PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem
Jamon
I. Nature and Sources of International
Law
LAW AS A CONCEPT
Concept of Law emerged from a set of lectures
H.L.A. Hart delivered in 1952.
The lectures were preceded by Harts holmes
lecture, positivism and the separation of law and
morals.
It provides an explanation to a number of traditional
jurisprudential questions such as: What is Law?
Must Laws be rules? And what is the relation
between LAW and MORALITY?
DEFINITION OF PUBLIC INTERNATIONAL LAW
It is the body of rules and principles which are
recognized as legally binding and which governs
the relations of States and other entities invested
with international legal personality.
International Law may include both PILA and
Private International Law, however, it is generally
understood to cover only PILA.
International legal system may consist of:
Natural moral law principles
A set of generally agreed upon norms of conduct
And certain authoratives processes for enacting
and changing these aformentioned norms
JUS COGENS compelling law
It is considered as a unique class of customary
law, that occupy the highest election in Human
Rights Law hierarchy.
This group of fundamental norms is superior to
other sources of International Law and need not
agreed upon by states in a treaty in order to from
part of their jurisprudence.
* Viennna Convention on the Law of Treaties
Elements of JUS COGENS
1. Its a peremptory norm of general international
law
2. Its accepted and recognized by the international
community
3. there can be no derogation
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4. It can be modified only by a subsequent norm of
general international law having the same
character.
OBLIGATION ERGA OMNES compulsory
These are obligations that are owed by States to
ALL, regardless of the presence or absence of their
assent to be bound thereby.
These obligations are intertwined with the concept
of Jus cogens and usually arise from jus cogens
rights.
Concept of aueguo et bono
It is based on the principle of justice and equity.
According to the right and good
From equity and conscience
Art. 38 of the Statue of International Court of
Justice provides that courts may decide cases
based on equity and conscience only if the parties
agree, equitable criteria.
PILA distinguished from other disciplines
PILA:
Its principal sanctions are: reprisal and war
Municipal law:
Civil execution and criminal punishment
PILA- collective responsibility for failures and
omissions; Municipal law- individual responsibilty
generally prevails.
PILA- decentralized; Municipal law- centralized
PILA- comparatively harder to enforce; Municipal
law- easier to impose.
TREATY
An agreement under IL entered into by actors and
IL mainly sovereign states and International
Organizations.
They are the main instruments in which the
international community is equipped to carry out its
transactions.
CUSTOM LAW
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It is the original and earliest source of international
law.
It exists when a clear and continuous habit of doing
certain things develops under the conviction that it
is obligatory and right.
It is usage which ripens into custom.
THE NUREMBERG JUDGMENT
FACTS: One of the defenses raised by the
war criminals in Germany was that they
themselves are mere individuals were not directly
liable for their acts; that they were merely carrying
out the orders of Hitler, the German dictator; and
that the individuals have no international duties.
HELD: International law punishes not only
states but also individuals. This rule has long been
recognized. Crimes against international law are
committed by MEN, not by abstract entities, and
only by punishing individuals who commit such
crimes can the provisions of international law be
enforced.
THE PAQUETE HABANA
Facts: During the Spanish American War, two
fishing vessels (Paquete and the Lola) flying with
Spanish flag, and while regularly engaged in
fishing on the Cuban coast, were seized by the
U.S. Navy. It was discovered that until the moment
of capture, the vessels did not know that a war was
being fought. It was proved that the vessels neither
had an ammunition nor arms; and that neither ship
attempted to run the blockade after its existence
was made known to them. In Florida to which they
had been brought, they were considered as prizes
by the U.S. District Court. They then appealed to
the Supreme Court (US), alleging that under the
international law, and considering the
circumstances of their capture, they were exempt
(with their cargoes and crews) from capture as
prizes.
HELD: they are exempt from such capture because
of an international custom on the subject a
custom that began in 1403 signed by King Henry
IV of England, found encouragement in a treaty
entered into in 1521 which the U.S. adhered to.
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SCHROEDER v. BISSEL COLLECTOR
Facts: Under sec. 447 of the American Tariff Act of
1922, it is unlawful for any ship to unload any part
of its cargo other than port of entry. Now then, an
English vessel unloaded part of its cargo at a place
19 miles away from the coast of the United States,
whereupon it was seized by the American coast
guard. It was alleged that the seizure violated the
tenets of international law because it had been
made beyond the territorial or maritime zone of the
U.S.
Held: The seizure is valid despite the alleged
violation of international law. What is important is
that a statute of the U.S has been violated. In
justifying its position, the American court said that:
International law is law in so far as we adopt it,
and like all common or statute law, it bends to the
will of Congress.. Even if the act may contravene
recognized principles of international comity.
The Eastern Extension; Aus & China Tel. Co. v.
U.S
Facts: The Spanish Gov in the Ph entered into a
contract with the petitioners wherby the latter would
constitue at its own expense private submarine
cables and telegraph land lines, which the former
would use and for which it would pay an annual
subsidy of 4,500 pounds payable in Manila. After
sometime US assumed sovereignty over the Ph.
Issue: Whether the US was required to assume
said contractual obligation
HELD: No, the US was not so required. The cables
and lines were not public property; they were
privately owned and therefore did not become
US property. The US was not under compulsion to
continue with the said contract, just as it had no
duty to continue with the services of Spanish-
appointed officials.
WEST RAND CENTRAL GOLD MINING CO. V.
THE KING
FACTS: The government officials of the Republic
of South Africa allegedly seized 2 parcels of gold
owned by the WRCGMC. Subsequently, the
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Republic was conquered by Great Britain, and Mandates and trust territories
annexed to the latter state, A suit was filed by the
company against Great Britain to recover said Mandates administration of former territories of
parcels, on the ground that Great Britain, as defeated states
conqueror, had the duty under international law to
Trust territories territories under trusteeship
assume obligations of the conquered South African
system placed thereunder by means of trusteeship
Republic (with respect to the parcels)
agreements:
ISSUE: Is there such a duty?
1. Territories previously held under a
HELD: It is true that whatever has received the mandate in conformity with article
common consent of civilized nations must have 22 of the covenant
received assent of Great Britain. But any doctrine
so invoked must be one really accepted as binding 2. Territories detached from the
among nations. defeated states as a result of the
Any international law sought to be applied must, second world war
like anything else be proved by satisfactory
evidence, which must show either: 3. Other territories voluntarily placed
a. That the particular proposition alleged has
under the trusteeship system by
been recognized and acted upon the Great Britain;
states responsible for their
b. That it is of such nature, and has been so administration.
widely and generally accepted, that it can hardly be
Colonies and Dependencies
supposed that any civilized state would repudiate From the point of view of classic international law,
it. colonies and dependencies are part of the territory
of the State to which they belong, no matter how
autonomous they may be in the conduct of their
internal affairs. However, this said colonies and
II. Subjects of International Law dependents are still regarded to some extent as
wards of the international community.
Definition of subject
An entity that has international personality.
Status of revolutionary group
States
There may be within a State an organized body of
Four essential attributes or elements of States: men pursuing public ends by force of arms and
temporarily beyond the control of the civil
1. People
authorities.
2. Territory
3. Government
4. Independence
De facto authority
Classes of states
A rebel group is considered a de facto authority
when a territory of a State is under their control and
A. Independent states
a third State, for the sake of protecting its property
1. Simple states
or nationals and without conceding to the
2. Composite states
rebellious forces belligerent status, maintains a
Real unions
relationship between the third State and the rebel
Personal unions group. They do not acquire international
Federal states personality.
confederation
B. Dependent states
C. Neutralized states

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De facto political organization the will of States and on agreement concluded by

States in their favor.
When revolutionist are in control of considerable
territory and is able to conduct military operations
in conformity with the laws of war like a legitimate Pactum in favorem tertii Agreement in favor of
government. a third party
They are regarded as having an international legal
personality and may be considered a subject of Examples of international agreements that
international law. grants individuals certain degree of
international personalities:
The Holy See
Hague Convention XII of 1907
Treaty of Washington of December
In February 1949, the Holy See and Italy entered
20,1907
into a treaty, popularly known as Lateran Treaty.
Various peace treaties after World War I
Under this agreement, the Vatican City was
The Treaties of Peace with Austria,
constituted as a territory under the sovereignty of
Hungary, Bulgaria and Turkey
the Holly See and Italy likewise recognized the
The Covenant of the League of Nations
sovereignty of the Holy See in international matters
The International Labor Organization
as inherent in its nature and as being in conformity
with its traditions and the requirements of its
mission in the world.
The Charter of the United Nations
The European Concention on Human
Rights
International Organizations
III. Recognition
A number of specialized agencies working closely
with the United Nations in achieving international
What is Recognition?
cooperation in the economic and social fields have
been established by multilateral agreements which
A discretionary function exercised, usually
lay down their constitutions and define their
unilaterally, by the government of a State
objectives. It is now widely recognized that these
acknowledging the existence of another State or
organizations have a legal personality distinct from
government. It is not governed by law but depends
that of the State which constitute their membership.
upon the decisions of individual States based on
political expediency.
The extent of their capacity for rights and duties
under international law depends on their charter
which is usually in the form of a multilateral treaty
and on the practice which has grown up around Kinds of Recognition
each organization
1. As to Object: Recognition of a State or
International organizations declared as an Recognition of a Government
international person such as the UN means that
the organization can be a subject of international i. Recognition of a State
law and capable of possessing international rights
by bringing international claims but cannot be Two competing theories as to recognition of a
considered as a state or a super state. State, attempt to explain whether recognition is a
necessary requirement for the establishment of de
jure international personality of a new State, or
Status of individuals in International Law merely, a consequence of international personality:
1. Constitutive Theory
States may, by common agreement, recognize the
international personality of individuals not only in It is a process by which a political
their rights and responsibilities, but also in their community acquires personality and becomes a
capacity for international procedural action. members of the family of nations. Recognition is a
However, individuals are only limited subjects of necessary condition for statehood and personality.
international law since their personality depends on
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Thus, a States existence is through recognition
only and exclusively.
2. Declaratory Theory
Declaration is a mere formality and has no legal
effect as existence of a State is a mere question of
fact. Recognition is not important as it only
provides evidence to its existence. A new State
becomes a member of the family of nations ipso
facto by coming into existence.
Effect of Recognition of a State
Recognition carries with it, without further formality,
recognition of the government in control of the
State at the time of recognition (Rationale:
recognition of a new State implies that the latter
has all the essential requisites of a State at the
time) and the act is irrevocable.
ii. Recognition of a Government
The following are the minimum requirements to
be satisfied for recognition of a government:
1. Effective and stable government. The
government should be in possession of the
machinery of the State and without substantial
resistance to its authority.
2. The government must show willingness
and ability to discharge international obligations.
3. The government should enjoy popular
consent or approval of the people. This is the
substance of the Tobar or Wilson Doctrine.
Tobar Doctrine
The doctrine precludes recognition to any
government coming into existence by revolutionary
means so long as the freely elected
representatives of the people have not
constitutionally reorganized the government.
Estrada Doctrine
The doctrine named after Mexicos Secretary of
Foreign Affairs from 1930-32, Genaro Estrada, said
doctrine enunciates that where a new government
is established in another country by revolutionary
means, Mexico would continue diplomatic
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relations, so far as possible, with the new
government without regards to its legitimacy.
Classification of Recognition of a Government:
De Facto or De Jure
1. De Facto Recognition
Exists when the new government, although actually
independent and wielding effective power in the
territory under its control, has not yet acquired
sufficient stability or does not as yet offer prospects
of complying with other requirements of
recognition.
De Facto Government a government which is in
possession of the powers of sovereignty, although
the possession may be wrongful.
2. De Jure Recognition
It is an acknowledgment of the presence of the
minimal requirements of government. It is a full,
complete recognition and does not refer to the
legality of the recognized government.
Effect of Recognition of a Government
Recognition amounts to accepting the government
as possessed of the authority to represent the
State it purports to govern and to agreeing to
maintain diplomatic relations with it. However, it is
not perpetual, as it may be withheld from a
succeeding government here the change is
brought about by unconstitutional means. Likewise,
the breaking of diplomatic relations is not
tantamount to withdrawal of recognition of a
government.
iii. Recognition of a Belligerent
Community
Belligerency presupposes the existence of a state
of war between two or more States, or actual
hostilities amounting to civil war within a single
State.
Recognizing the belligerents is a matter of policy
on the part of the recognizing State or government,
since there is no purely legal right to be
recognized. And that recognition of the parent
State or by third States may be express or implied.
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Samples of implied recognition: proclamation by
the parent State of a blockade of a port held by
rebels; proclamation of neutrality by third States.
Conditions before Rights of Belligerency are
Accorded
1. An organized government that has control
and direction over the armed struggle launched by
the rebels.
2. Occupation of a substantial portion of the
national territory.
3. Seriousness of the struggle which must be
so widespread, thereby, leaving no doubt as to the
outcome.
4. Willingness on the part of the rebels to
observe rules and customs of war.
Effect of Recognition of a Belligerent
Community
Belligerent community is recognized as a separate
State for purposes of the conflict and is entitled to
all the rights and subjected to all obligations of a
full-fledged belligerent under the laws of war.
2. As to Plenitude: De Jure Recognition or
DE Facto Recognition
i. De Jure Recognition
Exists whenever a State is not prepared to
recognize definitely an entity claiming to be a State
or Government, yet finds practical reason to have
some sort of official relations with such entity. It
means full, complete recognition. It does not refer
to the legality of the recognized government
ii. De facto Recognition
It is a provisional recognition, a sort of modus
vivendi , and does not carry with it the full effects of
a recognition de jure. De facto recognition means
the situation created by the continuance or the
establishment of diplomatic relations with a new
government, irrespective of its origin
3. As to Form
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i. Expressed
It is accomplished by means of a treaty provision, a
formal note or a formal or a formal public
announcement.
ii. Tacit or Implied
It is a result of any act which implies the intention
of recognizing a new State or government. It must,
however, be unequivocal and clearly indicate that a
recognizing State has a clear and inescapable
intention to recognize thru: 1) conclusion of a
bilateral treaty regulating comprehensively the
relations between the two State, 2) formal initiation
of diplomatic relations, and 3) probably the issue of
consular exequaturs
iii. Conditional
The grant of recognition by an existing state to a
newly born state stipulated on the fulfillment of
some conditions in addition to the requirements of
statehood.
iv. Unconditional
4. As to State Participation: Individual
Recognition or Collective Recognition
i. Individual recognition if it is accorded by
one State
ii. Collective recognition if it is accorded by a
group of States simultaneously and in the same act
or declaration.
Legal Effects of Recognition
Recognition produces legal consequences
affecting the rights, powers and privileges of the
recognized state or government both at
international law and under the municipal law of
states which have given its recognition.
Through recognition, a newly recognized state
or government:
1. The recognized government or State
acquires the capacity to enter into diplomatic
relations with recognizing States and to make
treaties with them. Where the recognition is de
facto, full diplomatic intercourse is usually not
brought about.
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2. The recognized government or State
acquires the right of suing in the courts of law of
the recognizing State.
3. It is immune from the jurisdiction of the
courts of law of the recognizing State.
4. It becomes entitled to demand and receive
possession of property situated within the
jurisdiction of a recognizing State which formally
belonged to the preceding government at the time
of its supersession.
5. Recognition being retroactive, validating
thereby the acts and decrees of the recognized
State or government, its effect is to preclude the
courts of recognizing State from passing judgment
on the legality of its acts, past and future.
Recognition of the validity of foreign law does not
necessarily mean that it will always be allowed to
operate in the courts of the recognizing State,
since in Private International Law, there are certain
fundamental exceptions to the application of
foreign law, as where the law of another State is
against the public policy or sense of morality or the
local forum.
6. Where rebels are accorded recognition as
belligerents :
a. Legitimate government may no longer be
responsible for their acts; responsibility is shifted to
the rebel government.
b. The legitimate government, once it
recognizes the rebels as belligerents, is bound to
observe the laws and customs of war in conducting
the hostilities. (Rebels upon capture, may not be
executed or shot as they are enemy combatants
that should be accorded the rights of prisoners of
war)
c. From the point of view of third States: they
are put under obligation to observe strict neutrality
and abide by the consequences arising from the
position.
d. On the side of the rebels: they are put
under responsibility to third States and to the
legitimate government for all its acts which do not
conform to the laws and customs of war.
Consequences when a new State or
Government is not recognized:
From the viewpoint of non-recognizing State, it
suffers from certain important disabilities, to wit:
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1. It is ordinarily deprived of the benefits of
membership in international society, such as
diplomatic intercourse and participation in some
international institutions;
2. It cannot sue in the courts of law of the
State refusing to recognize it;
3. As a general rule, its acts and decrees are
considered as nullities in the State that refuses to
accord recognition;
4. Its agents do not possess any diplomatic
rank or character.
II. Recognition by International
Organizations:
1. Does admission of a Member in an
international organization, such as the United
Nations, imply recognition of such Member as a
State?
Yes. The admission of an applicant ipso facto
constitutes recognition by the Organization that, for
the purpose of membership at least, the applicant
is a State. It does not, however, constitute implied
de facto or de jure recognition of a State or
government by the individual Members of the
Organization. And that admission to membership is
not contingent upon prior recognition of the
applicant by the States already members of the
Organization.
III. Cases:
Guaranty Trust CO. Of New York v. United
States
FACTS:
On July 15, 1916, the Imperial Russian
Government opened a bank account with
petitioner, the Guaranty Trust Company, a New
York banking corporation. On March 16, 1917, the
Imperial Government was overthrown and was
succeeded by the Provisional Government of
Russia which was recognized by the United States
on March 22, 1917. On July 5, 1917, Mr. Boris
Bakhmeteff was officially recognized by the
President as the Ambassador of Russia. On July
12, 1917, the account being overdrawn,
$5,000,000 was deposited in the account by Mr.
Serge Ughet, Financial Attache of the Russian
Embassy in the United States. On Nobember 7,
1917, the Provisional Government was overthrown
and was succeeded by the government of the
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Union of Soviet Socialist Republics, which will be
referred to as the Soviet Government.
At that time there remained on deposit in the
account the sum of approximately $5,000,000. On
November 28, 1917, the Soviet Government
dismissed Bakhmeteff as Ambassador and Ughet
as Financial Attache . But the United States
continued to recognize Bakhmeteff as Ambassador
until on June 30, 1922, he withdrew from his
representation of the Russian Government.
Thereafter, until November 16, 1933, it continued
to recognize the Financial Attache, and after the
retirement of Bakhmeteff as Ambassador it
recognized the former as custodian of Russian
property in the United States.
On November 16, 1933, the United States
recognized the Soviet Government, and on that
date took from it an assignment of all 'amounts
admitted to be due that may be found to be due it,
as the successor of prior Governments of Russia,
or otherwise, from American nationals, including
corporations.' After making demand upon the
petitioner for payment of the balance of the
account the United States, on September 21,
1934, brought the present suit in the District Court
for Southern New York to recover the deposit.
Petitioner then moved under the Conformity Act, 28
U.S.C. 724, 28 U.S.C.A. 724; New York Civil
Practice Act, 307; and Rules 107 and 120 of the
New York Rules of Civil Practice, to dismiss the
complaint on the ground that the recovery was
barred by the New York 6-year statute of
limitations.
In support of the motion petitioner submitted
numerous affidavits, two depositions, and other
documentary proof tending to show that on
February 25, 1918, it had applied the balance of
the account as a credit against indebtedness
alleged to be due to it by the Russian Government
by reason of the latter's seizure of certain ruble
deposit accounts of petitioner in Russian private
banks; that on that date it had repudiated all
liability on the deposit account; and that it had then
given notice of such repudiation to the Russian
Embassy and later both to the Financial Attache
and to Bakhmeteff as Ambassador. The United
States submitted affidavits and exhibits in
opposition. The District Court found that petitioner
had repudiated liability on the account on February
25, 1918; that it had given due notice of
repudiation prior to June 30, 1922, to both the
Financial Attache and Ambassador Bakhmeteff;
and that recovery was barred by the applicable 6-
year statute of limitations of New York. The Circuit
Court of Appeals for the Second Circuit reversed
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the judgment for petitioner, holding that the New
York statute of limitations does not run against a
foreign sovereign. Moved by the importance of the
questions involved, we granted certiorari. 302 U.S.
681, 58 S.Ct. 363, 82 L.Ed. -.
ISSUE/S:
1. whether, in a suit at law brought in a
federal District Court to recover the deposit of a
foreign government with a New York bank, such
government is subject to the local statute of
limitations as are private litigants; and, if so,
whether the assignment of November 16, 1933, by
the Russian Soviet Government to the United
States of the right of the former to the bank
account restricts or overrides the operation of the
statute of limitations.
2. A subsidiary question is whether in the
circumstances of the case the running of the
statute of limitations, if otherwise applicable, was
affected by the US non-recognition of the Soviet
Government during the interval of approximately 16
years between recognition of the Provisional
Government of Russia and recognition of its
successor.
RULING:
1. First. The rule quod nullum tempus
occurrit regithat the sovereign is exempt from the
consequences of its laches, and from the operation
of statutes of limitationsappears to be a vestigial
survival of the prerogative of the Crown. But
whether or not that alone accounts for its origin, the
source of its continuing vitality where the royal
privilege no longer exists is to be found in the
public policy now underlying the rule even though it
may in the beginning have had a different policy
basis. 'The true reason is to be found in the great
public policy of preserving the public rights,
revenues, and property from injury and loss, by the
negligence of public officers. The rule is
supportable now because its benefit and
advantage extend to every citizen, including the
defendant, whose plea of laches or limitation it
precludes; and its uniform survival in the United
States has been generally accounted for and
justified on grounds of policy rather than upon any
inherited notions of the personal privilege of the
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king. United States v. Kirkpatrick, 9 Wheat. 720,
735, 6 L.Ed. 199; United States v. Knight, 14 Pet.
301, 315, 10 L.Ed. 465; United States v.
Thompson, 98 U.S. 486, 489, 25 L.Ed. 194; Fink v.
O'Neil, 106 U.S. 272, 281, 1 S.Ct. 325, 27 L.Ed.
196; United States v. Nashville, C. & St. L. R. Co.,
118 U.S. 120, 125, 6 S.Ct. 1006, 30 L.Ed. 81. So
complete has been its acceptance that the implied
immunity of the domestic 'sovereign,' state or
national, has been universally deemed to be an
exception to local statutes of limitations where the
government, state or national, is not expressly
included; and to the Conformity Act.
Whether the benefit of the rule should be extended
to a foreign sovereign suing in a state or federal
court is a question to which no conclusive answer
is to be found in the authorities. Diligent search of
counsel has revealed no judicial decision
supporting such an application of the rule in this or
any other country.
The only support found by the court below for a
different conclusion is a remark in the opinion of
the court in United States v. Nashville, C. & St. L.R.
Co., supra, where its holding that the United
States, suing in a federal court, is not subject to the
local statute of limitations, was said to rest upon a
great principle of public policy 'applicable to all
governments alike.' The statement is but a
paraphrase, which has frequently appeared in
judicial opinion, 1 of Mr. Justice Story's statement
in United States v. Hoar, supra, already quoted.
His reference to the public policy supporting the
rule that limitation does not run against a domestic
sovereign as 'equally applicable to all governments'
was obviously designed to point out that the policy
is as applicable to our own as to a monarchical
form of government, and is therefore not to be
discarded because of its former identity with the
royal prerogative. We can find in that
pronouncement and in its later versions no
intimation that the policy underlying exemption of
the domestic sovereign supports its extension to a
foreign sovereign suing in our courts.
It is true that upon the principle of comity foreign
sovereigns and their public property are held not to
be amenable to suit in our courts without their
consent. But very different considerations apply
where the foreign sovereign avails itself of the
privilege, likewise extended by comity, of suing in
our courts. By voluntarily appearing in the role of
suitor it abandons its immunity from suit and
subjects itself to the procedure and rules of
decision governing the forum which it has sought.
Even the domestic sovereign by joining in suit
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accepts whatever liabilities the court may decide to
be a reasonable incident of that act. As in the case
of the domestic sovereign in like situation, those
rules, which must be assumed to be founded on
principles of justice applicable to individuals, are to
be relaxed only in response to some persuasive
demand of public policy generated by the nature of
the suitor or of the claim which it asserts. That this
is the guiding principle sufficiently appears in the
many instances in which courts have narrowly
restricted the application of the rule nullum tempus
in the case of the domestic sovereign. 3 It likewise
appears from those cases which justify the rule as
applied to the United States suing in a state court,
on the ground that it is sovereign within the state
and that invocation of the rule nullum tempus
protects the public interest there as well as in every
other state. United States v. Beebe, 127 U.S. 338,
8 S.Ct. 1083, 32 L.Ed. 121; Booth v. United States,
11 Gill & J., Md., 373; McNamee v. United States,
11 Ark. 148; cf. United States v. People of State of
California, 297 U.S. 175, 186, 56 S.Ct. 421, 425,
80 L.Ed. 567.
The statute of limitations is a statute of repose,
designed to protect the citizens from stale and
vexatious claims, and to make an end to the
possibility of litigation after the lapse of a
reasonable time. It has long been regarded by this
Court and by the courts of New York as a
meritorious defense, in itself serving a public
interest. Bell v. Morrison, 1 Pet. 351, 360, 7 L.Ed.
174; M'Cluny v. Silliman, 3 Pet. 270, 278, 7 L.Ed.
676; Campbell v. Haverhill, 155 U.S. 610, 617, 15
S.Ct. 217, 39 L.Ed. 280; United States v. Oregon
Lumber Co., 260 U.S. 290, 43 S.Ct. 100, 67 L.Ed.
261; Brooklyn Bank v. Barnaby, 197 N.Y. 210, 227,
90 N.E. 834, 27 L.R.A.,N.S., 843; Schmidt v.
Merchants Despatch Transportation Co., 270 N.Y.
287, 302, 200 N.E. 824, 104 A.L.R. 450. Denial of
its protection against the demand of the domestic
sovereign in the interest of the domestic
community of which the debtor is a part could
hardly be thought to argue for a like surrender of
the local interest in favor of a foreign sovereign and
the community which it represents. We cannot say
that the public interest of the forum goes so far.
We lay aside questions not presented here which
might arise if the national government, in the
conduct of its foreign affairs, be treaty or other
appropriate action, should undertake to restrict the
application of local statutes of limitations against
foreign governments, or if the states in enacting
them should discriminate against suits brought by a
foreign government. We decide only that in the
absence of such action the limitation statutes of the
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forum run against a foreign government seeking a
remedy afforded by the forum, as they run against
private litigants.
The claim of the Russian Government was barred
by limitation, the United States as its assignee can
be in no better position either because of the rule
nullum tempus or by virtue of the terms of the
assignment.
The court could find nothing in the agreement and
assignment of November 16, 1933, which purports
to enlarge the assigned rights in the hands of the
United States, or to free it from the consequences
of the failure of the Russian Government to
prosecute its claim within the statutory period.
There is nothing in either document to suggest that
the United States was to acquire or exert any
greater rights than its transferor or that the
President by mere executive action purported or
intended to alter or diminish the rights of the debtor
with respect to any assigned claims, or that the
United States, as assignee, is to do more than the
Soviet Government could have done after
diplomatic recognitionthat is, collect the claims in
conformity to local law. Even the language of a
treaty wherever reasonably possible will be
construed so as not to override state laws or to
impair rights arising under them.
The assignment left unaffected the right of
petitioner to set up against the United States the
previous running of the statute of limitations.
2. Second. Respondent, relying on the New
York rules that the statute of limitations does not
run against a suit to recover a bank account until
liability upon it is repudiated, Tillman v. Guaranty
Trust Co., 253 N.Y. 295, 171 N.E. 61, and that the
statute of limitations does not run against a plaintiff
who has no forum in which to assert his rights,
Oswego & Syracuse R. Co. v. State, 226 N.Y. 351,
359, 362, 124 N.E. 8; Board of Sup'rs of Cayuga
County v. State, 153 N.Y. 279, 291, 47 N.E. 288;
Parmenter v. State, 135 N.Y. 154, 163, 31 N.E.
1035, argues that until recognition of the Soviet
Government there was no person to whom notice
of petitioner's repudiation could be given and no
court in which suit could be maintained to recover
the deposit.
It is not denied that, in conformity to generally
accepted principles, the Soviet Government could
not maintain a suit in our courts before its
recognition by the political department of the
government. For this reason access to the federal
Atty. Jamon
and state courts was denied to the Soviet
Government before recognition. The Penza, D.C.,
277 F. 91; The Rogdai, D.C., 278 F. 294; Russian
Socialist F. S. Republic v. Cibrario, supra;
Preobazhenski v. Cibrario, Sup., 192 N.Y.S. 275.
But the argument ignores the principle controlling
here and recognized by the courts of New York
that the rights of a sovereign state are vested in the
state rather than in any particular government
which may purport to represent it, The Sapphire,
supra, 11 Wall. 164, 168, 20 L.Ed. 127, and that
suit in its behalf may be maintained in our courts
only by that government which has been
recognized by the political department of our own
government as the authorized government of the
foreign state. Jones v. United States, 137 U.S. 202,
212, 11 S.Ct. 80, 34 L.Ed. 691; Russian
Government v. Lehigh Valley R. Co., D.C., 293 F.
133, 135, aff'd sub nom. Lehigh Valley R. Co. v.
State of Russia, 2 Cir., 21 F.2d 396, 409; Matter of
Lehigh Valley R. Co., 265 U.S. 573, 44 S.Ct. 460,
68 L.Ed. 1186; Russian S.F.S.R. v. Cibrario, supra;
Moore, International Law Digest, 75, 78.
What government is to be regarded here as
representative of a foreign sovereign state is a
political rather than a judicial question, and is to be
determined by the political department of the
government. Its action in recognizing a foreign
government and in receiving its diplomatic
representatives is conclusive on all domestic
courts, which are bound to accept that
determination, although they are free to draw for
themselves its legal consequences in litigations
pending before them. Jones v. United States,
supra, 137 U.S. 202, 212, 11 S.Ct. 80, 34 L.Ed.
691; Agency of Canadian Car & Foundry Co. v.
American Can Co., 2 Cir., 258 F. 363, 6 A.L.R.
1182; Lehigh Valley R. Co. v. State of Russia,
supra.
We accept as conclusive here the determination of
our own State Department that the Russian State
was represented by the Provisional Government
through its duly recognized representatives from
March 16, 1917, to November 16, 1933, when the
Soviet Government was recognized. There was at
all times during that period a recognized diplomatic
representative of the Russian State to whom notice
concerning its interests within the United States
could be communicated, and to whom our courts
were open for the purpose of prosecuting suits in
behalf of the Russian State. In fact, during that
period suits were brought in its behalf in both the
federal and state courts, which consistently ruled
that the recognized Ambassador and Financial
Attache were authorized to maintain them.
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We do not stop to inquire what the 'actual authority
of those diplomatic representatives may have
been. When the question is of the running of the
statute of limitations, it is enough that our courts
have been open to suit on behalf of the Russian
State in whom the right to sue upon the petitioner's
present claim was vested, and that the political
department of the government has accorded
recognition to a government of that state, received
its diplomatic representatives, and extended to
them the privilege of maintaining suit in our courts
in behalf of their state. The right and opportunity to
sue upon the claim against petitioner was not
suspended; and notice of repudiation of the liability
given to the duly recognized diplomatic
representatives must so far as our own courts are
concerned, be taken as notice to the state whom
they represented.
The government argues that recognition of the
Soviet Government, an action which for many
purposes validated here that government's
previous acts within its own territory, operates to
set at naught all the legal consequences of the
prior recognition by the United States of the
Provisional Government and its representatives, as
though such recognition had never been accorded.
This is tantamount to saying that the judgments in
suits maintained here by the diplomatic
representatives of the Provisional Government,
valid when rendered, became invalid upon
recognition of the Soviet Government. The one
operates only to validate to a limited extent acts of
a de facto government which, by virtue of the
recognition, has become a government de jure. But
it does not follow that recognition renders of no
effect transactions here with a prior recognized
government in conformity to the declared policy of
our own government. The very purpose of the
recognition by our government is that our nationals
may be conclusively advised with what government
they may safely carry on business transactions and
who its representatives are. If those transactions,
valid when entered into, were to be disregarded
after the later recognition of a successor
government, recognition would be but an idle
ceremony, yielding none of the advantages of
established diplomatic relations in enabling
business transactions to proceed, and affording no
protection to our own nationals in carrying them on.
It is concluded by the court that the recognition of
the Soviet Government left unaffected those legal
consequences of the previous recognition of the
Provisional Government and its representatives,
Atty. Jamon
which attached to action taken here prior to the
later recognition.
Wulfsohn et al. v Russian Socialist Federated
Soviet Republic
FACTS:
The Russian Federated Soviet Republic is the
existing de facto government of Russia. This is
admitted by the plaintiff. Otherwise there is no
proper party defendant before the court. It is
claimed by the defendant. The Appellate Division
states that it is a matter of common knowledge. It
has not been recognized by the government of the
United States.
The plaintiffs owned a quantity of furs.
They were stored in Russia and they were
confiscated by the Russian government. Treating
this act as a conversion the present action is
brought.
ISSUE:
Whether or not the defendant, which
hadnt been recognized by the US, can be sued in
the courts of the United States.
RULING:
The government itself is sued for an exercise of
sovereignty within its own territories on the theory
that such an act, if committed by an individual here,
would be a tort under our system of municipal law.
It is said that, because of non-recognition by the
United States, such an action may be maintained.
There is no relation between the premise and the
conclusion.
The result reached by the Court depends on
whether or not a government exists. The Court has
stated that no proof is needed as the fact is
conceded that the RFSR is the existing
government in Russia.
The court further stated that it is not competent to
review the actions of the respondents as the court
may not bring a foreign sovereign before their
jurisdiction because the foreign sovereign has yet
to submit itself to the United States laws,
recognized or not. As such an attempt, as stated
by the court, would be the same as To cite a
foreign potentate into a municipal court for any
complaint against him in his public capacity is
contrary to the law of nations, and an insult which
he is entitled to resent.(De Haber v. Queen of
Portugal, 17 Q.B. 171. Such case is stated to be
not confided to the courts, but to another
department of government. Whenever an act done
by a sovereign in his sovereign character is
questioned, it becomes a matter of negotiation, or
of reprisals, or of war.
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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem
The orders, therefore, appealed from, should be
reversed, with costs in all courts, and motions to
vacate attachment granted, with costs, and the
question certified to us should be answered in the
negative
RUSSIAN SOCIALIST FEDERATED SOVIET
REPUBLIC v. CIBRARIO et al 235 N.Y. 255, 139
N.E. 259 Court of Appeals of New York. March 6,
1923.
Background of the case in the Appellate Division of
the Supreme Court of New York First Department.
198 App Div 869( N.Y. App. Div. 1921)
This action is brought by the plaintiff in its alleged
capacity of a sovereign State, to compel the
defendants to account for moneys which, it is
claimed, the defendant Cibrario fraudulently
obtained under a contract made by him on July 24,
1918, with the Cinematographic Committee of the
Commissariat of Public Instruction which is alleged
to be a subordinate government body of the
plaintiff.
This contract provided for the purchase by the
cinematographic committee, of certain moving
picture machines, apparatus, film and material, at
designated prices mentioned therein, aggregrating
16,985,500 rubles, and the committee, in addition
to paying the prices therein mentioned for the
goods, were to pay the defendant Cibrario six per
cent on the entire sum to be paid him at once as a
guaranty of fulfillment by the committee. The sum
of $10,000 was in fact paid by the plaintiff to
Cibrario as an advance payment on his
commissions.
In August, 1918, plaintiff delivered to Dr. Wm. C.
Huntington, American commercial attache at
Petrograd, the sum of $1,000,000 to be deposited
in a reliable banking institution in the United States
of America, subject to drafts drawn on the
conditions contained in the contract referred to, a
copy of which was to be filed with the institution
selected. Thereafter Dr. Huntington caused the
said sum of $1,000,000 to be deposited with the
National City Bank of New York in accordance with
the terms of the agreement, a copy of which was
deposited with it, and the deposit was accepted
subject to the limitations and terms imposed by the
agreement upon the withdrawal of the funds so
deposited.
The plaintiff contends that, under the contract, the
defendant Cibrario was acting as its purchasing
agent and nothing more, and could not lawfully
make a profit on the purchase and sale of the
goods in question. In substance plaintiff charges
that Cibrario made large secret profits in
Atty. Jamon
connection with his purchases, that the materials
purchased were not in compliance with the
contract, but were in large part worthless, and that
the time limitation prescribed by the contract was
not observed.
It is also charged that various corporations named
as defendants in this action were organized by
Cibrario for the purpose of defrauding the plaintiff,
and that their sole assets consist of the plaintiff's
moneys received by Cibrario in violation of his
trust.
A receiver was asked of the effects of the
defendant Cibrario, as well as of the various
corporations organized and controlled by him, and
of all their property, as well as an injunction
restraining the transfer of any of their property, in
order to preserve whatever might remain of
plaintiff's funds pending the trial of this action.
From the order appointing such receiver this
appeal is taken.
With regards to such charges the defendants
objected that the Russian Socialiast Federated
Soviet Republic, never having been recognized as
a sovereignty by the executive or legislative
departments of the United States government, has
no capacity to sue in the courts of the United
States, or of any of the States.
The main issue on the case was: Whether or not
the Russian Socialist Federated Soviet Republic,
hereinafter referred as the Russian Soviet
Government, is a sovereign State, having its seat
of government at Moscow, Russia.
The court stated that such question must be
determined by the court, not on its own initiative,
but by reference to the public acts of the executive
and legislative departments of the government, of
which the courts are bound to take judicial notice.
The court also raised in its decision that: official
recognition is the sole test of the existence of a
foreign government, de facto or de jure, but, as
well, that the fact of such recognition is to be
ascertained from the appropriate governmental
authority, and that, if at any time such authority
advises the court of a change in the status of a
foreign government, the court must act on that
information. And whenever the question has been
raised in this State, it has been held that the test of
the right of a foreign sovereignty to sue in our
courts is its recognition by our own government.
And while plaintiff claims to be a de facto
government, and its title and right to sue alike rest
on that claim, it is unable to show any acts of
recognition by the government of this country. On
the contrary, the record proves that, so far as this
country is concerned, the plaintiff is non-existent as
a sovereignty. This was proved when it was stated
by the United States Senate committe that one of
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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem
the party plaintiffs named Ludwig C.A.K. Martens,
one who claims to be a representative for the
RFSR, had no status to do so as he was not given
recognition as a representative and that the United
States has never recognized the RFSR.
The facts appearing without contradiction, it follows
that plaintiff, never having been recognized as a
sovereignty by the executive or legistlative
branches of the United States government, has no
capacity to sue in the courts of this State.
Due to the determintation that there being no
plaintiff before the court having capacity to sue, it is
unnecessary to discuss the other reasons
advanced by appellants.
Thus the order appealed from is reversed and
motion denied. CLARKE, P.J., SMITH, PAGE and
GREENBAUM, JJ., concur.
https://casetext.com/case/russian-socialist-
federated-republic-v-cibrario
PRESENT CASE:
235 N.Y. 255, 139 N.E. 259 Court of Appeals of
New York. March 6, 1923.
FACTS:
This is an Appeal from the Supreme Court,
Appellate Division First Department Decision with
the same title.
In Wulfsohn v. Russian Federated Soviet
Republic, 234 N. Y. 372, 138 N. E. 24, we held that
our courts would not entertain jurisdiction of an
action brought without its consent against an
existing foreign government, in control of the
political and military power within its own territory,
whether or not such government had been
recognized by the United States.
ISSUE:
Whether or not such a government may itself
become a plaintiff in this case.
RULING:
The court stated that if said government was
recognized that it may undoubtedly be a plaintiff. It
also stated that said right may depend on treaty but
if such treaty does not exist then the privilege rests
upon the theory of international comity. Comity, as
stated by the courts, may be defined as that
reciprocal courtesy which one member of the
family of nations owes to the others. It
presupposes friendship. It assumes the prevalence
of equity and justice. Experience points to the
expediency of recognizing the legislative,
executive, and judicial acts of other powers. We do
justice that justice may be done in return.
What is termed the comity of nations is the formal
expression and ultimate result of that mutual
respect accorded throughout the civilized world by
the representatives of each sovereign power to
those of every other, in considering the effects of
their official acts. Its source is a sentiment of
Atty. Jamon
reciprocal regard, founded on identity of position
and similarity of institutions. Fisher, Brown & Co. v.
Fielding, 67 Conn. 91, 108, 34 Atl. 714, 716
The court reached the conclusion that as a foreign
power brings an action to the US courts not as a
matter of right. Its power to do so is the creature of
comity. Until such government is recognized by the
United States no such comity exists. Being that the
plaintiff concededly has not been recognized.
There is, therefore, no proper party before the
court. It was added that recognition, and,
consequently, the existence of comity, is purely a
matter for the determination of the legislative or
executive departments of the government. It was
further discussed that it is not for the courts to say
whether the present governments of Russia or
Mexico or Great Britain should or should not be
recognized. They are or they are not. That is as far
as they may inquire.
And even if such comity did not depend on
recognition the court would have still refused to
recognize the petitioners as the US State
Department that:
He begins by saying that our government will not
participate in any plan for the expansion of the
armistice negotiations between Russia and Poland
into a general European conference, which would
in all probability involve two results, from both of
which this country strongly recoils, - Secretary
Colby August 10, 1920
And such position has not receded as it was stated
by Secretary Hughes on March 25, 1921, that he
postpones any consideration of trade relations until
such time the US government has has convincing
evidence of fundamental changes that will fulfill
these conditions.
Banco Nacional de Cuba v. Sabbatino, 376 U.S.
398 (1964)
FACTS:
In February and July of 1960, respondent Farr,
Whitlock & Co., an American commodity broker,
contracted to purchase Cuban sugar, free
alongside the steamer, from a wholly owned
subsidiary of Compania Azucarera Vertientes-
Camaguey de Cuba (C.A.V.), a corporation
organized under Cuban law whose capital stock
was owned principally by United States residents.
Farr, Whitlock agreed to pay for the sugar in New
York upon presentation of the shipping documents
and a sight draft.
On July 6, 1960, the Congress of the United States
amended the Sugar Act of 1948 to permit a
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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem
presidentially directed reduction of the sugar quota
for Cuba. On the same day, President Eisenhower
exercised the granted power. The day of the
congressional enactment, the Cuban Council of
Ministers adopted "Law No. 851," which
characterized this reduction in the Cuban sugar
quota as an act of "aggression, for political
purposes" on the part of the United States,
justifying the taking of countermeasures by Cuba.
The law gave the Cuban President and Prime
Minister discretionary power to nationalize by
forced expropriation, property or enterprises in
which American nationals had an interest.
Although a system of compensation was formally
provided, the possibility of payment under it may
well be deemed illusory. The State Department has
described the Cuban law as "manifestly in violation
of those principles of international law which have
long been accepted by the free countries of the
West. It is in its essence discriminatory, arbitrary
and confiscatory."
Between August 6 and August 9 of 1960, the sugar
covered by the contract between Farr, Whitlock
and C.A.V. was loaded, destined for Morocco, onto
the S.S. Hornfels, which was standing offshore at
the Cuban port of Jucaro (Santa Maria). On the
day loading commenced, the Cuban President and
Prime Minister, acting pursuant to Law No. 851,
issued Executive Power Resolution No. 1. It
provided for the compulsory expropriation of all
property and enterprises, and of rights and
interests arising therefrom, of certain listed
companies, including C.A.V., wholly or principally
owned by American nationals. The preamble
reiterated the alleged injustice of the American
reduction of the Cuban sugar quota and
emphasized the importance of Cuba's serving as
an example for other countries to follow "in their
struggle to free themselves from the brutal claws of
Imperialism."
In consequence of the resolution, the consent of
the Cuban Government was necessary before a
ship carrying sugar of a named company could
leave Cuban waters. In order to obtain this
consent, Farr, Whitlock, on August 11, entered into
contracts, identical to those it had made with
C.A.V., with the Banco Para el Comercio Exterior
de Cuba, an instrumentality of the Cuban
Government. The S.S. Hornfels sailed for Morocco
on August 12.
Banco Exterior assigned the bills of lading to
petitioner, also an instrumentality of the Cuban
Government, which instructed its agent in New
York, Societe Generale, to deliver the bills and a
sight draft in the sum of $175,250.69 to Farr,
Whitlock in return for payment. Societe Generale's
initial tender of the documents was refused by Farr,
Atty. Jamon
Whitlock, which on the same day was notified of
C.A.V.'s claim that, as rightful owner of the sugar, it
was entitled to the proceeds. In return for a
promise not to turn the funds over to petitioner or
its agent, C.A.V. agreed to indemnify Farr, Whitlock
for any loss. Farr, Whitlock subsequently accepted
the shipping documents, negotiated the bills of
lading to its customer, and received payment for
the sugar.
It refused, however, to hand over the proceeds to
Societe Generale. Shortly thereafter, Farr, Whitlock
was served with an order of the New York
Supreme Court, which had appointed Sabbatino as
Temporary Receiver of C.A.V.'s New York assets,
enjoining it from taking any action in regard to the
money claimed by C.A.V. that might result in its
removal from the State. Following this, Farr,
Whitlock, pursuant to court order, transferred the
funds to Sabbatino, to abide the event of a judicial
determination as to their ownership.
Petitioner then instituted this action in the Federal
District Court for the Southern District of New York.
Alleging conversion of the bills of lading it sought to
recover the proceeds thereof from Farr, Whitlock
and to enjoin the receiver from exercising any
dominion over such proceeds. Upon motions to
dismiss and for summary judgment, the District
Court, sustained federal in personam jurisdiction
despite state control of the funds. It found that the
sugar was located within Cuban territory at the time
of expropriation, and determined that, under
merchant law common to civilized countries, Farr,
Whitlock could not have asserted ownership of the
sugar against C.A.V. before making payment.
It concluded that C.A.V. had a property interest in
the sugar subject to the territorial jurisdiction of
Cuba. The court then dealt with the question of
Cuba's title to the sugar, on which rested
petitioner's claim of conversion. While
acknowledging the continuing vitality of the act of
state doctrine, the court believed it inapplicable
when the questioned foreign act is in violation of
international law.
Proceeding on the basis that a taking invalid under
international law does not convey good title, the
District Court found the Cuban expropriation
decree to violate such law in three separate
respects: it was motivated by a retaliatory, and not
a public, purpose; it discriminated against
American nationals; and it failed to provide
adequate compensation. Summary judgment
against petitioner was accordingly granted.
The Court of Appeals, affirming the decision on
similar grounds, relied on two letters (not before
the District Court) written by State Department
officers which it took as evidence that the
Executive Branch had no objection to a judicial
14
PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem
testing of the Cuban decree's validity. The court
granted certiorari because the issues involved bear
importantly on the conduct of the country's foreign
relations and, more particularly, on the proper role
of the Judicial Branch in this sensitive area. For
reasons to follow, the court decide that the
judgment below must be reversed.
ISSUE:
Whether or not petitioner, an instrumentality of the
Cuban Government, should be denied access to
American courts.
RULING:
It was contended that the petitioner, being an
instrumentality of the Cuban Government, should
be denied access to American courts because
Cuba was an unfriendly power, and did not permit
nationals of the US to obtain relief in its courts. But
the court ruled that the petitioner should not be
barred from accessing the American Courts.
Under principles of comity governing the United
States relations with other nations, the court stated
that sovereign states are allowed to sue in the
courts of the United States. The Court has called
comity as "neither a matter of absolute obligation,
on the one hand, nor of mere courtesy and good
will, upon the other." Although comity is often
associated with the existence of friendly relations
between states, some of the recent lower court
cases which have questioned the right of
instrumentalities of the Cuban Government to sue
in the United States courts, the privilege of suit has
been denied only to governments at war with the
United States, or to those not recognized by this
country.
Respondents, also pointed to the severance of
diplomatic relations, commercial embargo, and
freezing of Cuban assets in this country, contend
that relations between the United States and Cuba
manifest such animosity that unfriendliness is
clear, and that the courts should be closed to the
Cuban Government. The Court did not agree. It
stated that the court is hardly competent to assess
the relationship with another recognized sovereign
power as embracing the privilege of resorting to
United States courts.
.Although the severance of diplomatic relations is
an overt act with objective significance in the
dealings of sovereign states, the Court was
unwilling to state that it should inevitably result in
the withdrawal of the privilege of bringing suit.
Severance may take place for any number of
political reasons but it was stated that it does not
imply a declaration of war.
It was further discussed that non-recognition of a
government in certain circumstances may reflect
no greater unfriendliness than the severance of
diplomatic relations with a recognized government,
Atty. Jamon
but such refusal to recognize has a unique legal
aspect. Political recognition is exclusively a
function of the Executive. The possible deviation of
judicial "recognition," by permitting suit, of a
government not recognized by the Executive is
completely absent when merely diplomatic
relations are broken.
The view that the existing situation between the
United States and Cuba should not lead to a denial
of status to sue is due to the circumstance that
none of the acts of US Government has been
aimed at closing the courts of the country to Cuba.
THE AMBROSE LIGHT. UNITED STATES v. THE
AMBROSE LIGHT
FACTS:
This case was filed to procure the seized
brigantine Ambrose Light, which was brought into
the US port as prize on June 3, 1885, by Lieut.
Wright and a prize crew, detached from the United
States gun-boat alliance, under Commander
Clarke, by whose orders the brigantine had been
seized on April 24 1885. The seizure was made in
the Carribean sea, about 20 miles to the west of
Cartagena when the commander was looking for
the insurgent Preston, by whose orders Colon had
shortly before been fired, to the great loss and
injury of the US citizens. Instead of Preston, they
saw the Ambrose light, which was displaying a
Colombian flag. Upon examination, some 60
armed soldiers were found concealed below the
decks of the ship and one cannon aboard. Along
with it came papers purporting to be a
commissioning the boat as a Colombian vessel-of-
war.
Believing the commission to be irregular,
and that it had no lawful authority to cruise as a
vessel-of-war on the high seas, Commander
Clarke reported the Ambrose light as under seizure
to Admiral Jouett who in turn directed them to take
it to New York for adjudication as prize.
The vessel was at first supposed to belong
to citizens of the United States. The proofs showed
that it had been sold to, and legally belonged to,
Colente, one of the chief military leaders of the
insurgents at Barranquilla. It was engaged upon a
hostile expedition against Cartagena, and
designed to assist in the blockade and siege of that
port by the rebels against the established
government of the United States of Colombia. The
boat had left Sabanilla on April 20th, bound for
Baru, near Cartagena, where she expected the
soldiers aboard to disembark. The Ambrose light
was under the orders of the colonel of the troops,
whose instructions were to shoot the captain if
disobedient to his orders. Further instructions were
to fight any Colombian vessel not showing the
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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem
white flag with a red cross. Sabanilla, and a few
other adjacent sea-ports, and the province of
Barranquilla, including the city of Barranquilla, had
been for some months previous, and still were,
under the control of the insurgents.
As respects to any recognition of the insurgents by
foreign powers, it did not appear in evidence that
up to the time of the seizure of the vessel on April
24, 1885, a state of war had been recognized as
existing, or that the insurgents had ever been
recognized as a de facto government, or as having
belligerent rights, either by the Colombian
government, or by the US government, or by any
other nation. The claimants introduced in evidence
a diplomatic note from the US secretary of state to
the Colombian minister, dated April 24, 1885,
which, it was contended, amounted to a recognition
by implication of a state of war. The government
claimed the forfeiture of the ship as piratical, under
the law of nations, because she was not sailing
under the authority of any acknowledged power.
The claimants contended that, being actually
belligerent, she was in no event piratical by the law
of nations; but if so, that the subsequent
recognition of belligerency by the US government
by implication entitles her to a release.
ISSUE:
Whether or not the insurgents had or had not
obtained any previous recognition of belligerent
rights, either from their own government or from
the political or executive department of any other
nation
RULING:
The ruling went over the status of the vessel as for
lawful warfare or as piratical. The basis of the
whole decision was bordered on whether the
insurgents had or had not obtained any previous
recognition of belligerent rights from either their
own government or from the political or executive
department of any other nation; and that in the
absence of recognition by any government, the
tribunals of other nations must hold such
expedition to be technically piratical. In the
absence of any recognition of the insurgents as
belligerents, the Ambrose Light have been lawfully
seized, as bound upon an expedition technically
piratical.
But as additional facts proved show, such
a subsequent implied recognition by the US
government of the insurgent forces as government
de facto, in a state of war with Colombia, and
entitled to belligerent rights, as should prevent the
condemnation of the vessel as prize. The
communication from the department of state to the
Colombian minister, bearing such date of seizure,
seems to have constituted such a recognition by
necessary implication.
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Recognition of belligerent rights may be
tacit, implied or express. It is express when made
by a proclamation of neutrality. It is implied in a
declaraction of blockade, as in that of President
Lincoln during April 19, 1861. And it is a tacit
recognition when there has been long
acquiescence in belligerent acts affecting another
nations interests, without protest or objection, such
as the blockading of ports or the use of nations
ports as a harbor for prizes.
And has been stated by the court, the
attitude assumed by the US government is of a
recognition by necessary implication of the existing
insurrection as constituting a state of civil war. It
assumes that the Colombian government, as
respects the ports in question, is a belligerent; that
the insurgents hold those ports as a de facto
power, to the exclusion, for the time being, of the
Colombian government and of its sovereign
authority; that they are in arms against the latter
government; and it is declared that the US
government will not recognize any attempt by the
Colombian government to close these ports by
virtue of its own sovereignty as lawful or valid; nor
any closure, except by means of an effectual
blockade, i.e., by acts of war. In saying that it
would recognize no rights of the Colombian
government at those ports, except belligerent
rights, our government implies belligerent rights in
those who hold those ports adversely.
The US government could not say that Colombia
shall exercise no rights but belligerent rights, and
at the same time deny such rights to the opposite
party. No stronger assertion by implication of the
rebel de facto authority, and of a state of war could
well be made.
To avoid irritations among friendly powers it may
often be expedient, in cases of domestic strife, to
withhold all express announcements of neutrality,
or recognition of belligerency, until some occasion
makes it necessary; and where the insurgents
studiously avoid interference with foreign vessels
on the high seas, or with their freedom of
commerce, recognition may be long delayed, and
no occasion arise for foreign nations to take notice
of the strife, whether on land or sea.
The seizure was rightful and the discharge is
granted upon causes subsequent. The necessary
disbursements should therefore fall upon the
vessel and not upon the United States. The vessel
is discharged from US Custody.
The Three Friends, 166 U.S. 1 (1897)
FACTS:
The steamer Three Friends was seized
November 7, 1896, by the collector of customs for
the district of St. Johns, Fla., as forfeited to the
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United States under 5283(which prohibited the
arming of a vessel for hostile purposes against an
entity with whom the United States was at peace.)
of the Revised Statutes, and thereupon, November
12th, was libeled on behalf of the United States in
the District Court for the Southern District of
Florida. It was alleged that the vessel was engaged
in hostile operations in Cuba against the Spanish
Government with whom the United States had not
accorded recognition to the Cuban rebels. The
vessel was appraised at $4,000, and a bond on
stipulation given for $10,000, upon which she was
directed to be released.
ISSUE:
Whether or not the release of Three Friends was
valid.
RULING:
The Court has ordered that such order for the
release of the vessel was improvidently made, as it
should not have been released.
Section 5283 of the Revised Statutes is as follows:
"Every person who, within the limits of the United
States, fits out and arms, or attempts to fit out and
arm, or procures to be fitted out and armed, or
knowingly is concerned in the furnishing, fitting out,
or arming, of any vessel with intent that such
vessel shall be employed in the service of any
foreign prince or state, or of any colony, district, or
people, to cruise or commit hostilities against the
subjects, citizens, or property of any foreign prince
or state, or of any colony, district, or people, with
whom the United States are at peace, or who
issues or delivers a commission within the territory
or jurisdiction of the United States, for any vessel,
to the intent that she may be so employed, shall be
deemed guilty of a high misdemeanor, and shall be
fined not more than ten thousand dollars, and
imprisoned not more than three years. And every
such vessel, her tackle, apparel, and furniture,
together with all materials, arms, ammunition, and
stores, which may have been procured for the
building and equipment thereof, shall be forfeited;
onehalf to the use of the informer, and the other
half to the use of the United States."
As stated by the Court any other conclusion rests
on the unreasonable assumption that the act is to
remain ineffectual unless the government incurs
the restraints and liabilities incident to an
acknowledgment of belligerency. On the one hand,
pecuniary demands, reprisals, or even war may be
the consequence of failure in the performance of
obligations towards a friendly power, while on the
other, the recognition of belligerency involves the
rights of blockade, visitation, search, and seizure of
contraband articles on the high seas, and
abandonment of claims for reparation on account
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of damages suffered by our citizens from the
prevalence of warfare.
Belligerency is recognized when a political struggle
has attained a certain magnitude, and affects the
interests of the recognizing power; and, in the
instance of maritime operations, recognition may
be compelled, or the vessels of the insurgents, if
molesting third parties, may be pursued as pirates.
The Ambrose Light, 25 F. 408; 3
Whart.Dig.Int.Law, 381, and authorities cited.
But it belongs to the political department to
determine when belligerency shall be recognized,
and its action must be accepted according to the
terms and intention expressed.
The distinction between recognition of belligerency
and recognition of a condition of political revolt --
between recognition of the existence of war in a
material sense and of war in a legal sense -- is
sharply illustrated by the case before us, for here
the political department has not recognized the
existence of a de facto belligerent power engaged
in hostility with Spain, but has recognized the
existence of insurrectionary warfare prevailing
before at the time, and since this forfeiture is
alleged to have been incurred.
On June 12, 1895, a formal proclamation was
issued by the President, and countersigned by the
Secretary of State, informing the people of the
United States that the Island of Cuba was "the seat
of serious civil disturbances, accompanied by
armed resistance to the authority of the established
government of Spain, a power with which the
United States are and desire to remain on terms of
peace and amity;" declaring that "the laws of the
United States prohibit their citizens, as well as all
others being within and subject to their jurisdiction,
from taking part in such disturbances adversely to
such established government, by accepting or
exercising commissions for warlike service against
it, by enlistment or procuring others to enlist for
such service, by fitting out or arming, or procuring
to be fitted out and armed, ships of war for such
service, by augmenting the force of any ship of war
engaged in such service and arriving in a port of
the United States, and by setting on foot or
providing or preparing the means for military
enterprises to be carried on from the United States
against the Territory of such government," and
admonishing all such citizens and other persons to
abstain from any violation of these laws.
In his annual message of December 2, 1895, the
President said:
"Cuba is again gravely disturbed. An insurrection,
in some respects, more active than the last
preceding revolt, which continued from 1868 to
1878, now exists in a large part of the eastern
interior of the island, menacing even some
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populations on the coast. Besides deranging the
commercial exchanges of the island, of which our
country takes the predominant share, this flagrant
condition of hostilities, by arousing sentimental
sympathy and inciting adventurous support among
our people, has entailed earnest effort on the part
of this government to enforce obedience to our
neutrality laws and to prevent the territory of the
United States from being abused as a vantage
ground from which to aid those in arms against
Spanish sovereignty."
July 27, 1896, a further proclamation was
promulgated, and in the annual message of
December 7, 1896, the President called attention
to the fact that "the insurrection in Cuba still
continues, with all its perplexities," and gave an
extended review of the situation.
We are thus judicially informed of the existence of
an actual conflict of arms in resistance of the
authority of a government with which the United
States are on terms of peace and amity, although
acknowledgment of the insurgents as belligerents
by the political department has not taken place,
and it cannot be doubted that, this being so, the act
in question is applicable.
We see no justification for importing into section
5283 words which it does not contain, and which
would make its operation depend upon the
recognition of belligerency; and, while the libel
might have been drawn with somewhat greater
precision, we are of opinion that it should not have
been dismissed.
This conclusion brings us to consider whether the
vessel ought to have been released on bond and
stipulation.
It is provided by section 938 of the Revised
Statutes that:
"Upon the prayer of any claimant to the court that
any vessel, goods, wares, or merchandise seized
and prosecuted under any law respecting the
revenue from imports or tonnage, or the registering
and recording, or the enrolling and licensing of
vessels, or any part thereof, should be delivered to
him, the court shall appoint three proper persons to
appraise such property, who shall be sworn in
open court, or before a commissioner appointed,"
etc. "If, on the return of the appraisement, the
claimant, with one or more sureties, to be approved
by the court, shall execute a bond to the United
States," etc., "the court shall, by rule, order such
vessel, goods, wares, or merchandise to be
delivered to such claimant. . . ."
Section 939 provides for the sale of vessels
"condemned by virtue of any law respecting the
revenue from imports or tonnage, or the registering
and recording, or the enrolling and licensing of
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vessels, and for which bond shall not have been
given by the claimant. . . ."
Section 940 authorizes the judges to do in vacation
everything that they could do in term time in regard
to bonding and sales, and to "exercise every other
incidental power necessary to the complete
execution of the authority herein granted."
Section 941 provides:
"When a warrant of arrest or other process in rem
is issued in any cause of admiralty jurisdiction,
except the cases of seizure for forfeiture under any
law of the United States, the marshal shall stay the
execution of such process, or discharge the
property arrested if the process has been levied,
on receiving from the claimant of the property a
bond or stipulation in double the amount claimed
by the libellant, with sufficient surety, to be
approved by the judge," etc.
By section 917, this Court may prescribe rules of
practice in admiralty "in any manner not
inconsistent with any law of the United States."
Rule 11 is as follows:
"In like manner, where any ship shall be arrested,
the same may, upon the application of the
claimant, be delivered to him upon a due
appraisement, to be had under the direction of the
court, upon the claimant's depositing in court so
much money as the court shall order, or upon his
giving a stipulation, with sureties, as aforesaid, and
if the claimant shall decline any such application,
then the court may, in its discretion, upon the
application of either party, upon due cause shown,
order a sale of such ship, and the proceeds thereof
to be brought into court or otherwise disposed of,
as it may deem most for the benefit of all
concerned."
In The Mary N. Hogan, 17 F. 813, Judge Brown, of
the Southern District of New York, refused to
deliver the vessel on stipulation, and, referring to
Rule 11, said that it was not in form imperative in
all cases, but left to the court a discretion which
might be rightly exercised under peculiar
circumstances, and that the rule clearly should not
be applied where the object of the suit was "not the
enforcement of any money demand, nor to secure
any payment of damages, but to take possession
of and forfeit the vessel herself in order to prevent
her departure upon an unlawful expedition in
violation of the neutrality laws of the United
States."
And he added:
"It is clearly not the intention of section 5283, in
imposing a forfeiture, to accept the value of the
vessel as the price of a hostile expedition against a
friendly power, which might entail a hundredfold
greater liabilities on the part of the government. No
unnecessary interpretation of the rules should be
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adopted which would permit that result, and yet An entity acquiring the 4 ESSENTIAL
such might be the result, and even the expected REQUISITES of elements is regarded in law as
result, of a release of the vessel on bond. The plain having achieved the status of a state and may
intent of section 5283 is effectually to prevent any
therefore be treated as an international person.
such expedition altogether, through the seizure
and forfeiture of the vessel herself. The
government is therefore entitled to retain her in
custody, and Rule 11 cannot be properly applied to
Generally accepted methods why states are
such a case."
But in section 941 of the Revised Statutes, the created:
exception was introduced of "cases of seizure for
forfeiture under any law of the United States," and 1. Revolution
it seems obvious that the release on bond of a
vessel charged with liability to forfeiture under An overthrow or repudiation and the thorough
section 5283, before answer or hearing, and replacement of an established government or
against the objection of the United States, could political system by the people governed.
not have been contemplated. However, as this
application was not based upon absolute right, but Example: USA
addressed to the sound discretion of the court, it is
enough to hold that, under the circumstances of
this case, the vessel should not have been
released as it was, and should be recalled on the 2. Unification
ground that the order of release was improvidently
made It is the process of being united or made into a
The decree must be reversed, and the cause
remanded to the district court with directions to whole.
resume custody of the vessel, and proceed with
the case in conformity with this opinion.
Ordered accordingly.
Example: Italy

3. Secession
IV. Succession of States and
Governments It is the withdrawal of a group from a larger entity,
especially a political entity, but also any
The Concept of the State organization, union or military alliance.

State - Basic Unit of the international community Example: Bangladesh

and the principal subject of international law. It is
therefore important to understand its concept,
manner of creation, its rights and responsibilities,
4. Assertion of Independence
the duration of its existence, and the modes and
effects of its extinction. A declaration of independence or declaration of
statehood is an assertion by a defined territory that
it is independent and constitutes a state. Such
4 Essential Elements of the State: places are usually declared from part or all of the
territory of another nation or failed nation, or are
1. People breakaway territories from within the larger state.
2. Territory
3. Government Example: Philippines
4. Sovereignty or independence

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5. Agreement

It is built through treaties and talks between

nations.

Example: The Kingdom of Netherlands, Poland

6. Attainment of Civilization
The Robert E. Brown Case (United States of
Japan attained Civilization by seriously challenging America vs Great Britain) (1923)
the 19th century identification of civilization with
Christendom as used by the Westerners. Having Facts:
adhered to several international conventions, and
The Robert E. Brown case arose in the context of
revised their civil and criminal codes, they
the British annexation of the Boer Republics in
managed to negotiate the repeal of the unequal
1902, towards the close of the Second Anglo-Boer
treaties from 1894 onwards, as well as to win back
War. Brown, an American national was deprived of
control over their tarifs, and their victory over
his rights through a proclamation of the Boer
Russia in 1905 simply conrmed their status as a
government in 1895. He brought a suit before the
major Power.
South African courts in 1897 and won, but the
Example: Japan (Became an international person government refused to honor the judgment.
by attainment of Civilization) Following British annexation of the Transvaal
Republic, Brown pressed his case with the British
authorities and was again refused. Finally, Brown
brought a further claim before the Great Britain
THE PRINCIPLE OF CONTINUITY United States Claims Commission for denial of
justice, arguing that as successor to the Boer
Once the identity of the state as an international
Republics, Britain was answerable for their delicts.
person has been fixed and its position in the
international community established, "the state
continues to be the same corporate person
whatever changes may take place in its Held: Although the Commission agreed that a
international operation and government. denial of justice on the part of the South African
authorities had indeed taken place, it refused to
Limitation of sovereignty only reduces it to the hold Britain liable as successor, stating:
status of a dependent state but does not entirely
deprive it of international personality.

[W]e are equally clear that [South African] liability

The PRINCIPLE OF STATE CONTINUITY
It means that the legal existence of a state
continues notwithstanding changes in the size of its
population or territory or in the form of leadership of
its government as long as the four (4) elements of
statehood are retained.
never passed to or was assumed by the British
Government, Neither in terms of peace granted at
the time of the surrender of the Boer Forces nor
the Proclamation of Annexation can there be
found any provisions referring to the assumption of
liabilities of this nature The contention of the
American Agent amounts to an assertion that a
succeeding State acquiring territory by conquest
without any undertaking to assume such liabilities
is bound to take affirmative steps to right the

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wrongs done by the former State. We cannot
indorse this doctrine.
Haile Selassie vs. Cable and Wireless Co. Ltd;
Abyssinia vs Abyssinia vs U.K., 1939
Facts: In December 1936, the King of Italy was
recognized by the British Government as the de
facto Sovereign of Ethiopia, while the Emperor
Haile Selassie continued to be recognized as de
jure Sovereign. In November 1938, the British
Government recognized the King of Italy as de jure
Emperor of Ethiopia and withdrew its recognition
from the Emperor Haile Selassie.
Issue:
1. Which government would get the priority
between two recognized governments?
2. What would be the consequences of two
recognitions at the same time?
Held:
The decision of the Court of First Instance had
been given before the de jure recognition of the
Italian conquest, while the Court of Appeal decided
after that event. The Court of Appeals reversed the
decision of the Chancery Division given in favour of
the plaintiff and dismissed Emperor Haile
Selassies action. After the de jure recognition of
the Italian conquest, it was held that in the Court of
England, the King of Italy as Emperor of Abyssinia
is entitled by succession to the public property of
the State of Abyssinia, and the late Emperor of
Abyssinias title thereto was no longer recognized
as existent. It was further held that right of
succession is to be dated bact at any rate to the
date when de facto recognition of the king of Italy
as Sovereign of Ethiopia has taken place.
West Rand Central Gold Mining Co. v The King
Facts:
In the case West Rand Central Gold Mining Co. v
The King in 1905, the Republic of South Africa has
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seized over 2,617 ounces of gold from the West
Rand Central Gold Mining Company for
safekeeping. Following the Anglo-Boer War,
Britain conquered the Republic of South Africa and
thereby came into possession of the seized gold.
West Rand Central Gold Mining Company brought
suit seeking recovery of the gold on the premise
that conquest or change of sovereignty by cession
does not affect preexisting contractual rights. The
company relied on United States v. Perchman,
arguing that the whole of the civilized world would
be outrages if private property should be generally
confiscated and private rights annulled by the
British conquest.
Issue: Whether after annexation, a conquering
state becomes liable to discharge the financial
obligations of the conquered state due to
individuals or corporations
Held: Unpersuaded, the House of Lords held that
where the King of England conquers a country it is
a different consideration, [from peaceable cession],
for there the conqueror by saving the lives of the
people conquered gains a right and property in
such people, in consequence of which he may
impose upon them what law he pleases. In effect,
the court declined to extend protection to the
private property rights of a South African
corporation by drawing a distinction between the
circumstances under which such protection applies
and those in which it does not. In light of the courts
observation that the Crown was freed of any
constraints in deciding what law to apply to
conquered people, it is plausible to argue that the
decision was made to match the demands of
colonial expediency rather than because the
doctrine required such an outcome on any
principled basis except those consistent with the
designs of the expanding British Empire.
V. Rights and duties of states in
general
*See Abellas report*
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State does not ordinarily fall within the realm of

international law.
VI. Territory of States

Occupation
Territory of the State
Prescription
There is no State without territory. International law
requires that any political group purporting to be a Cession
State occupy a fixed and definite portion of
territory. Subjugation

Territory -consists of the portion of the surface of Accretion

the globe on which that State settles and over
which it has supreme authority. The territory of a
State is an object of the law of Nations, because
Sector Principle: Polar Regions
the latter recognizes the supreme authority of
every State within its territory. Occupation: Means of acquiring a territory not
already forming part of the dominion of any state.
Domain-A more formal expression of the concept
The prime object of settlement by occupation is the
of Territory
incorporation of unappropriated territory into the
national domain of the acquiring State. Territory
must be res nullius or terra nullius.

Classification of Domain:
Primary distinction:
1. Territorial
The territory to be occupied must be an
2. Maritime/Fluvial
uninhabited territory
3. Aerial
Effect is possession and administration
The dominion which a State has over its land
territory, as a rule, is exclusive, and is more
Possession- There is a formal act announcing
absolute than that which it possesses over its
such intention and the fact of possession, either by
maritime and aerial domains proclamation or hoisting of the flag of the acquiring
State. Actual settlement on the land is a sufficient
expression of intention to take possession. It can
Territorial Acquisition be subjective or objective.

Acquisition: Subjective- Intention or will of the sovereign.

Act by which a state gains additional territory by Objective-Actual exercise or display of authority
recognized means via five (5) ways (the
Administration- Effective occupation is completed
recognized means). It is not to be confused with
upon the establishment of government or
the formation of a new State or with the acquisition
administration on the territory. If within a
of territory by entities not having an international
reasonable time after taking possession, the
personality or entities not vested by a sovereign
possessor does not establish some governing
State with authority to acquire territory for it.
functions, there is then no effective occupation
Acquisition of territory by entities other than a

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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem
since in fact no sovereignty is exercised by any
State over the territory.
Inchoate title of discovery
Title by which is gained upon initial discovery,
wherein if a period lapses without the discovering
state to claim such land, other states may occupy
and claim.
Extent of Occupation
An occupation made is valid only with respect to
and extends only to the area effectively occupied.
Right of Contiguity- Effective occupation of a
territory makes the sovereignty of the possessor
extend also over neighboring territories as far as is
necessary for the integrity, security and defense of
the land actually occupied.
Prescription: The acquisition of territory by an
adverse holding continued through a long term of
years. Presumes the existence, or at least a theory
of an earlier title by another.
It must manifest:
Continuous/undisturbed holding of a territorial
domain and lapse of a period of time
Doctrine of immemorial prescription
uncontested
Cession: Transfer of sovereign from one state to
another. Bilateral agreement whereby one State
transfers sovereignty over a definite portion of
territory to another State. Can be fractional or
entirety of the State or Domain.
Subjugation: The acquisition of sovereignty of a
certain territory by force of arms, exercised by an
independent power which reduces the vanquished
to the submission of its empire. The taking of a
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hostile territory through military force in time of war
and by which the victorious belligerent compels the
enemy to surrender sovereignty of that territory
thus occupied.
It is evident during the era of:
Conquest
World Wars
Accretion: Increase of land area via natural
circumstances (force of nature, or artificial via
labor)
Loss of Territory: Loss is possible Under right
circumstances (6 circumstances)
Dereliction-Abandonment of territory by the
sovereign State, with the intention of relinquishing
sovereignty, is termed dereliction. It is physical
cessation of possession coupled with the Intention
of giving up sovereignty which constitutes
relinquishment of title to the territory thus
abandoned.
Prescription
Cession-Bilateral Agreement
Subjugation
Operation of Nature
Revolt
Maritime and Fluvial Domain- Sovereignty of the
State extends, beyond its land territory and its
internal waters, to a belt of sea adjacent to its coast
described as territorial sea.
Internal Waters- Sometimes called national or
inland waters, consists of waters in lakes, canals,
river together with their mouths, ports and harbors,
and may also include parts of the sea which have
the character of historic waters.
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Article 1 of the Constitution National
Territory
Rivers- (a) National rivers, (b) Boundary
rivers, (c) Multinational rivers, (d) International
rivers
Lakes and Locked Seas
Canals-Artificially constructed waterways.
Territorial Sea Comprises the waters in
the so-called maritime or marginal belt surrounding
the land area. It may also include bays, gulfs and
straits.
*Extent of Maritime belt of territorial seas
Conventions:
1956 International Law Convention
are those situated so close to a mainland that they
may reasonably be considered part and parcel
thereof, forming more or less an outer coast-line
from which the marginal sea is measured.
2. Mid-Ocean/Outlying Archipellago (i.e.
Philippines)
are group of islands situated out in the ocean at
such a distance from the coasts of firm land as to
be considered an independent whole rather than
forming part of the mainland.
Continental Shelf-
Bays and Gulfs
Strait
Aerial Domain: Includes airspace over its domain,
extending over its territorial and maritime areas.

1958 Convention

1960 Convention Four (4) theories:

1974 Convention -Entirely Free and incapable of

appropriation
The two baseline methods -Analogy of Maritime Belt -a lower zone of
territorial air space and a higher unlimited zone of
1. Normal Baseline Method free airspace.
-Airspace-to an unlimited height is entirely
the breadth of territorial sea is measured from the within sovereignty of the subjacent State
low-water line, following the indentions of the -Subject to innocent passage-Foreign civil
coast. aircraft

2. Straight Baseline Method

General Agreement
it is drawn as straight lines connecting appropriate
points on the coast, without departing to any Jurisdiction to the air directly above
appreciable extent from the general direction of the
Admission or Non-admission is discretionary
coast.
Airspace over high seas are free for all
*Terra potestas finitus uli finitus armorum vis =
The ownership over land ends where the force of
arms ends
On Outer Space

Three (3) Schools

Territorial Waters of Archipelago
1. ad infinitum
Two (2) base types: 2. limited to atmosphere
3. free for all
1. Coastal Archipelago
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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem
High Seas- are open to all nations and that no
State may subject any part of the high seas to its
sovereignty is well-established in international law.
Freedom to navigate
Freedom to fish
Freedom to lay submarine pipes and
cables
Freedom to fly over them
Island of Palmas case:
A title that is inchoate cannot prevail over
a definite title found on the continuous and
peaceful display of sovereignty. The peaceful and
continuous display of territorial sovereignty is as
good as title. However, discovery alone without
subsequent act cannot suffice to prove sovereignty
over the island. The territorial sovereignty of the
Netherlands (D) was not contested by anyone from
1700 to 1906. The title of discovery at best an
inchoate title does not therefore prevail over the
Netherlands (D) claims of sovereignty.
Clipperton Island case:
On January 28, 1931, King Victor
Emmanuel of Italy declared Clipperton to be a
French possession. It was ruled that Mexico was
not able to prove historic right over the Island. Part
of the decision says: When France proclaimed her
sovereignty over Clipperton, the Island was in a
legal situation of terra nullius, and therefore
susceptible to occupation. By the regularity of the
act of France, it is clear that it had the intention to
consider the island as his territory.
VII. Law of the Sea
United Nations Convention on the Law of the
Sea (UNCLOS)
also called the Law of the Sea Convention
or the Law of the Sea Treaty
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defines the rights and responsibilities of
nations with respect to their use of the
world's oceans, establishing guidelines for
businesses, the environment, and the
management of marine natural resources
A. INTERNAL WATERS
Article 8 (UNCLOS) provides that:
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 such,
a right of innocent passage as provided in this
Convention shall exist in those waters.
Covers all water and waterways on the
landward side of the baseline.
The coastal state is free to set laws,
regulate use, and use any resource.
Foreign vessels have no right of passage
within internal waters.
B. TERRITORIAL WATERS
The belt of the sea located between the
coast and internal waters of the coastal state on
the one hand, and the high seas on the other
Extends up to 12 nautical miles from the
low-water mark, or in the case of archipelagic
states, from the baselines (Article 3)
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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem
The coastal state is free to set laws,
regulate use, and use any resource;
Vessels were given the right of innocent
passage through any territorial waters, with
strategic straits allowing the passage of military
craft as transit passage, in that naval vessels are
allowed to maintain postures that would be illegal
in territorial waters.
Article 18 (UNCLOS) Meaning of
passage provides that:
1. Passage means navigation through the
territorial sea for the purpose of:
(a) traversing that sea without entering
internal waters or calling at a roadstead or port
facility outside internal waters; or
(b) proceeding to or from internal waters or a call at
such roadstead or port facility.
2. Passage shall be continuous and expeditious.
However, passage includes stopping and
anchoring, but only in so far as the same are
incidental to ordinary navigation or are rendered
necessary by force majeure or distress or for the
purpose of rendering assistance to persons, ships
or aircraft in danger or distress.
Article 19 (UNCLOS) Meaning of
innocent passage provides that:
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.
2. Passage of a foreign ship shall be
considered to be prejudicial to the peace, good
order or security of the coastal State if in the
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territorial sea it engages in any of the following
activities:
(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 defence or security of the coastal
State;
(d) any act of propaganda aimed at affecting the
defence 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 wilful 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.
Fishing, polluting, weapons practice, and
spying are not "innocent", and submarines and
other underwater vehicles are required to navigate
on the surface and to show their flag.
Nations can also temporarily suspend
innocent passage in specific areas of their
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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem
territorial seas, if doing so is essential for the
protection of its security.
C. EXCLUSIVE ECONOMIC ZONES (EEZ)
These extend 200 nautical miles (370
kilometres; 230 miles) from the baseline.
Within this area, the coastal nation has
sole exploitation rights over all natural resources.
In casual use, the term may include the territorial
sea and even the continental shelf.
The EEZs were introduced to halt the
increasingly heated clashes over fishing rights,
although oil was also becoming important.
Article 56 (UNCLOS) - Rights, jurisdiction
and duties of the coastal State in the exclusive
economic zone provides that:
1. In the exclusive economic zone, the
coastal State has:
(a) sovereign rights for the purpose of exploring
and exploiting, conserving and managing the
natural resources, whether living or non-living, of
the waters superjacent to the seabed and of the
seabed and its subsoil, and with regard to other
activities for the economic exploitation and
exploration of the zone, such as the production of
energy from the water, currents and winds;
(b) jurisdiction as provided for in the relevant
provisions of this Convention with regard to:
(i) the establishment and use of artificial islands,
installations
and structures;
(ii) marine scientific research;
(iii) the protection and preservation of the marine
environment;
(c) other rights and duties provided for in
this Convention.
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2. In exercising its rights and performing its
duties under this Convention in the exclusive
economic zone, the coastal State shall have due
regard to the rights and duties of other States and
shall act in a manner compatible with the
provisions of this Convention.
3. The rights set out in this article with
respect to the seabed and subsoil shall be
exercised in accordance with Part VI.
D. CONTINENTAL SHELF
Article 76 (UNCLOS) - Definition of the
continental shelf provides that:
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.
2. The continental shelf of a coastal State
shall not extend beyond the limits provided for in
paragraphs 4 to 6.
3. The continental margin comprises the
submerged prolongation of the land mass of the
coastal State, and consists of the seabed and
subsoil of the shelf, the slope and the rise. It does
not include the deep ocean floor with its oceanic
ridges or the subsoil thereof.
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4. (a) For the purposes of this Convention,
the coastal State shall establish the outer edge of
the continental margin wherever the margin
extends beyond 200 nautical miles from the
baselines from which the breadth of the territorial
sea is measured, by either:
(i) a line delineated in accordance with
paragraph 7 by reference to the outermost fixed
points at each of which the thickness of
sedimentary rocks is at least 1 per cent of the
shortest distance from such point to the foot of the
continental slope; or
(ii) a line delineated in accordance with
paragraph 7 by reference to fixed points not more
than 60 nautical miles from the foot of the
continental slope.
(b) In the absence of evidence to the contrary,
the foot of the continental slope shall be
determined as the point of maximum change in the
gradient at its base.
5. The fixed points comprising the line of the
outer limits of the continental shelf on the seabed,
drawn in accordance with paragraph 4 (a)(i) and
(ii), either shall not exceed 350 nautical miles from
the baselines from which the breadth of the
territorial sea is measured or shall not exceed 100
nautical miles from the 2,500 metre isobath, which
is a line connecting the depth of 2,500 metres.
6. Notwithstanding the provisions of
paragraph 5, on submarine ridges, the outer limit of
the continental shelf shall not exceed 350 nautical
miles from the baselines from which the breadth of
the territorial sea is measured. This paragraph
does not apply to submarine elevations that are
natural 54 components of the continental margin,
such as its plateaux, rises, caps, banks and spurs.
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7. The coastal State shall delineate the outer
limits of its continental shelf, where that shelf
extends beyond 200 nautical miles from the
baselines from which the breadth of the territorial
sea is measured, by straight lines not exceeding 60
nautical miles in length, connecting fixed points,
defined by coordinates of latitude and longitude.
(Extended Continental Shelf)
8. Information on the limits of the continental
shelf beyond 200 nautical miles from the baselines
from which the breadth of the territorial sea is
measured shall be submitted by the coastal State
to the Commission on the Limits of the Continental
Shelf set up under Annex II on the basis of
equitable geographical representation. The
Commission shall make recommendations to
coastal States on matters related to the
establishment of the outer limits of their continental
shelf. The limits of the shelf established by a
coastal State on the basis of these
recommendations shall be final and binding.
9. The coastal State shall deposit with the
Secretary-General of the United Nations charts and
relevant information, including geodetic data,
permanently describing the outer limits of its
continental shelf. The Secretary-General shall give
due publicity thereto.
10. The provisions of this article are without
prejudice to the question of delimitation of the
continental shelf between States with opposite or
adjacent coasts.
Article 77 (UNCLOS) - Rights over the
continental shelf provides that:
1. The coastal State exercises over the
continental shelf sovereign rights for the purpose of
exploring it and exploiting its natural resources.
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2. The rights referred to in paragraph 1 are
exclusive in the sense that if the coastal State does
not explore the continental shelf or exploit its
natural resources, no one may undertake these
activities without the express consent of the coastal
State.
3. The rights of the coastal State over the
continental shelf do not depend on occupation,
effective or notional, or on any express
proclamation.
4. The natural resources referred to in this
Part consist of the mineral and other non-living
resources of the seabed and subsoil together with
living organisms belonging to sedentary species,
that is to say, 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.
Article 78 - Legal status of the
superjacent waters and air space and the rights
and freedoms of other States provides that:
1. The rights of the coastal State over the
continental shelf do not affect the legal status of
the superjacent waters or of the air space above
those waters.
2. The exercise of the rights of the coastal
State over the continental shelf must not infringe or
result in any unjustifiable interference with
navigation and other rights and freedoms of other
States as provided for in this Convention.
Article 83 (UNCLOS) - Delimitation of the
continental shelf between States with opposite
or adjacent coasts provides that:
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1. The delimitation of the continental shelf
between States with opposite or adjacent coasts
shall be effected by agreement on the basis of
international law, as referred to in Article 38 of the
Statute of the International Court of Justice, in
order to achieve an equitable solution.
2. If no agreement can be reached within a
reasonable period of time, the States concerned
shall resort to the procedures provided for in Part
XV.
3. Pending agreement as provided for in
paragraph 1, the States concerned, in a spirit of
understanding and cooperation, shall make every
effort to enter into provisional arrangements of a
practical nature and, during this transitional period,
not to jeopardize or hamper the reaching of the
final agreement. Such arrangements shall be
without prejudice to the final delimitation.
4. Where there is an agreement in force
between the States concerned, questions relating
to the delimitation of the continental shelf shall be
determined in accordance with the provisions of
that agreement.
A coastal nation has control of all
resources on or under its continental shelf, living or
not, but no control over any living organisms above
the shelf that are beyond its exclusive economic
zone. This gives it the right to conduct petroleum
drilling works and lay submarine cables or
pipelines in its continental shelf.
An example of this is the ongoing dispute
over resources in the Arctic area, which will be
decided by the exact mapping of the continental
shelves.
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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem Atty. Jamon

Shunji Yanai (Japan)

International Tribunal for the Law of the Sea James L. Kateka (United Republic of Tanzania)
(ITlOS)
Albert J. Hoffmann (South Africa)
was established as an international body
pursuant to the Annex VI of the United Nations Zhiguo Gao (China)
Convention on the Law of the Sea (UNCLOS),
Jin-Hyun Paik (Republic of Korea)
signed in 1982 and took force in 1994
Elsa Kelly (Argentina)
Presently composed of 149 States parties
David Joseph Attard (Malta)
COMPOSITION
The tribunal is composed of 21 judges
who are elected for a renewable 9 year term at a Markiyan Z. Kulyk (Ukraine)
meeting of States parties by secret ballot from a list
of nominees. Alonso Gmez-Robledo Verduzco (Mexico)

Tomas Heidar (Iceland)

FUNCTION
Dispute resolution mechanisms in matters
concerning the Conventionss interpretation and
application. JURISDICTION
Parties may submit matter of dispute to
the ITLOS as set forth in the Article 287 of the All disputes over the interpretation of
Convention application of UNCLOS fall within the Tribunals
jurisdiction provided local remedies have been
exhausted in accordance with international law
President
Tribunal may also rely on principles of
Vladimir Vladimirovich Golitsyn (Russian international law amd the regulations of the
Federation) International Seabed Authority when deciding
disputes and applications.
Vice-President

Boualem Bouguetaia (Algeria)

Who owns the SEAS?
Judges
DOCTRINE OF FREEDOM OF THE HIGH SEAS
P. Chandrasekhara Rao (India)
the seas belong to EVERYONE!
Joseph Akl (Lebanon)
freedom to use the seas without restriction
Rdiger Wolfrum (Germany)
History:
Tafsir Malick Ndiaye (Senegal)
In 1609 Mare Liberum advanced the
Jos Luis Jesus (Cabo Verde)
thesis that the open seas cannot become the
Jean-Pierre Cot (France) property of anyone as nature has decreed that its
use should be common to all.
Anthony Amos Lucky (Trinidad and Tobago)
Challenged in the 20th century, which arose from
Stanislaw Pawlak (Poland) economic needs

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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem
DOCTRINE OF FREEDOM OF THE HIGH SEAS
(contd)
Economic needs:
Oil , Gas, Minerals
Salonga: Countries started to carve up the
international maritime regime as the race to divide
the bounty of the oceanscoastal states began to
assert increasing control over portions of the sea
which used to lie beyond the jurisdiction of any
State.
DOCTRINE OF FREEDOM OF NAVIGATION
Economic needs:
Oil , Gas, Minerals
Salonga: Countries started to carve up the
international maritime regime as the race to divide
the bounty of the oceanscoastal states began to
assert increasing control over portions of the sea
which used to lie beyond the jurisdiction of any
State.
ARBITRAL TRIBUNALS VERDICT ON THE
PHILIPPINES vs. CHINA CASE
The Tribunal concluded that there was no
legal basis for China to claim historic rights to
resources within the sea areas falling within the
nine-dash line,
Having found that none of the features
claimed by China was capable of generating an
exclusive economic zone, the Tribunal found that it
couldwithout delimiting a boundarydeclare that
certain sea areas are within the exclusive
economic zone of the Philippines, because those
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areas are not overlapped by any possible
entitlement of China,
Baseline
Definition:
A baseline, as defined by the United Nations
Convention on the Law of the Sea (UNCLOS), is
the line along the coast from which the seaward
limits of a state's territorial sea and certain other
maritime zones of jurisdiction are measured, such
as a state's exclusive economic zone. Normally, a
sea baseline follows the low-water line of a coastal
state. When the coast is deeply indented, has
fringing islands or is highly unstable, straight
baselines may be used.
Kinds/Types:
1. Normal baseline
a. Reefs
2. Straight baseline
a. Deep-indented Coastline
b. Fringing Island
3. Archipelagic baseline
Normal baseline
Except where otherwise provided in this
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.
(UNCLOS, Article 5)
Reefs
In the case of islands situated on atolls or of
islands having fringing reefs, the baseline for
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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem
measuring the breadth of the territorial sea is the
seaward low-water line of the reef, as shown by the
appropriate symbol on charts officially recognized
by the coastal State. (UNCLOS, Article 6)
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 low-water
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.
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.
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
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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. (UNCLOS,
Article 7)
Archipelagic States
Definition:
For the purposes of this Convention:
(a) "archipelagic State" means a State constituted
wholly by one or more archipelagos and may
include other islands;
(b) "archipelago" means a group of islands,
including parts of islands, interconnecting waters
and other natural features which are so closely
interrelated that such islands, waters and other
natural features form an intrinsic geographical,
economic and political entity, or which historically
have been regarded as such. (UNCLOS, Article
46)
Archipelagic baselines How delineated?
1. An archipelagic State may draw straight
archipelagic baselines joining the outermost points
of the outermost islands and drying reefs of the
archipelago provided that within such baselines are
included the main islands and an area in which the
ratio of the area of the water to the area of the
land, including atolls, is between 1 to 1 and 9 to 1.
2. The length of such baselines shall not exceed
100 nautical miles, except that up to 3 per cent of
the total number of baselines enclosing an
archipelago may exceed that length, up to a
maximum length of 125 nautical miles.
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3. The drawing of such baselines shall not depart
to any appreciable extent from the general
configuration of the archipelago.
4. Such 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 where a low-tide
elevation is situated wholly or partly at a distance
not exceeding the breadth of the territorial sea from
the nearest island.
5. The system of such baselines shall not be
applied by an archipelagic State in such a manner
as to cut off from the high seas or the exclusive
economic zone the territorial sea of another State.
6. If a part of the archipelagic waters of an
archipelagic State lies between two parts of an
immediately adjacent neighbouring State, existing
rights and all other legitimate interests which the
latter State has traditionally exercised in such
waters and all rights stipulated by agreement
between those States shall continue and be
respected.
7. For the purpose of computing the ratio of water
to land under paragraph l, land areas may include
waters lying within the fringing reefs of islands and
atolls, including that part of a steep-sided oceanic
plateau which is enclosed or nearly enclosed by a
chain of limestone islands and drying reefs lying on
the perimeter of the plateau.
8. The baselines drawn in accordance with this
article shall be shown on charts of a scale or
scales adequate for ascertaining their position.
Alternatively, lists of geographical coordinates of
points, specifying the geodetic datum, may be
substituted.
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9. The archipelagic State shall give due publicity to
such charts or lists of geographical coordinates
and shall deposit a copy of each such chart or list
with the Secretary-General of the United Nations.
(UNCLOS, Article 47)
Archipelagic Waters
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 such, a right of innocent passage as
provided in this Convention shall exist in those
waters. [UNCLOS, Article 8(2)]
An archipelagic State may designate sea
lanes and air routes thereabove, suitable for the
continuous and expeditious passage of foreign
ships and aircraft through or over its archipelagic
waters and the adjacent territorial sea. [UNCLOS,
Article 53(1)]
Right of archipelagic sea lanes passage
1. An archipelagic State may designate sea lanes
and air routes thereabove, suitable for the
continuous and expeditious passage of foreign
ships and aircraft through or over its archipelagic
waters and the adjacent territorial sea.
2. All ships and aircraft enjoy the right of
archipelagic sea lanes passage in such sea lanes
and air routes.
3. Archipelagic sea lanes passage means the
exercise in accordance with this Convention of the
rights of navigation and overflight in the normal
mode solely for the purpose of continuous,
expeditious and unobstructed transit between one
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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem
part of the high seas or an exclusive economic
zone and another part of the high seas or an
exclusive economic zone.
4. Such sea lanes and air routes shall traverse the
archipelagic waters and the adjacent territorial sea
and shall include all normal passage routes used
as routes for international navigation or overflight
through or over archipelagic waters and, within
such routes, so far as ships are concerned, all
normal navigational channels, provided that
duplication of routes of similar convenience
between the same entry and exit points shall not
be necessary.
5. Such sea lanes and air routes shall be defined
by a series of continuous axis lines from the entry
points of passage routes to the exit points. Ships
and aircraft in archipelagic sea lanes passage shall
not deviate more than 25 nautical miles to either
side of such axis lines during passage, provided
that such ships and aircraft shall not navigate
closer to the coasts than 10 per cent of the
distance between the nearest points on islands
bordering the sea lane.
6. An archipelagic State which designates sea
lanes under this article may also prescribe traffic
separation schemes for the safe passage of ships
through narrow channels in such sea lanes.
7. An archipelagic State may, when circumstances
require, after giving due publicity thereto, substitute
other sea lanes or traffic separation schemes for
any sea lanes or traffic separation schemes
previously designated or prescribed by it.
8. Such sea lanes and traffic separation schemes
shall conform to generally accepted international
regulations.
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9. In designating or substituting sea lanes or
prescribing or substituting traffic separation
schemes, an archipelagic State shall refer
proposals to the competent international
organization with a view to their adoption. The
organization may adopt only such sea lanes and
traffic separation schemes as may be agreed with
the archipelagic State, after which the archipelagic
State may designate, prescribe or substitute them.
10. The archipelagic State shall clearly indicate
the axis of the sea lanes and the traffic separation
schemes designated or prescribed by it on charts
to which due publicity shall be given.
11. Ships in archipelagic sea lanes passage shall
respect applicable sea lanes and traffic separation
schemes established in accordance with this
article.
12. If an archipelagic State does not designate sea
lanes or air routes, the right of archipelagic sea
lanes passage may be exercised through the
routes normally used for international navigation.
(UNCLOS, Article 53)
VIII. JURISDICTION OF STATES
JURISDICTION
-the right of a state to exercise authority over
persons and things within its boundaries, subject to
certain exceptions and, subject to the rights of
other states, over the property and nationals of the
state beyond its boundaries.
-absolute and exclusive within and throughout the
domain of the state, conditioned, by the rights of
other states over certain persons and things which
may be found within the boundaries of the former.
EXERCISE OF JURISDICTION
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-the right of control possessed by other states over
persons, usually their nationals, and certain things
within the territorial boundaries of another state.
CLASSIFICATION OF JURISDICTION
1. TERRITORIAL JURISDICTION
-the control and authority exercised by a state over
its entire domain, and over all persons and things
therein found.
2. PERSONAL JURISDICTION
-the exercise of state authority over individuals,
whether within its domain or elsewhere, by virtue of
the tie of nationality or domicile.
TERRITORIAL JURISDICTION
-based on the right of domain
-domain of a state includes ordinarily only such
expanse of territory over which it possesses and
exercise the full rights of sovereignty.
a) JOINT JURISDICTION
-absolute and exclusive exercise of jurisdiction may
be conditioned or even waived by conventional
agreement in such a manner that jurisdiction over a
defined sphere may overlap. jurisdiction over the
same portion of territory exercised by two or more
states.
condominium - exercise of joint jurisdiction
over the same portion of territory exercised
conjointly by two or more states
o establishment of a condominium
through an agreeement among
states exercising such jurisdiction
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local state or territory may or may
not be a party to such an agreement
treaty of peace of 1919
central powers ceded to allied
and associated powers certain territories subjected
to joint jurisdiction.
in this agreement, territories
subjected to joint jurisdiction were not made
parties.
authority exercised is usually
specified and defined in the agreement
agreement may also require the
assumption of a corresponding obligation on the
part of the states exercising such jurisdiction
joint jurisdiction implies a combined
government-authority may be delegated to an
official who is to represent the states concerned in
all matters
o agreement of great britain and egypt
condominium of sudan
supreme civil and military command was
vested in one governor general appointed on the
recommendation of british government
b) LEASES
-leases of territory which closely resemble the
ordinary leases of private law have not been
uncommon
GRANT BY REPUBLIC OF PANAMA TO
US
o in perpetuity of the use, occupation and
control of a certain portion of its territory for the
construction of an interocean canal through cash
payment and annual payment as stipulated in the
terms of the agreement.
o TERM OF LEASES
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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem
specify the powers to be exercised by the
lessee, and by implication other powers remain in
the lessor state.
sovereignty may be retained by the lessor
state, even though complete jurisdiction may be
granted to the lessee.
nominal sovereignty will be retained for
the lessee state.
US-RP AGREEMENT (MARCH 14, 1947)
o granted the us the right to use, free of
rent, certain lands of public domain as military
bases for a period of 99 yrs which was reduced to
25 yrs (1966).
c) COLONIAL PROTECTORATES
PROTECTORATE
o describing a relation between a state and
a native community not sufficiently civilized to be
regarded as a state, and not, as, relation of
dependence between two states.
d) SPHERES OF INFLUENCE
device means no more than that a state,
without establishing its jurisdiction or undertaking
any responsibility for securing good government,
signifies that it regards certain territory as closed to
the ambitions of any other power, because it
intends to convert into a colony/protectorate, or
because it regards it as strategically necessary to
the security of part of its existing dominions.
mere assertion of a sphere of influence
gives a state no rights over the territory; it is a
political and not a legal act.
claim is often protected by treaties with
other states mots likely to be affected; in any case,
to disregard it would be deemed to be an unfriendly
act.
Atty. Jamon
e) SERVITUDES
closely resembles the servitude of roman
law or easements of english law
restrictions on free exercise of jurisdiction
of a state in the way of obligation to allow a foreign
state to do a thing, or to refrain from doing
something
rights ceded or created by treaties in favor
of certain states are purely rights in personam
SERVITUDE IN PRIVATE LAW
o right in rem-exercisable against any
successor to him in title, and not onky by a
particular owner of the dominant estate, but also by
his successor in interest
NORTH ATLANTIC FISHERIES CASE
o Great Britain and us
O rejected the conception of servitude
O issue: whether the war of 1812
extinguished the obligations imposed by treaty of
1783 upon british territorial waters
O treaty stipulation: the right of the people of
us to fish upon grand banks and in gulf of st.
Laurence had been recognized
O ruling: the court did not actually state that
servitudes d not exist in international law, but the
language used implies that the whole doctrine of
servitudes was incompatible with the modern
political theory, particularly with the essential
sovereignty and independence of every state.
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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem
JURISDICTION ON LAND
general rule: state jurisdiction over its land
area over all persons and property within it, is
exclusive and absolute.
MARITIME JURISDICTION
extends over the entire maritime domain,
which consists of both the internal waters and
territorial sea.
a) JURISDICTION OVER INTERNAL
WATERS
internal waters of a state include its ports,
harbors and bays which are legally considered part
of its national domain and are, in principle, fully
subject to its jurisdiction.
foreign public vessels, if not engaged in
commerce are wholly exempt from local jurisdiction
of the state in whose port or harbor they maybe
anchored.
territorial sovereign has exclusive
jurisdiction over foreign merchant vessels and their
occupants in civil matters.
1) ENGLISH RULE
principle of criminal jurisdiction
claims jurisdiction over all offenses
committed on board, leaving to the authorities of
the state whose flag the vessel flies control over
matters relating to internal discipline
asserts the complete subjection of vessel
to local jurisdiction, and regards any derogation
from it as amatter of comity in the discretion of the
territorial sovereign
chief justice marshall
it would be obviously inconvenient and
dangerous to society, and would subject the laws
to continual, infraction, government to degradation
if such individuals/merchants did not owe
Atty. Jamon
temporary allegiance and were not amenable to
the jurisdiction of the country
exception: jurisdiction in matters relating to
the internal order and discipline of a foreign vessel,
and affecting solely the ship and its occupants.
jurisdiction has been generally been yielded to the
authorities of the state which the vessel belongs.
2) FRENCH RULE
founded on the opinion of the french
council of state (1806)
claims that the local sovereign possesses
no jurisdiction at all on such matters, unless the
offense affects the peace and security of the
territory.
two foreign mechant ships in french ports
(sally and newton), on each of which one member
of the crew had assaulted another.
opinion: vessels were subjected to the
jurisdiction of the french authorities touching
interests of the state, in matters of police, and for
offenses committed, even on board, by members
of the crew against strangers; in matters of internal
discipline, offenses by one member of the crew
against another, local authorities ought not to
interfere, unless their assistance was invoked or
the peace of the port compromised.
rule stresses on the nationality in the
exercise of criminal jurisdiction.
PEOPLE V. WONG, SC stated that the
english rule obtains in the ph jurisdiction.
US V. LOOK CHAW, mere possession of
opium aboard a foreign vessel intransit was not
triable by the local courts because mere
possession is not considered a disturbance of the
public order. however, the conduct of smoking
opium within our territorial limits, even though
aboard a foreign merchant ship, is a breach of a
public order here established, because it brings
about a pernicious effects within our territory.
US V. BULL, court declared that when a
foreign merchant ship enters territorial waters, the
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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem
ship officers and crew are subject to the jurisdiction
of the territorial courts.
INVOLUNTARY ENTRANCE
foreign vessels arriving into port under
stress of weather or by reason of inevitable
necessity are regarded as exempted from local
jurisdiction.
foreign vessels so circumstanced may not
be compelled to pay fines upon entry or pay duties
for its goods in transit.
to claim exception,
o vessel must have put into port due to
urgent necessity for such an act and upon proof of
the fact of urgency of the distress.
b) JURISDICTION OVER THE
TERRITORIAL SEA
Geneva Convention of 1958 (territorial sea
and contiguous zone)
o sovereignty of state extends, beyond its
land territory and its internal waters, to a belt of sea
adjacent to its coast
RIGHT OF INNOCENT PASSAGE
CORFU CHANNEL CASE-codified in
geneva convention on territorial sea and
contiguous zone
passage-navigation through territorial sea
for the purpose of either traversing through that
sea without entering internal waters, or of
proceeding to internal waters, or of making for the
high seas from internal waters
foreign fishing vessels exercising right of
innocent passage-must observe laws and
regulations which the coastal state may make and
publish in order to prevent such vessels from
fishing in the territorial sea.
Atty. Jamon
general rule: coastal state may not
exercise criminal jurisdiction on board a foreign
ship passing through the territorial sea to arrest
any person or conduct any investigation in
connection with any crime committed on board the
ship during its passage.
exceptions
o if the consequences of the crime extend to
the coastal state;
o if the crime is of a kind to disturb the
peace of the country or good order of the territorial
sea;
o if assistance of local authorities has been
requested by captain of ship or by consul of
country whose flag ship flies; and
o if necessary for suppression of illicit traffic
in narcotic drugs.
c) jurisdiction over the contiguous zone
zones of high sea contiguous to territorial
sea
states claimed that the right to exercise
customs jurisdiction against foreign vessels on high
seas, usually with a distance of 12 miles from the
shore, for the purpose particularly of preventing
smuggling
geneva convention (territorial sea and
contiguous zone)
-recognizes the right of coastal state to exercise
control over a zone of high sea, contiguous to its
territorial sea not extending beyond 12 miles from
the baseline from which territorial sea is measured
-purpose: preventing infringement of its custom,
fiscal, immigration/sanitary regulations within its
territorys
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jurisdiction in the high seas every state may seize on the high seas or
any other place outside the jurisdiciton of any state
cannot be under the sovereignty of any a pirate ship or aircraft, or a ship taken by piracy
state and under the control of pirates, and arrest the
persons and seize the property on board.
state exercise jurisdiction to a certain
extent in respect of persons, property, acts and seizure may only be carried out by
transactions on the high seas. warships or military aircraft, or other ships or
aircraft on government service authorized to that
geneva convention on high seas-codified
effect.
the law relating to the exercise of jurisdiction on the
high seas. art. 122 of rpc: imposes penalty of
reclusion temporal upon any person who, on the
1) jurisdiction over ships in the high seas
high seas, shall attack or seize a vessel or, not
being a member of its complement nor a
geneva convention recognizes the right of
passenger, shall seize the whole or part of the
every state, whether coastal or not, to sail ships
cargo of said vessel, its equipment, or personal
under its flag on the high seas.
belongings of its complement or passengers.
ships have the nationality of the state
whose flag they are entitled to fly. state must
effectively exercise its jurisdiction and control in
3) HOT PURSUIT
administrative, technical and social matters over
ships flying its flag. right of a state, through the instrumentality
of its men-of-war or military aircraft to pursue
ships shall sail under the flag of one state
foreign merchant vessels which have violated the
only.
municipal laws of that state while within its
territorial waters, into the open sea, and bring them
warhips and ships owned or operated by a
back to the national domain for administration of
state on govt non-commercial service shall, on the
justice.
high seas, have complete immunity from the
jurisdiction of any state other than the flag state.

LOTUS CASE: arose out of a collision in

the aegean sea outside turkish territorial waters,
bet french mail steamer (lotus) and turkish collier 4) SUBMARINE CABLES
(boz-kourt). collision resulted in loss of latter vessel
and death of 8 turkish subjects. the turkey had not all states are entitled to lay submarine
acted in conflict with the principles of international cables and pipelines on the bed of the high seas.
law, because the act committed produced its effect
on board the boz-kourt under the turkish flag on
turkish territory.
AERIAL JURISDICTION
2) PIRACY
refers to authority which a state exercise
crime against the law of nations and over the air space above its land territory, internal
pirates are deemed hostes humani generis, who waters and the territorial sea.
may be arrested on the high seas by the warships
as discussed, there is no unanimity of
of any state and brought into port for trial together
opinion as to the upward limit of the territorial
with their ship.
airspace of the subjacent state

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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem
with reference to crimes committed in a
foreign aircraft navigating the airspace of another
state, the rules applicable to vessels are also
applied by many writers. (ex. ph assert criminal
jurisdiction over offenses committed in ph aircraft
even though outside its territorial jurisdiction)
PARIS CONVENTION OF 1919
the 1st international convention to address the
political difficulties and intricacies involved in
international aerial navigation.
BRIEF HISTORY:
the first passenger carrying airline flight happened
in 1913 with the st. petersburg-tampa airboat line.
before that time, aircraft had been used to carry
mail and other cargo. with the start of world war i in
1914, aircrafts were being operated internationally
to carry not only cargo, but also military assets.
the international use of aircraft brought up
questions about air sovereignty. the arguments
over air sovereignty at that time factored into one
of two main viewpoints:
1. either no state had a right to claim
sovereignty over the airspace overlying its territory;
or
2. every state had the right to do so.
the paris convention of 1919 sought to determine
the question as part of the process of framing the
conventions assumptions, and it was decided that
each nation has absolute sovereignty over the
airspace overlying its territories and water.
CHICAGO CONVENTION OF 1944
superseded the paris convention
Atty. Jamon
established the international civil aviation
organization (icao), a specialized agency of the un
charged with coordinating and regulating
international air travel
establishes rules of airspace, aircraft
registration and safety, and details the rights of
signatories in relation to air travel
also that every state has complete and
exclusive sovereignty over airspace above its
territory
recognized five air freedoms as a result of various
agreements among states regarding the use of
their aerial domains:
1. the freedom to fly across foreign territory
without landing;
2. the freedom to land for non-traffic
purposes;
3. the freedom to put down traffic originating
in the state of the aircraft;
4. the freedom to embark traffic destined for
the state of the aircraft; and
5. the freedom to embark traffic destined for
or to put down traffic originating in a third state.
convention on offenses and certain other acts
committed on board aircraft (september 14, 1963)
it is the state of registration of the aircraft that has
jurisdiction over offenses and acts committed on
board which is in flight or over the high seas or any
other area outside the territory of any state.
no other state may exercise jurisdiction over such
aircraft except when:
1. the offense has effect on the territory of
such state;
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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem Atty. Jamon

2. the offense has been committed by or domain and of its right to defend the state from
against a national or permanent resident of such such acts that will disturb its peace and security.
state;

3. the offense is against the security of the

state; five general principles on which a more/less
extensive jurisdiction is obtained by the state of the
4. the offense consists of a breach of any present time. these are:
rules/regulations relating to the flight or maneuver
of aircraft in force in such state; 1. THE TERRITORIAL PRINCIPLE,
determining jurisdiction by reference to the place
5. the exercise of jurisdiction is necessary to where the offense is committed;
ensure the observance of any obligation of such
sate under a multilateral international agreement. 2. THE NATIONALITY PRINCIPLE,
determining jurisdiction by reference to the
nationality or national character of the person
committing the offense;
OUTER SPACE
3. THE PROTECTIVE PRINCIPLE,
like open seas, it is not subject to the determining jurisdiction by reference to the national
jurisdiction of any state. interest injured by the offense;

outer space, including the moon and other 4. THE UNIVERSALITY PRINCIPLE,
celestial bodies, shall be free for exploration and determining jurisdiction by reference to the custody
use by all states without discrimination of any kind, of the person committing the offense; and
on the basis of equality and in accordance with
international law. 5. THE PASSIVE PERSONALITY
PRINCIPLE, determining jurisdiction by reference
not subject to national appropriation by to the nationality or the national character of the
claim of sovereignty, by means of use/occupation person injured by the offense.
as by any other means
TERRITORIAL PRINCIPLE

the criminal jurisdiction of a state is

treaty on the principles governing the activities of coextensive with, and does not go beyond, the
states in the exploration and use of outer space national domain.

a state launching an object into outer space shall it is not within the competence of a state to
retain jurisdiction and control over such object and punish individual for breach of its criminal laws if
over any personnel thereof, while in outer space or committed outside its territory.
on a celestial body.

EXCEPTIONS:
CRIMINAL JURISDICTION
1. OBJECTIVE TERRITORIAL
states are in agreement as to this general JURISDICTION
competence to punish persons for offenses
committed with in their territory, regardless of the under a certain circumstance, a crime may
nationality of the offender. this competence is be committed within the territory of a state, though
made necessary by virtues of the obligation of the actor may be physically out of the same
every government to maintain order within its territory, and therefore still justiciable by its criminal
courts.
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2. ACTS DIRECTED AGAINST THE
SECURITY OF THE STATE OR ITS FINANCIAL
CREDIT.
PERSONAL JURISDICTION (NATIONALITY
PRINCIPLE)
founded in the principle of personal
supremacy
the supreme authority exercised by a state
over a person of its nationals.
US-PHILIPPINE MILITARY BASES AGREEMENT
an agreement between the philippines and the usa
whereby philippines granted usa the right to retain
the use, free of rent of certain military bases with
philippine territory.
civilian employees in the service of the armed
forces of the united states
they are not considered as members of the armed
forces, for the reason that article xi, xvi and xviii of
the agreement make mention of civilian employees
separately from members of the armed forces,
which is a conclusive indication that under said
agreement armed forces do not include civilian
employees.
cases on jurisdiction of states
1. BANCO NACIONAL DE CUBA V.
SABBATINO
FACTS:
Atty. Jamon
a contract to purchase cuban sugar from a wholly
owned subsidaiary of compania azucarera
vertientes-camaquey de cuba (cav) a corporation
organized under cuban law was made by farr,
whitlock & co. (farr) an american commodities
broker. the cav stock was principally owned by
united states residents. the agreement was for farr
to pay for the sugar in new york upon the
presentation of the shipping documents. after this
deal, a law was enacted in cuba which empowered
the government to nationalize forcefully,
expropriation of property or enterprise in which
american nationals had an interest.
hence, the sugar which farr had contracted was
expropriated from compania azucarera. farr
however entered into contracts which was similar
to the one made with cav with the banco para el
comercio de cuba, which was an instrumentality of
the government. this was done by farr in order to
obtain consent from the cuban government before
a ship carrying sugar could leave cuba.a bill of
lading which was also an instrumentality of the
cuban government was assigned by the bank to
banco para el comercio de cuba, who presented
the bills and a sight draft as required under the
contract to farr in new york in return for payment.
after cav notified farr of its claim to the proceeds as
rightful owner of the sugar, farr refused the
documents.
this action of farr resulted in a court order which
appointed sabbatino (d) as receiver of cavs new
york assets and enjoined it from removing the
payments from the state. based on the allegation of
the conversion of the bills of lading seeking to
recover the proceeds thereof from farr and to
enjoin sabbatino (d), the receiver from exercising
dominion over such proceeds, the banco nacional
(p) instituted this action. a summary judgment was
granted against banco nacional (p) by the district
court on the grounds that the act of state doctrine
does not apply when the foreign act in question is
in violation of international law. the court of appeals
also upheld this judgment.
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issue: dismissal of ownership and release of the ship was

does the judiciary have the authority to examine
the validity of a taking of property within its own
territory by a foreign sovereign even if the taking
violated international law?
granted by the district court. however, this
judgment was reversed by the circuit court and this
did not prevent the united states (d) from appealing
to the u.s. supreme court.

issue:

are national ships of war viewed as been exempted

held: by the consent of the power of the friendly
jurisdiction whose port the ship enters?
no. the judiciary, in line with the act of state
doctrine will not examine the validity of a taking of
property within its own territory by a foreign
sovereign government recognized by this country
in the absence of international agreements to the
contrary, even if the taking violates customary held:
international law. even in a situation whereby
the court ruled that the right of free passage by an
international law has been violated, the clear
army need usually be explicitly granted (likely
implication of past cases is that the act of state
because such passage inevitably involves physical
doctrine is applicable because the act of state
damage of some sort), by maritime custom a
doctrine does not deprive the courts of jurisdiction
nation's ports were presumptively open to all
once acquire over a case. the damages of
friendly ships. while a nation could close its ports to
adjudicating the propriety of such expropriation
the warships of another country, it would have to
acts, regardless of whether the state department
issue some form of declaration to do so. without
has it did in this case, asserted that the act violated
such a declaration, a friendly foreign warship could
international law are too far-reaching for the judicial
enter a nation's port with its implied consent. chief
branch to attempt. hence the judgment of the court
justice marshall further distinguished the difference
of appeals is reverse and the case remanded back
between private merchant ships and citizens (who
to the district court.
are subject to a nation's jurisdiction when they
enter its ports with the nation's implied consent),
and military ships. namely, private ships do not
2. SCHOONER EXCHANGE V. FADDON carry with them the sovereign status of military
ships, with the privileges that accompany it. from
this, marshall arrived at the conclusion that, by
customary international law, a friendly warship that
facts:
enters a nation's open port are exempted from that
nation's jurisdiction.
two americans (p) claimed they owned and were
entitled to the schooner exchange they seized on
applying this analysis to the facts at hand, marshall
the high seas. the claim which the united states
found that the courts did not have jurisdiction over
attorney (d) put forward for the prevention of the
the case.
ship leaving was that, the ship which was owned
by the emperor of france had been forced to enter
the port of philadelphia due to bad weather
conditions. 3. CORFU CHANNEL CASE

at this point in time, the u.s and france were on

friendly terms. the united states (d) request for the
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facts:
on may 15, 1946, two british ships passed through
albanias north corfu channel where they were fired
at by an albanian battery. following this incident,
the united kingdom (plaintiff) and albania
(defendant) entered into diplomatic discussions
about the right of british ships to pass peacefully
through albanian waters. albania maintained that
the ships should not pass through without providing
prior notification to the albanian government.
however, the united kingdom maintained it had a
right under international law to innocently pass
through the straits. between may 15, 1946 and
october 22, 1946, the albanian government
allegedly placed mines in the corfu channel in
albanian territorial waters. albania was at war with
greece, and the mines were allegedly part of its
defense. on october 22nd, british warships
attempted to again pass through the straits, but
were destroyed by the mines, with loss of human
life. the united kingdom brought suit in the
international court of justice (icj) on the ground that
albania had a duty to warn the approaching british
ships of the mines. it sought damages from
albania. however, albania argued that its territorial
rights had previously been violated by the british
ships passing through its straits on may 15, 1946,
and that it was entitled to a satisfaction.
the explosion of mines in the albanian (p) waters
resulted in the death of a british naval personnel. it
was on this basis that the united kingdom (d)
claimed that albania (p) was internationally
responsible for damages.
issue:
are international obligations in time of peace
created through elementary consideration?
held:
4. THE LOTUS
Atty. Jamon
facts:
a collision occurred shortly before midnight on the
2nd of august 1926 between the french mail
steamer lotus and the turkish collier boz-kourt. the
french mail steamer was captained by a french
citizen by the name demons while the turkish
collier boz-kourt was captained by hassan bey. the
turks lost eight men after their ship cut into two and
sank as a result of the collision.
although the lotus did all it could do within its power
to help the ship wrecked persons, it continued on
its course to constantinople. when lieutenant
demons was asked by the turkish authority to go
ashore to give evidence and after demons was
examined, he was placed under arrest without
informing the french consul-general and hassan
bey. demons were convicted by the turkish courts
for negligence conduct in allowing the accident to
occur.
demons contended that the court lacked
jurisdiction over him and both countries agreed to
submit to the permanent court of international
justice.
issue:
whether the exercise of turkish criminal jurisdiction
over demons for an incident that occurred on the
high seas contravened international law.
held:
no. in this situation, it is impossible to hold that
there is a rule of international law that prohibits
turkey from prosecuting demons because he was
aboard a french ship. this stems from the fact that
the effects of the alleged offense occurred on a
turkish vessel.
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hence, both states here may exercise concurrent
jurisdiction over this matter because there is no
rule of international law in regards to collision
cases to the effect that criminal proceedings are
exclusively within the jurisdiction of the state whose
flag is flown.
5. PEOPLE V. LOL-LO
facts:
six vintas intercepted two dutch boats which were
on its way in the midst of the islands of buang and
bukid in the dutch east indies. the six vintas were
manned by 24 armed moros. the said dutch boats
were carrying men, women and children. at first,
the moros asked for food. but when they got on the
dutch boats, they asked for themselves all the
vessels cargo, attacked nearly all of the men and
brutally violated two of the women by methods too
tremendous to be described. all of the persons on
the dutch boat, except the two young women, were
again placed on it and holes were made in it, the
idea that it would submerge. the moros finally
arrived at maruro, a dutch possession. two of the
moro marauders were lol-lo, who also raped one of
the women, and saraw.
lol-lo and saraw later returned to their home in
south ubian, tawi-tawi, sulu. they were arrested
there and were charged in the court of first
instance of sulu with the crime of piracy.
issue:
whether or not philippine courts have jurisdiction
over the crime of piracy alleged in this case.
held:
yes, the philippine courts have jurisdiction on the
case. piracy is a villainy not against any particular
state but against all mankind. it should be tried and
Atty. Jamon
punished in the sufficient 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.
6. ASAALI V. COMMISSIONER OF
CUSTOMS
facts:
five sailing vessels, from borneo toward the ports
of tawi-tawi and sulu, were spotted and intercepted
in high seas by the custom patrol team. the said
patrol team aboard boat found out that the five
vessels contained 181 cases of herald cigarettes,
9 cases of camel cigarettes, and some rattan
chairs. the sailing vessels were all philippine
registered, owned and manned by filipino residents
from sulu. petitioners, however, possessed no
permit from the commissioner of customs so that
they can engage in the importation of the goods
they carry (as required by section 1363 [a] of the
revised administrative code). also, the goods the
petitioners carry were not covered by ra 426 or the
import control law. the custom patrol team then
seized the goods even if they were in the high
seas.
petitioners claim that the interception and seizure
of the items were illegal because they were
intercepted outside the territory of the philippines.
also, the petitioners contend that they could not
have been engaged to the importation of the
above-mentioned items to incur the forfeiture under
section 1363 of the revised administrative code.
the court of tax appeals held that section 1363
should be applied because all the vessels were all
headed to tawi-tawi. no import license and permit
were carried violating ra 426. their course, that is
they are about to enter the philippine territory,
announced loudly that they were about to import
these items in the philippines.
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issue: A State can subject an aliens admission

to such conditions as it may deem wise to impose.
whether or not the interception and seizure by For example:
customs officials of the vessels valid in the
contention that importation had not yet begun and 1. Specify the kind of aliens that cannot
that the seizure was effected outside our territorial be admitted, for reasons of local
waters. security and public welfare.
2. Devise a quota system, restricting
immigration and discriminating against
certain aliens on racial grounds.
held:
A State has the Right to expel aliens.
the court affirmed the decision of the court of tax Expulsion may be predicated on the following
appeals stating that it is quite irrational for filipino grounds, provided that it is shown that the
sailors to sneak out of the philippines and come a individuals presence is detrimental to the welfare
long way back with highly taxable goods only to of the State:
turn about upon reaching the brink of our territorial
waters and head for another country. 1. That the stay of the alien constitutes a
menace to the security of the State.
2. That his entry was illegal.
3. That his permission to stay has
further, the court said that the contention, regarding expired.
the apprehension and seizure of the items, of the 4. That he has violated any limitation or
petitioner-appellant is without merit. the vessels are condition prescribed for his admission.
all philippine registered and are therefore under the The classes of aliens subject to arrest and
jurisdiction of the philippines as expressed in the deportation are enumerated in Section 37(a) of
revised penal code. the petitioners also violated Commonwealth Act No. 613:
section 1363(a). therefore, the action taken then by
the commissioner of customs was in accordance to 1. They are obnoxious and dangerous
the law. aliens whose presence is a menace to
the peace and order of the
community.
2. Aliens whose entry is illegal or who
IX. STATE were not lawfully admissible at the
IMPUTABILITY/RESPONSIBILITY time of entry.
3. Convicts
4. Violators of law on prohibited drugs
5. Prostitutes or those connected with
A. STATE RESPONSIBILITY REGARDING prostitution
ALIENS 6. Subversives
7. Anarchists

Admission and Exclusion of Aliens

Purely as a matter of legal theory, no

State is under the obligation to admit aliens, in the
absence of a treaty stipulation imposing that duty.
This proposition flows from the concept of
Sovereignty of a State. A State may also subject aliens to
Reconduction, which is the forcible
conveying of aliens. As a State cannot
refuse to receive its subjects who are
expelled from abroad, the home State of
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such aliens has the obligation to receive
them. Such as:
1. Destitute aliens
2. Foreign vagabonds
3. Questionable aliens without
documents
4. Alien criminals who have served
their punishment and the like.
Right of Asylum
A practice where a State allows entry of
persons who seek refuge in States other than their
own, in order to escape persecution.
No refugees or displaced persons who
express valid objections to return to their countries
of origin may be compelled to do so. The
application of the principle should not interfere with
the surrender and punishment of war criminals,
quislings and traitors in conformity with
international arrangements or agreements. (The
General Assembly of the United Nations, 1946).
This right however may not be invoked in
the case of prosecutions genuinely arising from
non-political crimes or for acts contrary to the
purposes and principles of the United Nations.
(The General Assembly of the United Nations,
1948).
The Non-refoulement principle under the
1951 Geneva Convention prohibits the return of
people to situations where their life or freedom
would be threatened on account of their race,
religion, nationality, membership of a particular
social group or political opinion (Handbook on
European law relating to asylum, borders and
immigration).
Rights of Aliens
Transient Aliens
Domiciled Aliens
They not only have to
obey the local laws and pay the
normal taxes, but if the need
arises, they may be called upon by
their State of domicile to perform
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such public duties as police and
militia service, as well as to submit
to special measures such as
quarantine regulations, restricting
their personal liberty and the
enjoyment of their property in the
interest of public welfare.
An alien cannot, without the consent of his
own State, be compelled to serve in the armed
forces of the State of his domicile.
Ordinarily his position may not be on par
with the citizens of the State. He does not possess
political rights such as the right to vote and hold
office; he may not be allowed to acquire or hold
lands.
While it is generally correct to say that an
alien cannot have a better position than a citizen of
the State where he is, yet where that State has a
low standard of justice towards its own nationals,
an alien is entitled to a better treatment.
The rule that an alien must accept the
institutions of a foreign State is subject to the
condition that those institutions must conform to a
certain international standard, otherwise, for the
injury that the alien suffers, his own State may
institute a claim for reparation on his behalf.
United Nations General Assembly (13
December 1985)
Article 5
1. Aliens shall enjoy, in accordance with
domestic law and subject to the relevant
international obligations of the State in which they
are present, in particular the following rights:
(a) The right to life and security of person; no
alien shall be subjected to arbitrary arrest or
detention; no alien shall be deprived of his or her
liberty except on such grounds and in accordance
with such procedures as are established by law;
(b) The right to protection against arbitrary or
unlawful interference with privacy, family, home or
correspondence;
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(c) The right to be equal before the courts,
tribunals and all other organs and authorities
administering justice and, when necessary, to free
assistance of an interpreter in criminal proceedings
and, when prescribed by law, other proceedings;
(d) The right to choose a spouse, to marry, to
found a family;
(e) The right to freedom of thought, opinion,
conscience and religion; the right to manifest their
religion or beliefs, subject only to such limitations
as are prescribed by law and are necessary to
protect public safety, order, health or morals or the
fundamental rights and freedoms of others;
(f) The right to retain their own language,
culture and tradition;
(g) The right to transfer abroad earnings,
savings or other personal monetary assets, subject
to domestic currency regulations.
2. Subject to such restrictions as are
prescribed by law and which are necessary in a
democratic society to protect national security,
public safety, public order, public health or morals
or the rights and freedoms of others, and which are
consistent with the other rights recognized in the
relevant international instruments and those set
forth in this Declaration, aliens shall enjoy the
following rights:
(a) The right to leave the country;
(b) The right to freedom of expression;
(c) The right to peaceful assembly;
(d) The right to own property alone as well as in
association with others, subject to domestic law.
3. Subject to the provisions referred to in
paragraph 2, aliens lawfully in the territory of a
State shall enjoy the right to liberty of movement
and freedom to choose their residence within the
borders of the State.
4. Subject to national legislation and due
authorization, the spouse and minor or dependent
children of an alien lawfully residing in the territory
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of a State shall be admitted to accompany, join and
stay with the alien.
Article 6
No alien shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment
and, in particular, no alien shall be subjected
without his or her free consent to medical or
scientific experimentation.
Article 7
An alien lawfully in the territory of a State may
be expelled therefrom only in pursuance of a
decision reached in accordance with law and shall,
except where compelling reasons of national
security otherwise require, be allowed to submit the
reasons why he or she should not be expelled and
to have the case reviewed by, and be represented
for the purpose before, the competent authority or
a person or persons specially designated by the
competent authority. Individual or collective
expulsion of such aliens on grounds of race,
colour, religion, culture, descent or national or
ethnic origin is prohibited.
Article 8
1. Aliens lawfully residing in the territory of a
State shall also enjoy, in accordance with the
national laws, the following rights, subject to their
obligations under article 4:
(a) The right to safe and healthy working
conditions, to fair wages and equal remuneration
for work of equal value without distinction of any
kind, in particular, women being guaranteed
conditions of work not inferior to those enjoyed by
men, with equal pay for equal work;
(b) The right to join trade unions and other
organizations or associations of their choice and to
participate in their activities. No restrictions may
be placed on the exercise of this right other than
those prescribed by law and which are necessary,
in a democratic society, in the interests of national
security or public order or for the protection of the
rights and freedoms of others;
(c) The right to health protection, medical care,
social security, social services, education, rest and
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leisure, provided that they fulfil the requirements
under the relevant regulations for participation and
that undue strain is not placed on the resources of
the State.
2. With a view to protecting the rights of aliens
carrying on lawful paid activities in the country in
which they are present, such rights may be
specified by the Governments concerned in
multilateral or bilateral conventions.
Article 9
No alien shall be arbitrarily deprived of his or
her lawfully acquired assets.
Article 10
Any alien shall be free at any time to
communicate with the consulate or diplomatic
mission of the State of which he or she is a
national or, in their absence, with the consulate or
diplomatic mission of any other State entrusted
with the protection of the interests of the State of
which he or she is a national in the State where he
or she resides.
STATE RESPONSIBILITY
State responsibility is one of the fundamental
principles of International Law. It arises out of the
international legal system and the principles of
State sovereignty and equality of States. It implies
that if a State commits an internationally wrongful
(unlawful) act against another State, it will be
internationally responsible for reparation.
The law of State responsibility is concerned with
the nature of the State responsibility, the legal
consequences resulted from, and the
implementation of such responsibility.
Section 1: The Basis and Nature of State
Responsibility
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State responsibility is founded on three basic
elements. The first element is the existence of an
international legal obligation in force between the
concerned States. The second is the occurrence
of a wrongful act or the omission of an act in
violation of such an obligation, which is imputable
to the State. The third is that loss or damage has
resulted from such wrongful act or omission.
These three elements are the requirements of
establishing the responsibility of the State, which
have been made in a number of leading
international legal cases and reiterated by the ILC
Articles. The Articles provides that every
internationally wrongful act (a delict) of a State
entails responsibility. It defines internationally
wrongful act as a conduct consisting of an action or
omission attributable to the State under
International Law and constitutes a breach of an
international obligation of the State. A breach of an
international obligation is defined as an act which is
not in conformity with what is required of the State
by that obligation, regardless of its origin or
character.
International Law does not distinguish between
contractual (conventional) and tortious
responsibility. International responsibility relates
both to breaches of treaty and to other breaches of
legal duty. Any violation by a State of any
obligation of whatever origin or character gives rise
to State responsibility and consequently to the duty
of reparation. Reparation therefore is the
indispensable complement of a failure of a State to
apply any of its obligations.
State responsibility only arises when the act or
omission which constitutes a breach of legal
obligation is imputable (attributable) to a State. It
may be founded on fault or no fault concept.
Notably, it is important to mention here that a
State is responsible for wrongful acts which
constitute international delicts, not international
crimes. Because of the controversy concerning
State responsibility for international crimes, the ILC
Articles does not mention international crimes.
However, the ILC Draft Articles made a distinction
between international crimes and international
delicts. The Draft Articles provided that an
international wrongful act resulting from the breach
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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem
of an international obligation which was essential
for the protection of fundamental interests of the
international community and which was recognized
as a crime by that community constituted an
international crime; examples of such international
crimes were aggression, colonial domination,
slavery, genocide, apartheid and massive pollution
of the atmosphere. All other international wrongful
acts constituted international delicts.
While it is apparent that a State is responsible
for international delicts, it is not clear that it is
responsible for international crimes. The question
of State criminal responsibility has been highly
controversial. Some have argued that the concept
is of no legal value and cannot be justified. Others
have argued that since 1945 the attitude towards
certain crimes committed by State has altered so
as to bring them within the scope of International
Law. They have pointed to three specific changes
that have occurred since 1945 to justify States
responsibility for international crimes. The first
change has been the development of the concept
of peremptory norms of International Law (jus
cogens) as a set of principles from which no
derogation is allowed. The second change is the
establishment of individual criminal responsibility
directly under International Law. Finally, the
Charter of the United Nations and its provisions
concerning the enforcement action which may be
taken against a State in case of committing a threat
to or breaches of the peace or act of aggression.
In the light of these changes, the ILC, in its Draft
Articles, adopted the approach of including
international crimes by States within the scope of
International Law. However, because of the
controversy concerning this question, the ILC
omitted any mention of international crimes of
States in its Articles as finally approved. The
Articles provides that States are under a duty to
co-operate to bring an end, through lawful means,
any serious breach by a State of an obligation
arising under a peremptory norm of International
law and not to recognize as lawful any such
situation.
A. The Question of Imputability
A State is responsible (liable) only for its own
acts or omissions. A State is identified with its
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government which includes the executive, the
legislature and the judiciary, and includes central
authorities as well as local authorities.
It is established by the case law that a State is
liable for the conducts of any of its organs. This
established rule is reiterated by the ILC Articles.
The ILC Articles provides that the conduct of any
State organ (including any person or entity) having
that status under the internal law of that State,
whether that organ belongs to the constituent,
legislative, executive, judicial or other authority,
whether its functions are of an international or an
internal character, and whether it holds a superior
or a subordinate position in the organization of the
State, shall be considered as an act of the State
concerned under International Law, provided that
organ was acting in that capacity in the case in
question. The conduct of an organ of a territorial
governmental entity within a State shall also be
considered as an act of that State under
International law, provided that organ was acting in
that capacity in the case in question. The conduct
of an organ of an entity which is not part of the
formal structure of the State or the territorial
governmental entity, but which is empowered by
the internal law of that state to exercise elements
of governmental authorities, shall also be
considered as an act of the State under
International Law, provided that organ was acting
in that capacity in the case in question.
It is also established that a State is liable for the
acts of its officials if those acts are imputable
(attributable) to the State. This rule depends on the
link that exists between the State and the person or
persons committing the wrongful act or omission.
The State as a moral legal entity, in reality acts
through authorized officials. It is not liable under
International Law for all acts of its officials; it is
liable only for acts of its officials that are imputable
to it. Imputability is a legal notion which
assimilates the acts or omissions of the State
officials to the State itself and which renders the
State liable for damages to persons or properties
resulting from such acts.
The question of imputability, however, creates
problems when officials exceed or disobey their
instructions. Because the evading of liability by a
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State in such a case will be unjust, it is established
that a State is liable for the acts of its officials, even
when they exceed or disobey their instructions, if
those officials are acting with apparent authority
or if they are abusing powers or facilities placed
at their disposal by the State. The ILC Articles
reiterates such a rule by providing that the conduct
of any organ of a State, having acted in that
capacity, shall be considered as an act of the State
under International Law even if such organ
exceeded its competence according to internal law
or disobeyed instructions concerning its authority.
With regard of wrongful acts committed by
private persons, in principle, a State is not
responsible for such acts. However, it is
established by case law and reaffirmed by the ILC
Articles that a State is responsible for acts of
private persons if those persons are acting on
behalf of that state, on its instructions, under its
control, or exercising elements of governmental
authority in the absence of governmental officials
and under circumstances which justify them in
assuming such authority.[24] It is also responsible
for acts of private persons if such acts are
accompanied by some act or omission on part of
the State, for which it is liable. Such act or
omission by the State may take one of the
following forms: encouraging the person to perform
such act, failing to take reasonable care to prevent
the person from performing such act, failure to
punish the person, obtaining some benefit from the
act of the person, or express ratification of the
persons act.
With regard of actions of rioters or rebels
causing loss or damage to a foreign State or its
nationals, the general principle is that the State is
not liable for such actions if it has acted in good
faith and without negligence.[26] However, in such
a case, the State is under a duty to show due
diligence. Nevertheless, when the rebellion
movement succeeds in establishing the new
government of a State or a new State in part of the
territory of the pre-existing State, it will be held
responsible for its activities prior to its assumption
of authority; this rule is reaffirmed by the ILC
Articles.
B. The Question of Fault
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There are two theories used as foundations for
State responsibility: the risk theory and the fault
theory.[28] The risk theory is based upon the
principle of objective responsibility which maintains
that the liability of the State is strict. Once a
wrongful act causing damage has been committed
by a State official or organ, the State will be
responsible under International Law to the injured
State irrespective of its intention. In contrast, the
fault theory is based upon the principle of
subjective responsibility which requires the
establishment of an element of intention, fault or
negligence on the part of the State official or organ
before rendering the State liable for any damage.
There is no agreement in the International Law
on the question of the basis of State responsibility.
The relevant cases and the opinions of legal
scholars are divided on this question. However,
the majority of cases and opinions tend towards
the risk theory of responsibility.
Section 2: Legal Consequences of State
Responsibility
A State is responsible for its international
wrongful act. This responsibility entails certain legal
consequences on that State. The first
consequence is the cessation of the wrongful act,
and the second is the reparation.
A. Cessation of the Wrongful Act
The first legal consequence of State
responsibility under International law is that the
wrongdoing State is obliged to cease the wrongful
act, if it is continuing, and to offer appropriate
assurances and guarantees on non- repetition.
B. Reparation
The second legal consequence resulting from
State responsibility for international wrongful act is
that the wrongdoing state is under a duty to
remedy its acts. The injured State is entitled for full
reparation in form of restitution in kind,
compensation and satisfaction, either singly or in
combination. The wrongdoing State cannot employ
its internal law to avoid providing full reparation.
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Restitution in kind means that the wrongdoing
State has to re-establish the situation that existed
before the committing of the wrongful act. It can be
provided if it is not materially impossible, not
involving breach of an obligation arising from a
peremptory norm of general International Law, not
involving a burden out of all proportion to the
benefit which the injured State would gain from
obtaining restitution in kind instead of
compensation, or not seriously jeopardize the
political independence or economic stability of the
wrongdoing state.
If restitution in kind is not available,
compensation for the damage caused must be
paid. Monetary compensation covers any
financially assessable damage suffered by the
injured state, and may include interest, and may
include, in certain circumstances, loss of profits. It
may be paid for both material and non-material
(moral) damage.
Satisfaction is the third form of reparation. It is
a remedy which is appropriate in cases of moral
damage and non-monetary compensation. It may
take the forms of an official apology, a nominal
damage, the punishment of the guilty officials or
the acknowledgement of the wrongful character of
an act.
Section 3: The Implementation of State
Responsibility
A State is entitled to invoke the responsibility of
another State if the obligation breached is owed to
it individually or to a group of States, including it, or
to the international community as a whole. A State
other than an injured State may invoke the
responsibility of another State if either the
obligation is owned to a group of States including
it, and is established for the protection of a
collective interest of the group, or the obligation
breached is owed to the international community
as a whole. In such cases, a State may demand
the cessation of the wrongful act, assurances and
guarantees of non-repetition, satisfaction, as well
as reparation. These doctrines are reaffirmed in
the ILC Articles.
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Where several States are injured by the same
wrongful act, each State may separately invoke
responsibility. Where several states are
responsible, the responsibility of each may be
invoked.
However, responsibility cannot be invoked if the
injured State has validly waived the claim, or it has
caused, by reason of its conducts, in the lapse of
the claim. Any waiver needs to be explicit and
clear.
An injured State may seek to settle its claim
peacefully through any of the peaceful means, or it
may take countermeasures against the wrong
doing State. In a case of an injury affecting its
national, the State may provide him with diplomatic
protection.
A State may present an international claim
against the wrong doing State before an
international tribunal. However, a State has to
establish its qualifications for bringing the claim
and the validity of the claim itself before the merits
of the claim can be addressed. Where a claim is
brought before an international tribunal, objections
may be raised against its admissibility. The first is
an objection to the jurisdiction of the tribunal; if
successful, it will stop all proceedings in the case.
Other objections are the nationality of the claimant,
the non-exhaustion of local remedies, and the
undue delay in presenting the claim.
A. Diplomatic Protection and Nationality of Claims
The doctrine of state responsibility with regard
to injuries to nationals is based upon the attribution
to one State of the wrongful act or the omission
and the capacity of the other State to adopt the
claim of its injured national. Nationality is the link
between the individual and his State as regards
particular benefits and obligations. It is also the
link between the individual and the benefits of
International law. Although International Law is
now tending to grant certain rights to individuals
apart of the intervention of the State, the basic rule
remains that in a State-oriented world, it is only
through the State the individual may obtain the full
range of benefits available under International Law,
and nationality is the key.
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Although a State is under a duty to protect its
nationals, it is not under a duty to provide them
with diplomatic protection. A State may provide
diplomatic protection to its nationals. Diplomatic
protection consists of resorting to diplomatic action
or other means of peaceful settlement by a State
adopting in its own rights the cause of its nationals
in respect of an injury to any of its national arising
from an internationally wrongful act of another
State. Such diplomatic protection is not a right of
the national concerned, but a right of the State
which may or may not choose to exercise.
The diplomatic protection is the result of the
historical reluctance to permit individuals the right
in International Law to bring claims against foreign
States, for reasons related to the principles of state
sovereignty and non-intervention in domestic
affairs of a State. The exercise of diplomatic
protection is not regarded as intervention contrary
to International Law.[46] A State may take up the
claim of its national against another state before an
international tribunal. Once a State does this, the
claim then becomes that of the state, not of the
injured individuals. Thus, the State may waive its
claim, but the individual cannot.
In International law, the normal and important
function of nationality is to establish the legal
interest of a State when its national suffers injury or
loss caused by another State. The subject matter
of the claim is the individual and his property, and
the claim is that of the State. If the plaintiff State
cannot establish the nationality of the claim, the
claim will be inadmissible because of the absence
of the legal interest of the claimant. The
nationality of the claim principle is well
established in customary International Law.
However, there are certain exceptions to the
principle of the nationality of the claim. Examples
of such exceptions are the right of protection of an
alien seaman on a ship flying the flag of the
protecting State, an alien in the service of the
armed forces of a claimant State, and stateless
person or refuge who at the dates of the injury and
presentation of the claim is lawfully and habitually
resident in that state.
The nationality must exist at the date of the
injury, and should continue until at least the date of
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the formal presentation of the claim.[47] Where an
individual possesses dual or multiple nationalities,
any State of which he is a national may adopt his
claim against a third State. Where a case involves
more than one State of nationality, the State with
which he has the more effective connection may
adopt his claim against the other State. As far as a
moral legal person (such as a corporation) is
concerned, there must be some tangible link
between it and the State adopting its claim.
B. The Exhaustion of Local Remedies
It is established in the customary International
Law that before international proceedings are
instituted or claims or representations made, the
remedies provided by the local State should have
been exhausted. This rule implies that an injured
individual must exhaust remedies in the courts of
the defendant State before an international claim
can be brought on his behalf. It is a rule which is
justified by political and practical considerations,
not by any logical necessity deriving from the
International Law. Among the political and practical
considerations suggested to justify such rule are
the avoidance of resorting to diplomatic protection
in small and insignificant claims, and the greater
suitability and convenience of local courts as
forums for claims of individuals. This rule is
reaffirmed in the ILC Articles which provides that
the responsibility of a State may not be invoked if
the claim is one to which the rule of exhaustion of
local remedies applies and any available and
effective local remedy has not been exhausted.
The exhaustion of local remedies rule does not
apply where one State has been guilty of a direct
breach of International Law causing direct injury to
another State. It applies to cases of diplomatic
protection where a State claims injury to its
nationals, and when effective remedies are
available in the wrongdoing State. A claim will not
be admissible in the International Law unless the
natural or legal foreign person concerned has
exhausted the legal effective remedies available to
him locally in the Defendant State.
C. Unreasonable Delay and Improper Activities of
the Injured National
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A claim by a State against another State will not
be admissible if it is presented after an
unreasonable delay by the Claimant State. It may
be inadmissible if the injured national has suffered
injury as a result of his improper activities.
However, in such a case, the injury suffered by the
national must be roughly proportional to his
improper activities.
D. Resorting to Countermeasures
An injured State may seek to settle its claim
peacefully through any of the peaceful means, or it
may take countermeasures against the wrong
doing State. Countermeasures are acts of
retaliation which are traditionally known as
reprisal. They may be in a form non-compliance
of the injured State with its legal obligations
towards the wrong doing State, or unilateral
coercive actions taken by the injured State against
the wrongdoing State. Such measures are a type
of self help utilized in order to induce the wrong
doing State to discontinue its wrongful act and to
provide reparation.
Today, there are certain legal limits to
countermeasures. The most important limit is the
prohibition of the armed retaliations because of the
general prohibition of the use of force provided in
Article 2(4) of the Charter of the United Nations.
Countermeasures have to be proportional to the
wrongful act. They must not violate basic human
rights or the peremptory norms of International
Law.
STATE RESPONSIBILITY
Introduction
The law of State responsibility is the chapter of
international law that concerns the breach by a
State of one or more of its international obligations.
In international law, responsibility is the corollary of
obligation; every breach by a subject of
international law of its international obligations
entails its international responsibility. The law of
State responsibility defines when an international
obligation is to be held to have been breached, as
well as the consequences of that breach, including
which States are entitled to react, and the
permissible means of that reaction.
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Unlike national laws, wherein different rules often
apply according to the source of the obligation
breached (e.g., contract law, tort law, criminal law),
international law does not concern itself with the
source of the obligation that is breached; in
principle (and unless otherwise specifically
provided) the same rules apply to the breach of an
obligation whether the source of the obligation is a
treaty, customary international law, a unilateral
declaration, or the judgment of an international
court.
In August 2001 the International Law Commission
completed its Articles on the Responsibility of
States for Internationally Wrongful Acts (ARSIWA),
a project on which it had been working for more
than forty years. The aim of the articles is to codify
the generally applicable rules of State
responsibility.
It should be noted that the ARSIWA are envisaged
as laying down general rules that apply in default of
any more specific rule applicable to the obligation
in question. In some cases, special rules may
apply to an obligation (either as a result of the
formulation of the rule itself, or because the
obligation in question forms part of a special
regime); for instance, it is possible that a particular
obligation may be subject to a special rule requiring
fault or damage before there is held to be a breach,
or it may be that the category of States entitled to
react is wider than the default position under the
ARSIWA. This is the principle of lex specialis (to
the extent that special rules are applicable and
inconsistent with the rules contained in the
ARSIWA, the special rules will prevail and displace
the more general rules).
The Elements of State Responsibility
The starting point of the articles is that "every
internationally wrongful act of a State entails the
international responsibility of that State" . The act
or omission of a State will qualify as an
"internationally wrongful act" if two conditions are
met. First, the act or omission must constitute a
breach of an international obligation, or, as the
articles put it, must be "not in conformity with what
is required" by the international obligation. This
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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem
implies that the obligation in question must be
binding on the State at the time of the conduct,
which is said to constitute a breach. Second, the
act or omission must be "attributable" to the State.
The general rule is that a State is not responsible
for the acts of private individuals. The State is of
course an abstract entity, unable to accomplish any
physical act itself. Just as in domestic law
corporations act through their officers and agents,
so in international law the State normally acts
through its organs and officials. The first, and
clearest, case of attribution is that of the organs of
the State (e.g., police officers, the army) whose
acts are attributable to the State even in instances
where they contravene their instructions, or exceed
their authority as a matter of national law. No
distinction is made based on the level of the
particular organ in the organizational hierarchy of
the State; State responsibility can arise from the
actions of a local policeman, just as it can from the
actions of the highest officials, for instance a head
of state or a foreign minister. Nor is any distinction
made upon the basis of the separation of powers;
State responsibility may arise from acts or
omissions of the legislature and the judiciary,
although by the nature of things it is more common
that an internationally wrongful act is the
consequence of an act or acts of the executive.
Second, the rules of attribution cover situations in
which individuals, not otherwise State organs, are
exercising "elements of governmental authority" at
the time that they act. Third, acts of private
individuals are attributable to the State if those
individuals are acting on the instructions of the
State, or under its effective direction or control.
Fourth, in exceptional circumstances in which there
is an absence or default of governmental authority,
the acts of private individuals may be attributable to
the State if those individuals, in effect, step into the
breach and perform necessary governmental
functions.
With regard to certain obligations, a State may
incur responsibility even though actions have been
carried out by private individuals, because the
essence of the obligation was to ensure that a
given result occurred. For instance, if a foreign
Atty. Jamon
embassy is overrun by a mob, or harm is done to
diplomatic staff by private individuals, as occurred
with the U.S. embassy in Tehran during the Iranian
revolution of 1979 to 1980, a State may incur
responsibility, even if those individuals act on their
own initiative. Equally, under Article V of the 1948
Convention on the Prevention and Punishment of
the Crime of Genocide, the obligation of a State to
punish those responsible for genocide earlier on
related to genocide may be breached in instances
in which a State fails to punish any person
responsible for the genocide, "whether they are
constitutionally responsible rulers, public officials,
or private individuals." There is probably a similar
rule in general international law in relation to
crimes against humanity. In both cases, the basis
of responsibility here is not the attribution to the
State of the acts of the individuals; it is the failure
by the State as an entity to comply with the
obligations of prevention and prosecution
incumbent on it.
A somewhat anomalous instance of attribution is
that covered by Article 10. As was noted above, in
the normal course of events, a State is not
responsible for the acts of private individuals; a
fortiori, it is not responsible for the acts of
insurrectional movements, because, by definition,
an insurrectional group acts in opposition to the
established state structures and its organization is
distinct from the government of the State to which it
is opposed. However, Article 10(1) provides that
"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." Article 10(2) provides for a similar rule with
respect to an insurrectional movement that
succeeds in establishing a new State within the
territory of a pre-existing State. The effect of the
rule is to attribute retrospectively the conduct of the
movement in question to the State. In the case of a
successful insurrectional movement, the acts of the
movement are attributed to the State as if the
movement had been the government at the time of
its acts, even though, if the insurrection had failed,
no attribution would be possible. In the case of the
establishment of a new State, the effect is even
more drastic because acts are attributed to the
State retrospectively to a time when it did not yet
definitively exist.
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Except in this case, there is no established
machinery for attributing collective responsibility
(e.g., for war crimes, genocide, or crimes against
humanity) to an armed opposition group. In such
circumstances individual responsibility is the only
possibility at the international level of ensuring a
degree of responsibility for criminal acts.
Certain circumstances may serve to preclude the
wrongfulness of a breach of international law by a
State, in much the same way that defenses and
excuses work in national criminal law. In
international law these are termed "circumstances
precluding wrongfulness" [8] . For instance, the
consent of the state to which the obligation was
owed will prevent the breach being wrongful, as
will, under certain restrictively defined conditions,
force majeure, distress, and necessity. Finally, a
State taking countermeasures (defined as the
nonperformance of an obligation in response to a
prior wrongful act of another State, in order to
induce that State to comply with its obligations)
may mean that what would otherwise be a breach
of an international obligation is not in fact wrongful.
However, quite apart from the strict procedural
conditions with which the taking of
countermeasures is hedged, it should be noted
that certain obligations may not be the object of
countermeasures. Among these are the obligation
to refrain from the threat or use of force, obligations
for the protection of fundamental human rights,
obligations of a humanitarian character prohibiting
reprisals under peremptory norms of general
international law (jus cogens). This last limitation in
fact applies generally to circumstances precluding
wrongfulness: it is never possible to plead that a
breach of a peremptory norm was justified.
The Content of International Responsibility
Upon the commission of an internationally wrongful
act, new legal obligations come into existence for
the State responsible for that act. First, that State is
under an obligation to make full reparation for the
injury caused by the internationally wrongful act.
Reparation may take one of three forms:
restitution, compensation, or satisfaction (or some
combination of them). Traditionally, restitution has
played the primary role, although in instances in
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which restitution is materially impossible, the
injured State may have to content itself with
compensation or satisfaction. Second, the
responsible State is under an obligation to
conclude the internationally wrongful act if it is
continuing, and in an appropriate case, may be
required to make assurances and guarantees of
non-repetition.
The Articles mark a decisive step away
from the traditional bilateralism of international law
and toward what has been called "community
interest" in the provisions dealing with the States
that are entitled to react to the breach of an
internationally wrongful act. Traditionally, only the
State that was directly injured, or in some way
"targeted" by the breach of an international
obligation could demand reparation. In addition,
although any state could take unfriendly measures
that did not constitute the breach of an
international obligation owed to the State at which
they were directed (retorsion), the taking of
countermeasures was commonly understood as
being limited to these "injured States."
The first major move away from the strict
bilateralism of international law was the judgment
of the International Court of Justice in the
Barcelona Traction, Light and Power Company
Limited (Belgium v. Spain) case. In that case, the
court stated:
An essential distinction should be drawn
between the obligations of a State towards the
international community as a whole, and those
arising vis--vis another State in the field of
diplomatic protection. By their very nature the
former are the concern of all States. In view of the
importance of the rights involved, all States can be
held to have a legal interest in their protection; they
are obligations erga omnes.
In the next paragraph, the court went on to
state that "such obligations derive, for example, in
contemporary international law, from the outlawing
of acts of aggression, and of genocide, as also
from the principles and rules concerning the basic
rights of the human person, including protection
from slavery and racial discrimination." This
distinction between obligations of which only the
injured State may complain, and those in the
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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem
observance of which a wider community of States
have an interest, is reflected in Articles 42 and 48,
although it should be stressed that the latter
provision is undoubtedly one of the clearest
examples of progressive development to be found
within the articles. It seems indisputable that all
other States have an interest in the observance by
other States (and individuals) of the prohibitions of
genocide and crimes against humanity. However,
the exact implications of this interest require further
working out in the light of State practice.
The Relationship between State Responsibility
And Individual Responsibility
The relationship between State
responsibility and individual responsibility has until
recently been a neglected issue, principally due to
the late development of international individual
criminal responsibility.
In 1947 the International Military Tribunal
at Nuremberg stated that "crimes against
international law are committed by men, not by
abstract entities, and only by punishing individuals
who commit such crimes can the provisions of
international law be enforced" . This statement
says much about perceptions of the international
legal system in the immediate aftermath of World
War II; however, insofar as it seems to assert that
observance of the rules of international law
prohibiting atrocities can only be achieved through
the prosecution of individuals, the assertion no
longer holds true.
During the 1990s a number of inter-State
cases alleging State responsibility for violations of
the international rules concerned with the outlawing
of atrocities were brought before the International
Court of Justice. Some of these cases, in particular
those between the States that had emerged after
the disintegration of the Socialist Federal Republic
of Yugoslavia (Bosnia and Herzegovina v.
Yugoslavia [Serbia and Montenegro], 1993
onward; Croatia v. Yugoslavia, 1999 onward),
concerned situations involving allegations of
genocide and crimes against humanity that were
concurrently the subject of investigation and
prosecution of individuals before the International
Criminal Tribunal for the Former Yugoslavia
(ICTY). Other case alleged, among other things,
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violations of the 1948 UN Genocide Convention,
serious violations of human rights, and war crimes
that had not been the subject of international
prosecution. At the preliminary objections stage of
the case (mentioned above) between Bosnia and
Serbia-Montenegro, the respondents argued for a
restrictive interpretation of the jurisdictional
provision contained in Article IX of the 1948 UN
Genocide Convention. Article IX provides as
follows.
Disputes between the Contracting Parties
relating to the interpretation, application or
fulfillment of the present Convention, including
those relating to the responsibility of a State for
genocide or for any of the other acts enumerated in
Article III, shall be submitted to the International
Court of Justice at the request of any of the parties
to the dispute.
Serbia-Montenegro argued that the
provision only conferred jurisdiction on the court in
relation to responsibility for failure to comply with
the obligations to prevent and punish genocide, as
contained in Articles V, VI, and VII of the
convention, and not to State responsibility for
violations of the substantive prohibition of genocide
contained in Article III. Accordingly, it was argued,
as the jurisdiction of the court is based on consent,
the court had no jurisdiction in relation to the
allegations made by Bosnia and Herzegovina of
violations of the prohibition of genocide by
individuals whose acts were attributable to Serbia-
Montenegro.
The court dealt with the point briefly, observing:
The reference in Article IX to "the
responsibility of a State for genocide or for any of
the other acts enumerated in Article III," does not
exclude any form of State responsibility. Nor is the
responsibility of a State for acts of its organs
excluded by Article IV of the Convention, which
contemplates the commission of an act of genocide
by "rulers" or "public officials".
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Accordingly, it held, a dispute existed
between the parties on this point, as well as on the
"the facts of the case, their imputability, and the
applicability to them of the provisions of the
Genocide Convention," and was sufficient to its
jurisdiction. Two points bear emphasizing. First, the
argument of Serbia-Montenegro did not have as a
necessary premise that State responsibility for
actual acts of genocide attributable to a State does
not exist; rather, the argument was that State
responsibility of this type did not fall within Article
IX. Second, the decision of the court at the
preliminary objections stage of the case did not
definitively decide whether breach of the 1948 UN
Genocide Convention by an individual necessarily
involves State responsibility if the relevant acts are
attributable to a State, as the only hurdle that had
to be surmounted was whether there was a dispute
between the parties as to the interpretation or
application of the convention. However, the tone of
the court's judgment seems to suggest that State
responsibility does arise in these circumstances,
and this would be consistent with general principle.
Conversely, the ICTY has made reference
to State responsibility in elucidating the law
relevant to the international criminal responsibility
of individuals. In the Furundzija case the Trial
Chamber held that the international legal norms
prohibiting torture arising from human rights law
and international humanitarian law "impose
obligations upon States and other entities in an
armed conflict, but first and foremost address
themselves to the acts of individuals, in particular
to State officials or more generally, to officials of a
party to the conflict or else to individuals acting at
the instigation or with the consent or acquiescence
of a party to the conflict" . As a consequence,
Under current international humanitarian
law, in addition to individual criminal liability, State
responsibility may ensue as a result of State
officials engaging in torture or failing to prevent
torture or to punish torturers. If carried out as an
extensive practice of State officials, torture
amounts to a serious breach on a widespread
scale of an international obligation of essential
importance for safeguarding the human being, thus
constituting a particularly grave wrongful act
generating State responsibility.
Atty. Jamon
It is therefore now generally accepted that
a single act can give rise to "two distinct types of
responsibility coming under mutually autonomous
legal regimes" [16] . The ILC intentionally left the
question of the interplay of the two bodies of law
open for future development, inserting a saving
clause as Article 58, ARSIWA, which reads,
"These articles are without prejudice to any
question of the individual responsibility under
international law of any person acting on behalf of
a State." Similarly, the Rome Statute of the
International Criminal Court (ICC) provides in its
Article 25(4) that "[n]o provision in this Statute
relating to individual criminal responsibility shall
affect the responsibility of States under
international law."
However, although the rules constituting
the general-framework of State responsibility and
international criminal responsibility may constitute
distinct bodies of law, there are inevitably certain
overlaps or points of contact between the two
systems due to the fact that at the root of both are
the same norms of substantive international law,
that is, those prohibiting anyone from committing
genocide, crimes against humanity, and so on.
Most obviously, for instance, it is clear that
an individual cannot be found guilty of genocide if
he did not have the "specific intent" to "destroy in
whole or part, a national, ethnical, racial, or
religious group, as such," required by Article II of
the 1948 Genocide Convention. Equally, in seeking
to establish State responsibility for genocide, it
seems clear that at least one person, if not more,
whose acts are attributable to the State should
have the requisite specific intent. In this sense, the
1948 Genocide Convention operates as a lex
specialis in relation to the generally applicable
rules of international law, in which culpa or
intention is not generally required.
Second, although the definition of
genocide is not expressed in such terms, the
logistical and organizational structures necessary
for the commission of the crime inevitably involve
State or para-statal structures. A person who
murders a single person on the basis of the
national, ethnic, racial, or religious group to which
that person belongs does not commit genocide,
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even though it may be that he would murder all of

the members of the group if he could, and thus
arguably has the required specific intent. A certain 2. In such a case, the breach extends over the
amount of concentration is necessary, and there is entire period starting with the first of the actions or
a certain threshold of scale both for genocide and omissions of the series and lasts for as long as
crimes against humanity (of which, ultimately, these actions or omissions are repeated and
genocide is a species. remain not in conformity with the international
obligation.
In relation to crimes against humanity,
Article 3 of the Statute of the International Criminal
Tribunal for Rwanda (ICTR) requires that the acts According to the commentary, this has specific
have been committed as part of "a widespread or application to crimes against humanity and
systematic attack against any civilian population on genocide.
national, political, ethnic, racial, or religious
Even though it has special features, the
grounds," whereas Article 5 of the Statute of the
prohibition of genocide, formulated in identical
ICTY, which only requires that the acts have been
terms in the 1948 Convention and in later
committed "in armed conflict, whether international
instruments, may be taken as an illustration of a
or internal in character, and directed against any
composite obligation. It implies that the responsible
civilian population" has been interpreted by the
entity (including a State) will have adopted a
ICTY as requiring that there be a widespread or
systematic policy or practice. According to Article
systematic attack. In similar fashion, Article 7 of the
II(a) of the Convention, the prime case of genocide
Rome Statute of the ICC imposes the slightly
is "killing members of [a national, ethnical, racial or
different requirement of "a widespread and
religious group]" with the intent to destroy that
systematic attack directed against any civilian
group as such, in whole or in part. Both limbs of the
population" in its definition of crimes against
definition contain systematic elements. Genocide
humanity. As with genocide, the requirement of "a
also has to be carried out with the relevant
widespread or systematic attack" implies an
intention, aimed at physically eliminating the group
element of scale or of planning, and will in most
"as such." Genocide is not committed until there
cases involve structures and apparatus that will
has been an accumulation of acts of killing,
normally only be disposed of by a State or by an
causing harm, etc., committed with the relevant
armed opposition group, although proof of a plan
intent, so as to satisfy the definition in Article II.
or policy is not a necessary part of the definition of
Once that threshold is crossed, the time of
the crime.
commission extends over the whole period during
It was for reasons of this kind that the ILC included which any of the acts was committed, and any
in its articles a provision dealing specifically with individual responsible for any of them with the
the issue of responsibility for what are termed relevant intent will have committed genocide.
composite actsthat is, acts wherein the gist of
the wrong is the combination of individual acts that
are not in themselves necessarily wrongful or
The Distinction between Commission and
criminal as a matter of international law. Article 15
Failure to Prevent Or Punish
of ARSIWA provides as follows:
The 1948 UN Genocide Convention
distinguishes between the basic prohibition of
genocide and conduct ancillary to genocide
1. The breach of an international obligation by a
incitement, conspiracy, and so on, and the
State, through a series of actions or omissions
question of prevention and punishment. Persons
defined in aggregate as wrongful, occurs when the
committing genocide (whether or not State officials)
action or omission occurs which, taken with the
are to be punished. The State is under an
other actions or omissions, is sufficient to
obligation not merely to enact laws prohibiting
constitute the wrongful act.
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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem
genocide, but also to prevent and punish actual
violations occurring within its territory. Thus, there
is a distinction between the criminal act, which is
committed by individuals and is punishable
accordingly, and the State's obligation to prevent
and punishfailure to do which is not as such
criminal, but amounts to a breach of an
international obligation. In the Application of the
Genocide Convention case, as noted already,
Yugoslavia (Serbia and Montenegro) argued that
the only obligation that had been incumbent upon it
under the convention was to prevent genocide and
punish acts of genocide occurring on its territory;
the court rejected this argument, affirming that the
jurisdictional provision did not exclude "any form of
State responsibility". The court left to the merits
phase of the case the question of the scope of the
obligations under the convention, and accordingly
the extent of State responsibility falling within the
jurisdictional provision. However, leaving aside the
technicalities of jurisdiction, the better view is
thatwhether under the convention or as a matter
of general international lawa State is responsible
for any act of genocide committed by one of its
organs or by other persons whose conduct in the
relevant respect is attributable to the State.
As indicated by the Bosnia case, it is
arguable that, in these as in other respects, there
may be a distinction between on the one hand the
scope of responsibility (and accordingly of
jurisdiction) under the convention, and on the other
the scope of the obligations, and of responsibility
under general international law. For example,
national jurisdiction to try persons suspected of
genocide is limited by Article VI to genocide
committed on the territory of the implicated State. It
is inconceivable that jurisdiction is so limited under
general international law, given such developments
as the extension of national jurisdiction over
international crimes in general (including crimes
less serious than genocide).
Conclusion
Therefore, in international law, responsibility
pertains to a State which commits an
internationally wrongful act against another, giving
rise to the duty to give reparation. The wrongful act
Atty. Jamon
that is attributable to a State, committed by its
agencies or officials or in the exercise of its
authority, constitutes a breach of international
obligation that is binding at the time the act is
committed. Such a classic formulation of
international responsibility is premised on inter se
relations of States; an act or omission of one State
in breach of an obligation defined by international
custom or convention, which it owes to another
State. However, progress in the theory and
practice of international responsibility has gone
beyond the scope of bilateral relations. The
developments towards the consolidation of the
institutions making up the International Community
of States as a whole have broadened in significant
scale.
ACTS OR OMISSIONS IMPUTABLE TO THE
STATE
Private Individuals vs. Government Officials or
bodies
Private Individuals
General Rule :
The State cannot be held directly or immediately
responsible for the acts or ommissions of private
individuals, causing damage to aliens or their
property
Exception :
The States responsibility may arise indirectly or
vicariously, but only if it is accompanied by
circumstances which indicate manifestations of
the actual or implied complicity of the government
in the act, before or after it, either by directly
ratifying or approving it, or by an implied, tacit or
constructive approval in the negligent failure to
prevent the injury or against guilty individual to
pursue his civil remedies
Unless it displayed in the conduct of its organs or
its officials, patent or manifest negligence in taking
measures which are normally taken in the
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particular circumstances to prevent or to punish the
injurious acts.
First line of inquiry Whether the State ought to
have prevented the injurious act.
The wrongful act of a subordinate official is not the
act of the State unless and until some organ of the
State has expressly or tacitly ratified the act.

Where the injury would not have occurred DENIAL OF JUSTICE

if the State, through its officers, had been
reasonably diligent, the question of State
responsibility will arise.
The claimant has the burden of proving
the negligence of the government.
All act or omissions capable of giving rise
to international responsibility on the part of the
State for injury to the person or property of an
alien, regardless of the State organ which may
have been the proximate cause of such injury.

Second line of inquiry Whether the State has A State may not deny access to its courts
taken the remedial steps which the law requires of and yet deny justice
it, assuming that there was no failure of diligence.
Unjust judgment is not a denial of justice
As a result of its failure to use diligence in
bringing the offender to justice and punishing him,
the State becomes responsible internationally for
Why is there is no denial of justice unless the
the damage suffered by the alien.
misconduct is extremely gross?

The reason is that the independence of courts is an

DENIAL OF JUSTICE
The State cannot be held responsible for it is not
required to insure the effectiveness of its remedial
machinery.
accepted canon of a decent government, and the
law does not lightly hold a State responsible for
errors committed by its courts.
CASE :

1. On injuries arising out of a mob violence GARCIA AND GARZA

suffered by the alien
NORTH AMERICAN DREDGING CO.
Lack of evidence may be easily shown if a group of
aliens are attacked. If the authorities have used
due diligence to prevent and repress the riot and
have not denied justice to the alien injured, the
State has no responsibility unless it is under
X. EXTRADITION
obligation to render special protection.
Extradition, definition
The surrender of a person by one
2. The State is not responsible for the
state to another state where he is
injuries sustained by aliens at the hands of
wanted for prosecution or, if already
unsuccessful revolutionists or insurgents convicted, for punishment.
in civil war Sui generis proceeding tracing its
existence wholly to treaty obligations
between different nations.
Administrative in Character.
ACTS OF GOVERNMENT OFFICIALS
Extradition vs. Deportation
EXTRADITION DEPORTATION
Where the office acts beyond the scope of his
Effected at the request Unilateral act of the local
office, his act is like that of any private individual.
of the state of origin. state.
Based on offenses Based on causes arising
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generally committed in in the local state. be punishable under the laws of the
the state of origin. demanding and surrendering States
It calls for the return of An undesirable alien with a minimum penalty of
the fugitive to the state may be deported to a imprisonment for one year.
of origin. state other than his own Difference in Legal System
or the state of origin. Can serve as an obstacle to the
interpretation of what the crime is.
Kinds of Fugitives Some Offenses are not Extraditable
Fugitive Political Offenders Religious Offenses
Fugitive Criminals (Extradition Political Offenses
proceedings applies to them) Military Offenses

2 Types of extradition treaties: Political vs. Ordinary Offense:

List-Type Extradition Treaty (Older or Test: there must be two or more
Classical Type)
parties in the State, each seeking to
- Specifies the offenses for
which extradition is provided. impose the government of their own
Non-List Type Extradition Treaty choice on the other. (Britain)
(Modern Type) Attentat Clause
- No list of offenses, but provides Murder of the head of a
for extradition in all cases where the foreign state, or a member
offense is punishable in both the of his family, should not be
demanding and surrendering States. considered a political crime.
(Belgium)
Purposes of Extradition
Criminal Prosecution Delits Complexes
- Instituted by authorities of the Offenses that are at the
requesting State or same time political acts and
government charging the ordinary crimes.
accused with an offense.
Execution of Prison Sentence
- Imposed by a court of the
requesting State or government, with such Prohibition on Discrimination
Extradition may not be granted if it
duration as that
would subject the fugitive to
stipulated in the treaty to be served by the
prosecutions based on race,
accused.
nationality, or political opinion.

Fundamental Principles of Extradition

Lack of Probable Cause Clause
Bilateral Treaty
The request for extradition must
It is based upon bilateral treaty law
include sufficient prima facie
and does not exist as an obligation
evidence of guilt attributable to the
upon states in customary law.
person requested to be extradited.
Double Criminality
The crime involved should be a
crime in both states concerned. Postulates of Extradition
Criminals should be restored
Principle of Specialty
to the jurisdiction of the
A person surrendered may be tried
locus delicti competent to
and punished only for the offense try and punish them so that
for which extradition had been the number of criminals
sought and granted. seeking refuge abroad will
Montevideo Convention of 1933 be reduced.
Test: the act for which extradition is
sought must constitute a crime and
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The requesting state will

accord due process to the
accused.
The proceedings are sui
generis (on its own kind; a
APPEAL to CA within 1
class of itself; unique).
Compliance shall be in good whose decision shall be
faith. executory.
There is underlying risk of
flight.

Procedure for Extradition (P.D. 1069)

REQUEST through DECISION forwarded to

DIPLOMATIC the DOJ.
REPRESENTATIVES

DFA FORWARDS request to INDIVIDUAL placed at t

DOJ authorities of requesting
expenses to be shoulde
State.

Rights of a Person Arrested and Detained

in Another State
The judge must study the petition for
extradition
Right toand
have his request complied
with by the receiving State to so
its supporting documents and make, as soon as
inform the consular post of his
possible, a PRIMA FACIE (at first face) FINDING
condition.
whether they are sufficient in compliance
Rightwith the
to be informed by the
competent authorities of the
person State without delay his
Extradition Treaty and Law and that the receiving
rights above-mentioned.
Right to have his communication
addressed to the consular post
forwarded by the receiving State
accordingly.

Irregular Rendition
A practice of some States that is
borne of frustration caused by the
unwillingness of a country upon
which a valid extradition request
has been made to carry out its
international obligations.
HEARING
Varieties of Irregular Rendition:

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Transitional Forcible
Abduction
Informal
Surrender/Disguised
Extradition
Lures
Ker-Frisbie Doctrine
Criminal defendants may
be tried regardless of
whether their presence
before the court was
secured from outside its
territorial jurisdiction by
means other than
pursuant to a valid
extradition.
Asylum
When a State allows an alien to
enter and remain in its territory
even if his own State objects.
Aliens have no right of asylum; it
is merely the right of the State to
grant it.
Kinds of Asylum
Territorial
Exterritorial or
Diplomatic
Crimes Against Law of Nations
Crimes which all nations agree to
punish.
It is an act that is internationally agreed to
be of a criminal nature, such as genocide,
piracy or engaging in slave trade. It is also
known as crime against international
law.
No nation can privilege itself to commit a
crime against the law of nations by a mere
municipal regulation of its own.
General elements of Law of Nations
No attacks on foreign nations,
their citizens, or shipping, without
either a declaration of war or
letters of marque and reprisal.
Honoring of the flag of truce,
peace treaties, and boundary
treaties. No entry across national
borders without permission of
national authorities.
by the law of
nations no member of one
society has a right to intrude into
another [I]t is left in the power
of all states, to take such
measures about the admission
Atty. Jamon
of strangers, as they deem
convenient."
Protection of wrecked ships, their
passengers and crew, and their
cargo, from depredation by those who
might find them.
Prosecution of piracy by whomever
might be able to capture the pirates,
even if those making the capture or
their nations had not been victims.
Care and decent treatment of
prisoners of war.
Protection of foreign embassies,
ambassadors, and diplomats, and of
foreign ships and their passengers,
crew, and cargo while in domestic
waters or in port
Honoring of extradition treaties for
criminals who committed crimes in a
nation with whom one has such a
treaty who escape to one's territory or
are found on the high seas.
Prohibition of enslavement of foreign
nationals and international trading in
slaves.
Crimes Against Law of Nations
In the Philippine Setting:
Provided for by the RPC
Book II Title I
Divided into three Sections:
SECTION ONE: Treason and
Espionage
SECTION TWO: Provoking War and
Disloyalty in Case of War
SECTION THREE: Piracy and
Mutiny on the High Seas
Treason & Espionage
ARTICLE 114. Treason
ARTICLE 115. Conspiracy and
Proposal to Commit Treason
ARTICLE 116. Misprision of Treason
ARTICLE 117. Espionage
Provoking War and Disloyalty in
Case of War
ARTICLE 118. Inciting to War or
Giving Motives for Reprisals
ARTICLE 119. Violation of Neutrality
ARTICLE 120. Correspondence with
Hostile Country
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ARTICLE 121. Flight to Enemys
Country
Piracy and Mutiny on the High
Seas
ARTICLE 122. Piracy in General and
Mutiny on the High Seas
ARTICLE 123. Qualified Piracy
CASES:
BOROVSKY v. COMMISSIONER
OF IMMIGRATION (Deportation
case)
If that case is not comparable with
ours on the issues presented, its
underlying principle is of universal
application. In fact, its ratio
decidendi applies with greater
force to the present petition, since
the right of accused to bail
pending appeal of his case, as in
the case of the ten Communists,
depends upon the discretion of
the court, whereas the right to be
enlarged before formal charges
are instituted is absolute. As
already noted, not only are there
no charges pending against the
petitioner, but the prospects of
bringing any against him are slim
and remote.
Re: Castioni
A fugitive criminal shall not be
surrendered if the offense in respect
of which his surrender is demanded
is one of a political character.
Re: Meunier
To constitute a political offense there
must be two or more parties in the
State, each seeking to impose the
government of their own choice on
the other, which was not the case
with regard to anarchist crimes, and
therefore the prisoner was liable to
extradition.
Govt. of HK v. Hon. Olalia
Trends in International Law:
Atty. Jamon
I. The growing importance of the
individual person in public international
law who, in the 20th century, has gradually
attained global recognition;
II. The higher value now being given to
human rights in the international sphere;
III. The corresponding duty of countries
to observe these universal human rights
in fulfilling their treaty obligations; and
IV. The duty of this Court to balance
the rights of the individual under our
fundamental law, on one hand, and
the law on extradition, on the other.
XI. Nationality
A. Nationality: Definition
Nationality refers to membership in a political
community. It is often used interchangeably with
citizenship. And is also regarded as an inalienable
right of every human being.
Citizen one who enjoys full political rights
National includes a citizen as well as a person
who, not being a citizen, owes permanent
allegiance to the State and is entitled to its
protection.
*In public international law, however, the distinction
between citizen and national is of no importance.
Universal Declaration on Human Rights
(UDHR), being interpreted by the Court as a
generally accepted principle of International law,
Article 15 states that everyone has the right to a
nationality and that no one shall be arbitrarily
deprived of his nationality.
Importance
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(1) It provides the right to consular assistance
in cases of individuals abroad;
(2) The States may demand reparation for
any injuries suffered by them through
failure of the receiving State to observe its
duties under the International law;
(3) In extradition treaties, States may include
clauses making it optional for them to
surrender their own nationals.
B. Acquisition and Loss
International Law leaves each State free to settle
by its own laws the question of who should be
regarded as its own nationals. This principle was
embodied in the Hague Convention of 1930 on
Conflict of Nationality Laws, which laid down two
important rules on the subject.
Hague Convention Rules on Acquiring
Nationality
(1) It is not for international law but for the
municipal law of each State to determine
who are the nationals of a particular
State.This law, according to the Hague
Convention, shall be recognized by other
States insofar as it is consistent with
international conventions, international
customs and the principles of law
generally recognized with regard to
nationality.
(2) Any question as to whether a person
possesses the nationality of a particular
State shall be determined in accordance
with the law of that State.
Five Modes of Acquiring Nationality
Atty. Jamon
(1) BIRTH
- Jus Sanguinis (the law of the
blood): the principle by which a
child acquires the nationality of
his or her parents.
- Jus Soli (the law of the soil): the
principle by which a child born
within a countrys territorial
jurisdiction acquires that countrys
nationality.
(2) NATURALIZATION: The grant of
citizenship upon application in regular
proceedings. It also includes the following:
- Marriage
- Legitimation
- Option
- Acquisition of Domicile
- Appointment as Government
official
(3) RESUMPTION/REPATRIATION: The
recovery of the original nationality upon
fulfillment of certain conditions
- R.A No. 9225 provided that all
Philippine citizens who became
citizens of another country shall
be deemed not to have lost their
Philippine citizenship. It is further
states that natural-born citizens of
the Philippines who have lost their
Philippine citizenship by reason of
their naturalization as citizens of a
foreign country are hereby
deemed to have re-acquired
Philippine citizenship upon taking
an oath of allegiance to the
Republic, and that their children
whether legitimate, illegitimate or
adopted, below eighteen years of
age, shall be deemed citizens of
the Philippines.
(4) SUBJUGATION: Any question as to
whether a person possesses the
nationality of a particular State shall be
determined in accordance with the law of
that State
(5) CESSION: When one State cedes territory
to another, inhabitants of the region that is
ceded commonly have an opportunity to
acquire that States nationality
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Nottenbohm Case, I.C.J. Reports 1955, p. 4
(Judg. April 6, 1955)
FACTS:
- German by birth
- resided in Guatemala for 34 years, but family
remained in Germany
- 1939: before WWII, he went back to Germany
and was naturalized in Liechstein, but returned
immediately to Guatemala.
- 1943: properties were seized in Guatemala, and
Nottenbohm went out of the country
- Liechstein filed suit against Guatemala on behalf
of N, asking for damages and restoration of
properties
- Guatemala opposed, defense: nationality
conferred by Liechstein was not binding on
Guatemala
Issue: Can Liechstein prosecute the claim on
behalf of Nottenbohm?
Here, the International Court of Justice ruled that
the naturalization of Nottenbohm was an act
performed by Liechstein in the exercise of its
domestic jurisdiction. However, his real and
effective nationality belongs to Guatemala. This is
shown by his attachment to that country, longer
periods of staying there, that he went back right
after obtaining his naturalization, etc. (this is akin to
concept of domicile in our own laws)
Atty. Jamon
Hence, Germany has no right to prosecute the
case against Guatemala.
How Nationality is Lost
(1) RELEASE: When a State give their
citizens the right to ask for release from
their nationality (e.g. Germany)
(2) DEPRIVATION: When a State unilaterally
deprives its citizens of nationality against
his or her will (e.g. upon entry to the
military service of a foreign power)
(3) EXPIRATION: When an individual
voluntarily attempts to terminate his/her
nationality (e.g. where a national stays
abroad for a long time and has not
indicated any desire to return, some
States by legislation decree that lost of
nationality results under such
circumstances)
(4) RENUNCIATION: When a child, upon
reaching the age of majority, renounces
one citizenship in favor of another
- The Philippine law recognizes this
mode
(5) SUBSTITUTION: Where the former
nationality is lost ipso facto by
naturalization abroad or by marriage
C. Multiple Nationalities
Dual or multiple nationality may result form the
concurrent application of the principles of Jus Soli
and Just Sanguinisat birth, from denial by one
State of the right of expatriation, from marriage, or
from a formal and voluntary act. Where an
individual has two nationalities, two States
simultaneously demand loyalty and allegiance from
him. This becomes tenuous when the two States
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are involved in strained relationship, ultimately

leading to war. Consequently, the Hague
Convention of 1930 on the Conflict of Nationality
Laws formulated solutions.
Case: Mejoff vs. The Director of Prisons

G.R. No. L-4254, September 26, 1951

Hague Conventions Solution to Multiple
Nationalities
FACTS: Mejoff was a Russian national who worked
(1) A person having two or more nationalities
may be regarded a its national by each of as a Japanese spy when the country was still
the States whose nationality he under Japanese occupation. When Japan has
possesses, and a State may not give been defeated in WWII and the country came
diplomatic protection to one of its nationals under American rule, Mejoff was arrested. He was
against a State whose nationality that ordered to be deported back to Russia, not on
person possesses. account of espionage but for presumably entering
(2) If a person has more than one nationality,
he shall, within a third State, be treated as the country illegally. In 1948 he was transferred to
if he has only one; the third State shall the Cebu Provincial jail to await the arrival of some
recognize exclusively either the nationality Russian vessels. The masters of those boats
of the State in which he is habitually and however refused to take him in, alleging lack of
principally resident, or the nationality of authority to do so. After several attempts, he was
the State with which he appears in fact to transferred to Bilibid.
be more closely connected. This is called
the principle of effective nationality.
(3) If a person, without any voluntary acts of
his own, possesses double nationality, he
1st petition for habeas corpus: denied
may renounce one of them with the
permission of the State whose nationality
he wishes to surrender, and subject to the
This is Mejoffs second petition for habeas
laws of the State concerned, such
corpus, 2 years after the 1st decision was
permission shall not be refused if that
promulgated (during which time, the
person has his habitual residence abroad.
government has not found a way to deport
him)

Issue: Was Mejoffs detention for 2 years

unreasonably long to warrant the issuance of the
writ of habeas corpus?

D. Stateless Persons

Ruling: YES. Writ will issue commanding the

respondents to release the petitioner.
- those who are not considered as nationals by
any State under the operation of its law.
- as long as the link of an individual to international
law is his nationality, international law has no way Aliens illegally staying in the Philippines have no
of assisting an individual, unless his position is right of asylum therein even if they are "stateless,"
made the subject of express regulation in a treaty. which the petitioner claims to be.
Hence, efforts have been exerted to minimize the
conditions giving rise to the condition of
statelessness.
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The protection against deprivation of liberty without
due process of law and except for crimes
committed against the laws of the land is not
limited to Philippine citizens but extends to all
residents, except enemy aliens, regardless of
nationality.
By its Constitution (Art. II, Sec. 3) the Philippines
"adopts the generally accepted principles of
international law as part of the law of Nation." And
in a resolution entitled "Universal Declaration of
Human Rights" and approved by the General
Assembly of the United Nations of which the
Philippines is a member, at its plenary meeting on
December 10, 1948, the right to life and liberty and
all other fundamental rights as applied to all human
beings were proclaimed. It was there resolved that
"All human beings are born free and equal in
degree and rights" (Art. 1); that "Everyone is
entitled to all the rights and freedom set forth in this
Declaration, without distinction of any kind, such as
race, colour, sex, language, religion, political or
other opinion, nationality or social origin, property,
birth, or other status" (Art. 2): that "Every one has
the right to an effective remedy by the competent
national tribunals for acts violating the fundamental
rights granted him by the Constitution or by law"
(Art. 8); that "No one shall be subjected to arbitrary
arrest, detention or exile" (Art. 9); etc.
Petitioner's unduly prolonged detention would be
unwarranted by law and the Constitution, if the only
purpose of the detention be to eliminate a danger
that is by no means actual, present, or
uncontrollable
In the Hague Convention of 1930, the following
provisions were agreed upon to avoid
statelessness:
Atty. Jamon
1. An expatriation permit issued by a State shall
not entail the loss of the nationality of that State
unless the person to whom it is issued possesses
another nationality or unless he acquires another
nationality.
2. If by her law, a woman loses her nationality on
marriage with a foreigner, this result shall be
conditional on her acquiring the nationality of her
husband.
3. The naturalization of the husband during
marriage shall not involve a change of nationality of
the wife except with her consent.
4. If children do not acquire the nationality of their
parents as a result of the naturalization of the
latter, they shall retain their existing nationality.
5. A child whose parents are unknown or who have
no nationality, or whose nationality is unknown,
shall have the nationality of the country of birth;
where adoption causes loss of nationality that
result shall be conditional upon the acquisition by
the adopted person of the nationality of the person
by whom he is adopted.
6. In a State where nationality is not conferred by
the mere fact of birth in its territory, a person born
there of a mother possessing the nationality of that
State and of a father without nationality or of
unknown nationality shall have the nationality of
that State. This was apparently followed by the
Philippine Supreme Court in Serrs vs. Republic
where
it was held that an illegitimate child of a Filipino
mother follows her nationality.
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7. Where a person is rendered stateless as a result Agents of diplomatic intercourse

of being deprived of his nationality after he enters a
foreign country, the State of origin is bound to
admit him at the request of the State in whose
territory he is if he is permanently indigent, or if he
has been sentenced to not less than one month's
imprisonment.
All this does not mean, however, that a stateless
individual is entirely without recourse under the law
of nations. Under the Covenant Relating to the
Status of Stateless Persons concluded in 1954 -
Twenty-two countries, including the Philippines,
agreed to accord to stateless persons within their
territories treatment at least as favorable as that
accorded to their nationals with respect to:
1. Freedom to practice their religion and freedom
as regards the religious education of their children
2. Access to the courts of law
3. Rationing of products in short supply
4. Elementary education
5. Public relief and assistance
6. Labor legislation and social security
7. Treatment as favorable as possible or not less
favorable than that accorded to aliens
8. Issuance of identity papers and travel
documents
Shall not expel stateless persons lawfully in their
territory except on grounds of national security or
public order
XII. Diplomatic Intercourse
Head of State
o Conducts diplomatic negotiations in
person
o Entitled to all ceremonial honors
o Except if he is traveling
incognito
o Entitled to special protection
o Exempt from civil and criminal
jurisdiction of the Foreign State
o Entitled to same privileges and
immunities as compared with a
monarch
The Foreign Office
o Conducts day-to-day activities of
foreign affairs
o Conducts diplomatic negotiations in
person or through agents
o Recognized by international law as
intermediary between his government
and foreign countries
o Can make binding declarations on
behalf of his government
Establishment of resident missions
Stationed at one anothers capital Embassy
o Composed of:
a. head of mission
b. diplomatic staff
c. administrative and technical staff
d. service staff
o Size of staff is determined by the Sending
State, but the Receiving State has to
agree

Establishment of diplomatic intercourse Kind of envoys

To enable states to carry on friendly intercourse o Envoys ceremonial

with one another, they must possess the right of Sent for the purpose of ceremonial
legation, the right to send and receive diplomatic functions
missions.

This is not natural or inherent; will only exist by

o Envoys political
common consent of States (treaty). Sent for political negotiations

Either permanently or temporarily

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Class of envoys
o Envoys ordinary
Those who permanently represent the
government of one state
o Envoys extraordinary
Those entrusted with a special mission or
accredited to represent the government in
international conferences and congresses
Classes of Heads of Mission
Vienna Convention on Diplomatic Relations 1961
states:
a. ambassadors or nuncios accredited to
Heads of State, and other heads of
mission of equivalent rank;
Representative of their country to a foreign
state
b. envoys, ministers and internuncios
accredited to Heads of State;
Representative of their country to a foreign
principal city
c. charg s daffaires accredited to Ministers
for Foreign Affairs.
They take place in the absence of minister
residents
Diplomatic Corps
Collective body of foreign diplomats accredited to a
particular country.
o Usually headed by the papal nuncio;
otherwise, the oldest ambassador
Appointment of Heads of Mission
1. Determined by the municipal law of the
Sending State
2. The receiving State has a right to refuse
whom it considers persona non grata or
Atty. Jamon
unacceptable; States make agreation
before appointment
3. Should have
a. Diplomatic passport
b. His instructions
c. His letter of credence this
designates his rank and object of
his mission
Notification and Reception of Heads of Mission
1. Must be notified to the Minister of Foreign
Affairs of the Foreign State
2. Presents his sealed letter of credence
Functions and Duties of Diplomatic Mission
Article 3 of Vienna Convention on Diplomatic
Relations 1961 states:
1. Representing the sending State in the
receiving State;
2. Protecting in the receiving State the
interests of the sending State and of its
nationals, within the limits permitted by
international law;
3. Negotiating with the Government of the
receiving State;
4. Ascertaining by all lawful means
conditions and developments in the
receiving State, and reporting thereon to
the Government of the sending State;
5. Promoting friendly relations between the
sending State and the receiving State, and
developing their economic, cultural and
scientific relations.
Privileges and Immunities
1. Personal inviolability
2. Inviolability of premises and archives
3. Right to official communication
4. Exemption to local jurisdiction
5. Exemption from subpoena as witness
6. Exemption from taxation
7. Exemption from custom duties and
inspection
8. Right of asylum
9. Acquisition of nationality
10. Right to display flag and emblem
Duration
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Start - enters the territory
End - departure from territory or on expiration of
reasonable period
Persons entitled to privileges and immunities
Head of the mission
o fully enjoys the privileges and immunities
Administrative and technical staff
o does not enjoy exemption from custom
duties and inspection
o does not enjoy exemption to civil and
administrative jurisdiction
Service staff
o limited immunity in respect of their official
acts and exemption to taxation on salaries
only
Waiver of privileges and immunities
may be made only by the Sending State or Head of
mission
Waiver of immunities - must always be express
Transit through Third State
A diplomat in transitu would be entitled to the
same immunity as a diplomat in situ.
Termination of Diplomatic Mission
o death of the envoy
o recall by his government
o dismissal by the Receiving State
o outbreak of war
o rupture of diplomatic relations
o expiration of period
o accomplishment or failure of its object
Privileges and Immunities of Representatives
of Members to International Organizations
Atty. Jamon
Article IV, Section 11 of Convention on the
Privileges and Immunities of the United Nations
states:
a) Immunity from personal arrest or detention
and from seizure of their personal
baggage, and, in respect of words spoken
or written and all acts done by them in
their capacity as representatives, immunity
from legal process of every kind;
b) Inviolability for all papers and documents;
c) The right to use codes and to receive
papers or correspondence by courier or in
sealed bags;
d) Exemption in respect of themselves and
their spouses from immigration
restrictions, aliens registration or national
service obligations in the state they are
visiting or through which they are passing
in the exercise of their functions;
e) The same facilities in respect of currency
or exchange restrictions as are accorded
to representatives of foreign governments
on temporary official missions;
f) The same immunities and facilities in
respect of their personal baggage as are
accorded to diplomatic envoys, and also;
g) Such other privileges, immunities and
facilities not inconsistent with the
foregoing as diplomatic envoys enjoy,
except that they shall have no right to
claim exemption from customs duties on
goods imported (otherwise than as part of
their personal baggage) or from excise
duties or sales taxes
Privileges and Immunities of Others
International Officials
o extended to them by treaty or national
legislation
o based on the interest of function
o example: an international judge
does not need free
communication with his
own government
but needs the right of
free transit to and from
his duties to Member
States
Consuls
State agents residing abroad for the purpose of
commerce and navigation.
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Kinds of Consul
Consules missi professional; nationality of the
Sending State; fulltime
Consules electi may or may not nationality of the
Sending State; perform only in addition to their
regular callings
Rank of Consular Official
1. Consul-general heads several districts
or a very large district
2. Consul takes charge a small district
3. Vice-consul assists the consul
4. Consular agent entrusted to perform
certain functions of consul
Appointment
1. The letters patent letter of appointment
of the Sending State to Secretary of
Foreign Affairs of the Receiving State
2. The exequator authorization given by
the Receiving State to the consul, allowing
to exercise his functions within the
territory; granted conditionally.
Consular functions
Functions, duties and powers of consuls fixed by
treaty, by international usage and by national laws
and instruction of the Sending State.
Main function
o Promote the commercial interests of the
Sending State.
Duty to observe conditions which may
affect the trade and industry of the Sending State.
Collects and sends information about
commerce, industry and agriculture which is
beneficial to merchants of the Sending State.
Also performs functions connected with
matters pertaining to vessels sailing under the flag
of the Sending State.
Other functions
Atty. Jamon
o Protect the rights and interests of his
nationals within his district
Entitled to advice his nationals and adjust
their differences.
Visit them while they are imprisoned.
Protect the estate of a deceased, or
absent or incompetent national.
o Issuance of passports and visas
o Registering nationals of the Sending State
o Attesting or legalizing signatures,
examining witnesses, administering oaths or
authenticating copies of official documents
Consular privileges and immunities
Only entitled to certain privileges and immunities
deemed essential to the performance of consular
functions
o Right to communicate freely with his
government
May send in cipher or code; all
communications are inviolable.
o Entitled to special protection and
consideration
Greater vigilance in respect to their
security and safety
o No immunity from local jurisdiction
Can be sued in local courts for civil
and criminal liabilities
Except acts done in the performance
of their functions
o Exempt from arrest from minor offenses
o Not entitled as of right of exemption from
taxation under customary international law
Except given by Receiving State or
provided in treaty
o Cannot grant asylum to refugees
Except imminent peril of refugees life
o Allowed to display coat of arms of their
Sending State
Termination of consular office
o Death
o Recall or dismissal by his Sending State
o Withdrawal of his exequatur
o Outbreak of war with the Receiving State
o Notification by the Receiving State that it
has ceased to consider the consul officer
Other state agents
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PUBLIC INTERNATIONAL LAW AUSL 2017-2018, 1st sem
o Commissioners or members of
commission
For administrative or technical
negotiations
o Commercial agents
For business carried by him
Cases
Dickinson vs. Del Solar
Diplomatic immunity is a procedural immunity
which, unless waived, constitutes a bar to legal
proceedings against a diplomatic agent. However,
diplomatic immunity is not immunity from legal
liability
Waltier v. Thomson
The decisions have, indeed, always imposed as a
limitation upon the immunity that the official's act
must have been within the scope of his powers;
and it can be argued that official powers, since they
exist only for the public good, never cover
occasions where the public good is not their aim,
and hence that to exercise a power dishonestly is
necessarily to overstep its bounds. A moment's
reflection shows, however, that that cannot be the
meaning of the limitation without defeating the
whole doctrine. What is meant by saying that the
officer must be acting within his power cannot be
more than that the occasion must be such as
would have justified the act, if he had been using
his power for any of the purposes on whose
account it was vested in him.
XIII. International Agreements
TREATY:
- Agreement between states, including
international organizations of States,
intended to create legal rights and
obligations of the parties thereto.
- International agreement concluded
between States in written form and
Atty. Jamon
governed by International Law, whether
embodied in a single instrument or in two
or more related instruments and whatever
its particular designation
PACT
- A treaty formed in part by a mystic
sentiment or an intention of guaranty
CONVENTION
- Generally suggest a multilateral
agreement
- Its scope is usually restricted to specific or
technical matter
PROTOCOL
- Amends or supplements an existing treaty
or convention
- It is used to designate an altogether
independent agreement
AGREEMENT, ARRANGEMENT OR ACCORD
- Instrument of a more limited scope or
lesser importance than either a treaty or
convention
- Focuses on administrative or technical
matters and not subject to ratification
FINAL ACT
- An instrument which records the winding
up of the proceedings of a diplomatic
conference and includes the reproduction
of the texts of treaties, conventions
recommendations and other acts agreed
upon and signed by the plenipotentiaries
attending the conference.
GENERAL ACT
- When the instrument which enumerates
the treaties or conventions resulting from a
conference itself becomes a Treaty, these
Treaties or conventions derived from that
Conference are called General Act.
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- Examples: General Act of the Brussels - Obligations devolve on more than two parties
Conference of 1980; General Act of 1928
for the Pacific Settlement of International B. Executory or Executed
Disputes)
Executory
EXCHANGE OF NOTES
- deals with acts which are to be performed
- Informal method whereby States forthwith and which, when performed, disposed of
subscribe to certain understandings or the matter once and for all
recognized certain obligations as binding
Executed
upon them.
- deals with acts to be performed regularly
- Example: Exchange of formal notes
whenever the occasion arises
between the Minister for Foreign Affairs,
acting for his government, and the
C. As to the character of obligation
diplomatic representative of the other
Country Simple

MODUS VIVENDI Conditional

- Temporary agreement intended to be D. As to function and legal character

replaced by a more permanent and detailed
agreement Treaties having the character of
conveyances
PACTUM DE CONTRAHENDO
Treaties having the character of contracts
- Agreement embodying the points to be
incorporated in a future treaty Lawmaking Treaties

COMPROMIS Treaties akin to charters of incorporation

- Denotes an agreement for the submission
of a dispute to arbitration or judicial
settlement, by which the issues of the
dispute are defined and the procedure to
be followed is established
CLASSIFICATION OF TREATIES
Essentials conditions for the validity of a Treaty
are:
(1) Capacity of the parties
(2) Competence of the Particular Organs
concluding the Treaty

A. As to the nature of the obligation: (3) Reality of Consent

Unilateral (4) Legality of the object of the Treaty

- Obligations are binding only on one side in a) Treaty-making Capacity of States

favor of the other
Every State possesses capacity to
Bilateral conclude treaties because such capacity
has been regarded as an attribute of
- Obligations are mutually binding on two parties sovereignity.
in favor of each other
LIMITED BY: Qualified status of the
Multilateral States

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IMPACT OF LIMITATION: State may
enter into treaties with the consent of the
sovereign or through the agency of the
protecting state
IF LIMITATIONS NOT OBSERVED:
Treaties in question will be regarded as
Null and Void
Protectorate state - is a state or country
that's protected by a larger, stronger
one. Protectorate is another word for
protected state.
b) Treaty-making capacity of International
Organization
Nature: Generally admitted
Article 43, 63 and 79 of UN Charter
Recognizes the capacity of United Nations
to enter into agreements
LIMITATION: Limited by the purpose of
the Constitutions of these organization
General rule: Head of the state is the
organ that exercises the treaty-making
power
Municipal law determines what organ
may conclude a treaty on behalf of state
Constitutions contain provisions
purporting to restrict or regulate the
making of treaties (1935 and 1973
Philippine Constitution)
Preponderance of Authority Treaties
made in behalf by organs which are not
constitutionally competent to conclude
them are not binding internationally upon
the State.
d) Reality of Consent
This refers to the freedom of consent on
the part of Diplomat or Ambassadors of
each state to conclude a treaty
Atty. Jamon
Any forms of intimidations or coercion
exercise on their person would render the
treaty invalid
EFFECT OF INTIMIDATION / COERCION
Treaty entered is void and without legal
effect
EFFECT if consent was obtained through
Fraud or given in error Treaty is voidable
e) Legality of the Object
Immoral, illegal or impossible obligations
can not be object of a valid treaty
Effect of invalid object Null and Void
General Rule: States are free to agree
upon a rule or regime which modifies or
departs from rules of customary
international law as long as those rules
are in the nature of Jus dispositivum
Jus dispositivum means the law adopted
by consent. It is the category of
international law that consists of norms
derived from the consent of states.
Effect of form of validity
General rule International law has not
prescriber any form for Treaties.
Treaties are normally reduced to writing;
Agreement made orally does not affect the
binding force.
Nicaragua vs United States (1986)
Overview:
The case involved military and paramilitary
activities carried out by the United States against
Nicaragua from 1981 to 1984. Nicaragua asked
the Court to find that these activities violated
international law.
Facts of the case:
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In July 1979, the Government of President
Somoza was replaced by a government
installed by Frente Sandinista de
Liberacion Nacional (FSLN).
The US initially supportive of the new
government changed its attitude when,
according to the United States, it found
that Nicaragua was providing logistical
support and weapons to guerrillas in El
Salvador.
In April 1981 the United States stopped its
aid to Nicaragua and
In September 1981, the United
States decided to plan and undertake
activities directed against Nicaragua.
A paramilitary is a semi-militarized force whose
organizational structure, tactics, training,
subculture, and (often) function are similar to those
of a professional military, but which is not included
as part of a state's formal armed forces.
Under the law of war, a state may incorporate a
paramilitary organization or armed agency (such as
a national police, a private volunteer militia) into
its combatant armed forces. The other parties to a
conflict have to be notified thereof.
Though a paramilitary is not a military force, it is
usually equivalent to a military's light infantry force
in terms of intensity, firepower, and organizational
structure. A paramilitary may also commonly fall
under the command of a military, even despite not
being part of the military or play an assisting role
for the military in times of war.
The United States officially
acknowledged its support on these
armed activities
In 1983 budgetary legislation enacted by
the United States Congress made specific
provision for funds to be used by United
States intelligence agencies for supporting
directly or indirectly military or
paramilitary operations in Nicaragua
Nicaragua also alleged that the United
States is effectively in control of
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the contras, the United States devised
their strategy and directed their tactics,
and that the contras were paid for and
directly controlled by the United States
Nicaragua alleged that aircrafts
belonging to the United States flew
over Nicaraguan territory to gather
intelligence, supply to the contras in the
field, and to intimidate the population.
The United States did not appear before
the ICJ at the merit stages, after refusing
to accept the ICJs jurisdiction to decide
the case. The United States at the
jurisdictional phase of the hearing,
however, stated that it relied on an
inherent right of collective self-defense
guaranteed in A. 51 of the UN Charter
when it provided upon request
proportionate and appropriate
assistance to Costa Rica, Honduras,
and El Salvador in response to
Nicaraguas acts of aggression against
those countries (paras 126, 128).
Questions before the court:
1. Can the military and paramilitary activities that
the United States undertook in and against
Nicaragua be justified as collective self-defense?
Relevant Findings of the court:
1. The Court held that the United States could not
justify its military and paramilitary activities on the
basis of collective self-defense.
Article 51 provides for a member State to use force
in self defense when there is an armed attack
against that State:
Nothing in the present Charter shall impair
the inherent right of individual or collectiveself-
defence if an armed attack occurs against a
Member of the United Nations, until the Security
Council (SC) has taken measures necessary to
maintain international peace and security.
Measures taken by Members in the exercise of this
right of self-defence shall be immediately
reported to the SC.
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Under international law, several requirements must
be met for a State to exercise the right of individual
or collective self-defence:
(1) A State must have been the victim of an armed
attack;
(2) That State must declare itself as a victim of an
armed attack
(3) In the case of collective self-defense, the victim
State must request for assistance.
(4) A State that is attacked, does not,
under customary international law, have the same
obligation as under Article 51 of the UN Charter to
report to the Security Council that an armed attack
happened but the Court held that the absence of
a report may be one of the factors indicating
whether the State in question was itself convinced
that it was acting in self-defence (see paras 200,
232 -236).
The Court noted that:
(1) none of the countries who were allegedly
subject to an armed attack by Nicaragua declared
themselves as victims of an armed attack;
(2) they did not request assistance from the United
States to exercise its right of self-defense;
(3) the United States did not claim that when it
used force, it was acting under Article 51 of the UN
Charter; and
(4) the United States did not report that it was
acting in self-defense to the Security Council. The
Court concluded that, based on the above, the
United States cannot justify its use of force as
collective self-defense.
Question before the Court:
Did the United States violate its customary
international law obligation not to intervene in the
affairs of another State, when it trained, armed,
equipped, and financed the contra forces or when
Atty. Jamon
it encouraged, supported, and aided the military
and paramilitary activities against Nicaragua?
Relevant Findings of the Court:
The Court held that the United States violated its
customary international law obligation not to use
force against another State when its activities with
the contras resulted in the threat or use of force.
Treaty-making
Process of treaty-making:
1. Negotiation
Is conducted by the Head of the State in person or
his representative. Full power is usually exchanged
before the negotiations start.
Full powers is a document emanating from a
competent authority of a state designating a person
or persons to represent the state in the negotiating,
adopting or authenticating the text of a treaty, or
expressing the consent of the state to be bound by
treaty or accomplishing any other act with respect
to treaty.
2. Signature
Is the signing of the text or instrument.
Bilateral treaties are signed at the same time and
place by the plenipotentiaries in each others
presence; While Multilateral treaties are sometimes
kept open for signatures for an agreed period in
time.
Agreements which do not require ratification and
become binding in signature:
If the treaty provides the signature shall
have such effect
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Established that the negotiating States
agreed that the signature should have that
effect
Intention of the State to give that effect to
that signature (appears: full powers
/representative)
3. Ratification
Is the act by which the provisions of a treaty are
formally confirmed and approved by a State.
Usually effected by the Head of the State unless
qualified by the rule.
4. Accession
A process by which a non-signatory State becomes
a party to a treaty. A state can only accede to a
treaty only if invited or permitted to do so by the
contracting parties.
Difference between accession and adhesion:
Accession-full acceptance of the terms of the treaty
Adherence-acceptance to certain provisions only
5. Acceptance
Acceptance is broader and more flexible than
ratification or accession. It permits the preparation
of instrument which does not need to be as formal
in character. However, The 6th committee of the
general assembly in 1949 voted unanimously
against the use of acceptance. Since that time
the UN have reverted to the classical formula
which is ratification and accession.
Case: Bayan v Exec. Ronaldo Zamora
Atty. Jamon
Facts:
In 1997, US and PH discussed, among other things
the possible elements of the Visiting Forces
Agreement which provides for the mechanism for
regulating the circumstances and conditions under
which US Armed Forces and defense personnel
may be present is the PH.
In 1999, 2/3 of the members of the Senate
approved the VFA resolution and in June 1, 1991,
the VFA officially entered into force.
Issue: Whether the constitutional provision (Sec
25, Art XVII) to constitute a legal treaty has been
complied with
Decision:
Yes. Sec 25, Art XVII disallows foreign military
bases, troops or facilities in the countries, unless
these conditions are met:
1. It must be under a treaty
2. The treaty must be concurred by the
Senate and, when required by the
congress, ratified by a majority of the
votes cast by the people in a national
referendum
3. Recognized as a treaty by the other state
The factual backdrop shows that:
1. The concurrence headed by the Senate
through Resolution No. 18 is in
accordance with the Constitution, the
provision requiring the majority of the
votes cast in a national referendum being
unnecessary since the Congress has not
required it.
2. US Gov, through Amabassador Hubbard
has stated that the US gov has fully
committed to the terms of the VFA. There
is indeed marked compliance with the
mandate of the Constitution.
Treaties enter into force by:
1. The provided manner and date.
- Well drafted treaties contain such provisions.
2. States negotiations
- Establishment of the consent of all negotiating
states.
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Upon entry into force, treaties becomes: a.) Legally
Binding and b.) Produces Legal Effects.
Difference of when treaties produces legal
effects (International and Municipal Law):
1. International Law - Entry into Force
2. Municipal Law - Varies, but most of the time,
requires Constitutional requirements of the state
concerned.
Doctrine of Incorporation - Any generally
accepted International Law forms part of the Law of
the Land (Municipal Law).
Pacta sunt servanda - agreements must be
kept. One of the oldest and most fundamental
rules of International Law.
Treaty Obligations - Not a mere moral obligation
but a legally binding obligation. Must be performed
in good faith. Modification of Municipal Legislation
as necessary to ensure fulfillment of obligation.
Influences of Faithful Observance
1. National Self-Interest
2. Sense of Duty
3. Respect for promises solemnly given
4. Desire to avoid Obloquy (strong public criticism)
Sanctions for Non-Observance
The injured party may resort to:
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1. Appeal to public opinion
2. Publication of Correspondence
3. Protest
4. Demand for Arbitration
5. Rupture of Relations
Reparation - Obligations resulting from a breach in
an International Agreement. Indispensable
complement of the failure to comply with treaty
obligation. There is no necessity to be stated in the
treaty itself.
Effect of treaties on Third States - It is a well
settled rule in International Law that treaties cannot
impose obligations upon States not parties to them.
Pacta Tertiis nocent nec prosunt - treaties
creates law only between States which are parties
to it.
*exception: An obligation may arise for a Third
State from a treaty if the parties intend the
provision to be the means of establishing the
obligation and the Third State expressly accepts
the obligation in writing.
Most-Favored-Nation Clause - a pledge by a
contracting party to a treaty to grant to the other
party treatment not less favorable than that which
has been or may be granted to the most favored
among other countries.
Types:
1. Conditional - any benefit or privilege which has
been or may be granted by either party to a Third
State shall be extended to the other under the
same or equivalent conditions as those under the
same or equivalent conditions as those under
which it has been granted to the Third State.
2. Unconditional - any advantage of whatever kind
which has been or may in future be granted by
either of the contracting parties to a Third State
shall simultaneously and unconditionally be
extended to the other party.
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Effects of war on Treaties:
Old viewpoint:
Outbreak of war ipso facto terminates all treaties
between the belligerents.
Modern viewpoint:
International Law today does not preserve or annul
treaties regardless of the effects produced.
Examples:
1. Operative Treaty - conducts of parties in time of
war.
2. Unaffected Treaty - border/boundaries fixation
related treaties.
3. Abrogated Treaty - treaties dealing with political
matters such as allegiance between the
parties at war.
Effect of severance of diplomatic or consular
relations - does not affect the legal relation
established between them by treaty. Does not
prevent the conclusion of treaties between States.
*Exception - the existence of diplomatic or consular
relations is indispensable for the application of the
treaty.
Rebus Sic Stantibus - things remain as they are
Treaty revision - Treaties can be revised or
modified only with the consent of all the parties
concerned.
Interpretation of Treaties - Treaties 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.
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Termination of Treaties:
The following are among the causes of
termination of treaties:
1. Termination of the treaty or withdrawal of a party
in accordance with the terms of the treaty.
2. Extinction of one of the parties to the treaty.
3. Mutual agreement of the parties to terminate the
treaty.
4. Denunciation of the treaty by one of the parties.
5. Supervening impossibility of performance.
6. Conclusion of a subsequent inconsistent treaty
between the same parties.
7. Violation of the treaty by one of the parties.
8. Doctrine of Rebus Sic Stantibus.
9. Outbreak of war between the parties to the
treaty.
10. Severance of diplomatic or consular relations.
11. Emergence of a new peremptory norm of
general international law renders void and
terminates any existing treaty in conflict with such
norm.
PIMENTEL vs EXEC SEC
FACTS:
On 28 December 2000, the Philippines signed the
Rome Statute through Charge d Affairs Enrique A.
Manalo of the Philippine Mission to the United
Nations (PMUN). The Rome Statue established the
International Criminal Court which provides shall
have the power to exercise its jurisdiction over
persons for the most serious crimes of international
concerns. However, the treatys provisions
require that it be subject to ratification, acceptance,
or approval of the signatory states.
Petitioner/s filed an instant petition compelling
respondents to transmit the signed text of the
treaty to the Senate for ratification. It is on the
theory that ratification of a treaty is a function of the
Senate. Hence, the duty of the executive it to sign
the same and transmit it thereafter to to the Senate
for concurrence.
The OSG, representing respondents, contends that
the executive department has no duty to transmit
the said treaty to the Senate for concurrence.
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ISSUE: WON Respondents have the ministerial
duty to transmit the copy of the subject treaty to the
Senate signed by a member of the PMUN even
without the signature of the President for
concurrence?
RULING:
No. The President, being the head of the Sate, is
regarded as the sole organ and authority in
external relations with foreign nations. In the realm
of treaty-making, the President has the sole
authority to negotiate with other states.
Although it is correct that the Constitution, in Article
VII, Section 21, provides for the concurrence of 2/3
of all members of the Senate for validating a treaty
and is deemed essential to provide check on the
executives foreign relations, it is not absolute. The
power to ratify does not belong to the Senate.
The process of treaty making: negotiation,
signature, ratification, and exchance of th
instruments of ratification. Petitioners arguments
equate the signing of the treaty by the Phil.
representative with ratification. However, it should
be noted that signature and ratification is two
separate steps. Signature is for authentication, on
the other hand, ratification is the formal act of
acceptance. the latter is generally an executive act
undertaken by the head of the state.
Moreover, under E.O. 459, issued by Pres. Ramos,
provides for guidelines in the negotiation of
international agreements and its ratification. The
said Order provides that a treaty, after it was
signed by the representative of the State, shall be
subject to ratification by the President. before the
Senate can concur it, the President must ratify it
first.
It should be emphasized that under the
Constitution, the power to ratify is vested in the
President, subject to the concurrence of the
Senate. The role of the latter is limited only to
giving consent to the ratification. Hence, the
President has the authority to refuse to submit a
treaty to the Senate, and/or refuse to ratify it.
XIV. International Human Rights Law
Core International Obligations of States in
International Humanitarian Law
Atty. Jamon
International human rights law lays down
obligations which States are bound to respect. By
becoming parties to international treaties, States
assume obligations and duties under international
law to respect, to protect and to fulfil human rights.
The obligation to respect means that States must
refrain from interfering with or curtailing the
enjoyment of human rights. The obligation to
protect requires States to protect individuals and
groups against human rights abuses. The
obligation to fulfil means that States must take
positive action to facilitate the enjoyment of basic
human rights.
Through ratification of international human rights
treaties, Governments undertake to put into place
domestic measures and legislation compatible with
their treaty obligations and duties. Where domestic
legal proceedings fail to address human rights
abuses, mechanisms and procedures for individual
complaints or communications are available at the
regional and international levels to help ensure that
international human rights standards are indeed
respected, implemented, and enforced at the local
level.
To Respect
States must refrain from interfering with or
curtailing the enjoyment of human rights
Article II, Sec. 11, 1987 Constitution
Section 11. The State values the dignity of
every human person and guarantees full respect
for human rights.
To Protect
States must protect individuals and
groups against human rights abuses
ART. 2 (3) ICCPR
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Each State Party to the present Covenant Dualist Theory

undertakes:

(a) To ensure that any person whose

rights or freedoms as herein recognized are Emphasizes the difference between
violated shall have an effective remedy, national and international law and requires the
translation of the latter
(b) To ensure that any person claiming such a
remedy shall have his right thereto determined by The supremacy of international law is a
competent judicial, administrative or legislative rule in the dualist systems as it is in monist
authorities, or by any other competent authority systems.
provided for by the legal system of the State, and
to develop the possibilities of judicial remedy;
Lex posterior derogat priori
(c) To ensure that the competent authorities
shall enforce such remedies when granted

Later law removes the earlier

To Fulfill

States must take positive action to

In a Monist System
facilitate the enjoyment of basic human rights.

ART. 2 (2), ICCPR

National law
2. Where not already provided for by
Contradicts international Law null
existing legislative or other measures, each State
and void
Party to the present Covenant undertakes to take
the necessary steps, in accordance with its
constitutional processes and with the provisions of
the present Covenant, to adopt such laws or other In a Dualist System
measures as may be necessary to give effect to
the rights recognized in the present Covenant.

International law national law

another national law

What does it mean for a state to ratify or to accede

to an international human rights treaty?

Responsibility of the State for Internationally

Wrongful Acts
Monist Theory

It accepts that the internal and

international legal systems form a unity Every internationally wrongful act of the
State entails the international responsibility of that
International law does not need to be State
translated into national law

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Elements of an Internationally Wrongful Act of a
State
A) is attributable to the State under international
law
B) constitutes a breach of an international
obligation of the State
INTERNATIONAL COVENANT ON CIVIL AND
POLITICAL RIGHTS
What is International Covenant on Civil and
Political Rights?
Multilateral treaty adopted by the United
National General Assembly in 1966
Force on March 23, 1976
One of three documents that make up the
International Bill of Rights
Key international human rights treaty,
providing a range of protections for civil
and political rights
Recognizes the inherent dignity of each
individual and undertakes to promote
conditions within states to allow the
enjoyment of civil and political rights.
As of February 2017, the Covenant has
169 parties.
What is Civil and Political Rights?
Human rights are commonly divided into
civil and political rights and economic,
social and cultural rights
What do States party to the ICCPR actually
promise to do?
Atty. Jamon
to Respect human rights that is, not to
violate the rights in the ICCPR;
to Protect the enjoyment of rights
against violations by third parties, such as
other individuals or corporations; and
to Fulfill individuals rights to take steps
to create an environment in which rights
can be fully achieved
The rights protected under the ICCPR include:
Article 6 Right to life.
Article 7 Freedom from torture.
Article 8 Right to not be enslaved.
Article 9 Right to liberty and security of the
person.
Article 10 Rights of detainees.
Article 11 Right to not be imprisoned merely on
the ground of inability to fulfill a contractual
obligation.
Article 12 Freedom of movement and choice of
residence for lawful residents.
Article 13 Rights of aliens.
Article 14 Equality before the courts and
tribunals. Right to a fair trial.
Article 15 No one can be guilty of an act of a
criminal offence which did not constitute a criminal
offence.
Article 16 Right to recognition as a person before
the law.
Article 17 Freedom from arbitrary or unlawful
interference.
Article 18 Right to freedom of thought,
conscience and religion.
Article 19 Right to hold opinions without
interference.
Article 20 Propaganda for war shall be prohibited
by law.
Article 21 Right of peaceful assembly.
Article 22 Right to freedom of association with
others.
Article 23 Right to marry.
Article 24 Childrens rights
Article 25 Right to political participation.
Article 26 Equality before the law.
Article 27 Minority protection.
OPTIONAL PROTOCOLS
Who keeps an eye on the ICCPR?
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The ICCPR establishes the Human Rights
Committee which oversees commitment to
the ICCPR.
Human Rights Committee
Composed of 18 independent experts who
are persons of high moral character and
recognized competence in the field of
human rights.
The current members of the Committee
come from: Algeria, Argentina, Costa
Rica, Egypt, France, Georgia, Germany,
Israel, Japan, Romania, South Africa,
Suriname, Switzerland, The Netherlands,
Tunisia, the United Kingdom, and the
United States.
Purpose of Human Rights Committees
Committee meets three times a year for
sessions lasting three weeks, normally in
March at the United Nations headquarters
in New York, and in July and October at
the United Nations Office in Geneva,
Switzerland. Countries that have ratified
the ICCPR are obliged to report to the
Committee every four years. Three to five
countries are invited to present their
reports at each session.
The Committee examines the report and
addresses its concerns and
recommendations to the country in the
form of "concluding observations." The
Committee also publishes general
comments on all treaty bodies, including
the CCPR.
International Covenant on Economic, Social
and Cultural Right
The International Covenant on Economic,
Social and Cultural Rights (ICESCR) is
one of the most important United Nations
(UN) human rights treaties. It is one of the
two treaties that give legal force to the
Universal Declaration of Human Rights
Human rights are the rights that humans
have and are entitled to simply by virtue of
being humans.
History of Economic,
social and Cultural Rights
Massive Violation of Human Rights across
the world (First and Second World War)
State Party expressed their consent
Treaty Body to monitor the implementation
Protection of Human Rights during the Cold War
Atty. Jamon
The separate human rights into two
categories:
Civil and Political rights and Economic
Social & Culture
Creation of the United Nation Organization (UNO)
The United Nations Organization (UNO)
was created on 24 October 1945
To curb violence, prevent the outbreak of
a third world war and to restore peace and
justice in the world.
What are the guaranteed in the International
Covenant on economic, social and cultural
right?
Social Rights
Core needs for a dignified life
Right to an Adequate Standard of Living
Economic Rights
Rights to work
Right to social assistance
Right to property
Pre-conditions for enjoyment of social and other
rights
Cultural Rights
Right to education
Right to participate in one own culture
Right to cultural identity
Article 2
Each state party to the present covenant
undertakes to steps, individually and through
international assistance and cooperation ,
especially economic and technical , to the
maximum of its available resources , with a view to
achieving progressively the full realization of the
rights recognized in the present covenant by all
appropriate means, including particularly the
adoption of legislative measures.
Hernandez vs Philippines
Ms. Benjaline Hernandez was the Deputy
Secretary-General of KARAPATANSouthern
Mindanao Region, a human rights advocacy group,
and also the Vice-President of the College Editors
Guild of the Philippines (CEGP), an alliance of
school publications. She was conducting research
on the impact of the peace process on the local
community in Arakan, a province in Mindanao,
when the incident occurred. On 5 April 2002, Ms.
Hernandez and three local people were about to
take their lunch when six paramilitaries from the
Citizens Armed Force Geographical Unit (CAFGU),
led by 7th Battalion (Airborne) M/Sgt. T., strafed
the hut they were in. Four members of the militia
were named by the author. All four members of
KARAPATAN were shot, despite pleading for
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mercy. The autopsy disclosed, inter alia, that two
bullets had been fired at Ms. Hernandez from close
range and that she had been lying on her back
when she was shot. There was an eyewitness to
the incident.
Ruling:
The State party has recognized the competence of
the Committee to determine whether there has
been a violation of the Covenant or not and that,
pursuant to article 2 of the Covenant, the State
party has undertaken to ensure to all individuals
within its territory and subject to its jurisdiction the
rights recognized in the Covenant, and to provide
an effective and enforceable remedy in case a
violation has been established, the Committee
wishes to receive from the State party, within 180
days, information about the measures taken to give
effect to the Committees Views. The State party is
also requested to publish the Committees Views.
XV. International Humanitarian Law
International Humanitarian Law
International Humanitarian Law (IHL), also known
as the Law of Armed Conflict, is a branch of
International Law that seeks to regulate armed
conflict. IHL is also known by the term jus in bello
which translates from Latin as Justice in War.
IHL seeks to regulate the conduct of armed conflict
through a number of means, for example:
- Through rules which protect persons who
do not, or who no longer directly
participate in hostilities; and
- By imposing restrictions on parties to
armed conflict with regard to the means
and methods that is permissible to employ
in the conflict.
IHL seeks to place limitations on the damaging
effects of armed conflict, especially on the most
vulnerable civilians, prisoners of war, wounded,
sick and shipwrecked members of the armed
forces.
In order to achieve such aims, the rules of IHL are
based on certain fundamental principles:
1. The distinction between civilians and
combatants
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Combatants are those people who take
direct part in hostilities, such as members
of armed forces. The principle of
distinction requires that belligerents
distinguish between military objectives and
civilian persons and/or objects at all times,
and limit attacks to military objectives only.
2. The prohibition on attacking persons no
longer taking active part in hostilities
Persons who do not, or who are no longer
taking direct part in hostilities are known
as hors de combat (from French, meaning
out of combat), and are immune from
being directly targeted.
3. The prohibition on inflicting superfluous
injury or unnecessary suffering
Parties to the conflict should not use
means or methods of warfare that result in
superfluous injury or unnecessary
suffering; that is, any injury greater than
that strictly necessary to achieve the
military objectives, which uselessly
aggravate the suffering of wounded
personnel, or otherwise render their death
inevitable.
4. The principle of necessity
The principle of necessity requires that
parties to the conflict only adopt the
measures necessary to weaken the
enemy and achieve their surrender; it is
not necessary to bring about total
destruction of the enemy, its armed forces,
or its property.
5. The principle of proportionality
Proportionality means that any military
measures taken by parties to the conflict
must be proportionate; the military
advantage obtained by a particular
operation must outweigh the damage
caused to civilians and civilian objects.
Categories of International Armed Conflicts
1. International Armed Conflicts
(IAC) are conflicts between States. The linchpin
to determining if an IAC exists is to ask is there a
conflict between states that has lead to the
intervention of armed forces? The scope and
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duration of the conflict does not matter; nor does it
matter if there has been a formal declaration of
war. If there is a conflict between States that has
lead to the intervention of armed forces, an IAC
exists. IACs fall under the Geneva Conventions
through Common Article 2. According to Common
Article 2, all four (4) Geneva Conventions, as well
as both of the Two Additional Protocols, apply in
their entirety to an IAC.
Article 2
In addition to the provisions which shall be
implemented in peacetime, the present Convention
shall apply to all cases of declared war or of any
other armed conflict which may arise between two
or more of the High Contracting Parties, even if the
state of war is not recognized by one of them. The
Convention shall also apply to all cases of partial or
total occupation of the territory of a High
Contracting Party, even if the said occupation
meets with no armed resistance.
Although one of the Powers in conflict may not be
a party to the present Convention, the Powers who
are parties thereto shall remain bound by it in their
mutual relations. They shall furthermore be bound
by the Convention in relation to the said Power, if
the latter accepts and applies the provisions
thereof.
2. NON-INTERNATIONAL ARMED
CONFLICTS (NIAC)
Non-international Armed Conflicts (NIAC) are all
other types of armed conflicts. The law governing
NIACs was originally written in response to horrific
civil wars. NIACs fall under the Geneva
Conventions through Common Article 3 which
requires that all people be treated humanely, and
the wounded and sick are cared for. Now, under
customary international law, all of the main LOAC
principles apply in a NIAC.
In the case of armed conflict not of an international
character occurring in the territory of one of the
High Contracting Parties, each Party to the conflict
shall be bound to apply, as a minimum, the
following provisions:
i.) Persons taking no active part in the hostilities,
including members of armed forces who have laid
down their arms and those placed hors de combat
by sickness, wounds, detention, or any other
cause, shall in all circumstances be treated
humanely, without any adverse distinction founded
on race, colour, religion or faith, sex, birth or
wealth, or any other similar criteria.
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To this end, the following acts are and shall remain
prohibited at any time and in any place whatsoever
with respect to the above-mentioned persons:
a) violence to life and person, in particular
murder of all kinds, mutilation, cruel
treatment and torture;
b) b) taking of hostages;
c) c) outrages upon personal dignity, in
particular humiliating and degrading
treatment;
d) d) the passing of sentences and the
carrying out of executions without previous
judgment pronounced by a regularly
constituted court, affording all the judicial
guarantees which are recognized as
indispensable by civilized peoples.
ii.) The wounded and sick shall be collected and
cared for.
An impartial humanitarian body, such as the
International Committee of the Red Cross, may
offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavour
to bring into force, by means of special
agreements, all or part of the other provisions of
the present Convention.
The application of the preceding provisions shall
not affect the legal status of the Parties to the
conflict.
3. WARS OF NATIONAL LIBERATION
Wars of national liberation or national liberation
revolutions are conflicts fought by nationalities to
gain independence. The term is used in
conjunction with wars against foreign powers (or at
least those perceived as foreign) to establish
separate sovereign states for the rebelling
nationality. From a different point of view, these
wars are called insurgencies, rebellions, or wars of
independence. Guerrilla warfare or asymmetric
warfare is often utilized by groups labeled as
national liberation movements, often with support
from other states.
XVI. Neutrality
Neutrality
It denotes a legal status of a special nature,
involving correlative rights and duties as between
the neutral states and the belligerents.
A state has the right to remain neutral in the event
of the outbreak of war between the other states.
Neutrality and the United Nations Charter
Article 2, Paragraph 5 of the United Nations
Charter
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The Obligations of members to give the United
Nations every assistance in any action it takes in
accordance with the Charter and to refrain from
giving assistance to any state against which
preventive or enforcement action is being taken.
Kinds of Neutrality
1.) Perpetual or Permanent Neutrality - Neutralized
by Special Treaties.
2.) Armed Neutrality - Takes Place when a neutral
state takes military measures for the purpose of
defending its neutrality against possible or
probable violation by either of the belligerents.
3.) Absolute Neutrality - Neutral state does not in
any way favor either belligerent directly or
indirectly. It is no longer possible for a member of
the UN to maintain a statute of neutrality.
4.) Qualified Neutrality - Neutrality of the state
which remains neutral to the whole but actively or
passively, directly or indirectly gives some kind of
assistance to one of the belligerents in
consequence of an obligation assumed under a
treaty concluded before the war.
RIghts and Duties of Neutrals
Abstention - It should not give
assistance, direct or indirectly to either
belligerent in war efforts or military
operations.
Prevention - The neutral state under
obligation to prevent its territory from
becoming a base for hostile operations by
one belligerent against the other.
Acquiescence - Neutral states are
forbidden to permit the passage of
belligerent warships upon its national
rivers or canals.
RIghts and Duties of Belligerents
Abstention - Refraining from warlike acts
on neutral territory or using such territory
as a base for hostile operations.
Prevention - To prevent the ill-treatment
of neutral subjects or injury to neutral
property on enemy territory occupied by it.
Acquiescence - To accept activities of
neutral state which are sanctioned by
international law such as internment of the
members of a belligerent armed forces
taking refuge in neutral territory or the
granting of asylum to hostile warships
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under certain conditions.
Passage of Belligerent Warships
A Neutral state is not required to forbid, although it
may do so, the passage of belligerent men-of-war
through the maritime belt forming part of its
territorial waters.
The nature and duration of such passage are
subject to the overriding principle that neutral
territory must be used as a base for warlike
operations by either belligerents.
Prohibition of Warlike Activities in Neutral
Territory
The Hague Convention No.XIII provides that
Belligerents are forbidden to use neutral ports and
waters as base of naval operations against their
adversaries.
Neutral Asylum to Land and Naval Forces of
Belligerent
The Neutral State is not obliged to grant them
asylum, although it is not forbidden to do so. If the
Neutral State Grant such soldiers asylum, they
must be disarmed and measures should be taken
to prevent them from rejoining their forces.
Belligerent warships cannot take shelter in nuetral
port for any undue lenght of time in order to evade
capture.
It may keep these soldiers in camps or even
confine them in fortresses or in localities asiisgned
for the purpose; if possible they should be kept at
some distance from the theater of war.
It may prohibit all belligerent warships from
entering any of its ports, wheter these vessels
desire entry in order to evade capture or for any
other reason. An exception is accorded by
international usage, however to vessels in distress.
Such vessels are allowed to enter even those
nuetral ports which have been declared closed to
belligerent men-of-war.
Right of Angary
Is a right of Belligerent to requisition and use,
subject to certain conditions, or even to destroy in
case of necessity, neutral property found in its
territory.
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Subject to 3 Conditions:
There must be an urgent need for the
property in connection with the war
The Property is within the territory or
jurisdiction of the belligerent.
Compensation must be paid to its owner.
Right of Angary
i. The name given to the right of a
belligerent to seize and apply for the
purposes of war any kind of property on
belligerent territory, including that which
may belong to subjects or citizens of
neutral state.
ii. though belonging to companies or private
persons may be used for military
operations.
iii. All kinds of neutral property whether it
consists of vessels or other means of
transport, property, whetther it consists of
vessels or other means of transport or
arms, provisions or other personal
property may be the object of the right of
angary, provided it is serviceable to
militray needs.
Blockade
A hostile operation by which the vessels and
aircraft of one belligerent prevent all other vessels,
including those of neutral states, from entering or
leaving the ports or coasts of the other belligerent,
the purpose being to shut off the place from
international commerce and communication with
other states.
Requisites of a valid blockade:
It must be established by the proper
authorities of the blockading state, usually
the chief of state.
It must be effective, i.e., it must be
maintained by a force sufficient to prevent
entry into or exit from the enemy coast.
It must be duly communicated in a
declaration specifying: a) the date when
the blockade will begin; b) the
geographical limits of the blockaded coast;
and c) the delay to be allowed neutral
vessels for departure.
It must be limited to the ports and coasts
belonging to, or occupied by, the enemy.
It must be impartially applied to the ships
of all nations.
Breach of blockade and its consequences.
A breach of blockade occurs when a vessel with a
knowledge of the existence of the blockade enters
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or leaves the blockaded port or coast through the
blockaded or forbidden approach.
A vessel which reaches or comes from the
blockaded port through access which is not
forbidden is not guilty of breach of blockade. There
is likewise no breach of blockade if ingress or
egress is especially licensed by the blockading
force, or if a vessel is obliged to enter a blockaded
port for urgent repairs, for want of water or
provisions, or on account of stress of weather.
A vessel found guilty of breach of blockade is liable
to condemnation. The cargo may also be
confiscated unless it is shown that at the time it
was shipped the owner neither knew nor could
have known of the intention to violate the blockade.
Contraband
Goods which are susceptible of use in war and
declared to contraband by a belligerent, and which
are found by that belligerent on its way to assist the
war operations or war effort of the enemy. To be
deemed contraband, goods must be 1) susceptible
of use in war, and 2) destined for the use of a
belligerent in its war operations or war effort.
Kinds of contraband
Absolute contraband - are goods which by
their very nature are intended to be used
in war.
Example: Arms and ammunition.
Conditional contraband are goods which
by their nature are not destined
exclusively for use in war, but
nevertheless of great value to a belligerent
in the prosecution of the war. These goods
are susceptible of military use, as well as
peaceful uses.
Example: Foodstuff, clothing, and horses.
Hostile destination
Besides being of such nature as to be susceptible
for use in war, it is necessary that the goods are
destined
use by the enemy in order that they may be
considered as contraband.
Doctrine of continuous voyage
Goods which are destined to a neutral port cannot
be regarded as contraband of war.
Doctrine of continuous transport
Goods are reloaded on another vessel or other
form of transportation.
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Consequences of contraband carriage
Neutral States are not under obligation to prevent
their subjects from carrying contraband to
belligerent.
International law empowers the belligerent to
prohibit and punish carriage of contraband, just as
it empowers them to prohibit and punish breach of
blockade. Neutral States have the duty to
acquiesce in the suppression by belligerents of
trade in contraband. Vessels carrying contraband
cargo are liable to seizure and confiscation.
Unneutral Service
Consists of acts, of a more hostile character than
carriage of contraband or breach of blockade,
which are undertaken by merchant vessels of a
neutral state in aid of either of the belligerents.
Visitation
The right of belligerents to visit and, if needed, to
search neutral merchantmen for the purpose of
ascertaining whether they really belong to the
merchant marine of neutral States, and if this is
found to be the case, whether they are attempting
to break blockade, carrying contraband or
rendering unneutral service.
Capture
Take place if the vessel, or the cargo, or both, are
liable to confiscation, or if grave suspicion requires
further search which can only be undertaken in a
port. Effected by placing a prize crew on the
neutral vessel or, if this should prove impracticable,
by ordering her to lower her flag and steer
according to the captors orders. Captured vessels
may not, as a rule, be sunk, burned or otherwise
destroyed.
Trial before a Prize Court
The captured vessel and cargo, must be brought
before a Prize Court for trial. It is for the Prize
Court to determine whether the vessel or cargo, or
both, should be confiscated. Prize Courts are
municipal institutions and are established by
municipal law.
XVII. International Environment Law
Definition
The branch of public international law
comprising of those substantive,
procedural, and institutional rules which
have as their primary objective the
protection of the environment.
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environment is understood as
encompassing both the creatures and
products of the natural world and those
of human civilization
Environmental Concern
Section 16 of the 1987 Constitution:
The State shall protect and advance the right of
the people to a balanced and healthful ecology in
accord with rythm and harmony of nature.
Laguna Lake Development Authority
(LLDA) v. CA
The SC relying on Section 16, to
protect the inhabitants of the
Laguna Lake Area from the
deleterious effects of pollutants
coming from garbage dumping
and the discharge of wastes in
the area. Laguna Lake upheld the
exclusive authority of the LLDA to
regulate the exploitation of
Laguna Lake, as against the
claim of municipalities around the
lake, in order to effectively
address the environmental and
ecological stress on Laguna Lake.
Social Justice Society v. Atienza
In 2007, SC held the validity of
and ordinance of the City of
Manila requiring the oil
companies to close and transfer
the Pandacan Terminals to
another location within a specified
period.
Similar case to Metropolitan Manila
Development Authority v. Residents of
Manila Bay
SC ordered various government
agencies to clean up Manila Bay.
Danube Dame Case
The protection of the environment is a vital part of
contemporary human rights doctrine, for it is sine
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qua non for numerous human rights such as right Treaties

to health, and right to life itself.
Generally concern one of the following broad
It is in fact a challenge of international law examples:
because its demands cannot be met
without intrusion into the domestic 1. Toxic and hazardous substances
jurisdiction and sovereignty of states. The
2. Nuclear damage
nature and magnitude of the challenge are
such that they require not only the joint
3. Ocean and marine sources
action of states but also the involvement of
non-state actors. 4. Ozone and the protection of the atmosphere

Not just about the ATMOSPHERE, the 5. Pollution

SEA, the LAND, FLORA and FAUNA, but
also about the preservation of cultural 6. Biodiversity and the protection and
heritage of mankind as found in conservation of species and wildlife
archeological and artistic remains.
7. Sustainable development
GOAL: Rational use of the elements that
make up the environment through control, 8. Trade and the environment
reduction and, wherever possible,
Examples:
elimination of causes of environmental
degradation. Vienna Convention for the Protection of the
Ozone Layer, 1985
Who have environmental rights? UN Framework Convention on Climate
Change, 1992
Oposa v. Factoran, Jr.
Kyoto Protocol to the UN Framework
Their generation as well as generations yet
Convention on Climate Change
unborn.
Convention on the Law of the Non-
Basically, EVERYBODY. The born and yet
Navigational Uses of International
unborn.
Watercourses
Two Major Declarations

The Declaration of the UN Conference on the

The Rio Declaration on Environment and
Human Environment
Development
1972 Stockholm Declaration
A short document produced at the 1992 UN
Espouses mostly broad environmental policy Conference on Environment and
goals and objectives rather than detailed Development, or the Rio Earth Summit
normative positions
Consists of 27 principles intended to guide
Represented a first major attempt at future sustainable development around the
considering the global human impact on the world
environment and an international attempt to
Guiding Environmental Principles
address the challenge of preserving and
enhancing the human environment Principle of Good Neighborliness

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Responsibility to ensure that activities within their
jurisdiction and control do not cause damage to
the environment of other States or areas beyond
the limit of national jurisdiction
Sic utere tuo ut alienum non laedas underlies
this principle
Precautionary Approach/Principle
Shall be applied by States in order to protect the
environment
Lack of full scientific certainty shall not be used
as a reason for postponing cost-effective
measures to prevent environmental degradation
where there are threats of serious or irreversible
damage
Polluter Pays Principle
Polluter should, in principle, bear the cost of
pollution with due regard to the public interest
and without distorting international trade and
investment
Cannot be said to be intended to be legally
binding. However, some treaties already require
parties to apply this principle.
Principle of Sustainable Development
Sustainable development
Development that meets the need of the present
without compromising the ability of future
generations to meet their own needs
Industry should make use of the natural
resources in a way that allows the resources to
regenerate, not in a manner that it be destroyed
Environmental Impact Assessment Principle
As a national instrument, shall be
undertaken for proposed activities that are likely
to have significant adverse impact on the
environment and are subject to a decision of a
competent national authority
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Principle of Intergenerational Equity
Man bears a solemn responsibility to
protect and improve the environment for present
and future generations
Principle of Common but
Differentiated Responsibility
States have special responsibility of
shouldering the burden of pursuing global
sustainable development
Principle of Non-
Discrimination
Each State should ensure that its regime
of environmental protection when addressing
pollution originating within the State, does not
discriminate between pollution affecting the State
and pollution affecting other States
Standard of Conduct
Strict Liability Theory
States are under an absolute obligation to prevent
pollution and are thus liable for its effects
irrespective of fault
Test of Due Diligence
Standard that is accepted generally as the most
appropriate one
For example, states will be required to take all
necessary steps to prevent substantial pollution
and to demonstrate the kind of behavior expected
of good governments, while such behavior would
probably require the establishment of systems of
consultation and notification
Also important to note that elements of remoteness
and foreseeability are part of the framework of the
liability of the states
Damage that occurs must have been caused by
the pollution under consideration
Need for International Cooperation
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In many cases, it is simply impossible to prove that

a particular damage has been caused by one
particular source.

The approach to dealing with environmental

matters has shifted from the bilateral state
responsibility paradigm to establishment and
strengthening of international cooperation

Long-range Transboundary Air Pollution

Air pollution whose physical origin is

situated wholly or in part within the area
under the national jurisdiction of one State
and which has adverse effects in the area
under the jurisdiction of another State at
such a distance that it is not generally
possible to distinguish the contribution of
individual emission sources or group of
sources
Bases of Liability under International Law

Absolute duty to protect against

harm from ultra-hazardous
activities, which if violated, results
in a State being held strictly liable

Absolute Right Theory

responsibility for negligent or
intentional acts

Good Neighborliness Principle

XVIII. United Nations

*no report posted*

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