was thus denied. The CA ruled that the DTI Secretary was not bound by recommendations of the Tariff Commission, but the SC overturned this ruling. This case shows the independence of the Tariff Commission and the fact that its factual findings constitute the final determination as to whether 1) a product is being imported into the country in increase quantities [whether the product is absolute or relative to domestic production, and 2) whether

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the importation in increased quantities causes serious injury or threat to domestic industry.

just a hortatory provision which cannot be legally enforced as a matter of right without any supporting legislation.

The Philippines and the WTO Dispute Settlement Mechanism The Philippines has been a complainant once, in the desiccated coconut case against Brazil. The case was filed by a Philippine delegation shortly after a Filipino, Justice Feliciano, was elected to be the first ever President of the Appellate Body of the WTO. The complaint arose from a 121.5% countervailing duty levied on Philippine desiccated coconut, despite the minimal amounts of coconut exported by the country to Brazil, which incidentally, is another coconut producing country.  The Philippines lost after Brazil pointed out that the proper venue for the Philippine action was not the WTO but the GATT95 dispute settlement mechanism since the levy was imposed under the GATT.

The signing of the WTO Agreement should not be viewed as a limitation on economic sovereignty. The WTO remains as the only viable structure for multilateral trading and a forum for the development of international trade law. Its alternative is isolation, stagnation or economic self-destruction. The Philippines accommodates international trade agreements anchored on the policy of equality and reciprocity.

Since 1995, the Philippines has preferred to settle all claims against itself  In the Korean resins case, the collection of the anti-dumping duty imposed on the resins was suspended)  In the case of American import restraints against shrimp and shrimp products, the Philippines has abandoned its challenge to the said import restraints Conclusion Our actual participation in the dispute settlement mechanism of the WTO has been a case of non-exercise of treaty rights since we have resorted to this mechanism only once, despite the fact that case law seem to be in our favor in some other controversies confronting us.

TANADA v. ANGARA G.R. No. 118295 (1997)

Petitioners sought to nullify the Philippine ratification of the World Trade Organization (WTO) Agreement on the ground that it limits, restricts and impairs Philippine economic sovereignty and legislative power and does not take into consideration the Constitution’s Filipino First policy since it gives foreign trading intervention. The Court ruled that the Philippine Constitution adopts the generally accepted principles of international law as part of the law of the land as stated in the Declaration of Principles and State Policies and by the doctrine of incorporation, the country is bound by generally accepted principles of international law which are automatically considered part of the Philippines’ laws. As it is an international agreement, it must be performed in good faith (pacta sunt servanda). A treaty creates a legally binding obligation on the parties. The Filipino First policy is

Amicus Curiae Memo of Lilia Bautista

AMICUS CURIAE MEMORANDUM OF AMB. LINDA R. BAUSTISTA In Tañada v. Angara, G.R. No. 118295 (1997)

Lilia Bautista, the Permanent Representative to the UN, WTO, and other International Organizations in Geneva, Switzerland, was requested by the Court to prepare and submit a paper a) providing a historical background of the WTO agreements; and b) summarizing said agreements Historical Background of the WTO Agreements The Havana Charter The idea of setting up an international organization on trade was conceived when the United Nations Economic and Social Council set up a Preparatory Committee to draft the charter of an International Trade Organization. The ITO was meant to set a code of principles on fair trade and related economic transactions designed to remove protectionist measures for a freer trade environment. It was also intended to be the organizational structure to oversee adherence to the principles. The negotiations for the ITO were concluded in 1948 in Havana. However, the charter did not materialize. Nonetheless, 23 countries exchanged tariff reductions in 1947 and took out the Commercial Policy Chapter of the Havana Charter, and recast it into the General Agreement on Tariffs and Trade (GATT), before the conclusion of the negotiations on the charter of the ITO. GATT 1947 GATT is premised on the recognition that trade and economic endeavor should be conducted with a view to raising the standards of living, ensuring full employment, allowing optimal use of the world’s resources, and expanding the production and exchange of goods. GATT was meant to create order and predictability in international trade relations. The function of GATT was to prevent such policies and put order in the system. It resolves not only conflict of interest between nations, but also conflicts of interest within.

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The Uruguay Round and Philippine Participation The Uruguay Round was the 8th round of multilateral trade negotiations. The Philippines participated in the Ministerial Meeting which launched the round. Like other developing countries, improved market access for its exports was the main goal in Philippine participations. Tariff reduction on tropical products and other agricultural products was pushed by developing countries. The GATT refers to trade in goods. The new areas in the Uruguay negotiations not covered by previous rounds were (1) services, (2) trade related aspects of intellectual property rights, and (3) trade related investment measures. In the area of services, only those services actually offered by a party were treated as bound commitments. The system of offers in the area of services allowed impositions of conditions on market access and national treatment. We have offered only four sectors in the area of services: telecommunications, transport, financial services, and tourism. On TRIPS, most countries agreed that bringing it within the ambit of a multilateral trading system will deter some countries from resorting to unilateral trade measures to enforce their rights as intellectual property rights holders. It was also agreed that developing countries should be given adequate time to adopt their intellectual property regulations with the requirements of the TRIPS agreement. A multilateral discipline in TRIPS would afford is protection against the use of unilateral measures such as that provided in the Trade Law of the US. The Final Act embodying the results of the Uruguay Round of Multilateral Trade Negotiations was signed in 1994, after 8 years of negotiations. The results referred not only to the agreement establishing the WTO but also to ministerial decisions and understandings adopted on December 15, 1993, and at the Marrakesh Ministerial Meeting in 1994. It is provided in the Final Act that the representative who signed the Final Agreement agrees to submit to his respective competent authorities for approval, the WTO Agreement in accordance with his country’s procedures. Our constitution sets a hierarchy of goals and aspirations for its nationals which must be taken into account in passing the implementing legislations. The choice of instruments in assisting Philippine industry, labor, and consumers are varied but they are not unlimited and one group of beneficiaries should not be sacrificed for the other. Congress has to balance the economic objectives enunciated in the Constitutions with the benefits of extensive international economic relations free of unnecessary restrictions. Summary of WTO Agreements Agreement Establishing the WTO

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The WTO provides the common institutional framework for the conduct of trade relations among its members in matters related to the agreements and associated legal instruments annexed to the Agreement. The WTO decides by consensus whenever possible; otherwise, decisions of the Ministerial Conference and the General Council shall be taken by the majority of the votes cast, except in cases of interpretation of the Agreement or waiver of the obligation of a member, which would require 3/4 vote. Amendments would require 2/3 vote in general. Amendments to the MFN provisions and the Amendments provision will require assent of all members. Any member may withdraw from the Agreement upon the expiration of six months from the date of notice of withdrawal. Each member shall ensure the conformity of its laws, regulations, and administrative procedures with its obligations as provided in the covered agreements.

JAPAN – TAXES ON ALCOHOLIC BEVERAGES (1996) The Japanese Liquor Tax Law established a system of internal taxes for all liquors at different rates based on categories. This law taxed shochu lower than tax imposed on whisky, vodka, cognac, and other alcoholic beverages. The European Communities (EC), Canada and the US claimed that spirits exported to Japan were discriminated against under the Japanese Liquor Tax Law because of the lower tax imposed on shochu as compared to other alcoholic beverages. The Appellate Body in this case upheld the panel’s finding that the alcoholic beverages in question were taxed in excess of shochu, which violated Art. III: 2 of GATT (as regards the requirement that imported products must not be subjected to internal charges in excess of those imposed on like domestic products). The Appellate Body upheld the panel’s finding that shochu, and whisky, brandy, rum, gin, genever and liquors were not similarly taxed, and such a move amounts to affording protection to domestic production, which is violative of Art. III. The Body said that 3 issues must be considered to determine if a certain measure is inconsistent with Art III, namely: 1) W/N the imported and domestic products are directly competitive or substitutable products; 2) W/N the directly competitive or substitutable imported and domestic products are not similarly taxed; and 3) W/N the dissimilar taxation of the directly competitive or substitutable imported and domestic products is applied so as to afford protection to domestic production. As regards the US’ application for binding arbitration to determine the reasonable period of time for implementation by Japan of the Appellate Body’s recommendations, the arbitrator found that the

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reasonable period for implementation is 15 months from the date of adoption of the reports.

KOREA – TAXES ON ALCOHOLIC BEVERAGES The measures in dispute are provisions in Korea's Liquor Tax Act and Education Tax Act (“the Act”). The Dispute Settlement Body and the Panel held that the measures in dispute result in dissimilar taxation which leads to a protection of domestic production inconsistent with the GATT 1994. The appellate body and the panel recommended that the Dispute Settlement Body request Korea to ensure that the Act complies with its obligations under GATT1994. Korea agreed to implement the DSB’s recommendations but said it required a reasonable period of time to complete the implementation process of the recommendations. The EC and the US requested that binding arbitration determine the reasonable period of time. Korea wanted the arbitrator to declare 15 mos. as the reasonable time for implementation (a longer time, since it wants to go through the ordinary session of the National Assembly). The EC contends that the reasonable time for the implementation of the recommendations should not exceed 6 mos. from the date of the adoption of the appellate body report and panel report, arguing that members are not automatically entitled to the 15-month period asked for by Korea. The US argued that instead of going through the ordinary session of the National Assembly, it can use extraordinary sessions in amending the bill. In this case, it was held that when the reasonable period of time is determined through arbitration, the guideline for the arbitrator is that it should not exceed 15 months from the date of adoption of the appellate body or panel report. If it is impracticable to comply immediately with the recommendations of the Dispute Settlement Body, the state shall be given a reasonable period of time for implementation of the said recommendations. Guide as to what is a reasonable period in the Award of the Arbitrator in European Communities- Hormones: the shortest period possible within the legal system of the member state to implement the recommendations and rulings of the DSB However, despite the guideline above, a member state is not obliged to use extraordinary legislative procedure to implement the recommendations of the DSB. In this case, it is reasonable that Korea be allowed to observe its normal legislative process to implement the DSB’s recommendations.

EUROPEAN COMMUNITIES – MEASURES AFFECTING ASBESTOS AND ASBESTOSCONTAINING PRODUCTS (2001)

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France issued a Decree prohibiting asbestos and products containing asbestos fibers except when there is no substitute for asbestos. The Decree imposed penalties for violations of the prohibition. Canada averred that France shouldn’t have banned asbestos outright since it could have just opted to restrict its use. It cited an International Organization for Standardization (ISO) standard to regulate asbestos. It was pointed out however that the imposition of such standards will reduce national standards to the least common denominator. Canada then proceeded to accuse France of discrimination in favor of asbestos substitutes, and that the ban France imposed nullifies the benefits from certain tariff concessions. The Appellate Body in this case held that WTO members have the right to determine the level of protection of life or health which they consider appropriate in a given situation. The only restriction of the GATT on such a determination is that the measures created based on said determination must not be arbitrary or unjustifiably discriminatory between countries where the same conditions prevail or a disguised restriction on international trade. Here, it was held that the ban was justified to protect the health of French workers based on the 1994 GATT (Art. XXb). The said article provides for a general exception to WTO rules for measures necessary to protect human health.

US – STANDARDS FOR REFORMULATED AND CONVENTIONAL GASOLINE (1996) The U.S. passed the Clean Air Act of 1990 (our focus is on the Gasoline Rule) to control toxic and other pollution produced by the combustion of gasoline manufactured or imported into the U.S., providing for certain specifications for reformulated gasoline. Venezuela and Brazil averred that one of the rules granted an advantage to gasoline sourced from certain third countries, which violates Article I of GATT (providing for the same treatment for imports of all nations, or Most Favored Nation treatment). They further contended that the Gasoline Rule violated Article III (i.e., countries cannot treat imports less favorably than domestic goods, or national treatment) because it accorded less favorable treatment to imported gasoline compared to U.S. gasoline (Note: The Gasoline Rule subjected imported gasoline to a more stringent statutory baseline vis-à-vis US gas, so that imported gasoline with certain parameter levels above the statutory baseline could not be directly sold in the US market compared to gasoline having the same qualities produced in a US refinery which could be sold in the US market with only the condition that it must conform with the refiner’s individual baseline) The Appellate Body in this case held that imported and domestic gasoline were like products and as such, the

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Gasoline Rule (because it prevented imported gasoline from benefitting from the same favorable sales conditions given to domestic gasoline with respect to how baseline is established) resulted in a less favorable treatment accorded to imported gasoline without any concern for the air quality effect and the enforcement of such a rule. The baseline establishment rules fall within the terms of Art. XX(g) of the GATT, which article allows countries an exemption from compliance with certain GATT provisions if a measure passed by a state relates to the conservation of exhaustible natural resources AND if such measures are made effective in conjunction with restrictions on domestic production or consumption. The baseline establishment rules in this case fail to meet the requirements of the said GATT article.

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applied where there is data on administrative, selling and general costs and profits for only 1 other exporter or producer, and that a state may exclude sales by other exporters or producers not made in the ordinary course of trade to calculate the amount for profits under the AntiDumping Agreement.

EUROPEAN COMMUNITIES – ANTI DUMPING DUTIES ON IMPORTS OF COTTON-TYPE BED LINEN FROM INDIA (2003) India requested consultations with the European Communities (EC) about a council regulation on imports of cotton-type bed-linen from India. India claimed that the EC initiated anti-dumping proceedings against imports of cotton-type bed-linen from India by publishing a notice of initiation in Sept. 1996 and imposed provision antidumping duties by a council regulation in June of 1997 as well as definitive duties based on the said council regulation in November of 1997. India averred that the EC’s acts of initiation, determination of dumping and injury and its explanations for the said acts are not in accordance with the WTO law and that it violated articles of the AntiDumping Agreement and the GATT of 1994. The panel in this case held that the EC did not comply with articles of the Anti-Dumping Agreement when it considered all imports from India, Egypt, and Pakistan as dumped in its analysis of injury caused by dumped imports, in determining the existence of margins of dumping on the basis of a methodology incorporating the practice of zeroing, in failing to evaluate all relevant factors having a bearing on the state of the domestic industry, in considering information for producers not part of the domestic industry as defined by the investigating authority in analyzing the state of the industry, and in failing to explore possibilities of constructive remedies before applying anti-dumping duties. The Appellate Body affirmed the panel’s finding that the practice of zeroing (comparing the foreign domestic price of the product with the member state’s import price of the same product, adjusted for transportation and handling costs) when establishing the existence of margins of dumping is inconsistent with the Anti-Dumping Agreement. However, it reversed the panel’s findings that the method of calculating amounts for administrative, selling and general costs in the Anti-Dumping Agreement may be

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