CHAPTER 5

SUBJECTS OF INTERNATIONAL LAW STATES

freely determine their political status and freely pursue their economic, social and cultural development Levels of claim to Self-determination 1. Establishment of New Statethe claim by a group within an established state to break away and form an new entity 2. Does not involve Establishment of New Statesimply involves claims a. To be free from external coercion b. To overthrow effective rulers and establish a new governmentthe assertion of the right of revolution c. Of people within an entity to be given autonomy International law has not recognized a right of secession from a legitimately existing state Recognition of Statesthe act of acknowledging the capacity of an entity to exercise rights belonging to statehood Can an entity claim to be a state before it is recognized by other states? Declaratory Theory Constitutive Theory Recognition is merely declaratory of Recognition constitutes a state the existence of the state Its being a state depends upon its It is what makes a state a state and possession of the required elements confers legal personality on the entity and not upon recognition States may decide to recognize an entity as a state even if it does not have all the elements of a state Recognition of Governmentact of acknowledging the capacity of an entity to exercise powers of government of a state If a change in government in an existing state comes about through ordinary constitutional procedure = recognition by others comes as a matter of course
THE TINOCO ARBITRATION FACTS: Government of Costa Rica was overthrown by Tenneco. The latters government entered into contracts with British corporations. When Tenneco retired and left the country, the old constitution was restored and a Law of Nullities was passed annulling contracts concluded during the Tenneco regime. Great Britain made claims on the basis of the injuries done to its nationals caused by the annulments. ISSUE: What is the status of the Tinoco regime in international law? HELD: The non-recognition by other nations of a government claiming to be a national personality, is usually appropriate evidence that it has not attained the independence and control entitling it by international law to be classed as such
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Subjects of International Lawentities endowed with rights and obligations in the international order and possessing the capacity to take certain kinds of action on the international plane Those with international personality Objects of International Lawthose who indirectly have rights under or are beneficiaries of international law through subjects of international law Statespredominant actors; a community of persons more or less numerous, permanently occupying a definite portion of territory, independent of external control, and possession an organized government to which the great body of inhabitants render habitual obedience Commencement of their Existence State, as a person of international law, should possess the following qualifications: (Montevideo Convention of 1933 on Rights and Duties of States) 1. Permanent populationPEOPLEa community of persons sufficient in number and capable of maintain the permanent existence of the community and held together by a common bond of law 2. Defined territoryan entity may satisfy this requirement even if its boundaries have not been finally settled, if one or more of its boundaries are disputed, or if some of its territory is claimed by another state An entity does not necessarily cease to be a state even if all its territory has been occupied by a foreign power or if it has otherwise lost control of its territory temporarily 3. Governmentthat institution or aggregate of institutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state It is the National Government that has legal personality and it is such that is internationally responsible for the actions of other agencies and instrumentalities of the state Temporary absence of government does not terminate the existence of a state 4. Capacity to enter into relations with other SOVEREIGNTYindependence from outside control States

Principle of Self-determinationsovereignty as an element of a state is related but not identical to this principleby virtue of this, people

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The rule that a revolution contrary to the fundamental law of the existing government cannot establish a new government is not true in international law. Non-recognition may have aided the succeeding government to come into power; but subsequent presentation of claims based on the de facto existence of the previous government does not work an injury to the succeeding government in the nature of a fraud or breach of good faith. UPRIGHT v. MERCURY BUSINESS MACHINES CO. FACTS: Plaintiff, and individual, sues as the assignee of a trade acceptance drawn on and accepted by defendant in payment for business typewriters sold and delivered to it by a foreign corporation. It alleges that the foreign corporation is the creature of the East German Government, a government not recognized by US. HELD: A foreign government, although not recognized by the political arm of US Government, may nevertheless have de facto existence which is juridically cognizable. In traditional law, the acts of such government may affect private rights and obligations arising either as a result of activity in, or with persons or corporations within, the territory controlled by such de facto government.

2. 3.

Succession to state propertythis is subject to agreement between predecessor and successor states Succession to contractsthis is subject to agreement between the states concerned o Responsibility for the public debt of the predecessor, and rights and obligations under its contracts remain with the predecessor state but is subject to certain exceptions Succession to treaties Moving Treaty Rule / Moving Boundaries Rulewhen part of the territory of a state becomes territory of another state, the international agreements of the predecessor state cease to have effect in respect of the territory o Relief from treaty obligation is rebus sic stantibus b. When a state is absorbed by another state, international agreements of the absorbed states are terminated c. Clean Slate Theorywhen part of a state becomes a new state, the new state does not succeed to the international agreements to which the predecessor state was a party unless, expressly or impliedly, it accepts such agreements d. Uti possidetis Rulepre-existing boundary and other territorial agreements continue to be binding notwithstanding a.

4.

Consequence of Recognition or Non-Recognition A government, once recognized, gains increased prestige and stability a. Doors of funding agencies are opened b. Loans are facilitated c. Access to foreign courts and immunity from suit are gained d. Military and financial assistance also come within reach Absence of formal recognition bars an entity from all these benefits or, at least, access to them may be suspended Admission of a government to the UN does not mean recognition by all members but only to the extent of the activities of the organization Recognition of a regime is terminated when another regime is recognized Succession of States Views on Succession A. The new state succeeds to no rights or obligations of the predecessor state but begins with a tabula rasa B. Successor state assumes all obligations and enjoys all the rights of the predecessor Issues on Succession of States 1. Succession to territorywhen a state succeeds another state with particular territory, the capacities, rights and duties of the predecessor state with respect to that territory terminate and are assumed by the successor state
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Fundamental Rights of States 1. Independencecapacity of a state to provide for its own well-being and development free from the domination of other states o Right to exercise within its portion of the globe, to the exclusion of others, the functions of a state o Restrictions upon a states liberty either from customary law or from treaties do not deprive a state of independence o There is duty not to interfere in the internal affairs of other states o Rights flowing from independence: a. Jurisdiction over its territory and permanent population b. Right to self-defense c. Right of legation 2. Equalityequality of legal rights irrespective of size or power of the state o Within the General Assembly, the doctrine means one state, one vote Peaceful Co-Existencemutual respect for each others territorial integrity and sovereignty, mutual non-aggression, non-interference in each others affairs and the principle of equality

3.

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Some Incomplete Subjects 1. Protectoratesdependent states which have control over their internal affairs but whose external affairs are controlled by another state; referred to as a. Autonomous states b. Vassal states c. Semi-sovereign d. Dependent sates 2. o Federal statea union of previously autonomous entities The central organ will have personality in international law but the extent of international personality of the component entities can be a problem

CHAPTER 6

OTHER SUBJECTS OF INTERNATIONAL LAW

INTERNATIONAL ORGANIZATIONS An organization that is set up by treaty among 2 or more states which have international personality Constituent instruments of international organizations are multilateral treaties, to which the well-established rules of treaty interpretation apply Non-governmental organizations (NGO)set up by private persons Although international organizations have personality in international law, their powers and privileges are by no means like those of states since it is limited by the constitutional instrument that created them
Advisory Opinion on the Use of Nuclear Weapons International organizationsgoverned by the Principle of Specialtythey are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them. Powers conferred on international organizationsnormally the subject of an express statement in their constituent instruments but in order to achieve their objectives, they possess subsidiary powers which are not expressly provided for in the basic instruments which govern their activities.

3.

Mandated and Trust Territoriesterritories placed by the League of nations under one or other of the victorious allies of WWI o After WWII, this was replaced by trusteeship system Taiwana non-state territory which de jure is part of China The Sovereign Order of Maltathe Italian Court of Cassation in 1935 recognized its international personality The Holy See and Vatican Cityrecognized under Lateran Treaty; it has no permanent population

4. 5. 6.

Immunitiesbased on the need for the effective exercise of their functions and not from sovereignty These immunities come from the conventional instrument creating them
KAPISANAN NG MGA MANGGAGAWA v. IRRI HELD: IRRI was organized and registered with SEC as a private corporation subject to all laws and regulations. However, by virtue of PD 1620, it was granted the status, prerogatives, privileges and immunities of an international organization. SC has consistently recognized the immunity granted to IRRI declaring it to be on the same footing as the International Catholic Migration Commission. The objective of the grant of immunity is to avoid the danger of partiality and interference by the host country in their internal workings. The end result of the protective blanket that has been wrapped around IRRI is the efforts of employees to seek redress for violations of labor rights have been repeatedly rebuffed by SC. For all practical purposes, they are denied the full protection for labor guaranteed in the Constitution. DFA v. NLRB ISSUE: w/n NLRC could assume jurisdiction over a case of illegal dismissal against ADB

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HELD: ADB enjoys immunity from every form of legal process, except in cases arising out of or in connection with the exercise of its powers to borrow money, to guarantee obligations, or to buy and sell or underwrite the sale of securities. WHO v. AQUINO HELD: Diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch of the government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government, it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law officer of the government or other officer acting under this discretion. JEFFREY LIANG v. PEOPLE FACTS: This involved a criminal complaint against Liang, an ADB official, for grave oral defamation. Appeal was made to the political character of Liang as an agent of international organization. HELD: Immunity granted to officers and staff of ADB was not absolute; but limited to acts performed in an official capacity.

o o

o o 3. 4. o 5. 6.

There are 15 member states, 5 permanent and the others are elected for 2 year terms in accordance with equitable geographic representation Distinguishes between a. Procedural matters b. All other mattersrequires 9 affirmative votes, including the concurring votes of the permanent members The Charter does not specify what matters are procedural, hence, decision on whether a matter is procedural or not requires the concurrence of the permanent members Abstention = veto Economic and Social Council (ECOSOC)has 54 members elected for 3 year terms Trusteeship Councilsupervises non-self governing territories The Council suspended operations after Palau became independent on Oct. 1, 1994 International Court of Justice (ICJ)principal judicial organ of the UN

The United Nations: Structure and Powers Came into being on Oct. 24, 1945 A universal organization charged with peacekeeping responsibilities, development of friendly relations among nations, achievement of international cooperation in solving international problems of an economic, social, cultural and humanitarian character, and the promotion of human rights and fundamental freedoms for all human beings without discrimination UN is enjoined against intervening in matters which are essentially within the domestic jurisdiction of any state International Constitutional Supremacy Clausein the hierarchy of international organizations, the UN occupies a position of preeminence so if there is a conflict with other international agreement, obligations under the UN Charter shall prevail Principal organs of UN: 1. General Assemblyit has plenary power in the sense that it may discuss any question or any matters within the scope of the Charter o GA distinguishes between a. Important questionsdecided by 2/3 majority of the members voting and present b. Other questionsdecided by the majority 2.
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Secretariatcomprises a Secretary General and such staff as the Organization may require o Secretary Generalelected to a 5 year term by General Assembly upon the recommendation of the Security Council, subject to veto power

Other Agencies: 1. United Nations Educational, Scientific and Cultural Organizations (UNESCO) 2. International Civil Aviation Organization (ICAO) 3. World Health Organization (WHO) 4. Food and Agricultural Organization (FAO) 5. World Bank 6. International Monetary Fund (IMF) Regional Organizationsthey are neither organs nor subsidiary organs of UN They are autonomous international organizations having an institutional affiliation with UN by concluding agreements with UN Created by international agreements for the purpose of dealing with regional problems in general or with specific matters be they economic, military or political ASEANestablished on Aug. 8, 1967 in Bangkok, Thailand with the signing of the Bangkok Declaration by the 5 original member countries: Indonesia, Malaysia, Philippines, Singapore and Thailand

Security Councilhas primary responsibility for the maintenance of international peace and security

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 Brunei Darrusalam joined on Jan. 8, 1994; Vietnam on July 28, 1995; Laos and Myanmar on July 23, 1997; Cambodia in 1999. 3 main objectives: a. Promote economic, social and cultural development of the region through cooperative programs b. Safeguard the political and economic stability of the region against big power rivalry c. Serve as a forum for the resolution of intra-regional differences INSURGENTS Protocol IIfirst and only international agreement exclusively regulating the conduct of parties in a non-international armed conflict Requirements for Material Field of Application: a. Armed dissidents must be under responsible command b. They must exercise such control over a part of its territory as to enable them to carry out sustained and converted military operations and to implement this Protocol Insurgent groups which satisfy the material field of application may be regarded as para-statal entities possessing definite if limited form of international personality a. They are recognized as having belligerent status against the de jure government b. They are seen as having treaty making capacity Common Article 3for armed conflict not of an international character Prohibited acts under Article 3: a. Violence to life and person, in particular, murder of all kinds, mutilation, cruel treatment and torture b. Taking of hostages c. Outrages upon personal dignity, in particular, humiliating and degrading treatment d. Passing of sentences and the carrying out of executions without previous judgment pronounced NATIONAL LIBERATION MOVEMENTS Organized groups fighting in behalf of a whole people for freedom from colonial powers Characteristics: a. They can be based within the territory which they are seeking to liberate or they might find a base in a friendly country b. Their goal is self-determinationto free themselves from colonial domination, or a racist regime or foreign occupation c. There is the ultimate goal of controlling a definite territory d. They must have an organization capable of coming into contract with other international organizations

INDIVIDUALS Possess limited rights and obligations (deriving from customary international law) in international law Obligations of individuals are those arising from the regulation of armed conflicts When individual rights are violated, however, individuals still have to rely on the enforcement power of states; but some treaties have provided for the right of individuals to petition international bodies alleging that a contracting state has violated some of their human rights

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CHAPTER 7

TERRITORY: LAND, AIR, OUTER SPACE

Territory in International Lawan area over which a state has effective control Exact boundaries might be uncertain but there should be a definitive core over which sovereignty is exercised Acquisition of territoryacquisition of sovereignty over territory Includes land, maritime areas, airspace and outer space Modes of Acquisition of Sovereignty over Territory 1. Discovery and Occupation o Occupationacquisition of terra nulliusterritory which prior to occupation belonged to no state or which may have been abandoned by a prior occupant o There is abandonment when occupant leave the territory with the intention of not returning o Discovery of terra nullius is not enough to establish sovereignty; it must be accompanied by effective control
WESTERN SAHARA CASE HELD: Territories inhabited by tribes or peoples having a social and political organization were not regarded as terra nullius. The information furnished to the Court shows that at the time of colonization, Western Sahara was inhabited by peoples which, if nomadic, were socially and politically organized into tribes and under chiefs competent to represent them. FACTS: Palmas (Miangas) is an island of little economic value or strategic location. The island is located between Mindanao, Philippines and the northern most island, known as Nanusa, of what was the former Netherlands East Indies. In 1898, Spain ceded the Philippines to the United States in the Treaty of Paris (1898) and Palmas sat within the boundaries of that cession to the U.S. In 1906, US discovered that the Netherlands also claimed sovereignty over the island, and the two parties agreed to submit to binding arbitration by the Permanent Court of Arbitration. ISSUE: w/n the Island of Palmas (Miangas), in its entirety, was a part of the territory of the United States or the Netherlands HELD: The Arbitrator, Swiss lawyer Max Huber, ruled in favor of the Netherlands position and stated that the Netherlands held actual title to Palmas. For these reasons, the Arbitrator decides that the Island of Palmas forms, in its entirety, a part of the Netherlands territory.
Roan Salanga Public International Law THE ISLAND OF PALMAS

Right by discoveryUS argued that it held the island because it had received actual title through legitimate treaties from the original "discoverer" of the island, Spain. US argued that Spain acquired title to Palmas when Spain discovered the island and the island was terra nullius. Spain's title to the island, because it was a part of the Philippines, was then ceded to US in the Treaty of Paris after Spain's defeat in the Spanish-American War. The arbitrator noted that no new international law invalidated the legal transfer of territory via cession. However, the arbitrator noted that Spain could not legally grant what it did not hold and the Treaty of Paris could not grant to US Palmas if Spain had no actual title to it. The arbitrator concluded that Spain held an inchoate title when Spain discovered Palmas. However, for a sovereign to maintain its initial title via discovery, the arbitrator said that the discoverer had to actually exercise authority, even if it were as simple an act as planting a flag on the beach. In this case, Spain did not exercise authority over the island after making an initial claim after discovery and so the United States claim was based on relatively weak grounds. ContiguityUS also argued that Palmas was US territory because the island was closer to the Philippines than to Indonesia which was then held by the Netherlands East Indies. The arbitrator said there was no positive international law which favored the US approach of terra firma, where the nearest continent or island of considerable size gives title to the land in dispute. The arbitrator held that mere proximity was not an adequate claim to land noted that if the international community followed the proposed United States approach, it would lead to arbitrary results. Continuous and peaceful display of sovereigntythe Netherlands' primary contention was that it held actual title because the Netherlands had exercised authority on the island since 1677. The arbitrator noted that the US had failed to show documentation proving Spanish sovereignty on the island except those documents that specifically mentioned the island's discovery. Additionally, there was no evidence that Palmas was a part of the judicial or administrative organization of the Spanish government of the Philippines. However, the Netherlands showed that the Dutch East India Company had negotiated treaties with the local princes of the island since the 17th century and had exercised sovereignty, including a requirement of Protestantism and the denial of other nationals on the island. The arbitrator pointed out that if Spain had actually exercised authority, than there would have been conflicts between the two countries but none are provided in the evidence. In resolving island territorial disputes, the following 3 important rules must be followed: 1. Title based on contiguity has no standing in international law 2. Title by discovery is only an inchoate title 3. If another sovereign begins to exercise continuous and actual sovereignty and the discoverer does not contest this claim, the claim by the sovereign that exercises authority is greater than a title based on mere discovery
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EASTERN GREENLAND CASE HELD: A claim to sovereignty based not upon some particular act or title such as treaty or cession but merely upon continued display of authority, involves 2 elements each of which must be shown to exist: (a) intention and will to act as sovereign, and (b) some actual exercise or display of such authority. Another circumstance which must be taken into account is the extent to which the sovereignty is also claimed by some other Power. One of the peculiar features of the present case is that up to 1931, there was no claim by any Power other than Denmark to the sovereignty of Greenland.

2.

Prescriptionrequires effective control and the object is not terra nullius o The required length of effective control is longer than in occupation o May be negated by a demonstrated lack of acquiescence by the prior occupant o Cessionacquisition of territory through treaty A treaty of cession which is imposed by a conqueror is invalid

AIRSPACE Each state has exclusive jurisdiction over the air space above its territory Sovereignty over airspace extends only until where outer space begins Consent for transit must be obtained from the subjacent nation State Aircraftaircraft used in military, customs and police services No state aircraft of a contracting State shall fly over the territory of another State or land thereon without authorization by special agreement or otherwise, and in accordance with the terms thereof. (Art. 3[a] of Chicago Convention on International Civil Aviation) Aircraft must not only not be attacked unless there is reason to suspect that the aircraft is a real threat but also that a warning to land or change course must be given before it is attacked (Lissitzyn) Civilian aircraft should never be attacked OUTERSPACE Outer space, wherever that might be, and celestial bodies, are not susceptible to appropriation by any state The Moon and other celestial bodies shall be used by all State Parties to the Treaty exclusively for peaceful purposes. (1967 Treaty on the Exploration and Use of Outer Space)

3. 4.

Conquest and Subjugation Conquesttaking possession of a territory through armed force It is necessary that the war had ended either by treaty or by indication that all resistance had been abandoned o Now, conquest is proscribed by international law o No territorial acquisition resulting from the use or threat of force shall be recognized as legal o o o o Accretion and Avulsionsovereignty by operation of nature Accretiongradual increase of territory by the action of nature Avulsionsudden change resulting for instance from the action of a volcano

5.

Is Contiguity a Mode of Acquisition? It is impossible to show a rule of positive international law to the effect that islands situated outside the territorial waters should belong to a state from the fact that its territory forms part of the terra firma (Las Palmas Case) Intertemporal Law Rules in effect at the time of the acquisition should be applied

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