Public International Law

PUBLIC INTERNATIONAL

LAW

UP LAW A2015 reviewer for the class of

Prof. H. Harry L. Roque

AFRICA, AMABEL KAY

AMORIN, DANNIEL ROY ARCILLA, JOHN MARK

BELTEJAR, JAN ROBERT DE LEON, CLAIRE

FABELLA, LINDSEY JAVELOSA, RANULFO III

PEALBER, AMIRAH

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

IN GENERAL .........................................................1

SOURCES OF INTERNATIONAL LAW ...............2

ACTORS IN INTERNATIONAL LAW ................ 20

States ............................................................... 23

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

B. UNCLOS ................................................ 35

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

INTERNAL WATERS AND INNOCENT

PASSAGE ................................................... 38

TERRITORIAL SEA ...................................... 40

STRAITS AND TRANSIT PASSAGE ................ 45

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

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

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

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

DELIMITATION OF MARITIME BOUNDARIES

................................................................. 62

HIGH SEAS ................................................ 62

RIGHT OF ACCESS OF LAND-LOCKED STATES

TO AND FROM THE SEA AND FREEDOM OF

TRANSIT .................................................... 63

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

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

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

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

C. Jurisdiction and Immunities .................. 69

JURISDICTION ........................................... 69

SOVEREIGN IMMUNITIES .......................... 71

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

E. Vienna Convention on the Law of Treaties

............................................................ 98

F. Vienna Conventions on Diplomatic

Relations and Consular Relations, and

Optional Protocols ............................. 109

VIENNA CONVENTION ON DIPLOMATIC

RELATIONS ............................................. 109

VIENNA CONVENTION ON CONSULAR

RELATIONS ............................................. 113

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

A. The UN Charter and the Use of Force.. 117

B. International Court of Justice.............. 130

APPLICABLE LAW .................................... 131

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

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

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

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

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

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

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

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

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

C. Foreign Investments and Natural

Resources .......................................... 145

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

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

UP LAW A2015 PUBLIC INTERNATIONAL LAW REVIEWER GROUP

JAVELOSA, RANULFO III

Head

AFRICA, AMABEL KAY

AMORIN, DANNIEL ROY

ARCILLA, JOHN MARK

BELTEJAR, JAN ROBERT

DE LEON, CLAIRE

FABELLA, LINDSEY

PEALBER, AMIRAH

Members

This reviewer contains information drawn from

various sources, including primary source materials (e.g. cases, international law references), notes

from class discussions, as well as existing reviewers. We in no way warrant the accuracy of the

information herein provided. Neither do we give any assurance that it would suffice with respect to

whatever end you may have for it and in satiating ones thirst for knowledge of international law.

While useful for purposes of review, this is in no way intended to substitute actual classroom learning and

exhaustive study of primary materials. We exhort users to continue to study the subject matter consistent with the (extraordinary) diligence

expected of a student of law.

PUBLIC INTERNATIONAL LAW A2015

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IN GENERAL International Law, Defined

It is a body of legal principles, norms, and processess, which regulates the relations of States and other international persons, and governs their conduct affecting the interests of the international community as a whole. (Higgins, Chapter 1) Shortcomings of Traditional Rules-Based Definition

Traditionally, it was defined as rules applicable to states with their relationship with one another. There are two limitations to this definition:

1) When there are no existing rules; and 2) Who sets the rules.

The Southwest Africa Cases (infra.) is an example of the limitation of defining international law as a rules-based system. In that case, the International Criminal Court (ICJ) refused to exercise jurisdiction over the question of whether or not the system of apartheid was in accord with international law. The Court ruled that,

(Despite) the various considerations of a non-judicial character, social, humanitarian and otherthese are matters for the political rather than for the legal arena.

By referring strictly to international law as a corpus of rules, it effectively deemed the moral and ethical issues surrounding systematic racial segregation as non-legal matters that the Court could not take cognizance of. This development rendered the ICJ (then) a useless body, and has led to a push for the creation of other tribunals (e.g. International Tribunal on the Law of the Sea [ITLOS].)

CLASS NOTES International Law as a Normative System

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

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

Q: Why is international law law?

States consider them law because: 1. It upholds and embodies their values; 2. It is in their national interest; 3. They consider as law that ought to be

followed Basis of International Law

Higgins (ibid.) outlines three bases which explain international laws binding nature: 1. Natural Law

Some writers suggest that it is in the natural order of things that certain matters should be regulated in compulsory manner. An obligatory foundation to the basic precept of justice is to be found in natural law, which gives rise to ibligations consisting in what is essentially necessary for subsistence and self-preservation.

2. Consent This is based on the sovereignty of state, which in turn emphasizes their freedom to act unilateraly save to the extent they agreed upon to be constrained. This advances the view that the obligatory character of international law is made by the concordance of the wills of states.

3. Reciprocity States perceive a reciprocal advantage in cautioning self-restraint in terms of committing violations of international law norms.


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SOURCES OF INTERNATIONAL LAW

ICJ Statute, Article 38. 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

The ICJ statute provides an enumeration of sources that the Court shall apply with respect to controversies. *Note that this is not an enumeration of sources of international law; it is only a list of things that the court can consider in arriving at decisions.

A. International conventions B. International custom C. General principles of law

Primary Sources

D. Judicial decisions and

teachings of publicists

Secondary Source

There exists a hierarchy among the sources. A, B and C are primary sources, while D is a secondary source. The Court is not constrained to consider only one source. Its decisions may arise as a result of a combination of sources. International Conventions; Treaties

International conventions and treaties are sources of obligations in the nature of domestic contracts. These call into operation the principle of pacta sunt servanda, literally, agreements must be kept. These, tribunals will merely interpret.

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

number of parties;

explicit acceptance of rules of law; and

declaratory nature of the provisions. (Brownlie, Chapter 1)

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

In general, UN GA resoultions are non-binding. However, when they are concertned with general norms of international law, an acceptance by a majority vote constitutes evidence of the opinions of governments in the widest forum of expression of such opinions. (ibid.) They are also considered as a first step in the proces of law creation, and may be evidence of developing trends of customary law. (Higgins, Chapter 2) Nonetheless, resolutions cannot be a substitute for ascertaining custom. Each resilution must be assessed in the light of all the sircumstances and also by reference to toher evidence of opinions of states on the point in issue. (Brownlie, Chapter 1)

International Custom; Elements

(Brownlie, Chapter 2) 1. Duration

No particular duration is required. While passage of time can be considered as part of the evidence of generality and consistency, a long practice is not necessary.

2. Consistent state practice In invoking custom, it must be proven that there is a constant and uniform usage of a custom practised by the states in question. (Asylum Case, infra.) Complete uniformity is not required; substantial uniformity is enough.

3. Generality of practice 4. Opinio juris sive necessitatis

This refers to a recognition by states that a certain practice is obligatory, and a belief that such practice is required by, or consistent with international law. They do so for the reason that the practice is required by law, and not merely because of courtesy or political expediency. This exists when states must have behaved in such a way that their conduct is evidence of a belief that practice is rendered obligatory by the


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existence of a rule of law requiring it. (North Sea Continental Shelf Cases, infra.)

A new norm cannot emerge without both practice and opinio juris; and an existing norm does not die without the great majority of states engaging in a contrary practice and withdrawing their opinio juris. (Higgins, Chapter 2)

In order for a practice to crystallize into a customary norm, class discussions and Higgins (ibid.) only point to the following essential elements:

1. Consistent state practice; and 2. Opinio juris

CLASS NOTES

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

Generally, a breach of a customary norm can give rise to the birth or creation of a new norm. There would thus be instances where state conduct inconsistent with established rules can be an indication of the recognition of a new rule. However, if a state acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself,the significance of that attitude is to confirm rather than to weaken the rule. (Case Concerning Military and Paramilitary Activities in and against Nicaragua [Nicaragua v. USA], supra.)

General Principles of Law

This refers to analogies derived from general principles of municipal law. According to Brownlie (Chapter 1), the rationale for its inclusion is to authorize the Court to apply municipal law principles, legal reasoning and private law analogies insofar as they are applicable to relations between states in order to make the law of nations a viable system for application. This category also contemplates principles traced to state practice regarded as such by civilized nations. These include principles of consent, reciprocity, equality among states, finality of awards and settlements, legaility of agreements, good faith, and domestic jurisdiction. (ibid.) Judicial Decisions

Decisions of the ICJ are merely subsidiary means for the determination of rules of law, and consitute only an evidence of the law. The ICJ applies the law and does not make it. However, it may be contended that a unanimous or almost unanmous decision has a role in the progressice development of law.

ICJ Statute, Article 59. The decision of the Court has no binding force

except between the parties and in respect of that particular case.

Moreover, the ICJ does not observe stare decisis or the principle of judicial precedent, though it strives to maintain judicial consistency. Decisions of national tribunals also have evidential value. They provide indirect evidene of the practice of the state of the forum on the question involved. Writers also make frequent reference to municipal decisions. (ibid.) Teachings of Publicists

Teachings of publicists are also only evidence of law. Nonetheless, they are used widely in arbitral tribunals, national courts, and the ICJ itself, and there are cases where writers have had a formative influence on international law. (ibid.) Jus Cogens Norm

A jus cogens or peremptory norm is a norm which States cannot derogate or deviate from in their agreements. It owes its status from the fact that the community as a whole regards these norms as of critical importance, such that particular states cannot contract-out of them. It is mandatory and cannot be set aside or modified by agreement. (Higgins, Chapter 2)

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

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

Formal v. Material Sources

1. Formal Sources consist of the methods and procedures by which norms are created. For


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

The ICJ cannot be considered as a formal source because it does not have the concept of stare decisis. UN GA Resolutions also cannot be formal sources because they are merely restatements of customs.

CLASS NOTES

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

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

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

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

KURODA v. JALANDONI

83 Phil 171 (1949) Shigenori Kuroda was formerly a Lieutenant-General of the Japanese Imperial Army and Commanding General of the Japanese Imperial Forces in the Philippines (1943-1944). He was charged before a Military Commission convened by the Chief of Staff of the Armed Forces of the Philippines for the atrocities committed by Japanese Forces against civilians and other conduct during the war.

Kuroda: The Military Commission has no jurisdiction to try him.

No jurisdiction to try him for acts committed in violation of the Hague

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

The Commission had jurisdiction to try him. The Military Commission had jurisdiction to try Petitioner because even if the Philippines was not a signatory to the Conventions, which both US and Japan were signatories to, the rules and regulations of the Hague and Geneva conventions form part of and are wholly based on the generally accepted principles of international law. Such rules and principles form part of the law of our nation . Moreover, when the crimes charged against petitioner were allegedly committed, the Philippines was under the sovereignty of United States and thus we were equally bound together with the United States and with Japan to the right and obligation contained in the treaties between the belligerent countries. These rights and obligation were not erased by our assumption of full sovereignty. As held in Laurel v. Misa, The change of our form government from Commonwealth to Republic does not affect the prosecution of those charged with the crime of treason committed during the Commonwealth because it is an offense against the same sovereign people.

This case illustrates the relationship between customary law and treaty law. On the one hand, if a treaty provides conventional law, only the parties thereto are bound. On the other hand, if a treaty provides customary law, all states, signatories thereto or not, are bound. This decision finds support in the Incorporation Clause in Article II, Section 2 of the Philippine Constitution. However, this case shows that even without the said clause, general principles of international law continue to be binding by virtue of our membership in the community of nations,

CLASS NOTES

YAMASHITA v. STYER

75 Phil 563 (1945)

Tomoyuki Yamashita is a commanding general in the Japanese Imperial Army in the Philippines. From being a prisoner of war after his surrender, his status was changed to that of an accused war criminal and was charged before an American Military Commission for having allowed members under his command to commit massacre of thousands of unarmed non-combatant civilians. Yamashita: The Military Commission has no jurisdiction

to try him.


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Commission was not duly constituted;

The Philippines is not a US-occupied territory, hence an American military commission does not have jurisdiction therein;

He did commit any offense against the laws of war.

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

according to the customs and usages, convention and treaties, judicial decisions and executive pronouncements, and generally accepted opinions of thinkers, legal philosophers and other expounders of just rules and principles of international law.

Justice Perfectos separate opinion is perhaps the best statement regarding the binding nature of international humanitarian law and customary norms. The excerpted paragraphs show that humanitarian law is customary in nature by its universal appeal to human conscience, recognized, by all civilized nations of the world. His disquisition predates that of the Nuremberg trials.

CLASS NOTES

KOOKOORITCHKIN v. SOLICITOR GENERAL

81 Phil 435 (1949) Eremes Kookoorithckin is a Russian applying for naturalization in the Philippines. He was a member of the White Russian Army and was part of a contingent of 1,200 which fled to Manila after the Russian Revolution. He is a resident of Camarines Sur, married to a Filipina, works for a bus company, and had in fact fought in the guerilla war against the Japanese. Although Russian by birth, he disclaims Soviet citizenship.

Solicitor General:

He is not entitled to naturalization. There is no evidence that establishes his

legal entry into the Philippines

He cannot speak English or Bicolano fluently;

No showing that he has lost his Russian citizenship, or that he is stateless.

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


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We are civilized people now so we dont do harsh things to each other. (Karichi Notes, citing Prof. Roque, 2010) This case was not taken up during class.

CLASS NOTES

CASE CONCERNING MILITARY AND

PARAMILITARY ACTIVITIES IN AND AGAISNT NICARAGUA

(NICARAGUA v. USA) ICJ Reports 1986, p.14 (1986)

Nicaragua instituted proceedings against the United States for the latters alleged responsibility for military and paramilitary activities therein. It alleged that the US violated its sovereignty by:

- Recruiting, training, financing and aiding the contras (i.e. those fighting against the Nicaraguan government), to the point that it exercises effective control over them;

- Carrying out operations against Nicaragua through persons under US command (e.g. mining of certain Nicaraguan ports in early 1984, and attacks on its ports, oil installations, a naval base, etc.) Undertaking overflights of US aircraft over Nicaragua, not only for intelligence gathering and delivering supplies to the contras on the field, but also to intimidate the population.

The US countered that its efforts were brought about by the reports of Nicaraguan involvement in logistical support, including provision of arms, for guerrillas in El Salvador. Nicaragua: Court has jurisdiction on the basis of the

USs acceptance of jurisdiction under: Treaty of Friendship, Commerce and

Navigation with Nicaragua; and

Optional clause under Art. 36 par. 2 of the ICJ statute

The United States is liable for the following:

Violation of Art. 2, Par. 4 of the UN Charter, and the customary international law obligation to refrain from the threat or use of force;

Intervention in the internal affairs of Nicaragua, breaching the Charter of the Organization of American States and of the rules of customary international law forbidding intervention

Violation of Nicarguan sovereignty and a number of other obligations established in general customary international law and in the inter-American system.

United Court has no jurisdiction over the matter.

States: US terminated said treaty with Nicaragua, and withdrew its agreement to the optional clause.

US submitted a multilateral treaty reservation, which excluded disputes arising under multilateral treaties from ICJ jurisdiction, unless: o All parties to the treaty affected by

the decision are also parties to the case before the Court; or

o US specially agrees to jurisdiction

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


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significance of that attitude is to confirm rather than to weaken the rule. Opinio juris from GA resolutions UN General Assembly Resolutions may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by themselves. On the existence of armed attack The Court does not believe that the concept of armed attack includes not only acts by armed bands where such acts occur on a significant scale, but also assistance to rebels in the form of the provision of weapons or logistical or other support. It is also clear that it is the State which is the victim of an armed attack which must form and declare the view that it has been so attacked. There is no rule in customary international law permitting another state to exercise the right of collective self-defense on the basis of its own assessment of the situation.

NORTH SEA CONTINENTAL SHELF CASES

(GERMANY v. DENMARK; GERMANY v. NETHERLANDS)

ICJ Reports 1969, p.5 (1969)

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

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

Denmark, Netherlands:

The matter should be governed by a mandatory rule of law called the equidistance-special circumstances rule, reflecting the language of Art. 6 of the 1958 Geneva Convention on the Continental Shelf. In the absence of agreement of the Parties to employ another method, all continental shelf boundaries had to be drawn by means of an equidistance line, unless special circumstances were recognized to exist. (In other words: The boundary should be based on the equidistance-special circumstance rule because it is a Rule of Customary International Law in the absence of agreement by the states-parties to employ another method or to proceed to a delimitation on an ad hoc basis, all continental shelf boundaries must be drawn by means of an equidistance line, unless or except to the extent which special circumstances exist.)

Germany: The case should be decided on the basis of equitable principles one according to which each of the States concerned should have a just and equitable share of the available continental shelf, in proportion to the length of its sea-frontage (Apportionment Theory). Alternatively, if the Equidistance Method were held to be applicable, the configuration of the German North Sea coast constituted a special circumstance that justifies not using such method in this case. (In other words: The equidistance principle is not obligatory on states not parties to the Convention. The rule that should be applied is one according to which each of the states concerned should have a just and equitable share of the available continental shelf, in proportion to the length of its coastline or sea-frontage. In any case, the Equidistance Principle is not applicable due to the configuration of its coastline.)

Germany is not bound to accept the equidistance principle


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The Court held that Germany was not under a legal obligation to accept the application of the Equidistance Principle because its practical convenience and certainty of application are not enough to convert it into a rule of law. It ruled that the Convention was not binding on Germany because although it was a signatory, it never ratified, and was consequently not a party. Denmark and Netherlands contended that the regime of Art. 6 was binding on Germany because the latter had assumed that obligations of the Convention by public statements, proclamations, and in other ways. The Court held that only estoppel could give merit to Denmark and Netherlands contention; however, they showed no evidence of such prejudice so Art. 6 was not applicable to this case. Equidistance principle is not inherent in continental shelf doctrine The Court held that the equidistance principle is not inherent in the basic doctrine of the continental shelf. Equidistance clearly could not be identified with the notion of natural prolongation, since the use of the equidistance method would frequently cause areas which were the natural prolongation of the territory of one state to be attributed to another. Hence, the notion of equidistance was not an inescapable a priori accompaniment of basic continental shelf doctrine. No customary norm providing for use of equidistance principle The Court also held that the Equidistance Principle was not a rule of Customary International Law. Its non-exclusion from the faculty of reservation leads to the inference that it was not considered as reflective of emergent customary law. Moreover, the number of ratifications and accessions was hardly sufficient to make it a general rule of international law. As regards the time element, although the passage of only a short period of time was not necessarily a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, it was indispensable that state practice during that period, including that of states whose interests were specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked and should have occurred in such a way as to show a general recognition that a rule of law was involved. In the course of negotiations, the factors to be taken into account were to include:

the general configuration of the coasts of the parties, as well as the presence of any special or unusual features;

so far as known or readily ascertainable, the physical and geological structure and natural resources of the continental shelf areas involved;

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

SOUTH WEST AFRICA CASES (ETHIOPIA v. SOUTH AFRICA; LIBERIA v. SOUTH AFRICA),

SECOND PHASE ICJ Reports 1966, p.6 (1966)

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

Ethiopia, Liberia:

South Africa failed to promote the material and moral well-being of the inhabitants of the Territory by:

Practicing apartheid (i.e. distinction as to race, color, national or tribal origin with respect to rights of inhabitants) over the Territory;

Subjecting the territory to arbitrary legislation and decrees detrimental to human dignity, rights and liberties inconsistent with the latters international status.

Humanitarian considerations are sufficient to generate legal rights and obligations, which South Africa violated. The Mandate system operated under a sacred trust of civilization (i.e. aim of aiding the well-being and development of people not able to govern themselves), and all civilized nations had an interest to see


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this is carried out.

South Africa:

It is no longer bound to terms of the Mandate upon the dissolution of the League of Nations

The Court held that it could only rule on legal rights, not on moral or ethical issues. The ICJ is a court of law, and can take account of moral principles only in so far as these are given legal form. While humanitarian considerations may constitute the inspirational basis for rules of law, they themselves do not amount to law. The sacred trust interest invoked has no residual juridical content which could operate per se to give rise to legal rights and obligations outside the system as a whole. It must be something more than a moral or humanitarian ideal in order to take on a legal character. In order to generate legal rights and obligations, it must be given juridical expression and be clothed in legal form.

This is an example of the limitation of defining international law as a rules-based system. (see comments, supra. p. 1) The principles set forth in this case have been obliterated by later cases. Fundamental equality is now considered an erga omnes obligation since it is a fundamental human right. (Karichi Notes, citing Prof. Roque, 2010)

CLASS NOTES

ASYLUM CASE (COLOMBIA v. PERU)

ICJ Reports 1950, p.266 (1950) Victor Raul Haya de la Torre, a Peruvian political figure, applied for asylum before the Colombian Ambassador in Lima after the Peruvian Government instituted rebellion charges against him for leading a botched coup attempt. The Colombian Ambassador granted him asylum, and thereafter requested safe-conduct to enable the refugee, whom he unilaterally qualified as a political offender, to leave the country. Peru refused and insisted that he committed common crimes so he was not entitled to enjoy the benefits of asylum. The two Governments were unable to reach an agreement so they submitted the matter to the Court.

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

Such rule is based on American international law and constant and uniform practice among Latin American states, as evidenced by:

Bolivarian Agreement of 1911, which provided for the application of principles of international law in the use of asylum;

Montevideo Convention on Political Asylum granted the right of qualification of a refugee to the granting State

Peru: Colombia does not have the right of unilateral qualification of a person as a political refugee entitled to diplomatic asylum. Haya de la Torre is charged with a common crime, hence asylum cannot be granted.

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


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Three months had elapsed between the military rebellion and grant of the asylum. It was not proved that the situation in Peru at the time implied the subordination of justice to the executive or the abolition of judicial guarantees to warrant the granting of asylum. Extradition v. Asylum Extradition. The refugee is within the territory of the

State of refuge. Also, the refugee is outside the territory of the State where the offense was committed. The decision to grant the refugee asylum in no way derogates from the sovereignty of that State.

Diplomatic Asylum. The refugee is within the territory of the State where the offense was committed. A decision to grant diplomatic asylum involves a derogation from the sovereignty of that State.

Colombia failed to prove the existence of a customary international norm allowing unilateral qualification. Asylum. It is a fundamental human right to enter another state in the ground of an unreasonable persecution in a territorial state because of religious belief, ethnicity, political ideology, etc. It involves 2 basic rights: 1. Right of non-refoulement right of the

individual seeking asylum not to be brought back to the territorial state pending an administrative inquiry as to his eligibility for refugee status; and

2. Right not to be prosecuted when the individual seeking asylum is granted refugee status.

CLASS NOTES

NUCLEAR TESTS CASE (NEW ZEALAND v.

FRANCE) ICJ Reports 1974, p.457 (1974)

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

New Zealand:

New Zealand was affected by radioactive fallout from the atmospheric tests, and this constituted a violation of its rights under international law.

France: ICJ has no jurisdiction over the case; France did not even appoint an agent to represent it therein.

Radioactive matter from the tests are insignificant

Court need not decide on the matter due to assurances from the French Government that atmospheric nuclear tests would end. Court observed from statements of the New Zealand Prime Minister that an assurance from France that atmospheric testing is finished for good would bring the dispute to an end. French authorities have made a number of consistent public statements in public concerning future tests: Statement of the French President that France would

be able to commence underground testing as soon as the last round of atmospheric tests were completed, and that he had made clear to his government that such round would be the last;

Statement by the French Ambassador to New Zealand, that the 1974 atmospheric tests would be the last of its kind;

Statement by the French Minister of Defense that underground testing would commence the following year

These conveyed the message that France, following the conclusion of the 1974 tests, would cease the conduct of atmospheric nuclear tests. Declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Nothing in the nature of a quid pro quo, nor any subsequent acceptance, nor even any reaction from other States is required for such declaration to take effect. Form is not decisive. The intention of being bound is to be ascertained by an interpretation of the act. The binding character of the undertaking results from the terms of the act and is based on good faith interested States are entitled to require that the obligation be respected. France, in conveying to the world its intention effectively to terminate its atmospheric tests, was bound to assume that other States might take note of these statements and rely on their being effective. It is true that France has not recognized that it is bound by any rule of international law to terminate its tests, but this does not affect the legal consequences of the statements in question. Once the Court has found that a State has entered into a commitment concerning its future conduct, it is not the Court's function to contemplate that it will not comply with it. However, if the basis of the Judgment were to be affected, the Applicant could request an examination of the situation in accordance with the provisions of the Statute. (See Request For An Examination of the Situation in accordance with Par. 63 of the Courts Judgment Of 20 December 1974 in the Nuclear Tests [New Zealand v. France] Case, infra., p. 11)


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NUCLEAR TESTS CASE (AUSTRALIA v. FRANCE)

ICJ Reports 1974, p.253 (1974) (Note that this case contemplates a similar set of facts as in the Nuclear Tests Case [New Zealand v. France], supra.) The French Government had been carrying out atmospheric tests of nuclear devices in the South Pacific, in the years 1966, 1967, 1968, 1970, 1971 and 1972. Prior to the initiation of the proceedings, Australia had already sent several Notes inviting the French Government to refrain from further atmospheric nuclear tests and to formally assure the Australian Government that no such tests will be held in the Pacific, but the latter only asserted the legality of its conduct and gave no indication that it would cease from conducting tests.

Australia The tests have caused fallout of measurable quantities of radioactive matter to be deposited on Australian territory.

France: ICJ has no jurisdiction over the case; France did not even appoint an agent to represent it therein.

Radioactive matter from the tests are insignificant

Court need not decide on the matter due to assurances from the French Government that atmospheric nuclear tests would end. France had effectively assumed an obligation to cease conducting atmospheric nuclear tests by way of unilateral statements made by its government officials. The Court appreciated the following statements: Statement from the French President, in part saying

that France will be in a position to move to the stage of underground tests, that atmospheric tests soon to be carried out will, in the normal course of events, be the last of this type, and that I had myself made it clear that this round of atmospheric tests will be the last.

Statements made by the French Minister of Defense in a television interview and press conference where he announced that the French Government had done its best to ensure that the 1974 nuclear tests would be the last atmospheric tests and that it was ready to proceed with underground testing were considered.

Therefore, Australias objective could be deemed to have been met. When it is the intention of the state making a declaration that it should become bound according to its terms, such intention confers on the declaration the character of a legal obligation. Such unilateral declarations would require no reply or subsequent acceptance to take effect. Under the principle of good faith, States may take

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

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

CLASS NOTES

REQUEST FOR AN EXAMINATION OF THE

SITUATION IN ACCORDANCE WITH PAR. 63 OF THE COURTS JUDGMENT OF 20 DECEMBER 1974 IN THE NUCLEAR TESTS (NEW ZEALAND

v. FRANCE) CASE ICJ Reports 1995, p.288 (1995)

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

New Zealand:

Scientific data today shows that underground testing can also have adverse effects, and thus be considered within the purview of the 1974 judgment; and

It is unlawful for France to conduct such nuclear tests before it has undertaken an Environmental Impact Assessment according to accepted international standards.

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


12

issue during that time was focused only on atmospheric tests because in 1974, those were the only type of nuclear tests being undertaken by France. However, had the Court the knowledge available today, it would not have viewed New Zealands grievances as having come to an end in the consequence of shifting the venue of the explosions (from atmospheric to underground testing). New Zealands complaint in 1973 was that damage was caused by French nuclear explosions in the Pacific. New Zealand's complaint today is the same. The cause is the same, namely, French nuclear tests in the Pacific. The damage is the same, namely, radioactive contamination. The only difference is that the weapons are detonated underground. New Zealand had made out a prima facie case of danger from French nuclear tests, on which it has shown that the basis of the 1974 Judgment is now affected. This gave New Zealand a right to request the examination of the situation, and placed the Court under a duty to consider its Request and interim measure, and also the applications for permission to intervene of Australia, Samoa, Solomon Islands, the Marshall Islands and the Federated States of Micronesia. Important principles of environmental law were stated in this case:

Inter-temporal Principle the Court must apply scientific knowledge now available and not limit itself to what was known at the time the issue came about.

Inter-generational rights each generation is both a custodian and a user of our common natural and cultural patrimony. As custodians of this planet, we have certain moral obligations to future generations which can be transformed into legally enforceable norms. Considering that the half-life of radioactive by-products would last for thousands of years, it is the responsibility of the people today to protect the interest of the future generations.

Precautionary principle when there is a complaint regarding environmental damage being committed by another party, the proof or disproof likely lies with the other party. Several conventions/declarations had been entered into using this principle, that environmental measures must anticipate, prevent and attack the causes of environmental degradation. Under the Bergen Declaration, prior assessment and reporting of the environmental impact of projects or programs of states shall be undertaken by parties. This principle is important because it should have prompted the ICJ to decide this case and not postpone the examination of the case presented by NZ until full scientific evidence is available that can either support or refute NZs contention.

Environmental Impact Assessment an ancillary of the precautionary principle which requires states to assess the possible impact of a program to the environment prior to its undertaking.

Principle that damage must not be caused to other nations no nation is entitled by its own activities to cause damage to the environment of any other nation.

LEGALITY OF THE THREAT OR USE OF

NUCLEAR WEAPONS (ADVISORY OPINION) ICJ Reports 1996, p.226 (1996)

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

Against Nuclear

Weapons:

Existence of a rule of international customary law which prohibits recourse to those weapons.

Treaties which can be interpreted to prohibit use of nuclear weapons (e.g. genocide, right to life, environmental protection);

Consistent practice of non-utilization of nuclear weapons by States since 1945;

UN General Assembly resolutions that deal with nuclear weapons and that affirm, with consistent regularity, the illegality of nuclear weapons.

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


13

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

THE PAQUETE HABANA

175 US 677 (1900) Two Spanish fishing vessels from Cuba the Paquete Habana and the Lola and their cargoes were captured by US gunboats during the Spanish-American War and condemned as a prize of war. A final decree of condemnation and sale was entered wherein the vessels were considered as not exempt from seizure The fishing vessels are not subject to capture by the US armed vessels. By ancient usage among civilized nations coast-fishing vessels pursuing their vocation of catching and bringing in fresh fish have been recognized as exempt, with their cargoes and crews, from capture as prize of war. The seizures were therefore unlawful and without probable cause. This ancient usage has gradually ripened into a rule of international law. Evidence why there is customary international law:

King Henry IVs orders to his admirals in 1403 exempting coastal fishers from capture

Treaty of Calais (between UK and France, which excluded fishing vessels from seizure during war)

US-Prussia Treaty (against seizure of fishing vessels)

Various legal writings and treatises of legal experts and luminaries which provide for the exemption of fishing/commercial vessels

Customary international norms are self-executory; there need not be any treaty or agreement to bring them into force.

CLASS NOTES

CASE CONCERNING RIGHT OF PASSAGE OVER

INDIAN TERRITORY (PORTUGAL v. INDIA) ICJ Reports 1960, p.6 (1960)

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

Portugal: The Treaty of Poona of 1779 issued by the Maratha ruler (Indian) granted it sovereignty over the enclaves and with such right of passage;

A right of passage exists through the Indian Peninsula in their favor;

India has a correlative obligation to respect such right.

India: The Treaty of Poona was not validly entered into and it never became a treaty with respect to them;

No international law conferring the right of passage and there is also no correlative obligation on its part to respect it;

No established local custom between them.

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


14

Treaty of 1779 The Marathas (Indians) themselves regarded the treaty as valid and binding. The treaty was also frequently referred to in subsequent formal documents by the Marathas.

The British, as successors of the Marathas, recognized Portuguese sovereignty over the enclave territories and never questioned it. By implication it was subsequently recognized by India. As a consequence the villages comprised in the Maratha grant acquired the character of Portuguese enclaves within Indian territory.

However, with regard to armed forces, police and arms and ammunitions, there is no such right of passage.

During the British period up to 1878 passage of armed forces and armed police between British and Portuguese possessions was regulated on a basis of reciprocity.

Article XVIII of the Treaty of Commerce and Extradition of 26 December 1878 between Great Britain and Portugal laid down that the armed forces of the two Governments should not enter the Indian dominions of the other, except for the purposes specified in former Treaties, or for the rendering of mutual assistance as provided for in the Treaty itself, or in consequence of a formal request made by the Party desiring such entry.

Constant and uniform practice between States is also a source of international law. There is no need to resort to general international custom or to general principles of law in disposing of such cases when there is an established between the parties.

CLASS NOTES

GENERAL PRINCIPLES OF LAW Estoppel

Estoppel and acquiescence are general principles of law which can be a basis of international law. The requisites of this principle are the same as those provided for by the Civil Code, namely:

1) Act or representation; 2) Reliance on the act; and 3) Damage to other party stemming from such

reliance. (Civil Code, Art. 1437)

CASE CONCERNING THE TEMPLE OF PREAH

VIHEAR (CAMBODIA v. THAILAND) ICJ Reports 1962, p.6 (1962)

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

Thailand is under an obligation to withdraw the detachments of armed forces it has stationed therein. Thailand, however, counters that that the temple is in Thai territory. Cambodia: Maps printed and published by a French

cartographical firm; Publication and communication of 11

maps to the Siamese government;

The map traced a frontier line purporting to be the outcome of the work of delimitation of the Mixed Commission. It showed that the whole Temple area is on the Cambodian side;

There was an acknowledgement by conduct by Thai authorities because they never questioned or disagreed about the maps within a reasonable time. Therefore, they must be deemed to have acquiesced;

When the Siamese authorities received the maps, the Minister of Interior thanked the French Minister of Bangkok for the maps and asked for another 15 copies for the transmission to Siamese governors;

The Siamese authorities did not raise any query about the map as between themselves and France or Cambodia, or expressly repudiate it as such, until the 1958 negotiations in Bangkok, when the question of Preah Vihear came under discussion between Thailand and Cambodia.

Thailand: At all material times, Thailand has exercised full sovereignty in the area of the Temple;

The general nature of the area allows access from Thailand to the Temple, whereas access from Cambodia involves the scaling of a high cliff from the Cambodian plain.

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

The signing of the map by Thai officials is a positive act which constituted estoppel.

CLASS NOTES


15

Indirect Evidence Leading to one Conclusion; Totality of Evidence

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

THE CORFU CHANNEL CASE

ICJ Reports 1949, p. 4 (1949)

(First Incident) Albanian ships fired at Royal Navy Ships while the latter was crossing the Corfu Channel after they had conducted an inspection of the area. (Second Incident) Subsequently, when the Royal Navy Ships crossed again, they werent fired at but they struck mines. (Third incident) The UK swept the Albanian territorial waters for mines without Albanian consent and over its clear objection.

United Kingdom:

Albanian government intentionally laid down the mines in the Corfu Channel;

Albania and Yugoslavia worked together in laying the new mines after the channel was already swept by the UK ships;

Regardless of who put the mines, the Albanian government knew of this act.

Albania: Albania did not lay the mines but it was the Yugoslavian minelayers who did so without their knowledge;

The acts of the Royal Navy were violative of Albanian sovereignty

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

furnish direct proof of facts giving rise to Albanias responsibility. In this case, the ICJ considered indirect proof which leads to the sole conclusion that Albania had knowledge. The following circumstances show a totality of evidence to support the conclusion that there was a breach of international law:

Albania constantly kept a close watch over the waters of the North Corfu Channel as evidenced by the Albanian Delegate in the Security Council and the diplomatic notes of the Albanian government concerning the passage of foreign ships through its territorial waters;

Albania never notified anyone about the mines in its waters. It can be concluded that they wanted to keep the mines in the channel a secret; and

Albania had lookouts in different locations which were strategic places to watch the channel. The lookouts would have seen whoever laid the mines in the channel.

Therefore, Albania had the obligation to warn the UK ships regarding the existence of mines. The obligation is based on the general principles of: Elementary considerations of humanity

Freedom of maritime communication

Every States obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States

(For a discussion on the strait/right of passage aspect of

the case, refer to p. 48)

SUBSTANTIVE PRINCIPLES OF LAW Reparation

It is an indispensable consequence of the failure of a State to conform to its obligations. It must, as far as possible, wipe-out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if the act has not been committed. (The Factory at Chorzow Case) The reparation of a wrong may consist in:

1. Restoration to status quo ante. 2. Compensation. If restoration is not possible, the

remedy is compensation to such amount of indemnity as to necessarily wipe out all the effects of the illegal act.

THE FACTORY AT CHORZOW (GERMANY v.

POLAND) 1928 PCIJ (ser. A) No. 17 (1928)


16

The Government of German Reich submitted to the Permanent Court of International Justice a suit for reparation against the Polish Government for the Polish governments taking possession of the nitrate factory in Chorzow, Poland (constructed by Germany), resulting to damage of 2 companies controlled by Germans. It was alleged that the taking was in violation of Article 6 of the Geneva Convention. Poland violated the Geneva Convention by taking the factory. Therefore, Poland is obliged to pay the German Reich as reparation a compensation for the damage sustained by the 2 companies. Reparation is the corollary of the violation of the obligations resulting from an engagement between States. In determining reparation, the following must be considered:

a. Existence of the obligation to make reparation; b. Existence of the damage which must serve as the

basis for the amount of the indemnity; c. Extent of the damage.

The essential principle in determining compensation for an act contrary to international law:

Reparation must wipe out all the consequences, as far as possible, of the illegal act and re-establish the situation which would, in all probability, have existed if the act had not been committed.

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

CASE CONCERNING THE BARCELONA

TRACTION, LIGHT AND POWER COMPANY, LIMITED (BELGIUM v. SPAIN)

ICJ Reports 1970, p.3 (1970) Barcelona Traction and its subsidiaries are incorporated in Canada and Spain. BTs share is largely held by Belgian nationals. After the Spanish Civil War, the Spanish government refused the authorization for the transfer of foreign currency necessary for the servicing of bonds issued by BT. BT incurred debt for the payment of interest on the bonds and subsequently, it was declared bankrupt. Belgium filed an Application with the ICJ.

Belgium: On behalf of natural and juristic persons

alleged to be Belgian nationals and shareholders in BT, it is entitled to reparation for damage caused to these persons by the conduct, which is contrary to international law, of the various organs of Spain towards BT.

Spain: Belgium does not have jus standi.

Belgium did not have jus standi to intervene or make a judicial claim on behalf of Belgian interests in a Canadian Company. Although a State can make a claim when investments by its nationals abroad (such investments being part of a States national economic resources) were prejudicially affected in violation of the right of the State itself to have its nationals enjoy a certain treatment, such right could only result from a treaty or special agreement. There is no instrument of such kind which was in force between Belgium and Spain.

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

CLASS NOTES Principle of Acquired or Vested Rights

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

SAUDI ARABIA v. ARABIAN AMERICAN OIL

COMPANY (ARAMCO) 27 ILR 117

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


17

principles both of public international law and of the municipal law of most civilized States. The taking, therefore, must have just, adequate and prompt compensation

Distinction between a franchise and concession agreement: A franchise for the extraction of wealth is imbued with public interest. A concession agreement, however, involves no public service as there is no public end-user.

CLASS NOTES Principle of Nullem Crimen, Nulla Poena Sine Lege There is no crime when there is no law punishing it.

PROSECUTOR v. TADI

ICTY Judgment of 2 October 1995 (1995) Dusko Tadid [tah-dich] was the first individual to be tried by the International Criminal Tribunal for the Former Yugoslavia (ICTY). He was tried for war crimes and was accused of committing atrocities at the Serb-run Omarska concentration camp in Bosnia-Herzegovina in 1992. Tadid challenged the jurisdiction of the International Tribunal. Tadid claims that to be duly established by law, the International Tribunal should have been created either by treaty, the consensual act of nations, or by amendment of the Charter of the United Nations, not by resolution of the Security Council. Tadid: To be a duly established tribunal which could

try him, the International Tribunal should have been created either by treaty, the consensual act of nations, or by amendment of the Charter of the United Nations, not by resolution of the Security Council.

The International Tribunal has jurisdiction over the acts of Tadid. Article 2 of the Statute provides that:

International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949,

and there follows a list of the specific crimes proscribed. Geneva Conventions are a part of customary international law, and as such their application in the present case does not violate the principle of nullum crimen sine lege. It would be sufficient to prove that the crime was committed in the course of or as part of the hostilities in, or occupation of, an area controlled by one of the parties. It is not, however, necessary to show that armed conflict was occurring at the exact time and place of the

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

NATIONALIZATION CASES

TEXACO v. LIBYA

53 ILR 389 (1978) Deeds of Concession were concluded between the Libyan Government and 2 American companies. A Decree of Nationalization nationalized 51% of the properties, rights and assets of the companies relating to the Deeds of Concession. Amoseas, a company governed by foreign law, which was formed jointly by the Companies to be their operating entity in Libya, was to continue to carry out its activities for the account of the Companies to the extent of 49%, and for the account of the Libyan National Oil Company (N.O.C.), to the extent of 51%. The Nationalization Decree converted Amoseas into a non-profit company, the assets of which were completely owned by N.O.C. Amoseas lost its name and was renamed. The Companies notified the Libyan Government that recourse would be taken to arbitration by virtue of clause 28 of the Deeds of Concession. The dispute, relating to nationalization, should be resolved in concurrence with the principles of international law and not to be based solely on the law of the nationalizing state. When contractual relations is governed by international law between a State and a foreign private party means that for the purposes of interpretation and performance of the contract, it should be recognized that a private contracting party has specific international capacities. Considering that some contracts may be governed both by municipal law and by international law, the arbitrator held that the choice of law clause referred to the principles of Libyan law rather than to the rules of Libyan law. The application of the principles of Libyan law does not have the effect of ruling out the application of the principles of international law. It simply requires the combination of the two in verifying the conformity of the first with the second.


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The arbitrator ruled that he would refer on the one hand to the principle of the binding force of contracts recognized by Libyan law, and on the other to the principle of pacta sunt servanda (i.e. agreements must be kept) which is a general principle of law of international law. The principles of Libyan law were in conformity with international law and the Deeds of Concession in dispute had a binding force. Also, the Resolutions of the UN General Assembly have binding effect in resolving international disputes. In determining the legal validity of the resolutions, the voting patterns and conditions are considered:

Resolution No. 1803: On the right of States to nationalize but always in accordance with international law o Voting Pattern: 87 For, 2 Against, 12 Abstain o Supported by many states of the Third World

and several Western developed countries with market economies, including the most important US.

o Hence, all geographical areas and all economic systems were represented.

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

Western countries and caused a number of developing countries to abstain.

BRITISH PETROLEUM v. LIBYA

53 ILR 297 (1978) British Petroleum had a contract with Libya to extract, process and export oil. Libya passed a Nationalization Law which restored ownership of all properties, rights and assets to the nation and transferred them to the Arabian Gulf Exploration Company. BP protested the nationalization.

BP: Cited Clause 28 of their Agreement which provides that:

The applicable law in resolving disputes between Libya and BP would be Libyan principles of law common to the principles of international law;

If there are no common principles, general principles of law will apply;

General principles of law will be preferred over Libyan principles of law.

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

performance or restitution in integrum. Its only remedy is an action for damages.

States, because of their sovereignty, have the power to expropriate. The only exception to this rule is if the taking was down without prompt, adequate and just compensation.

CLASS NOTES

INTERNATIONAL TREATIES

SALONGA v. EXECUTIVE SECRETARY

GR No. 176051 (2009) Daniel Smith was a member of the US Armed Forces who was charged with rape against Suzette Nicolas. Pursuant to the Visiting Forces Agreement, US was granted custody of Smith pending the proceedings. RTC found Smith guilty. Pursuant to the VFA, he shall serve his sentence in a facility that shall be agreed upon by the Philippines and US authorities. The Romulo-Kenney agreement was entered into which provided that Smith will be detained at the 1st floor, Rowe (JUSMAG) Building, US Embassy. The Philippine police & jail authorities shall have access to the place of detention in order to ensure the compliance of the US with the terms of the VFA. Therefore, Smith was taken out of the Makati jail by Philippine law enforcement agents and brought to the US Embassy. The VFA is being assailed for being void and unconstitutional. The VFA is constitutional. In Bayan vs. Zamora, the SC upheld the constitutionality of the VFA stating that the VFA was duly concurred in by the Philippine senate and has been recognized as a treaty by the US. Though the VFA was not submitted for advice and consent of the US Senate, it is still a binding international agreement or treaty recognized by the US because:

Only policymaking agreements are submitted to the US Senate;

Those that carry out or further implement policymaking agreements are submitted to Congress under the provisions of Case-Zablocki Act. Submission of this kind of agreement to the US Senate is not necessary;

The RP-US Military Defense Treaty is the policymaking agreement, while the VFA is its implementing agreement. The RP-US Military Defense Treaty has been ratified & concurred by both Philippine & US senates.

The VFA is different from Medellin vs. Texas because in Medellin vs. Texas, the US SC held that treaties entered into by the US are not automatically part of their domestic law unless these treaties are self-executing or there is an implementing legislation to make them enforceable.


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

MEDELLIN v. TEXAS

552 US 491 (2008) Jose Medellin is a Mexican national who was convicted and sentenced to death for participating in the gang rape and murder of two teenage girls in Houston. The International Court of Justice in the Case Concerning Avena and Other Mexican Nationals held that the United States had violated the Vienna Convention rights of 51 Mexican nationals (including Medellin) and that their state-court convictions must be reconsidered, regardless of any forfeiture of the right to raise the Vienna Convention claims because of a failure to follow state rules governing criminal convictions.

Medellin: The state had violated his rights under the Vienna Convention on Consular Affairs, to which the United States is a party. Article 36 of the Vienna Convention gives any foreign national detained for a crime the right to contact his consulate;

The Vienna Convention granted him an individual right that state courts must respect;

There is a memorandum from the U.S. President that instructed state courts to comply with the ICJ's rulings by rehearing the cases;

The Constitution gives the President broad power to ensure that treaties are enforced, and that this power extends to the treatment of treaties in state court proceedings.

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

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

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


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ACTORS IN INTERNATIONAL LAW An actor of international law is an entity of a type recognized by customary law as:

1. capable of possessing rights and duties; 2. capable of bringing international claims; and 3. Having these capacities conferred upon it.

(Brownlie, Chapter 3) If an entity is not a subject of international law, it may still have legal personality of a very restricted kind depending on the agreement or acquiescence of recognized legal persons. (Magallona, 2005) There are now many subjects because recognition and acquiescence may sustain an entity which is anomalous, and yet has a web of legal relations on the international plane.

ESTABLISHED LEGAL PERSONS States

They are the repositories of legitimated authority over peoples and territories. (infra.) Political Entities Legally Proximate to States

This refers to political settlements (not sovereign states) both in multilateral and bilateral treaties. They possess certain autonomy, fixed territory and population, and some legal capacities on the international plane. They are like states but politically such entities are not sovereign states.

Example: former Free City of Danzig. It had international personality but it was placed under the protectorate of Poland.

Condominium

This refers to a joint exercise of state

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