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BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL LAW
nd
o The continent formed a political system in which the Nations inhabiting this
part of the world are bound by their relations and various interests into a single
Special Issues in International Law | 2 Semester, S.Y. 2018-2019
body.
Acampado | Adrias | Aguila | Alonzo | Arcenas | Balisong | Callueng | Castillo | Castro
• Immanuel Kant – re-characterize the binding character of international law, proposing
Coscolluela | Ignacio | Matsumura | Peliño | Pleyto | Punsalan | Rayos | Rosales, C. | Sabaupan |
an international federation of republican states along substantially similar lines to Wolff’s
See | Soriano, J. | Sta. Maria | Vargas | Yap | Yrreverre
supreme state, backed by coercive rules, as the only method by which a secure and
lasting peace could be achieved.
CHAPTER 1: INTRODUCTION
(B) FROM POSITIVISM TO THE PRESENT DAY
1. DEVELOPMENT OF THE LAW OF NATIONS
• What is public international law? It is the law of nations developed out the tradition of • States emerged as material, independent entities and international law was one of the
the late medieval ius gentium ways they developed of managing their relations.
o Specialized body of legal thinking about the relations between rulers, reflective o Since the law of nations developed within a system wholly lacking in other
of custom and practice in such matters as treaty making, status of ambassadors, institutions, IL is highly state-centric.
use of oceans, and the modalities of warfare. • Positivism - saw the law as a creation of power, a command of a sovereign enforced by
• Aquinas – law could structure or at least moderate the relations between kingdoms, a sanction; international law was not law above states, but law between states,
principalities, and republics. enforceable, short of war, by way of moral opprobrium or by reciprocal denial of benefits.
•
th
During the 13 century, international law was essentially a moral question, but it was • John Austin – international law was only ‘law improperly so called’
engaged with issues such as territorial claims, treaties, right of legation, etc. • Jeremy Betham – had no such issue with international law, principally because he
• A signal of development was that war was seen as the prerogative of the sovereign. thought that national sovereigns could also together promulgate international law; they
o It is not the business of the private individual to declare war, because he can were not disabled from collective action.
seek for redress of his rights from the tribunal of his superior. • HLA Hart – distinguished 3 categories of rules:
o It is not the business of the individual to summon together the people during o Primary rules concerning human action and interaction.
wartime. o Secondary rules (adjudication, enforcement, and change)
• International law was European in origin, extending to the whole Mediterranean to o Master ‘rule of recognition’ which enables the observer to identify the
Russia and the Near east, travelling with the colonizers (Americas to Asia, to Africa and components of the system and to treat them as legal.
to Oceania). • Brownlie – whatever the theoretical overlay of law/not law imposed by Hart and
o Colonialism reshaped the world in a Eurocentric Image. positivists in general, the reality of international law told a different story.
o Of the non-European nations only seven managed to retain independence
without formal qualification of sovereignty (Ethiopia, Liberia, Turkey, Thailand, (C) THE BASIS OF OBLIGATION
China, Japan and Afghanistan)
• Eventually international law expanded: creation of international orgs with universal • The classification of a system as legal does not predetermine its effectiveness: witness
membership and treaty making powers, detailed elaboration of the law of the sea, various national law systems in greater or lesser disarray
establishment of permanent bodies, etc. o Question is whether the rules, traditions, and institutions of a given system enjoy
o Positivist wave through the Permanent Court of International Justice indicated at least some salience within the relevant society, meet its social needs, and are
that the rights under IL could be conferred on individuals. applied through techniques and methods recognizably legal-as distinct from
mere manifestation of unregulated force.
2. INTERNATIONAL LAW AS LAW • John Finnis – defended the idea of an international law-particularly customary
international law-able to emerge without being made by anyone without authority to
(A) NATURAL LAW ORIGINS make it, and without the benefit of Hart’s secondary rules for the authorized generation
and alteration of rules.
• IL saw its gradual separation from natural law, a process spurred on by Reformation
and wars of religion (Thirty Years War ending in Peace of Westphalia). 3. THE REALITY AND TRAJECTORY OF INTERNATIONAL LAW
o Natural law emerged from Roman law and Roman Church which conceived
universal ius naturale (natural law) of which ius gentium (Law of peoples) was (A) THE STATE AND SOVEREIGNTY
a subset.
• Grotius – separation of the jus gentium from the jus natural and its modulation into a • States - political entities equal in law, similar in form, the direct subjects of international
law of nations, which applied specifically to the rulers of states. law.
• Law of nations – was a system of norms whether derived from a universally applicable, o Once statehood is generally recognized, a new situation arises: the new state
natural morality or attested by the Consent of Nations is sovereign, has sovereignty and this is true no matter how fragile its
• Wolff – collective society could not be promoted unless states formed a universal condition or diminutive its resources.
political entity, a ‘supreme state’ form which would proceed the law of nations. • Kingsbury – emphasized the disadvantages of any normative transformation
• Les Droit des gens - claimed to be the first international law textbook • As a concept, sovereignty carries limited substantive consequences and is consistent
• Vattel – was in contrast with Wolff; political balance or equilibrium of power for Vattel. with a range of internal forms of government. It is also capable of responding to
Highlighted by Brownlie: Although the passage of only a short period of time is not
Issue: Whether this decree, which laid down a method for drawing the baselines
necessarily, or of itself, a bar to the formation of a new rule of customary international
from which the width of the Norwegian territorial waters had to be calculated, was
law on the basis of what was originally a purely conventional rule, an indispensable
valid international law.
requirement would be that within the period in question, short though it might be,
State practice, including that of the States whose interests are specially affected,
Ruling: This question was rendered particularly delicate by the intricacies of the
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should have been both extensive and virtually uniform in the sense of the provision around its shores. The United Kingdom challenged this extension of jurisdiction,
invoked;—and should moreover have occurred in such a way as to show a general wherein UK relied upon an earlier treaty agreement between the parties where the
recognition that a rule of law or legal obligation is involved UK agreed to recognize Iceland’s twelve-mile exclusive fisheries jurisdiction in
exchange for Iceland’s agreement to submit all disputes over fisheries jurisdiction to
ii. GENERALITY OF PRACTICE the ICJ. Iceland argued that it was not bound by this agreement to submit all disputes
to the ICJ because of changing legal circumstances in international law. Iceland
• Complete consistency is not required. argued that the standard, default limit for exclusive fisheries jurisdiction for states
• UK v. Iceland (Fisheries jurisdiction) – extension of a fishery zone up to a 12nm limit was typically now twelve miles. This was not the case when Iceland first signed its
which appears now to be generally accepted and to an increasing and widespread agreement with the UK, however, and the agreement to a twelve-mile limit then
acceptance of the concept of preferential rights for coastal states in a situation of special constituted a compromise for Iceland. Due to changing trends in international law,
dependence on coastal fisheries. Iceland argued that its previous agreement to the twelve- mile compromise in
• Omission of an act (e.g. because the States think they have no jurisdiction) is not exchange for ICJ jurisdiction was now void for lack of consideration on the UK’s part.
enough to form a custom. What is important is that such omission is done because of
of opinio iuris to prove that the inaction is not just due to the lack of interest on the issue Issue: Whether Iceland can extend its fishery zone from 12 to 50 miles
(See Lotus case)
Ruling: Iceland’s extension of its fishery zone is not permissible. A fishery zone has
Lotus (France v. Turkey) been accepted to be 12 miles from its baseline and is treated as a general practice
accepted by the states. Although Iceland has preferential rights over the fishery
Facts: A collision occurred on the high seas between a French mail steamer (Lotus) zone, it must reconcile it with the interests of the UK.
and a Turkish collier (Boz-Kourt). Boz-Kourt sank, and 8 Turkish nationals on board
were killed. The 10 survivors of the Boz-Kourt, including its captain, were taken to
Constantinople (Turkey) on board the Lotus. In Turkey, M. Demons, the officer on Highlighted by Brownlie: extension of a fishery zone up to a 12nm limit which
watch of the Lotus who is a French national, and the captain of the Boz-Kourt, appears now to be generally accepted and to an increasing and widespread
Hassan Bey, were charged with manslaughter by a Turkish court. France protested acceptance of the concept of preferential rights for coastal states in a situation of
this, demanding the release of M. Demons or the transfer of his case to the French special dependence on coastal fisheries.
Courts. Turkey and France agreed to refer this dispute on the jurisdiction to the
Permanent Court of International Justice (PCIJ). According to France, the iii. ‘ACCEPTED AS LAW’: OPINIO IURIS SIVE NECESSITATIS
convention of Lausanne does not allow Turkish courts to take cognisance of criminal
proceedings directed against a French citizen for crimes committed outside Turkey. • General practice accepted as law, expressed ordinarily in the term opinion iuris sive
Moreover, that International law states that a State is not entitled to extend the necessitates.
jurisdiction of their courts to crimes that happened abroad even if the victim is a • Nicaragua case – The need for such a belief i.e. existence of a subjective elemnt, is
citizen of their State UNLESS stipulated in a special agreement. Meanwhile Turkey implicit in the very notion of the opinion juris sive necessitates.
contends that it has jurisdiction over the case.
Supra Lotus (France v. Turkey)
Issue: Whether Turkey has jurisdiction over the French national
Facts: A collision between a French and a Turkey steamship where 8 Turkish
nationals were killed. Turkey now claims jurisdiction over the officer on watch of the
Ruling: Both France and Turkey has jurisdiction over the case. There is no principle French ship.
of international law which precludes the institution of the criminal proceedings under
consideration. Consequently, Turkey, by instituting the case, in virtue of the Highlighted by Brownlie: France asserted that the flag state has criminal
discretion which international law leaves to every sovereign State, the criminal jurisdiction over accidents occurring on the high seas which was rejected by the
proceedings in question, has not, in the absence of such principles, acted in a Permanent court. Presumably, opinion iuris should apply to both positive conduct
manner contrary to the principles of international law within the meaning of the and absention, yet in the lotus case, the Court was not ready to accept continuous
special agreement. conduct as evidence of a legal duty and required a high standard of proof of opinio
iuris.
Highlighted by Brownlie: Often the real problem (when determining inaction as
generality of principle) is to distinguish mere absention from protest. It may be that Supra North Sea Continental Shelf (Germany v. Denmark/Holland)
the Court misjudged the consequence of the absence of protest and the significance
of fairly general absention from the prosecution by states other than the flag state. Facts: Germany, Denmark, and the Netherlands failed to reach an agreement on
how to delimit their continental shelves in the North Sea. Denmark and Netherlands
argue that the equidistance principle had become accepted as law by the date of the
Fisheries Jurisdiction (UK v. Iceland) Convention on the Continental Shelf.
Facts: Iceland sought to extend its exclusive fisheries jurisdiction from 12 to 50 miles Highlighted by Brownlie: The Court declined to presume the existence of opinio
iuris based on the practice as at that date. Nor did it accept Nor did it accept that the
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subsequent practice of states based upon the Convention because of two factors: sovereign; in such case the notion of opinion iuris merges into the principle of
(1) Article 6 was directed at agreement was not of a norm-creating character and (2) acquiescence.
the convention was in force for less than 3 years; the state practice was inadequate • Example of regional custom: diplomatic asylum in Latin America, concerning the right
to show a general recognition that a rule of law or legal obligation is involved. of the embassies of other states to give an asylum to political refugees.
• Rules of IL which are universally accepted, and the system of IL is reaffirmed by states Facts: India prevented Portugal from exercising Portugal’s alleged right of passage
in making and responding to claims of right, but the principles of the system mean that over the enclaves in the Indian Peninsula. Portugal thus requested the ICJ to declare
particular rules may have less than universal acceptance, yet still form part of IL. that a right of passage was possessed by Portugal and must be respected by India.
Portugal invokes this right only to the extent necessary for the exercise of its
i. THE PERSISTENT OBJECTOR sovereignty, subject to the regulation and control of India. India, on the other hand,
argues that the right of passage claimed by Portugal was too vague and
• What is the persistent objector? State may exempt itself from the application of a new contradictory.
customary rule by persistent objection during the norm’s formation.
• Evidence of objection must be clear, and there is a rebuttable presumption of Issue: Whether Portugal possessed the right of passage over the territory of India
acceptance. Whatever the theoretical underpinnings of the persistent objector principle, to the extent necessary for the exercise of Portuguese sovereignty over the
it is recognized by international tribunals. enclaves, which right was subject to the regulation and control of India
• Persistent objection rule - reinforces the principle of state consent in the creation of
custom. Ruling: Yes, but only with regard to private persons, civil officials and goods in
general. This does not extend to armed forces, armed police, and arms and
ii. THE SUBSEQUENT OBJECTOR
ammunition. This right of passage was established as a custom. During the British
and post-British periods, the passage of private persons and civil officials had not
• What is the subsequent objector? If a substantial group of states asserts a new rule, been subject to any restrictions beyond routine control. Merchandise other than arms
the momentum of increased defection, complemented by acquiescence, may result in and ammunition had also passed freely subject only, at certain times, to customs
a new rule as was the case concerning the continental shelf. regulations and such regulation and control as were necessitated by considerations
• If the process is slow and neither the new nor the old rule has an overwhelming majority of security or revenue. However, as regards armed forces, armed police and arms
of adherents, the consequence is a network of special relations based on opposability, and ammunition, during the British and post-British periods, Portuguese armed
acquiescence and even perhaps historic title. forces and armed police had not passed between Daman and the enclaves as of
• Situation will normally be transitional in character. right. It is difficult to see why the number of States between which a local custom
may be established on the basis of long practice must necessarily be larger than
Supra Anglo-Norwegian Fisheries (UK v. Norway) two. The Court sees no reason why long continued practice between two States
accepted by them as regulating their relations should not form the basis of mutual
Facts: The subject of the proceedings was the validity, under international law, of rights and obligations between two States. Portugal relied on such a custom to
the lines of delimitation of the Norwegian fisheries zone as set forth in a Decree of establish a right to access to Portuguese enclaves in Indian territory inland from the
12 July 1935. Norway argues that even if the 10nm closing line for bays and certain port of Daman.
rules were part of the general international law, it did not bind Norway because it had
consistently and unequivocally manifested a refusal to accept them. UK admitted the
Highlighted by Brownlie: Some customary norms may be practiced only within a
general principle, while denying that Norway had manifested its supposed refusal to
particular region, creating a “local” customary law. Such a norm is reducible to the
accept the rules. Thus, it regarded the question as one of persistent objection.
level of a bilateral relation, as in this case.
Highlighted by Brownlie: The Court did not deal with the issue in this way, however.
4. TREATIES
Its ratio was that Norway had departed from the alleged rules, if they existed, and
that other states had acquiesced in this practice.
• The most important source of obligation in international law.
• Law-making’ treaties have a direct influence on the content of general international law, an
iii. BILATERAL RELATIONS AND LOCAL CUSTOMS
influence not conveyed adequately by their designation as material sources.
• Some customary norms may be practiced only within a particular region, creating local • Bilateral treaties may provide evidence of customary rules.
customary law; such norm is reducible to the level of a bilateral relation. • There is no dogmatic distinction between ‘law-making’ treaties and other treaties.
• When considering the formation of a bilateral custom, general formulae concerning
(A) ‘LAW-MAKING’ TREATIES
custom will not supplant the need for case-by-case analysis.
• Where a party seeks to vary the general law on a bilateral basis, the proponent of the
• These create legal obligations, one-time observance of which does not discharge the
special right has to give proof of a sense of obligation on the part of the territorial
obligation.
• Create general norms framed as legal propositions to govern the conduct of the parties.
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o Not necessarily limited to their conduct inter se – the expression of an obligation § Example: Optional Clause or a free-standing dispute settlement treaty
in universal or ‘all states’ form is an indication of an intent to create such a general and if customary law rule is arguably the same as that contained in the
rule. treaty.
• Examples: Declaration of Paris of 1856 on neutrality in maritime warfare, the Hague § Nicaragua – US relied on an Optional Clause reservation that excluded
Conventions of 1899 and of 1907 on the law of war and neutrality, the Geneva Protocol of the Court from applying the Organization of American States (OAS)
1925 on prohibited weapons, the General Treaty for the Renunciation of War of 1928, the Charter. The Court avoided the effect of jurisdictional reservation by
Genocide Convention of 1948, and the four Geneva Conventions of 1949 on the protection holding that it was free to apply customary international law (content of
of civilians and other groups in time of war. which was the same as the OAS Charter).
• Although treaties are binding only on the parties, the number of parties, the explicit o Yet states do not cease to have disputes under a treaty merely because the Court
acceptance of these rules by states generally and the declaratory character of the provisions has no jurisdiction over those disputes.
combine to produce a powerful law-creating effect. • General Rule: The requirements of duration, consistency, and generality of practice and
• Non-parties may by their conduct accept the provisions of a convention as representing opinio juris means that customary law is often outpaced by specific treaties.
customary international law. o BUT this is not always the case; in the longer term, customary law may be called
o Example: Hague Convention IV of 1907 and the annexed rules on land warfare. on to mould and even modify treaty texts which cannot realistically be amended,
• In special circumstances, even an unratified treaty may be regarded as evidence of generally however desirable amendment might be.
accepted rules. § Example: Law of self-defense in Article 51 of the UN Charter parallels
o North Sea Continental Shelf – Germany was bound by the provisions of the the right of self-defense which existed in customary international law
Geneva Convention on the Continental Shelf (GCCS) which it had signed but not prior to the Charter. The Charter made no mention of necessity and
ratified. The Court concluded that only the first three articles represented emergent proportionality found in customary international law yet the International
or pre-existing customary law and its basis included reference to the faculty of Court has read them in.
making unilateral reservations, a faculty which applied to some articles but not to
those which (by inference) had a more fundamental status. 5. GENERAL PRINCIPLES OF LAW
§ The treaty itself made the distinction; by contrast the mere existence of
reservations where no provision for reservations is made in the treaty Statute of the International Court of Justice, Article 38, §1(c) – 1. The Court, whose function
will not itself annul the probative value of its provisions. is to decide in accordance with international law such disputes as are submitted to it, shall
o Gulf of Maine and Continental Shelf (Libya/Malta) – considerable weight accorded apply:
to UNCLOS although not yet in force. c. the general principles of law recognized by civilized nations;
• Baxter – North Sea case made it clear that the treaty-making process may also have
unwelcome side-effects called the ‘Baxter paradox.’
o Baxter paradox – treaties declaratory or constitutive of custom may ‘arrest’ its • How do you know it’s a general principle?
further development and that until the treaty is revised or amended, the customary • Article 38(1)(c) of the Statute of the International Court refers to the general principles of law
international law will remain the image of the treaty as it was before it was revised. recognized by civilized nations.
• Is there a concept of an oral treaty? Yes, but it will not be covered under the VCLT. o Is listed after treaty and custom, both of which depend more immediately on state
consent.
(B) RELATION OF TREATIES TO CUSTOM o Nonetheless, these general principles are not considered ‘subsidiary means’ which
is only confined to Art. 38(1)(d).
• When norms of treaty origin crystallize into new principles or rules of customary law, the • Descamps (Belgium) – had natural law concepts in mind; ‘the rules of international law
customary norms retain a separate identity even where the two norms may be identical in recognized by the legal conscience of civilized people.’
content. • Do general principles of law include municipal law?
o A State which fails to become a party to a law-making treaty may find itself • Root (US) – considered that governments would mistrust a court that relied on subjective
indirectly affected by the norms contained in the treaty UNLESS its opposition rises concepts associated with principles of justice.
to the level of persistent objection. • (the accepted definition) Root and Phillimore (UK) – rules accepted in the domestic law of all
o But persistent objection puts a state in an awkward position: it will be unable to civilized states.
invoke the new rule and also be unable to secure from other states continued o Guggenheim – said that Art. 38(1)(c) must be applied in this light.
adherence to the old rule. • (preferable) Oppenheim – to authorize the Court to apply the general principles of municipal
§ Example: US and Japan wanted to continue asserting a maximum 3nm jurisprudence, in particular of private law, insofar as they are applicable to relations of States.
territorial sea despite most states having a standard of 12nm instead. o Significant because tribunals have not adopted a mechanical system of borrowing
Moreover, US relied on UNCLOS provisions despite its repeated failure from domestic law; rather, they have employed or adapted modes of general legal
to ratify. reasoning as well as comparative law analogies in order to make a coherent body
• One significant effect of non-participation in a law-making treaty is inability to invoke its of rules for application by international judicial process.
dispute settlement provisions: a dispute that can only arise under a treaty as between parties • Difficult for state practice to generate the evolution of rules of procedure and evidence as
to the treaty. well as the substantive law that the court must employ.
o May not matter if there is a separate basis for jurisdiction. An international tribunal chooses, edits, and adapts elements from other developed
systems and results in a body of international law which has been influenced by
domestic law but which is still its own creation.
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(A) GENERAL PRINCIPLES OF LAW IN THE PRACTICE OF TRIBUNALS time of the indemnification, which value is designed to take the place of restitution which
(I) ARBITRAL TRIBUNALS has become impossible. To this obligation, in virtue of the general principles of
international law, must be added that of compensating loss sustained as the result of the
• Frequently resorted to analogies from municipal laws. seizure. The impossibility, on which the Parties are agreed, of restoring the Chorzow
• Fabiani – case between France and Venezuela, the arbitrator had recourse to municipal factory could therefore have no other effect but that of substituting payment of the value
public law on the question of state responsibility for state agents, including judicial officers of the undertaking for restitution; it would not be in conformity either with the principles of
for acts carried out in an official capacity; the arbitrator also relied on the general principles law or with the wish of the Parties to infer from that agreement that the question of
of law in assessing damages (claim is based on denial of justice by the Venezuelan courts). compensation must henceforth be dealt with as though an expropriation properly so-
• Russian Indemnity – Permanent Court of Arbitration applied the principle of moratory interest called was involved.
on debts.
• Tribunals show considerable discretion in matters involving general principles. Highlighted by Brownlie: One Party cannot avail himself of the fact that the other has
o Decisions on the acquisition of territory tend not to reflect domestic derivatives of not fulfilled some obligation or has not had recourse to some means of redress, if the
real property and municipal analogies may have done more harm than good. former Party has (by some illegal act) prevented the latter from fulfilling the obligation in
o North Atlantic Fisheries: tribunal considered the concept of servitude but refused question or from having recourse to the tribunal which would have been open to him. It
to apply it. is a principle of international law that any breach of an engagement involves an obligation
to make reparation.
(II) THE INTERNATIONAL COURT AND GENERAL PRINCIPLES
(B) GENERAL PRINCIPLES OF INTERNATIONAL LAW
• The Court has used Art. 38(1)(c) sparingly. General principles normally enter judicial
reasoning without formal reference or label. • May alternatively refer to rules of customary international law, to general principles of law as
• However, the Court has referred on occasion to general notions of responsibility. (See in Art. 38(1)(c) or to certain logical propositions underlying judicial reasoning on the basis of
Chorzoe Factory below) existing international law.
• On occasion, the Court has also relied on the principle of estoppel or acquiescence, • Examples: principles of consent, reciprocity, equality of states, finality of awards and
references to abuse of rights and to good faith, and the most frequent and successful use of settlements, the legal validity of agreements, good faith, domestic jurisdiction, and the
domestic law analogies à evidence, procedure, and jurisdiction. freedom of the seas.
o Thus, references to the rule that no one can be a judge in his own suit, to litis • Many times, these principles may be traced to state practice. However, they are primarily
pendence, to res judicata, to various principles governing the judicial process and abstractions and have been accepted for so long and so generally as no longer to be directly
to the principle universally accepted by international tribunals to the effect that the connected to state practice.
parties to a case must abstain from any measure capable of exercising a prejudicial • Certain fundamental principles of international law are considered peremptory norms.
effect in regard to the execution of a decision to be given. • What is the difference of general principles of law with custom?
o Corfu Channel: Court considered circumstantial evidence and remarked that ‘this
indirect evidence is admitted in all systems of law, and its use is recognized by 6. JUDICIAL DECISIONS
international decisions.’ (A) JUDICIAL DECISIONS AND PRECEDENT IN INTERNATIONAL LAW
Polish Upper Silesia • The quality of decisions of arbitral tribunals vary considerably, but certain arbitral awards
have made notable contributions to the development of the law and the International Court
Facts: Germany entered into a contract with Bayerische Stickstoffwerke Company for the has referred to arbitral decisions on many occasions; it also refers compendiously to the
construction of a nitrate factory at Chorzów. It later on sold the factory to Oberschlesische jurisprudence of international arbitration.
Stickstoffwerke, but the management and working of the enterprise were to remain in the • Depends on the status of the tribunal and of its members, and on the conditions under which
hands of Bayerische. Oberschlesische was duly registered in the land register. Poland it conducts its work.
annulled the registration, declaring that the situation prior to the sale by the Reich was o Examples: judgment of the International Military Tribunal for the Trial of German
restored and transferring the property rights to Poland. Germany filed a case before the Major War Criminals, the decisions of the Iran-United States Claims Tribunal, and
PCIJ. Meanwhile, Poland gave notice to certain persons possessing large rural estates the decisions of the International Criminal Tribunal for the Former Yugoslavia.
near Chorzów factory of its intention to expropriate them. Germany regarded the notices
as contrary to Articles 6-22 of the German-Polish Convention (Geneva Convention). (C) DECISIONS OF THE INTERNATIONAL COURT AND ITS PREDECESSOR
Germany and Poland differ as to the interpretation and application of the provisions • In theory, court applies the law and does not make it, and Art. 59 of the Statute reflects a
defining the conditions in which Poland may carry out expropriations in Upper Silesia feeling on the part of the drafters that the Court was intended to settle disputes as they came
(where Chorzów factory is located), and in the absence of which, German property, rights to it rather than to shape the laws.
and interests may not be expropriated. Poland argues that submissions of the German o Yet, a decision, especially if unanimous or almost, may play a catalytic role in the
Application sought to obtain from the PCIJ an advisory opinion, which would be contrary development of the law.
to the provisions of Article 14 of the Covenant of the League of Nations. Poland also • The Court’s lengthy period of operation has enabled it to lay down a body of procedural case-
argues that the abstract character of the decision asked for is hardly compatible with law which was and is a natural source of inspiration for later tribunals.
Article 59 of the PCIJ’s Statute.
(D) DECISIONS OF NATIONAL COURTS
Issue: Whether the PCIJ has jurisdiction over the case • Art. 38(1)(d) of the Statute of the International Court is not limited to international decisions
but also extends to decisions of national courts.
Ruling: Yes. First, Germany is not asking for an advisory opinion. The interrogative form • Municipal judicial decisions have been an important source of material on the recognition of
in which the submission is formulated does not suffice to establish a construction which governments and states, state succession, sovereign immunity, diplomatic immunity, etc.
would place that submission outside the scope of Article 23 of the Geneva Convention. o However, the value of these decisions varies considerably and individual decisions
More importantly, Article 59 does not exclude declaratory judgments which are expressly may present a narrow, parochial outlook or rest on an inadequate use of sources.
provided for by Article 36 and 63 of the PCIJ Statute and constitute one of the most
important functions of the PCIJ. Article 59 of the PCIJ Statute, which has been cited by 7. OTHER MATERIAL SOURCES
Poland, does not exclude purely declaratory judgments. The object of this article is simply (A) THE CONCLUSIONS OF INTERNATIONAL CONFERENCES
to prevent legal principles accepted by the PCIJ in a particular case from being binding
upon other States or in other disputes. It should also be noted that the possibility of a • The final act or other statement of conclusions of a conference of states may be a form of
judgment having a purely declaratory effect has been foreseen in Article 63 of the PCIJ multilateral treaty, but even if it records decisions not adopted unanimously, the result may
Statute, as well as in Article 36 already mentioned. constitute evidence of the state of law on the subject.
• Equity – considerations of fairness and reasonableness often necessary of the application of Facts: Two British destroyers were severly damaged while crossing the North Corfu Channel,
settled rules of law. which was within Albanian territory. Lives were lost and the United Kingdom Government
• Equity is not itself a source of law, yet may be an important factor in the process of decision- sought after compensation against Albania for damages
making.
• North Sea Continental Shelf – Court had to resort to the formulation of equitable principles Issue: Whether Albania is liable for the loss of lives and damage of the destroyers.
concerning the lateral delimitation of adjacent areas of the continental shelf.
• The power of decision ex aequo et bono involves elements of compromise and conciliation, Ruling: The Court ruled that Albania is liable because it did not matter who laid the mines when
whereas equity in the general sense (equity infra legem) finds application as part of the the ships crossed. What was important was the obligation of the Albanian Government to warn
normal judicial function. the ships that there were mines laid out. Considering that two hours had lapsed between the
CHAPTER 3: THE RELATIONS OF INTERNATIONAL LAW AND NATIONAL LAW • State cannot plead provisions of its own law or deficiencies in that law in answer to a claim
against it for breach of its obligations under international law.
• Arbitral tribunals, the Permanent Court, and the International Court have consistently
1. THEORETICAL APPROACHES
endorsed this position.
• What is the difference between dualism and monism? (II) NATIONAL LAWS AS ‘FACTS’ BEFORE INTERNATIONAL TRIBUNALS
o Dualism – distinct and independent character of the international law and national
legal systems; international law is perceived as law between states whereas
• Certain German Interests in Polish Upper Silesia – National laws are merely facts which
national law applies within a state, regulating the regulations of its citizens within
express the will and constitute the activities of States, in the same manner as do legal
each other and with that state.
decisions or administrative measures.
§ Conflict between IL and NL: NL would apply as national law.
• Thus, a decision of a national court or a legislative measure may constitute evidence of a
o Monism – national and international law form one single legal order or at least a
breach of a treaty or of customary international law.
number of interlocking orders which should be presumed to be coherent and
consistent. • The concepts of national law as ‘merely facts’ has at least 6 distinctive aspects.
(a) National law may itself constitute or be evidence of conduct in violation of a rule or treaty
§ IL can be applied directly within the national legal order.
§ Hersch Lauterpacht – individuals are the ultimate subjects of or customary law.
international law, representing both the justification and moral limit of the (b) National law may be part of the ‘applicable law’ either governing the basis of a claim or
more commonly governing a particular issue.
legal order. The state is disliked as an abstraction and distrusted as a
vehicle for maintaining human rights. International law is seen as the (c) Whereas the principle iura novit curia applies to international law, it does not apply to
best available moderator of human affairs and also as a condition of matters of national law. International tribunals will generally require proof of national
law, although they may also (subject to due process) undertake their own researches.
legal existence of states and therefore of the national legal systems.
§ Hans Kelsen – monism is scientifically established if IL and NL are part (d) When called upon to apply national law an international tribunal should seek to apply
of the same system of norms receiving their validity and content by an that law as it would be applied in the state concerned.
(e) International tribunals cannot declare the unconstitutionality or invalidity of rules of
intellectual operation involving the assumption of a single basic norm
(Grundnorm). national law as such.
(f) The proposition that an international tribunal ‘does not interpret national law as such’ is
• “The states ought to behave as they have customarily
open to question.
behaved.”
• Above all, neither theory offers an adequate account of the practice of the international and
(III) TREATMENT OF NATIONAL LAW BY INTERNATIONAL TRIBUNALS
national courts.
o Fitzmaurice – attempted to by-pass the debate by arguing that there was no
• In order to decide whether particular acts are in breach of obligations under treaties or
common field of operation: the two systems do not come into conflict as systems
customary law, the Court has had to examine national law relating to a wide range of topics
since they work in different spheres, each supreme in its own field.
of national law. National law is very frequently implicated in cases concerning individuals
o However, there could be conflict of obligations, an inability of the state on the
including those relating to the protection of human rights and the exhaustion of local
domestic plane to act in the manner required by international law in some respect:
remedies.
the consequence of this will not be the invalidity of the state law but the
responsibility of the state on the international plane. • Many treaties refer to ‘nationals’ of the contracting parties and the presumption is that the
term connotes persons having that status under the internal law of one of the parties.
10 E.B.C.AKOEH NOTES | ATENEO LAW
A.M.D.G +
• Umbrella clause – Each Contracting State shall fulfill any other obligations it may have o Investor-State Arbitration Tribunals - decisions of national court create no res
entered into with regard to investments in its territory by investors of the other Contracting iudicata insofar as the work of the tribunal is concerned, but parties to the
State bilateral or multilateral treaty granting the tribunal jurisdiction may incorporate
procedural roadblocks, such as the fork in the road clause.
(B) INTERNATIONAL LAW BEFORE NATIONAL COURTS: GENERAL CONSIDERATIONS § Fork in the road clause - requires the claimant to elect investor-state
(I) ESTABLISHING INTERNATIONAL LAW BEFORE NATIONAL COURTS arbitration or litigation before the courts of the host state of the
investment as its preferred method of dispute resolution.
• Initial issue: whether the jurisdiction considers international law to be ‘part of’ national law.
o Often constitutional in character and which may be answered differently for (II) INTERNATIONAL RES IUDICATA BEFORE NATIONAL COURTS
customary law and treaties. • Is there res judicata in international law? Decisions by organs of international
• 1949 German Grundgesetz provides in Art. 25 – the general rules of public international law organizations are not binding on national courts without the co-operation of the
shall be an integral part of federal law. national legal system, which may adopt a broad constitutional provision for ‘automatic’
o Once a court has ascertained that there are no bars within its own legal system to incorporation of treaty norms or require specific acts of incorporation or implementation.
applying the rules of international law or provisions of a treaty, the rules are • On the other side of the equation, municipal courts may seek to circumvent the finality of
accepted as rules of law and are not required to be established by evidence, as in such decisions without engaging the question of res iudicata through interpretative
the case of matters of fact and foreign law. legerdemain.
• A decision of the International Curt, even one concerning substantially the same issues as
(II) INTERNATIONAL LAW AS THE APPLICABLE LAW IN THE NATIONAL COURTS those before a national court, does not of itself create a res iudicata for the latter.
o However, it does not follow that a national court should not recognize the validity
• Once a national court has determined that international law is in some way applicable to a of the judgment of an international tribunal of manifest competence and authority,
matter before it, it falls to the court to determine how that law is to sit alongside any national at least for certain purposes.
law that may also be applicable. o States often accord res iudicata to international and domestic arbitral awards.
• Certain issues common to many or all jurisdictions: (Two-pronged: desirable as a matter of common sense since the arguments, from
(a) Courts may be called upon to adjudicate in conflicts between a municipal law and a rule a policy perspective, are well-known; on the other hand, it may be subject of a
of customary international law. treaty obligation.)
(b) Question also arises with respect to treaties, but will take on a more overtly constitutional
flavor (monism v dualism). (iii) RES IUDICATA AND THIRD PARTIES
(c) When applying IL rules, municipal courts may find it necessary to develop the law, • In international law, res iudicata includes issue estoppel, but does not extend to the US
notably where it is unclear or uncertain. doctrine of collateral estoppel (binding upon third parties).
(d) Even in monist systems, court may need to determine the extent to which a rule of IL o But decisions of an international court or tribunal may carry evidentiary weight even
may be directly applied. vis-à-vis third parties. (e.g. national courts dealing with cases of war crimes have
(e) Extent to which the executive may intervene in the court’s application of IL. relied upon findings of the International Military tribunals such as Nuremburg and
(f) Court may be called upon under the rules or Private International Law to apply foreign Tokyo.)
law; (act of state doctrine - court will, as an organ of a sovereign, refuse to pass • Mara’abe v. Prime Minister of Israel - SC of Israel found that the International Court’s Wall
judgment on the acts of another, formally equal sovereign). advisory opinion did not constitute res iudicata but that the Court’s interpretation of
(g) Court, confronted with an intricate issue of IL, may simply concede that it is beyond international law (as opposed to factual determinations) should be given ‘full appropriate
capacity to decide, that is, non-justiciable. weight’.
(C) RES IUDICATA AND THE TWO SYSTEMS 3. INTERNATIONAL LAW IN THE COMMON LAW TRADITION
(I) NATIONAL RES IUDICATA BEFORE INTERNATIONAL COURTS A. DEVELOPMENT OF THE COMMON LAW APPROACH
• Formal point of view: res iudicata is a general principle within the meaning of Article 38(1)(c) • Common law was initially seen and saw itself as the law of the land.
th
of the Statute, applied in tandem by international and national courts. o Situation changed in the 18 century, following the abolition of the conciliar courts
• But there is no effect of res iudicata from the decision of a national court, so far as at the Restoration in the opening up to the common law courts of the field of
international jurisdiction is concerned. international commercial litigation.
o Even if the subject-matter may be substantially the same, the parties may well not • Lord Mansfield - first recorded the principle of ‘incorporation’, that is, international law was
be, at least in the context of diplomatic protection and possibly outside that context ‘part of the law of England’, a tradition he attributed to Lord Talbot and handed on to
also. Blackstone.
• An international tribunal may be bound by its constituent instrument to accept certain o Open-minded approach was qualified in many ways: (1) supremacy of parliament
categories of national decisions as conclusive of particular issues. meant that treaties were not part of English law, and the role of Council in matters
o Some international tribunals afford natural and juridical persons standing against of external relations left a prototype of the act of state doctrine, together with a
states, including decisions of state courts. (e.g. European Court of Human Rights deference to executive authority in matters of the foreign prerogative.
- but only accessible once local remedies have been exhausted)
Customary Contains a renvoi; General rules of public Conforms to the Commonly recognized Constitution is silent as to the Strongly dualist; GR: civil law
international law French Republic, true to international law form generally recognized principles and norms of municipal effect of custom. In nowhere in the jurisdictions adopt a
its traditions, conforms part of the Federal law principles of the international law and principle does not prevail over constitution is monist stance with
to the rules of international law international treaties of domestic legislation, but customary law regard to customary
international public law; the Russian federation domestic statutes seek to mentioned and no international law,
accepts pacta sunt shall be component part incorporate custom into statute purports to with incorporation
servanda of its legal system municipal law on a sui generis integrate customary frequently occurring
basis international law as a at a constitutional
whole into Swedish level.
municipal law; but
Swedish courts apply
principles of
customary IL when
not enshrined in
statute.
Treaties and Places treaties at a German courts will No express provision Treaties concluded by the All treaties binding to Similar to current Supremacy of
national law level superior to apply it as part of for the incorporation of Russian Fed are formally Netherlands as a matter of Dutch liberal treaties over
ordinary legislation but national law. Treaty treaties into municipal integrated into its international law are practice, but in more domestic law; will
inferior to the stands on a similar law; will produce no municipal legal system automatically incorporated recent time, adopts generally prescribe
Constitution. footing to an ordinary effect unless integrated based on Art. 15(4) of its into Dutch municipal system that: an international careful controls over
statute and may be via legislation: Constitution. without need for any treaty will have no the signature and
Treaties will ordinarily repealed expressly or implementing legislation. direct effect unless ratification of
be held to be self- impliedly by later 1. ordinary method - It must be signed and incorporated into international
executing, save where: legislation, though reformulates and ratified. Treaties entered into by municipal law via agreements.
(a) treaty in question there is a heavy interprets the treaty Netherlands must be legislative act.
contains only presumption against before amending Where a treaty is not self- approved by parliament.
obligations directed to this. national legislation in executing, municipal Riksdag’s approval is
and as between states order to achieve effect will be provided via Treaties need not be subject required before gov’t
and (b) it cannot be Treaty provisions will implementation. legislative enactment and to prior approval: concludes an
applied without be considered non-self 2. special method - embellishment, but if self- 1. where exemption from this international
legislative elaboration. exec: contains 2 operative executing, has a direct req. is provided by law. agreement which is
1. treaty excludes provisions: article and legal effect within 2. where they concern binding upon the
direct application authorizing ratification Russian legal system. exclusively treaties for which realm:
2. treaty refers to the and article ordering ‘full approval has already been 1. if agreement
necessity of further implementation’ of the granted. requires the
implementation by treaty. 3. where treaty is for a period amendment or
states parties, either of less than 1 yr and does not abrogation of an act
nationally or Case-by-case impose considerable financial of law or the
internationally mechanism: judge who obligations. enactment of a new
3. treaty provisions in considers that a 4. where treaty is act of law.
question cannot be domestic law provision exceptionally is secret and 2. or if it otherwise
applied as directly as it is incompatible with a confidential. concerns a matter to
(a) does not designate treaty or customary 5. where new treaty merely be decided by the
the responsible international rule, may extends an existing but Riksdag.
administration, (b) submit to the expiring treaty.
does not define a Constitution Court the 6. with respect to changes to
necessary question of no- execution, annexes that are
administrative conformity of that law. already part of an approved
procedure, (c) does treaty.
not designate the
jurisdiction of a
specific court.
Acte de gouvernement -
act is based primarily on
considerations relating
to public policy or the
national public services,
whether carried out at
home or abroad, will be
justiciable.
Theory of detachable
acts - act that might
prima facie appear non-
justiciable may
nevertheless be subject
to court jurisdiction if
French authorities have
some independent
choice with regard to
the procedure by which
they perform their
international obligations
and can themselves
take the initiative as
regards the means by
which they comply with
those obligations.
5.CONCLUSION
• Each system is supreme in its own field and neither has hegemony over the other.
• 3 factors: (1) organizational, (2) difficulty of proving the existence of particular rules of
IL, and (3) courts, national and international, will often be concerned with the question
of which is the appropriate system to apply to particular issues arising
Ruling: No. These are soft law and are merely recommendatory. Because the Milk Code has
not been amended to include the provisions in the WHA Resolutions, the DOH cannot
implement the WHA Resolutions through IRRs or its powers & functions. (This was the problem
with the IRR-- the invalidated provisions in the IRR adhered more to the WHA Resolutions
• Views/Theories regarding the recognition of states: What is the difference between the (D) IMPLIED RECOGNITION
declaratory view and the constitutive view?
1. Declaratory View – recognition is a declaration or acknowledgment of an existing • Is implied recognition conclusive or does this depend on intention?
state of law and fact, legal personality having been conferred previously by • Situations where recognition is implied:
operation of law. 1. Conclusion of a bilateral treaty
§ In other words, what is necessary is that the proposed state has all the 2. Formal initiation of diplomatic relations
elements of a state under the Montevideo Convention. 3. Issue of consular execuaturs
§ Substantial state practice supports the declaratory view. • In terms of evidence in an international tribunal, informal relations, especially if these persist,
§ From whom does the recognition come from? may have probative value on the issue of statehood.
§ How id statehood conferred? o However, as a matter of optional bilateral relations, recognition depends on
2. Constitutive View – the political act of recognition is a precondition of the existence intention.
of legal rights; in its extreme form this implies that the very personality of a state
depends on the political decision of other states. (E) RETROACTIVITY OF RECOGNITION
§ Lauterpacht – there must be “someone” to perform the act of
ascertainment. In the absence of such impartial international organ to • What view does the non-retroactivity of recognition presume?
perform such function, the task must then be fulfilled by states already • Oppenheim – the rule of retroactivity is one of convenience rather than of principle.
existing. • As to basic rights and duties entailed by statehood, delayed recognition cannot be retroactive
• The constitutive view is a matter of principle impossible to accept since it is clearly established because in a special sense it is superfluous (since the rights and duties of states arise from
that states cannot by their independent judgment remove or abrogate any competence of the time they acquire statehood).
other states established by international law. • Optional and conventional relations, however, may be retroactive or not since the area is one
• T/F in the declaratory view, declaration of a state that it is a state is enough. FALSE. of discretion.
Self-serving. • Can delayed recognition be retroactive? Depends on which view you’re subscribing to.
(B) THE VARIED LEGAL CONSEQUENCES OF RECOGNITION AND NON-RECOGNITION (F) RECOGNITION AND MEMBERSHIP OF INTERNATIONAL ORGANIZATIONS
• Recognition is an agreement to establish diplomatic relations. Non-recognition, on the other • Collective recognition may take the form of a joint declaration.
hand, may simply be part of a general policy of disapproval and boycott. • Recognition of other members, or of non-members, may occur in the course of voting on
o Practically, the existence of a state is of little worth unless it is accepted as such admission to membership and consideration of complaints involving threats to or breaches
into the community of nations. of the peace.
• What are the Legal functions of recognition: o It has been argued that admission into the League and the UN entails recognition
1. Determination of statehood by operation of law by all other members, whether or not they voted for admission.
2. A condition of the establishment of formal relations, including diplomatic relations
and the conclusion of bilateral treaties
Highlighted by Brownlie: It is possible, though by no means necessary, to refer to such (C) THE POSITION OF THE UNITED STATES COURTS
practice as collective non-recognition. There is no doubt a duty of states parties to a • The US position on the recognition of governments generally is as set out in the Restatement
system of collective security or other multilateral conventions not to support or condone Third:
acts or situations contrary to the treaty concerned.74 The duty of non-recognition is not, 1. An entity not recognized as a state, or a regime not recognized as the government
however, absolute. In general, the non-recognition of South Africa’s administration of the of a state, is ordinarily denied access to courts in the United States;
Territory should not result in depriving the people of Namibia of any advantages derived 2. A regime not recognized as the government of a state is not entitled to property
from international cooperation. In particular, while official acts performed by the belonging to that state located in the United States;
Government of South Africa on behalf of or concerning Namibia after the termination of 3. Courts in the United States ordinarily give effect to acts of a regime representing
the Mandate are illegal and invalid, this invalidity cannot be extended to those acts, such an entity not recognized as a state, or of a regime not recognized as a government
as, for instance, the registration of births, deaths and marriages, the effects of which can of a state, if those acts apply to territory under the control of that regime and relate
be ignored only to the detriment of the inhabitants of the Territory. to domestic matters only.
• The prohibition on access, however, may be relaxed depending on the facts of the case, the
practical consequences of granting or not granting access and the extent to which access is
5. ISSUES OF RECOGNITION BEFORE NATIONAL COURTS germane to the foreign policy goals of the US.
• US courts since the Civil War have acknowledged the acts of non-recognized states,
(A) OVERVIEW provided that such acts ‘ deal solely with private, local and domestic matters and not matters
• Where the local courts are willing or obliged to follow the advice of the executive, the extending the borders of the unrecognized entity.
unrecognized state or government cannot claim immunity form the jurisdiction, obtain
recognition for purposes of conflict of laws of its legislative and judicial acts, or sue in the (D) THE POSITION IN EUROPE
local courts. • A ‘pan-European approach
• As a general rule (to which Switzerland and the Netherlands are notable exceptions) non-
(B) THE POSITION OF THE UNITED KINGDOM COURTS recognized states have no right of appearance, and their ats will not be given effect by
• In matters of recognition, the UK judiciary has historically adhered to 2 closely related European courts.
th
principles. • The position softened somewhat by the later 20 century, as suggested in the attitude of the
o Our states cannot speak with 2 voices on such a matter, the judiciary saying one Italian Court of Cassation: the only prerequisite for the enforcement of a foreign legal rule is
thing, the executive another. its effectiveness, provided that the particular legal provision does not also require reciprocity
o Although both the executive and the judiciary are considered to be manifestations of treatment and so long as the principle of the foreign law to be enforced do not appear
of the state, only the executive is competent to determine foreign policy. incompatible with the fundamental rules of the lex fori, in which case the foreign law is
• In the absence of a certificate, the court may examine executive action to infer that unenforceable for reasons of public policy.
recognition has taken place. But the court is not required to guess at an unexpressed intent, • Differences in approach may depend on the readiness of national courts to apply international
and can look at the matter at large. law. In some states, the judiciary treats the political question of recognition as distinct from
• In Republic of Samalia v Woodhouse Drake and Carey, the following factors were statehood and assesses the capacity of an entity proprio motu rather than deferring to
determinative in the absence of a certificate executive acts.
o Whether the government in question is the constitutional government of the state
o The degree, nature, and stability of its administrative control • Expanding the Namibia exception
o Whether the executive has had any dealings with the purported government and • In Cyprus v Turkey :… the obligation to disregard acts of de facto entities is far from absolute.
the nature of those dealings; and Life goes on in the territory concerned for its inhabitants. That life must be made tolerable
o In marginal cases only, the attitude of other states towards the purported and be protected by the de facto authorities, including their courts; and, in the very interest
government. of the inhabitants, the acts of these authorities related thereto cannot be simply ignored by
• Historically, the practice of the British courts was uniform to the point of rigidity: the acts of third states or by international institutions, especially courts. to hold otherwise would amount
unrecognized states and governments were given no weight. But the courts have adopted a to stripping the inhabitants of the territory of all their rights whenever they are discussed in
number of devices by way of mitigation. an international context, which would amount to depriving them even of the minimum
• The first, which is virtually a legal fiction, operates on the basis of an imputed agency; the standard of rights to which they are entitled.
acts of the unrecognized entity are considered to be performed under powers delegated to it
by the legitimate sovereign. CHAPTER 8: FORMS OF GOVERNMENTAL AUTHORITY OVER TERRITORY
• A second device permits the recognition of private acts internal to the unrecognized states.
Put simply, the English courts have endeavored to recognize rights and obligations which are
of a wholly private law character, unconnected to the grounds for non-recognition. 1. THE CONCEPT OF TERRITORY
• The ‘private acts’ exception was applied in Emin v Yeldag, wherein Lord Denning’s position • What is territory? Territorial sovereignty extends principally over land territory and the
to include all private acts done within a non-recognized state, provided that territorial sea, its seabed and subsoil.
§ There was no statutory prohibition on the recognition of the act, and • Condominium – when an area of territory is under the sovereignty of several states
3. TERRITORIAL ADMINISTRATION SEPARATED FROM STATE SOVEREIGNTY Issue: Whether concession contracts between a French firm and the Ottoman
Government concerning certain lighthouses situated in the territories of Crete, including
• While the concept of territorial sovereignty normally applies in relation to states, there is now the adjacent islets and Samos, were duly entered into and were accordingly operative as
considerable experience with international organizations not only administering territory in regarding Greece.
the capacity of agent but also assuming legal responsibility for territory in respect of which
no state has title. Ruling: The court ruled in the affirmative. The court made reference to Article 9 of
Protocol XII which provided that a state succeeding to the Ottoman government’s territory
(A) TERMINABLE AND REVERSIONARY RIGHTS are subrogated the rights and obligations of its detached territories. The provision is
• Territorial sovereignty may be defeasible in certain circumstances by operation of law, for couched in general terms which led the court to believe that it refers to all territories
example by fulfillment of a condition subsequent or the failure of a condition under which detached from the Ottoman government. The inevitable conclusion is that lighthouses in
Crete and Samos are situated in territories which were assigned to Greece after the
(C) NEMO DAT QUOD NON HABET (A) THE CENTRALITY OF TITLE
• This maxim, together with some exceptions, is a familiar feature of English law but the • If the basic unit of the international legal system is the state, the space which the state
principle is undoubtedly part of international law also. occupies in the world is its territory, traditionally thought of as realty, with the state (a person)
• The effect of the principle is much reduced by the operation of acquiescence and recognition. its proprietor.
• Certain connected principles require consideration • International law developed a notion of entitlement to territory well before the state itself
o First, in principle the adjudication by a tribunal of a piece of territory as between developed as a normative concept. Thereafter title arose not simply by physical occupation
states A and B is not opposable to state C. The tribunal, insofar as adjudication of (i.e. actual administration, often referred to as effectivites) but through acquisition in
itself gives title, only has jurisdiction to decide as between the parties before it. accordance with law—although until 1928, the law included the riled that coerced treaties
o Under certain conditions it is possible that the law accepts the existence of were valid.
encumbrances passes with the territory ceded. • Title prevails over possession, but if title is equivocal, possession under claim of right matters.
• Title to territory, like ownership of land, is normally ‘objective’, but there is no system of
Island of Palmas (Netherlands v. US) registration, no international Torrens title.
• Title may be relative in several quite different contexts:
Facts: The United States and the Netherlands submitted to the Permanent Court of Arbitration o The principle nemo dat quod non habet (no donor can give a greater interest than
the question of which State owned the Island of Palmas (Palmas). Palmas is located within the he or she already has) places a restrictive effect on titles dependent on bilateral
boundary of the Philippines (territory ceded to the United States from Spain as of the 1898 agreement.
Treaty of Paris). Spain first discovered Palmas in the early seventeenth century and thus o A judicial decision on issues of title cannot foreclose the rights of third parties.
claimed title to it. However, Palmas was also considered by the Netherlands to be a part of its o In a situation where physical holding is not conclusive of the question of right,
territory since it began peacefully and continuously possessing the area in 1677 or before. The recognition becomes important, and this may be forthcoming from some states and
US argued that it could claim sovereignty based on the fact that Spain had ceded its title to the not others.
US. Spain could do so because Spain’s title to the island was based on either the discovery of o The compromis on the basis of which a dispute is submitted to a court or tribunal
the island, the 1648 Treaty of Munster, or the geographical unity with other islands (contiguity). may assume that title is to go to one of the two claimants. In Minquiers and Ecrehos
The Netherlands argued that it had possessed and exercised sovereignty even before 1648, the Court interpreted the compromis as excluding a finding that the islets were res
and which was reinforced by subsequent treaties. These treaties included treaties with native nullius or subject to a condominium. In such a case, in the absence of any other
states that established Dutch suzerainty over them. claimant, the result seems to be a title valid against all, but the parties have not
had to come up to any minimum requirements of effective control.
Issue: Whether an inchoate title can prevail over a definite title founded on continuous and o In any event, in instances such as Island of Palmas and Minquiers and Ecrehos,
peaceful display of sovereignty the Court assesses the relative intensity of the competing acts of state authority to
determine which party has the better right.
Facts: A suit was instituted before the Permanent Court of International Justice (PCIJ)
(B) THE INTERTEMPORAL LAW
by Royal Danish Government against the Royal Norwegian Gov’t over the legal status of
• In many instances the rights of parties to a dispute derive from a legally significant act done, certain territories in Eastern Greenland. The Norwegian Minister for Foreign Affairs to the
or treaty concluded long ago. Danish Minister at Oslo, the Norwegian Government stated in its Royal Resolution (July
• Fitzmaurice—‘it is an established principle of international law that in such cases the situation 10th, 1931) that the occupation in the Eastern Greenland is officially confirmed and is
in question must be appraised, and the treaty interpreted, in the light of the rules of placed under Norwegian sovereignty.
international law as they existed at the time, and not as they exists today.’
• Island of Palmas—Judge Huber stated the principle and continued: ‘The effect of discovery
Highlighted by Brownlie: In some cases there will be several dates of
by Spain is… to be determined by the rules of international law in force in the first half of the
th
16 century—or (to take the earliest date) in the first quarter of it…’ significance. Eastern Greenland arose from a Norwegian proclamation of 10 July 1931
o Judge Huber gave new dimension to the rule: As regards the question which of announcing occupation of the area. The Court held that ‘as the critical date is July 10th,
1931…it is sufficient [for Denmark] to establish a valid title in the period immediately
different legal systems prevailing at successive periods is to be applied in a
particular case (the so-called intertemporal law), a distinction must be made preceding the occupation.
between the creation of rights and the existence of rights. The same principle which
subjects the act creative of a right to the law in force at the time the right arises,
demands that the existence of the right, in other words its continued manifestation, (D) TERRA NULLIUS
shall follow the conditions required by the evolution of law. • It is land not under the sovereignty or authority of any state; occupation was the mode by
• This extension of the doctrine has been criticized on that grounds that to require title to be which such territory could be acquired.
actively maintained at every moment of time would threaten many titles and lead to instability. • In the modern context, it has fallen into disuse. This is because there remains on the surface
This emphasizes the need for care in applying the rule. of the earth no truly ‘vacant’ territory, but also because the term gradually assumed imperialist
• In any case, the intertemporal principle does not operate in a vacuum: its impact will be overtones when it was used to justify colonization of large areas of inhabited lands through
reduced by the effect of recognition, acquiescence, and the rule that abandonment is not to a theory of European supremacy.
be presumed.
Western Sahara
Supra Island of Palmas
Facts: The Secretary General of the United Nations sent a letter to the President of the
Highlighted by Brownlie: Judge Huber had to consider whether Spanish sovereignty Court for an advisory opinion on Resolution 3292 on the status of Western Sahara’s
over the island subsisted at the critical date in 1898. In doing so he gave a new dimension status as a territory at the time of its colonization by Spain and its legal ties with Kingdom
to the rule: As regards the question which of different legal systems prevailing at of Morocco and the Mauritanian entity.
successive periods is to be applied in a particular case (the so-called intertemporal law),
a distinction must be made between the creation of rights and the existence of rights. The Issue: Whether Western Sahara at the time of colonization by Spain was terra nullius.
same principle “which subjects the act creative of a right to the law in force at the time the
right arises, demands that the existence of the right, in other words its continued Ruling: The Court’s opinion states that Westerns Sahara (Rio de Oro and Sakiet El
manifestation, shall follow the conditions required by the evolution of law. This extension Hamra) at the time of Colonization by Spain was not a territory belonging to no one. The
of the doctrine has been criticized on the grounds that to require title to be actively information furnished to the Court shows that at the time of colonization Western Sahara
maintained at every moment of time would threaten many titles and lead to was inhabited by peoples which, if nomadic, were socially and politically organized into
instability.22 This emphasizes the need for care in applying the rule.23 In any case the tribes and under chiefs competent to represent them. The State practice of the relevant
intertemporal principle does not operate in a vacuum: its impact will be reduced “by the period indicates that territories inhabited by tribes or peoples having a social and political
effect of recognition, acquiescence, and the rule that abandonment is not to be presumed. organization were not regarded as terra nullius. It shows that in the case of such territories
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the acquisition of sovereignty was not generally considered as effected unilaterally
through “occupation” of terra nullius by original title but through agreements concluded C. EFFECTIVE OCCUPATION
with local rulers. On occasion, it is true, the word “occupation” was used in a non-technical • Represents the type of legal relation which in private law would be described as possession.
sense denoting simply acquisition of sovereignty; but that did not signify that the • Eritrea/Yemen – The modern international law of the acquisition of territory generally requires
acquisition of sovereignty through such agreements with authorities of the country was that there be: an intentional display of power and authority over the territory, by the exercise
regarded as an “occupation” of a “terra nullius” in the proper sense of these terms. On of jurisdiction or State functions, on a continuous and peaceful basis.
the contrary, such agreements with local rulers, whether or not considered as an actual • In the absence of formal basis of title, and in a system without registration of title – Possession
“cession” of the territory, were regarded as derivative roots of title, and not original titles plays a significant role.
obtained by occupation of terra nullius. • Legal Possession – Involves a search for an interest worth protection by the law; What is
important is state activity and especially acts of administration: use by local people generally
Highlighted by Browniie: Western Sahara was not Terra nullius because the people of lacks this element and is only tangentially relevant.
the territory were socially and politically organized under chiefs with a capacity to • Occupation – Derives from occupatio in Roman Law, and does not necessarily signify
represent them. In fact the territory was acquired by treaty, not occupation. occupation in the sense of actual settlement and a physical holding.
• Effective occupation in private law is a complex term and it depends on the facts and degree.
• The bar with respect to remote and sparsely settled areas will be set than in the context of
more heavily populated territory.
CHAPTER 9: ACQUISITION AND TRANSFER OF TERRITORIAL SOVEREIGNTY • Effective and Long-established Occupation – Key to a claim of acquisitive prescription,
although courts and tribunals have rarely applied the doctrine as such.
THE ‘MODES’ OF ACQUISITION • Beckett – Island of Palmas case: prescription, Eastern Greenland case: occupation.
• In both cases, the issue was simply which of the 2 competing sovereignties had the better
A. BASIC PRINCIPLES right.
• The Five Modes of Acquisition. • Prescription – Involves usurpation, yet the cases involved, for all practical purposes,
1. Occupation contemporaneous, competing acts of state sovereignty.
2. Accretion • Minquiers and Ecrehos – The issue was one of possession which in the context was equated
3. Cession with sovereignty. Its task was to appraise the relative strength of the opposing claims to
4. Conquest sovereignty over the Ecrehos.
5. Prescription
• Criticism – The labels make the task of analysis more difficult. Supra Eastern Greenland
• Classified into two categories – Original and Derivative.
• Original. Facts: A suit was instituted before the Permanent Court of International Justice (PCIJ)
o Occupation by Royal Danish Government against the Royal Norwegian Gov’t over the legal status of
o Accretion certain territories in Eastern Greenland.
• Derivative. Highlighted by Brownlie: a claim to sovereignty based not upon some particular act or
o Cession title such as a treaty of cession but merely upon continued display of authority, involves
• There are differences in opinion as to the classification of conquest and prescription but such two elements each of which must be shown to exist: the intention and will to act as
classification hold no practical value. sovereign, and some actual exercise or display of such authority.
• The usual analyses do not explain how title is acquired when a new state comes into
existence.
• Events leading to independence of the new state are mostly within the domestic jurisdiction i. DISCOVERY
of another state, yet they are legally relevant to territorial disputes involving the new state.
• In this type of case, there is no ‘root of title’ as such: title is a by-product of events leading to • This category is equally unsatisfactory for the purpose of legal analysis.
the creation of a state as a new source of territorial sovereignty. • It links the concept of discovery to that of terra nullius.
• In determining title, a tribunal will concern itself with proof of the exercise of sovereignty via • At one time, it was thought that this mode conferred complete title, but it gave no more than
conduct a titre de souverain before the critical date or dates, and will not apply the orthodox an inchoate title: an effective act of appropriation seems to have been necessary.
analysis to describe its process of decision. • The modern view is that it gave no more than an inchoate title, an option, as against other
states, to proceed to effective occupation within a reasonable time.
B. ORIGINAL AND HISTORIC TITLE • British and Norwegian practice supports this view.
• A current dispute involves not only reliance upon the exercise of state authority but the • US view – Mere discovery gives no title, inchoate or otherwise.
invocation of an ancient, original, historic title. • The notion of discovery only makes sense if it is placed firmly in the context of effective
• Principle of Immemorial Possession – Basically possession since time immemorial. occupation, and it is best to avoid the category altogether.
• Reliance upon evidence of general repute or opinion as to matters of historical fact. • Title is never inchoate, though it may be weak if it rests on slight evidence of state activity.
• In Asia, traditional boundaries play a significant role.
• International tribunals – Recognized the concept of ancient or original title, but require more
evidence.
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Supra Island of Palmas Highlighted by Brownlie: The Danish claim was based not on any physical presence in
the contested territory, but on a.) long-term presence of colonies in other parts of
Facts: The United States and the Netherlands submitted to the Permanent Court of Greenland, b.) wording of legislation and treaties so as to render them applicable to
Arbitration the question of which State owned the Island of Palmas. Spain first discovered Eastern Greenland, and c.) seeking to have resulting title recognized internationally, was
Palmas in the early seventeenth century and thus claimed title to it. US argued that, as held to be superior to the Norwegian claim based on the wintering of various expeditions
successor to Spain, its title derived from However, Palmas was also considered by the in the territory and the construction of a wireless station there.
Netherlands to be a part of its territory since it began peacefully and continuously
possessing the area in 1677 or before.
iv. INTENTION TO ACT AS SOVEREIGN
Highlighted by Brownlie: Huber responded that, even if discovery without more gave
title at that time, the continued existence of the right must be determined according to the • Animus occupandi or animus possidendi – Requirement of an intention to act as sovereign.
law prevailing in 1898, the critical date. In his opinion the modern law is that ‘an inchoate • Ross – Subjective requirement of ‘the will to act as sovereign’ as ‘an empty phantom’. The
title of discovery must be completed within a reasonable period by the effective occupation subjective criterion is unrealistic in seeking a coherent intention from activity involving
of the region claimed to be discovered numerous individuals often over a considerable period of time.
• Furthermore, the criterion begs the question in many cases where there are competing acts
of sovereignty.
ii. SYMBOLIC ANNEXATION • Functions of animus occupandi.
o Activity must be a titre de souverain in the sense that the agency must be that of
• Symbolic Annexation – Declaration or other act of sovereignty or an act of private persons, the state and not of unauthorized persons.
duly authorized, or subsequently ratified by a state, intended to provide unequivocal evidence o It has a negative role: if the activity is by consent of another state recognized as
of the acquisition of sovereignty over a parcel of territory or an island. the rightful sovereign then no amount of state activity is capable of maturing into
• Subject must be seen as a part of the general question of effective occupation. sovereignty.
• In principle, state activity must satisfy the normal requirements of effective occupation. o State activity taken as a whole may be explicable only on the basis that sovereignty
• Symbolic annexation does not give title except in special circumstance, but it is a part of the is assumed.
evidence of state activity.
• A prior state act of formal annexation cannot after a long interval prevail against an actual D. CESSION
and continuous display of sovereignty by another state, but if the initial act was effective to • A right to territory may be conferred by treaty, provided that the transferee takes in
vest title then a latecomer can only succeed, if at all, on the basis of prescription or accordance with the treaty.
acquiescence. • Actual transfer is not required.
• Clipperton Island – If a territory, by virtue of the fact that it was completely uninhabited is, • Date on which title changes will normally be the date on which the treaty comes into force:
from the first moment when the occupying state makes its appearance there, at the absolute an unratified treaty does not confer sovereignty.
and undisputed disposition of that state, from that moment, the taking of possession must be • Naturally, transferee cannot receive any greater rights than those possessed by the
considered accomplished and the occupation is thereby completed. transferor: nemo dat quod non habet.
• Annexation, though symbolic in form, had legal effect. • Apart from cession and transfer in accordance with treaty, title may exist on the basis of treaty
alone, the treaty marking a reciprocal recognition of sovereignty in solemn form.
iii. EFFECTIVE AND CONTINUOUS DISPLAY OF STATE AUTHORITY • Disputed frontier – Boundary treaty which closes the dispute will create title, previous
unsettled, whereas, a treaty of cession merely transfers an extant (through definitive) title.
• Island of Palmas, Judge Huber – Actual continuous and peaceful display of state functions • Territorial regime is established by a treaty – This settlement achieves permanence which
is in the case of dispute the sound and natural criterion of territorial sovereignty. the treaty itself does not necessarily enjoy: the continued existence of that regime is not
• This is in contrast to the older works on international law. dependent upon the continuing life of the treaty under which the regime is agreed.
• Emphasis on the display of state activity and the interpretation of facts in the light of a legal • AGREEMENTS CONCLUDED WITH INDIGENOUS RULERS
policy which favors stability and allows for the special characteristics of uninhabited and • Treaties between indigenous people and the state were a feature of the period of colonization
remote territories, suggest a change in the law. but are of limited relevance, externally, following the partition of the world into independent
• Modern law concentrates on title, on evidence of sovereignty, and the notion of occupation equal states.
has been refined accordingly. • ‘Scramble for Africa’ – Immense number of treaties were concluded with various African
• By contrast, acts by private persons purporting to appropriate territory may be ratified by the polities.
state and may then constitute evidence of its effective occupation, otherwise, no legal effect. • Arrangements with indigenous rulers were not normally considered as cessions, but gave a
form of derivative title distinguishing the act of acquisition from that of mere occupation.
Supra Eastern Greenland • Island of Palmas, Judge Huber – It is not an agreement between equals, rather a form of
international organization of a colonial territory, on the basis of autonomy of the natives…
Facts: A suit was instituted before the Permanent Court of International Justice (PCIJ) and thus, suzerainty over the native states becomes the basis of territorial sovereignty as
by Royal Danish Government against the Royal Norwegian Gov’t over the legal status of towards other members of the community of nations.
certain territories in Eastern Greenland.
Burkina Faso/Mali
Facts: Burkina Faso (previously the Republic of Upper Volta) and the Republic of Mali each
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(E) THE POLAR REGIONS: THE SECTOR PRINCIPLE • What is sovereignty?
• The sovereignty of states represents the basic constitutional doctrine of the law of nations,
• Particularly in the case of the Arctic, the question of rights over frozen sea or ‘ice territory’ which governs a community consisting primarily of states having, in principle, a uniform legal
arises, but otherwise normal principles apply to territory situated in polar regions. personality.
• In the making of claims to ice deserts and remote groups of islands, it is hardly surprising • If international law exists, then the dynamics of state sovereignty can be expressed in terms
that governments should seek to establish the limits of territorial sovereignty by means of of law. If states are conceived of as sovereign, then in this respect at least they are equal,
straight lines, and similar systems of delimitation may be found in other regions and their sovereignty is in a major aspect a relation to other states (and to organizations of
• In the polar regions use has been made of lines of longitude converging at the Poles to states) defined by law.
produce a sector of sovereignty. While the ‘sector principle’ does not give title, it may • The corollaries of the sovereignty and equality of states are:
represent a reasonable application of the principles of effective occupation as they are now o (a) a jurisdiction, prima facie exclusive, over a territory and the permanent
understood, and as applied in Eastern Greenland. It remains a rough method of delimitation, population living there;
and has not become a separate rule of law. o (b) a duty of non-intervention in the area of exclusive jurisdiction of other states;
• Confusion of claims has arisen primarily from the indecisive nature of state activity in the and
polar regions. However, three reservations may be made: o (c) the ultimate dependence upon consent of obligations arising whether from
o the ‘sector principle’ has the defects of any doctrine based upon contiguity; customary law or from treaties.
o its application is a little absurd insofar as there is claim to a narrow sliver of o The last of these has certain special applications: in principle the jurisdiction of
sovereignty stretching to the Pole; and, international tribunals depends on the consent of the parties; membership of
o lastly, it cannot apply so as to include areas of the high seas. international organizations is not obligatory; and the powers of the organs of such
organizations to determine their own competence, to take decisions by majority
6. TERRITORIAL SOVEREIGNTY AND PEREMPTORY NORMS vote, and to enforce decisions depend ultimately on the consent of member states.
• The manner in which the law expresses the content of sovereignty varies, and much of the
(A) TRANSFER BY AN AGGRESSOR law could be expressed in terms of the co-existence and conflict of sovereignties.
• States alone can confer nationality for purposes of municipal law, delimit the territorial sea,
• Modern law forbids conquest and regards a treaty of cession imposed by force as a nullity, a and decide on the necessity for action in self-defense. Yet in all these cases the exercise of
logical extension of the prohibition on the use of force. the power is conditioned by international law, and compliance with those conditions is not a
• The territory of a state shall not be the object of acquisition by another state resulting from matter for the acting state alone.
the threat or use of force. No territorial acquisition resulting from the threat or use of force
shall be recognized as legal. 2. SOME USE OF SOVEREIGNTY
• Why does the law forbid conquest?
• Why was conquest previously allowed? (A) THE COMPETENCE OF STATES
• Why is conquest no longer recognized? Art. 2(4) of the UN charter states the prohibition
of use or threat of force in connection with the principle of intertemporal law. • The term ‘sovereignty’ is variously used to describe the legal competence which states have
in general, to refer to a particular function of this competence, or to provide a rationale for a
(B) THE PRINCIPLE OF SELF-DETERMINATION AND TERRITORIAL TRANSFERS particular exercise of this competence.
• In its most common modern usage, however, the term is rather descriptive in character,
• Is there a rule of law inhibiting the transfer of territory if certain minimum conditions of local referring in a ‘catch-all’ sense to the collection of rights held by a state, first in its capacity as
consent are not fulfilled? Dispositions by the principal powers, transfers under procedures the entity entitled to exercise control over its territory and second in its capacity to act on the
prescribed by international organizations, and bilateral cessions in the period since 1919 international plane, representing that territory and its people.
have been expressed to be in accordance with the principle of self-determination. • Sovereignty is not to be equated with any specific substantive right, still less is it a
• The machinery of the plebiscite is sometimes applied, or affected individuals may be given precondition to state-hood. Thus jurisdiction, including legislative competence over national
an option of nationality and/or repatriation. Some opinions support the view that transfers territory, may be referred to by the terms ‘sovereignty’ or ‘sovereign rights’. Sovereignty may
must satisfy the principle. However, there is insufficient practice to warrant the view that a refer to the title to territory or to the rights accruing from the exercise of title.
transfer is invalid simply because there is no sufficient provision for expression of opinion by • The correlative duty of respect for territorial sovereignty, and the privileges in respect of
the inhabitants. At present most claims are made in terms which do not include a condition territorial jurisdiction referred to as sovereign (or state) immunity, are described after the
as to due consultation of the population concerned. same fashion.
• Those jurists who insist on the principle refer to exceptions, in particular the existence of a • In general ‘sovereignty’ characterizes powers and privileges resting on customary law which
collective decision of states representing the international community to impose measures are independent of the particular consent of another state.
on an aggressor, and the principle of respect for pre-independence administrative divisions
following attainment of independence by former colonies (uti possidetis). (B) SOVEREIGNTY AS EQUALITY
• A corollary of their independence is the equality of states, historically expressed by the maxim
CHAPTER 20: SOVEREIGNTY AND EQUALITY OF STATES
par in parem non habet imperium (equals have no sovereignty over each other is a general
principle of international law, forming the basis of state immunity. Because of this principle,
1. THE CONCEPT OF SOVEREIGNTY a sovereign state cannot exercise jurisdiction over another sovereign state.)
3. THE INTERACTION OF STATES WITH INTERNATIONAL LAW Facts: Peru issued an arrest warrant against Haya dela Torre in respect of the crime of
military rebellion which happened in Peru. Three months after the rebellion, Torree fled to
(A) SOVEREIGNTY AND THE APPLICATION OF RULES the Colombian Embassy in Lima, Peru. The Colombian Ambassador confirmed that Torre
was granted diplomatic asylum and requested safe passage for Torre to leave Peru.
(I) THE PERFORMANCE OF OBLIGATIONS ARISING FROM TREATIES However, Peru refused to accept the unilateral qualification and refused to grant safe
passage. The Colombian government claims that it had right to grant asylum under
• One of the central canons of the customary international law of treaties is the rule pacta sunt agreements between the states and the regional custom in the Latin American States.
servanda, it is the notion that states must comply with their obligations in good faith.
Issue: Whether the Colombian government can grant asylum under regional custom
SS Wimbledon (Wimbledon v. Germany)
Facts: There was a war going on between Poland and Russia. S.S. Wimbledon, a Ruling: No. The Party which relies on a custom of this kind must prove that this custom
steamship, was used to deliver munitions and supplies to Poland. When it was about to is established in such a manner that it has become binding on the other Party... (that) it is
pass the Kiel Canal in Germany, it was refused passage because Germany issued in accordance with a (1) constant and uniform usage (2) practiced by the States in
neutrality orders wherein it wished not to support either Russia or Poland. The French question, and that this usage is (3) the expression of a right appertaining to the State
Ambassador at Berlin requested the German government to withdraw the prohibition and granting asylum (Colombia) and (4) a duty incumbent on the territorial State (in this case,
to allow S.S. Wimbledon to pass through the Kiel Canal, in conformity with Article 380 of Peru). Furthermore, very few states had ratified the conventions which Colombia relied
the Treaty of Versailles. However, the German government still refused. They argued that on and there was significant discrepancy in the practice of asylum. Even if Colombia could
Article 380 of the Treaty of Versailles did not have the effect of limiting their sovereignty prove that such a regional custom existed, it would not be binding on Peru, because Peru
over their land. Because of Germany’s refusal to let S.S. Wimbledon to pass through the repudiated it by refraining from ratifying the Montevideo Conventions of 1933 and 1939,
Kiel Canal, there was a delay in the delivery of the shipment (the boat was detained for which were the first to include a rule concerning the qualification of the offence in matters
eleven days and it took two extra days to find another route). The plaintiffs (“British et. al of diplomatic asylum.
governments”) thus filed this case with the Permanent Court of International Justice. They
claim that Germany violated the Treaty of Versailles. They also claimed damages for the Highlighted by Brownlie: The ‘jurisdictional geography’ of the problem may provide
lost time and money in the transport of the goods useful indications: more than one sovereignty may be involved. Thus in Asylum the Court
stressed the fact that diplomatic asylum involves a derogation from sovereignty as
Issue: Whether the state is obligated to allow free passage based on a treaty even if it represented by the normally exclusive jurisdiction of the territorial state.
would violate its right to neutrality in times of war
Ruling: It is clear from Art. 380 of the Treaty that Germany is obligated to allow free (II) INTERPRETATION OF TREATIES
passage to all vessels, without distinction as to the nature of their cargo or their
destination. The only vessels which cannot pass through are those belonging to nations • Can states limit sovereignty by way of treaty?
at war with Germany. In this case, British et. al governments were not at war with • International court has referred to sovereign rights as a basis for restrictive interpretation
Germany. If free access to the Kiel Canal could be modified in the event of German of treaty obligations.
neutrality, then the Treaty should have said so. Its omission should thus be construed as • But under the unitary theory interpretation set out in VCLT Article 31 and customary
an intentional exclusion. Also, the German neutrality orders could not preempt the international law, everything depends on the context, the intention of the parties, and
provisions of the Treaty of Versailles because Article 380 explicitly authorized passage of the relevance of other, countervailing, principles such as that of effectiveness. In certain
Highlighted by Brownlie: Following Arrest Warrant, there are hints that it has been iii. THE PASSIVE PERSONALITY PRINCIPLE
reversed: if a state wishes to project its prescriptive jurisdiction extra-territorially, it must
find a recognized basis in international law for doing so. This shift in focus is, however, • Reverse of the nationality principle.
largely cosmetic, and in general the Permanent Court’s statement that ‘all that can be • According to this principle, aliens may be punished for acts abroad harmful to nationals of
required of a State is that it should not overstep the limits which international law places the forum.
upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its • Cutting Case: Mexican court exercised jurisdiction in respect of publication by a US citizen
sovereignty’ remains correct. in a Texas newspaper of a matter defamatory of a Mexican citizen. The court applied the
passive nationality principle. This led to diplomatic protests from the US, although the
outcome was inconclusive.
i. THE TERRITORIAL PRINCIPLE • Lotus Case: Turkish penal code provided for the punishment of acts abroad by foreigners
against Turkish nationals; in effect it was a comprehensive exercise of passive jurisdiction.
• Courts of the place where the crime is committed may exercise jurisdiction is universally But the court declined to assess the law as such. The question was whether the specific
recognized. factual situation fell within Turkish jurisdiction, and the court held that it did, invoking the
• An application of the essential territoriality of sovereignty, the sum of legal competences protective jurisdiction.
which a state has. • Criticisms on the passive personality principle:
• Practical advantages in case of crime: 1. That it served no wider goal of criminal justice: it did not correspond to a domestic
o Convenience of the forum. conceptualization of jurisdiction, would not close an enforcement gap and lacked
o Presumed involvement of the interests of the state where the crime was committed. any social aim of repression.
• Extensive Application of Territorial Principle: 2. It could expose individuals to a large number of jurisdictions.
o Subjective Territoriality – which creates jurisdiction over crimes commenced within • However, such objections have not prevented the development of something approaching a
the state even if completed or consummated abroad. consensus on the use of passive personality in certain cases, often linked to international
o Objective Territorial Principle (generally accepted and often applied) – jurisdiction terrorism.
is founded when any essential constituent element of a crime is consummated on • Aut dedere aut iudicare provisions in most criminal law treaties authorize the use of passive
the forum state’s territory. personality jurisdiction as between state parties.
§ [Example] Firing of a gun across a border causing death on the territory
of the forum, but the principle can be employed to found jurisdiction in iv. THE PROTECTIVE OR SECURITY PRINCIPLE
cases of conspiracy, violation of antitrust and immigration laws by
activity abroad and in may other fields of policy. • Principle rests on the protection of concrete interests.
o Effect of Combination of the 2 principles: whenever the constituent elements of a • Nearly all states assume jurisdiction over aliens for acts done abroad which affect the internal
crime occur across an interstate boundary both have jurisdiction. or external security or other key interests of the state which are not necessarily confined to
political acts.
ii. THE NATIONALITY PRINCIPLE
• Currency, immigration, and economic offenses are frequently punished.
• UK and US alow significant exceptions to the doctrine of territoriality though without express
• Nationality, as a mark of allegiance and an aspect of sovereignty is also a generally
reliance upon protective principle.
recognized as a basis for jurisdiction over extra-territorial acts.
o UK courts have punished aliens for acts on the high seas concerning illegal
• Application of the principle may be extended by: immigration.
o Reliance on residence. o Joyce v. Director of Public Prosecutions – an alien who left the country in
o Other connections as evidence of allegiance owed by aliens. possession of a British passport owed allegiance and was accordingly guilty of
o Ignoring changes of nationality. treason when he subsequently broadcast propaganda for Germany in wartime.
• [Example] UK legislature has conferred jurisdiction on its courts in respect of, inter alia, • Concept of ‘protection’ may vary widely.
treason, murder, bigamy, soccer hooliganism, child sexual abuse, and breaches of the
Official Secrets Acts wherever committed by British nationals/residents.
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o Eichmann Case - Protective Principle was invoked in relation to Jewish victims of • Art. 218 of UNCLOS - granting port states the right to institute proceedings or impose
the accused, despite the fact that Israel was not a state when the offenses in monetary penalties for illegal discharges that occur outside their territorial sea and EEZ
question occurred. • Art. 23 of Straddling Stocks Agreement – Port state jurisdiction is also used as a response to
• Categories of what may be considered a vital interest for the purposes of protective illegal and unregulated fishing on the high seas. This sprovision is not the equivalent of
jurisdiction are not closed and no criteria exist for determining such interests beyond vague UNCLOS Art. 218 optimized for use in relation to fishing, but it does underwrite the use of
sense of gravity. existing port state jurisdiction in a certain fashion
• Art. 15 of UNESCO Convention on the Protection of Underwater Cultural Heritage – requires
v. THE EFFECTS DOCTRINE states to prohibit the use of their ports in support of any activity directed at underwater cultural
heritage which is not inconformity with the Convention
• Further head of prescriptive jurisdiction. • The practice of states on the relation between the national law of the aircraft and the law of
• Applicable where an extra-territorial offense causes some harmful effect in the prescribing any foreign territory over flown was not very coherent. However, work sponsored by the
state, without actually meeting the criteria of territorial jurisdiction or representing an interest Tokyo Convention which in Art. 3(1) provides that the state of registration of the aircraft is
sufficiently vital to the internal or external security of the state in question to justify invoking competent to exercise jurisdiction over offenses and acts committed on board and further
the protective principle. requires the state to take necessary measures to claim jurisdiction exercised in accordance
• Alcoa Case – Judge Hand stated that it was a ‘settled law’ that any state may impose with national law is not excluded.
liabilities, even upon persons not within its allegiance for conduct outside its borders which • Tokyo Convention prohibits states other than the state of registration interfering with an
has consequences withi its borders which the state reprehends. aircraft in flight, save where an offense committed on board:
o This position was then followed extensively in US antitrust jurisprudence 1. Has effect in the territory of the intercepting state
• The doctrine previously resembled closely the conception of various heads of prescriptive 2. Has been committed by or against a national or permanent resident of such state
jurisdiction, but it has now changed its perspective. It is possible to speak of antitrust 3. Is against the security of the state
jurisdiction, tort jurisdiction, and taxation jurisdiction, with some of these having a broader 4. Consists of a breach of any rules or regulations relating to the flight of aircraft
extra-territorial reach than others. • Aircraft hijacking has prompted multilateral conventions creating duties for states to punish
• This has the potential to muddy the waters, resulting in the uncertain position of the effects the seizure of aircraft in flight and to exercise jurisdiction in specified conditions.
doctrine within international law as either a head of prescription in its own right, or a subject-
driven application of the territorial or protective principles with unusual reach. C. UNIVERSAL JURISDICTION
• Relation between the territorial sovereign and the flag state in the matter of jurisdiction over • Universal jurisdiction amounts to the assertion of Criminal jurisdiction by a state in the
private vessels in ports or other internal waters. absence of any other generally recognized head of prescriptive jurisdiction.
• The view that a ship is a floating part of state territory is no longer recognized, but the special • O’Keefe – Universal jurisdiction can be defined as prescriptive jurisdiction over offenses
character of the ‘internal economy’ of ships is still recognized. committed abroad by persons who, at the time of commission, are non-resident aliens, where
• Rule: law of the flag depends on the nationality of the ship and that the flag state has such offenses are not deemed to constitute threats to the fundamental interests of the
regulatory responsibility for and jurisdiction over the ship. prescribing state or in appropriate cases, to give rise to effects within its territory.
• But when a foreign ship enters a port, except as a consequence of distress, temporary • Some states have adopted, with limitations, a principle allowing jurisdiction over acts of non-
allegiance is owed to the territorial sovereign and concurrent jurisdiction arises. nationals where circumstances, including nature of crime, justify repression as a matter on
• In principle, there are no limits provided action is taken with regard only to breached of local international public policy. In this sense, universal jurisdiction is defined by the character of
law and not to breached of rules set by the law of the flag state. the crime concerned rather than by the presence of some kind of nexus to the rpescriing
• UK during the preparatory work of the Hague Codification Conference: State is entitled to state
exercise jurisdiction over a foreign merchant vessel lying in its ports and over persons and • Prosecution of crimes under customary international law is often expressed as an acceptance
goods on board. In criminal matters it is not usual for the authorities to intervene and enforce of the principle of universality, but it is not strictly correct, since what is punished is the breach
the local jurisdiction, unless their assistance is invoked by, or on behalf of the local of international law.
representative of the flag State. In every case it is for the authorities of the state to judge
whether to intervene. ii. THE CONTENT OF UNIVERSAL JURISDICTION
• On this view derogation from the exercise of local criminal jurisdiction is a matter of comity
and discretion, but may be invoked in practices where: • Some commentators have argued for its extension on moral or public policy grounds, and
1. The act in question disturbs the peace and order of the port. that universal jurisdiction accordingly applies to certain crimes under customary international
2. Assistance is requested by the captain or representative of the flag state of the law the commission of which is generally accepted as an attack upon the international order.
ship. • The original crime to which universal jurisdiction attached was that of piracy iure gentium,
3. A non-crew member is involved. followed by slavery. In modern times it extended to so called “core crimes” of customary
• Port state jurisdiction is increasingly recognized as a remedy for the failure of flag states to international law: genocide, crimes against humanity and breached of the Geneva
exercise effective jurisdiction and control of their ships. Conventions of 1949 and Torture within the meaning of the Torture Convention.
• Jurisdiction is no longer used solely to enforce local questions of civil and criminal law, but is • Whether aggression can be considered a crime of universal jurisdiction – a better view states
actively playing a role in the international regulatory sphere. that it is not.
iii. UNIVERSAL JURISDICTION IN ABSENTIA? A. THE BASIS OF CIVIL JURISDICTION IN DIFFERENT LEGAL TRADITIONS
o In order to satisfy international law standards in regard to the treatment of aliens a
• Although the notion of universal jurisdiction in absentia is not unknown in academic literature state must in normal circumstances maintain a system of courts empowered to
prior to the Arrest Warrant Case, it is not compelling. The court in that case felt that it could decide civil cases, and in doing so, be prepared to apply private international law
address immunity without deciding upon jurisdiction. in cases involving a foreign element.
• Universal jurisdiction is a manifestation of a state’s jurisdiction to prescribe. o As a general rule, the common law systems will assert jurisdiction over a foreign
• The question whether jurisdiction is exercised in personam or in absentia is a manifestation defendant who can be served with originating process. Though civil lawyers
of a state’s jurisdiction to enforce. complain of the perceived exorbitance of the service rule, common lawyers point
• In the context of Arrest Warrant, the Belgian law on war crimes and the issue of an arrest out that the defendant may challenge the exercise of the jurisdiction on the basis
warrant in support of that law were separate acts. that the appropriate forum is elsewhere.
• To speak of universal jurisdiction in absentia is to conflate prescriptive and enforcement of o Some common law jurisdictions have extended the concept of jurisdiction by
jurisdiction. service further still e.g. ‘minimum [territorial] contact’ in the US.
o In contrast, the civil law approach is predicated on the principle that, where
iv. TREATY BASED QUASI-UNIVERSAL JURISDICTION possible, the defendant ought to be sued in its domicile.
In a further significant difference with the common law, the notion of discretionary
• Arises from sui generis treaty regimes incorporating penal characteristics. refusal of jurisdiction is anathema to the civil law. As a general rule, if properly
• These regimes have for the most part been developed in order to respond to particular seized, a court will unable to decline jurisdiction unless expressly authorized to do
behaviors viewed as undesirable. by the terms of the Brussels 1 Regulation (On Jurisdiction and the Recognition and
Enforcement of Judgments in Civil and Commercial Matters).
• They require state parties to exercise mandatory prescriptive jurisdiction over certain
individuals within their territories, independent of any nexus.
• They are frequently characterized by the obligation of aut dedere aut iudicare, which will
compel a state party to either try the accused or extradite to a state that is willing to do so.
C. THE ALIEN TORT STATUTE AND COGNATE LEGISLATION NOTE: However, read this vis-à-vis the Kiobel case
o The universality principle, as expressed in the Eichmann case, is most oft en associated
with the prosecution of particularly heinous crimes.
o Only a few states assert universal civil jurisdiction, that is, prescriptive jurisdiction absent
any minimal territorial or national nexus to the delict in question. 4. THE SEPARATENESS OF THE GROUNDS OF JURISDICTION
o Example: United States’ Alien Tort Claims Act 1789, now codified as the Alien Tort
Statute (ATS). A. THE RELATIONSHIP BETWEEN THE SEPARATE GROUNDS
o The ATS provides in its relevant part that ‘[t]he district courts shall have o The various principles held to justify jurisdiction over aliens are commonly listed as
original jurisdiction of any civil action by an alien for a tort only, committed in independent and cumulative, although some may be labelled ‘subsidiary’ to some
violation of the law of nations or a treaty of the United States’. others. However, the ‘principles’ are in substance generalizations of a mass of national
o Elements of Actionable Tort: provisions which by and large do not reflect categories of jurisdiction specifically
1. The plaintiff is an alien; recognized by international law.
2. The defendant is responsible for a tort; and o The various principles often interweave in practice.
3. The tort in question violates international law. o Thus, the objective applications of the territorial principle and also the passive
o Not every violation of international law will, however, be considered actionable. personality principle have strong similarities to the protective or security
o Sosa v. Alvarez-Machain – while falling short of articulating a coherent principle.
category, it limited the scope of the statute to ‘norm[s] of an international o Nationality and security may go together, or, in the case of the alien, factors
character accepted by the civilized world’. such as residence may support an ad hoc notion of allegiance.
o In this sense, the ATS draws its legitimacy at least to some extent from the
same well-spring as universal criminal jurisdiction over genocide, war crimes, B. CONSEQUENCES OF EXCESS OF PRESCRIPTIVE JURISDICTION
and crimes against humanity. (I) THE LEGAL POSITION
o If enforcement action is taken in a case of exorbitant jurisdiction with consequent injury,
Filartiga v. Pena-Irala an international wrong will presumably have been committed.
o The consequences of the mere passage of legislation asserting exorbitant jurisdiction
Facts: Pena tortured and killed Joselito, the son of Dr. Joel. When Dolly, daughter of remain an open question. The situation is clouded by the uncertain status of the
Dr. Joel found out that Pena and his partner, Villalaba, is living in the US, she statement in the Lotus that, in the absence of a rule in international law to the contrary,
informed the Immigration and Naturalization Service which, later on, arrested them a state may do whatever it pleases; although the various separate opinions in the Arrest
for staying beyond what is allowed in his visa. Dolly caused Pena to be served with a Warrant case may have signaled the reversal of this position, the reversal itself is
summons and civil complaint at the Brooklyn Navy Yard, where he was being held inchoate, and it remains to be seen whether it represents merely a cosmetic shift in
pending deportation. Dolly’s Complaint contained the fact that Pena had caused emphasis or something more substantive.
Joelito’s death by torture and sought (1) compensatory and punitive damages of
$10m and (2) to enjoin Pena’s deportation to ensure his availability for testimony at
trial. However, Judge Nickerson dismissed the complaint on jurisdictional grounds.
4. These basic principles do not apply or do not apply very helpfully to (a) certain cases (B). THE CLASSIFICATION OF INTERNATIONAL WRONGS
of concurrent jurisdiction, and (b) crimes against international law within the ambit of o State Responsibility – not based upon delict in the municipal sense
universal jurisdiction. In these areas special rules have evolved. Special regimes also o International Responsibility – relates both to breaches of treaty and to other
apply to the high seas, continental shelf, EEZ, outer space, and Antarctica. breaches of obligation
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o Judge Huber – Spanish Zone of Morocco – Responsibility is the necessary and discipline.
corollary of a right. All rights of an international character involve international
responsibility. If the obligation in question is not met, responsibility entails the duty As to the second issue, the claim based on an alleged denial of justice must
to make reparation. fail since the available local remedies had not been exhausted. It is indisputable
o Factory at Chorzow (Jurisdiction) – It is a principle of international law that the that the State is not responsive for the fact of a riot, revolt, civil war or
breach of an engagement involves an obligation to make the reparation in an international war, nor for the fact that these events cause damage on its
adequate form territory. It may be more or less possible to prove errors committed by the
o Factory at Chorzow (Indemnity) – Reparation – an indispensable complement Government, but in the absence of specific clauses of a treaty or agreement,
of a failure to apply a convention and there is no necessity for this to be stated in the investigation required for this purpose is not permitted. These events mist
the convention itself. be considered as cost of force majeure. Nevertheless, the fact that the State
o Corfu Channel – Albania was, by reason of its failure to warn of the danger, liable was not responsible for causing the event did not exclude the duty to act with
for the consequences of mine-laying in its territorial waters even though it had not a certain degree of vigilance. The principle of non-intervention was posited on
laid mines. the maintenance of internal peace and social order in the territorial State. Thus,
§ Albania was liable for the explosions that occurred and for the damage if a State was not responsible for the revolutionary acts themselves, it may be
and loss of human life which resulted from them. responsible for what the authorities do or do not do, to avoid, as far as possible,
o Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) the consequences
§ Issue – Whether a violation of the Genocide Convention entailed
particular consequence for the breaching state
§ Held – The obligations in question arising from the terms of the Highlighted by Brownlie: Responsibility is the necessary corollary of a right.
Convention and the responsibilities of States that would arise from All rights of an international character involve international responsibility. If the
breach of such obligation, are obligations and responsibilities under obligation in question is not met, responsibility entails the duty to make
international law. They are not criminal in nature. reparation.
o Key Elements of the Concept of Responsibility
§ The breach of an obligation of the state
§ The conduct, under the circumstances, is attributable to the state 3. ATTRIBUTION TO THE STATE
o US Diplomatic and Consular Staff in Tehran (US v. Iran)
§ The court’s task is to: (A). GENERAL ASPECTS
• Determine how far, legally, the acts in question may be o Every breach of duty by the state must arise by reason of the act or omission of
regarded as imputable to the State one or more organs or agents.
• Consider their compatibility or incompatibility with the § Status of the individual actor is only a factor in establishing attribution.
obligation of the State under treaties in force or under any § There must be a causal connection between the corporate entity of the
other rules of International Law state and the harm done.
o ARSIWA, Article 2 – Two Elements of Internationally Wrongful Act § No need for the state agents to be the direct perpetrators of the unlawful
1. Attribution act.
2. Breach o Corfu Channel – Albania was held responsible for the consequences of mine-
laying in her territorial waters by reason of
§ Albanian authorities’ knowledge
Spanish Zone of Morocco (Great Britain v. Spain)
§ Failure to warn of the presence of the mines
§ (The court did not say this) The mines were laid by Yugoslavia
Facts: Great Britain put forward a series of claims on behalf of British subjects
o A neutral state may be responsible for allowing armed expedition to be fitted out
and protected persons who had suffered losses or injuries in the Spanish Zone
within its jurisdiction which subsequently carry out belligerent operation against
of Morocco between 1913 and 1921. One such claim is on behalf of a British
another state.
protected person for damage caused during a riot. The claimant had notified
o Canada – Diary (21.5 II) – WTO Appellate body – Irrespective of the role of
the local commander of his losses and the British embassy in Madrid had also
private parties, the obligations remain obligations imposed on Canada. The issue
transmitted his claim to the Spanish Government.
is whether Canada, on a national basis, has respected it WTO obligations.
Issue: Whether Spain can be held responsible for damage caused by military (B). STATE ORGANS
operations; and whether the personal claim of a British citizen for damage o ARSIWA, Art. 4 – The conduct of any State organ shall be considered an act of
caused during a riot will prosper that State under international.
Ruling: As to the first issue, although a State is not responsible for acts (I). EXECUTIVE AND ADMINISTRATION
committed by its troops in the course of restoring order or when fighting an o PRINCIPLE – Governmental action or omission by the executive gives rise to
enemy, international jurisdiction may be invoked in a case of manifest abuse of international responsibility.
the exercise of military powers and that a State is bound to exercise special § Example – Failure of the states to provide security to foreigners and
supervision to prevent its troops from committing acts in violation of military law their property.
(III) FEDERAL UNITS, PROVINCES AND OTHER INTERNAL DIVISIONS Ruling: Yes. While the WTO acknowledges that the greatly differing periods for
o A state cannot plead its own law, including the constitution, in answer to an putting into operation the requirement for use of TEDs resulted from decisions
international claim. of the Court of International Trade. Even so, this does not relieve the United
States of the legal consequences of the discriminatory impact of the decisions
1 2
Opposable to or valid against ‘all the world’, i.e. all other legal persons, irrespective of specific Relating to the law as it should be if it were to accord with good policy (cf de lege lata, concerning
consent on the Part of those thus affected. the law as already laid down).
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§ Requests for declaratory judgments have been made in cases brought
A State is entitled as an injured State to invoke the responsibility of another State if the
by states that were not specially injured.
obligation breached is owed to:
§ Barcelona Traction 1970 – Erga Omnes obligations include the
a. that State individually; or
outlawing of acts of aggression and genocide, principles and rules of
b. a group of States including that State, or the international community as a whole,
basic human rights, protection from slavery and racial discrimination.
and the breach of the obligation:
§ East Timor 1995 – The Court recognized the Erga Omnes nature of the
i. specially affects that State; or
obligation to respect self-determination.
ii. is of such a character as radically to change the position of all the other
§ Assuming that the hurdles of jurisdiction, admissibility and propriety are
States to which the obligation is owed with respect to the further
satisfied, there is no inherent limitation of the concept of legal interest to
performance of the obligation.
material interests.
§ Thus, states acting in collective self-defense or a war of sanction against
an aggressor would seem to have a claim for costs and losses. • REPARATION CLAIMS MADE/REQUESTED BY INJURED STATES
o ENVIRONMENTAL LAW – Whaling in the Antarctic 2010 (Australia v. Japan) : o ‘Injured State’ – refers both to states to which the obligation is owed individually
Australia’s application against Japan for whaling activities in the Antarctic Ocean § Examples:
presents a clear case of a state filing an application without being either injured or • Violations of the law of diplomatic relations or a commercial
specially affected. Remedies sought by Australia demand specific orders for treaty
cessation and assurances of non-repetition. • Breach of an Interdependent type – violation of an obligation
by any state radically changes the position of all the other
Barcelona Traction (Begium v. Spain) Evolution of the Law states to which the obligation is owed with respect to the
further performance of the obligation
Facts: A dispute concerning wrongful treatment of an investment made in o Claimant state may demand such for injury done to itself or to its nationals.
Spain by a company incorporated in Canada. Belgium claimed standing to o So long as the state invoking responsibility can be identified as specifically injured.
exercise diplomatic protection of its nationals, who comprised a vast majority of o Problem then is only of valuation of the injury.
the shareholders of the Canadian company, and demanded reparation for the o Injured States is entitled to resort to all means of redress contemplated in the
damage. articles.
1. Demand reparation of the injury (Restitution; Compensation; Satisfaction)
Issue: Whether Belgium has the jus standi to exdrcise diplomatic protection of 2. Cessation of the conduct
shareholders in a Canadian company. 3. Countermeasures
Ruling: No. When a State admits into its territory foreign investments or foreign
ARSIWA, Article 48 – Invocation of responsibility by a State other than an injured State
nationals, whether natural or juristic persons, it is bound to extend to them the
1. Any State other than an injured State is entitled to invoke the responsibility of another State
protection of the law and assumes obligations concerning the treatment to be
in accordance with paragraph 2 if:
afforded them. These obligations, however, are neither absolute nor
a. The obligation breached is owed to a group of States including that State, and is
unqualified. In particular, an essential distinction should be drawn between the
established for the protection of a collective interest of the group; or
obligations of a State towards the international community as a whole, and
b. The obligation breached is owed to the international community as a whole.
those arising vis-à-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
2. Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible
of the rights involved, all States can be held to have a legal interest in their
State:
protection; they are obligations erga omnes.
a. Cessation of the internationally wrongful act, and assurances and guarantees of
non-repetition in accordance with article 30; and
Highlighted by Brownlie: erga omnes obligations derive ‘in contemporary
b. Performance of the obligation of reparation in accordance with the preceding
international law, from the outlawing of acts of aggression, and of genocide, as
articles, in the interest of the injured State or of the beneficiaries of the obligation
also from the principles and rules concerning the basic rights of the human
breached.
person, including protection from slavery and racial discrimination. Simma
refers to the Barcelona Traction judgment as ‘a great leap forward’:118 it was
3. The requirements for the invocation of responsibility by an injured State under articles 43,
certainly a leap, but since it evaded the (then-controversial) issue of peremptory
44 and 45 apply to an invocation of responsibility by a State entitled to do so under paragraph
norms, it might equally be described as a great leap sideways.
1.
(B) ARSIWA ARTICLES 42 AND 48 (ARTICLES ON RESPONSIBILITY OF STATES FOR INTERNATIONALLY • REPARATION CLAIMS MADE/REQUESTED BY NON-INJURED STATES
WRONGFUL ACTS) o Responsibility may only be invoked by:
§ A State to which the obligation is owed and;
§ Which has some sort of interest in its fulfillment
ARSIWA, Article 42 – Invocation of responsibility by an injured State
• Protects a collective interest of the group
• It is an Erga Omnes obligation
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o What may be demanded from the violator by a non-injured state: Article 48 (2).
b. the dispute is pending before a court or tribunal which has the authority to make
decisions binding on the parties.
(C) COUNTERMEASURES
• Countermeasures – “The possibility for a state to resort to ‘private justice’ when it demands 4. Paragraph 3 does not apply if the responsible State fails to implement the dispute settlement
for cessation of an illegal conduct and/or adequate reparation are not met by the wrongdoer.” procedures in good faith.
• Wronged state may respond by taking measures which would in principle violate its duties to
the other state, but which are regarded as lawful due to their character as countermeasures. • Requirements before resorting to countermeasures:
• In the absence of compulsory jurisdiction, sovereigns could take justice into their own hands. 1. Injured State must call upon the wrongdoing state to cease the wrongful conduct.
• GROTIUS – “A state which does not receive reparation for injury done to itself or its nationals 2. If it is continuing, it must call for reparation of any injury
may justly seize goods of the wrongdoing state and its nationals to recover the loss.” 3. Formally notify the responsible State of the decision to take countermeasures and
• GROTIUS and VATTEL – Accepted reprisals as an ‘enforcement of right’ and the ‘right of the need to offer to negotiate (ARSIWA, Article 52(1))
nations to do themselves justice’. 4. Must not be taken while a dispute is pending before an international adjudicative
• Naulilaa Arbitration 1928 – A reprisal is an act of self-help of the injured State, which responds organ.
to an act contrary to the law of nations committed by the wrongdoing State. Its effect is to 5. Must be proportional to the wrongful conduct.
suspend momentarily between the two States the observation of this or that rule of the law o Naulilaa Arbitration 1928 – Evident disproportion between the killing of two
of nations. German officials in the Portuguese fort of Naulilaa and the subsequent attack
and destruction of six other forts by German forces.
• With the growing restrictions on the use of force, ‘reprisals’ was replaced by two different
o Gabcikovo-Nagymaros 1997 – Unilateral assumption of control over a large
concepts: Self-defense (ARSIWA, Article 21) and Countermeasures (ARSIWA, Article 22)
percentage of the waters of the Danube was not commensurate with the injury
suffered.
ARSIWA, Article 21 – Self-defence
The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of
ARSIWA, Article 49 – Object and limits of countermeasures
self defence taken in conformity with the Charter of the United Nations.
1. An injured State may only take countermeasures against a State which is responsible for an
• Authorizing the use of force applies only to an incoming armed attack. internationally wrongful act in order to induce that State to comply with its obligations under
• Nicaragua 1986 – While an armed attack would give rise to an entitlement to collective self- part two.
defence, a use of force of a lesser gravity could not justify counter-measures taken by a third
State, the United States, and particularly could not justify intervention involving the use of 2. Countermeasures are limited to the non-performance for the time being of international
force. obligations of the State taking the measures towards the responsible State.