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CHAPTER VIII JURISDICTION 2.

Unless consent to a different rule has been


OF STATES expressed: (DEFAULT RULE)

a. when the boundary bet. 2 states is


Jurisdiction – the authority to affect legal interests.
a navigable river, the location of
the boundary is the middle of the
Corresponding to the powers of gov’t, it can be:
channel navigation (Thalweg
doctrine)
1. legislative jurisdiction – jurisdiction to
prescribe norms of conduct;
b. when the boundary bet. 2 states is
a non-navigable river or a lake, the
2. executive jurisdiction – jurisdiction to location of the boundary is the
enforce norms prescribed; and middle of the river or lake.
3. judicial jurisdiction – jurisdiction to Remember Las Palmas case: to have jurisdiction,
adjudicate occupation is not enough; control must also be
established.
Scope of a state’s jurisdiction over a person, thing,
or event depends on the interest of the state in
For the Phil. there is no problem with surface land
affecting the subject matter in question.
boundaries, since we have no contiguous neighbors.
When there are competing interests among various But knowing our boundaries is important in
states, need to establish priorities on the basis of the determining our EEZ.
quality and quantity of the linkages the various
states have. “Effects Doctrine”

It is possible to for more than one sovereignty to A state has jurisdiction over act occurring outside its
have jurisdiction over the same subject matter. territory but having effects within it.

International law limits itself to criminal jurisdiction. Two principles of the effects doctrine:
Civil jurisdiction is a subject for private international
law or conflict of laws. 1. Subjective territorial principle: a state
has jurisdiction to prosecute and punish for
FIVE PRINCIPLES OF JURISDICTION OF STATES crime commenced within the state but
completed or consummated abroad
1. territoriality principle
2. nationality principle 2. Objective territorial principle: a state
3. protective principle has jurisdiction to prosecute and punish for
4. universality principle crime commenced without the state but
5. passive personality principle consummated within its territory.

1, 2, and 3 are supported in customary law. The


universality principle finds application in special The Lotus Case (France v. Turkey)
circumstances. The passive personality principle
does not enjoy wide acceptance. The French mail steamer Lotus, on the way to
Constantinople, collided with the Turkish vessel Boz-
Jurisdiction may also be acquired through treaty. Kourt on the high seas. The Boz-Kourt sank and lost
eight sailors, all Turkish nationals. The Lotus arrived
in Constantinople, where Turkish authorities arrested
Lt. Demons, the French officer in charge of the Lotus
1. THE TERRITORIALITY PRINCIPLE at the time of the collision, and Hassan Bey, the
captain of the Boz-Kourt. Both were charged with
Fundamental source of jurisdiction: sovereignty over manslaughter. They were both convicted. The
territory French government objected, claming that Turkey
had no jurisdiction to institute criminal proceedings
A state has absolute though not necessarily exclusive under Turkish law against Lt. Demons.
power to prescribe, adjudicate, and enforce ruled for
conduct within its territory. This is why it is ISSUE: Whether Turkey has jurisdiction over the
necessary to determine boundaries. offense committed in the high seas.

The Rules on Boundaries HELD: Yes, Turkey has jurisdiction.

1. The boundary separating the land areas of The offense for which Lt. Demons was prosecuted
two states is determined by acts of the was negligence or imprudence which had its origin
states expressing their consent to its on board the Lotus, while its effects made
location themselves felt on board the Boz-Kourt. These two

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elements are legally inseparable such that their A State owes at all times a duty to protect other
separation would render the offense non-existent. States against injurious acts by individuals from
Neither the exclusive jurisdiction of either State, nor within its jurisdiction. The Tribunal holds that
the limitations of the jurisdiction of each to the Canada is responsible in international law for the
occurrences which took place on the respective ships conduct of the Trail Smelter. It is, therefore, the
would appear calculated to satisfy the requirements duty of the government of Canada to see to it that
of justice and effectively protect the interests of the this conduct should be in conformity with the
two States. It is only natural that each should be obligation of Canada under international law as
able to exercise jurisdiction in respect of the incident herein determined. The Trail Smelter shall be
as a whole. Therefore, Turkey and France have required to refrain from causing any damage through
concurrent jurisdiction. fumes in the State of Washington. The tribunal then
set forth a permanent regime for monitoring and
regulating the pollution from the Trail Smelter.

Trail Smelter Arbitration (US v. Canada)

PART I Jurisdiction over foreign vessel

A smelter for zinc and lead ores was operated in a Crimes committed on foreign vessels within
place called Trail in Canada by the Consolidated Philippine territory:
Mining and Smelting Company of Canada. The
smelter produced emissions of sulphur dioxide 1. French Rule: crimes committed aboard a
fumes. The US Government complained that the foreign merchant vessel should not be
fumes were causing damage in the state of prosecuted in the courts of the country
Washington. within whose territorial jurisdiction they
were committed unless their commission
ISSUES: Whether Canada is liable for damages to affects the peace and security of the
the US. territory.

Whether the Trail smelter should be required to 2. English Rule: crimes perpetrated under
refrain from causing damage in Washington in the such circumstances are in general triable in
future. the courts of the country within whose
territory they were committed. (Based on
HELD: Yes, Canada is liable for damages. the territorial principle and followed in the
US)
It was found that there was injury caused to the US.
Hence, Canada is liable for damages caused by the The Philippines follows the English rule because the
Trail smelter. But, the question is how much. The theories and jurisprudence prevailing in the US on
US claims a total of $2.1M in damages. One of the the matter are authority in the Philippines. (People v.
claims was for “wrong done the US in violation of its Wong Cheng)
sovereignty, measured by the cost incurred by the
US in investigating the problems created by the
smelter.” The tribunal held that the US should not
be awarded this particular claim since it was not
within the intention of the parties to include money 2. THE NATIONALITY PRINCIPLE
expended for the investigation of the case as part of
the term “damages caused by the Trail smelter.” In Every state has jurisdiction over its nationals even
other previously decided cases, damages awarded when those nationals are outside the state. The
for expenses were awarded not as compensation for following case is an illustration:
violation of national sovereignty but as compensation
for expenses incurred by individual claimants in Blackmer v. United States
prosecuting their claims for the wrongful acts of the
offending Government. The Tribunal awarded the US Harry Blackmer was a US citizen residing in Paris.
an indemnity of $78,000 instead. He was subpoenaed by the Supreme Court of DC to
appear as witness for the government at a criminal
The Train Smelter shall refrain from causing damage trial. He failed to respond to the subpoenas. The
in Washington in the future to the extent set forth. court held him in contempt and fined him $30,000.
The Tribunal then provided for a temporary regime The court seized his property to satisfy the fine.
for the regulation of sulphur emissions.
HELD: While Blackmer moved his residence to Paris,
PART II he still continued to owe allegiance to the US as a US
citizen. By virtue of the obligations of citizenship,
Two years later, the Tribunal met again and the US retained its authority over him, and he was
reiterated its decision but added the following: bound by its laws made applicable to him in a foreign
country.

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This is not even a question of international law; it is maintained his residence and a business enterprise.
municipal law which establishes the duties of the Shortly after the outbreak of WWII, he applied for
citizen in relation to his own government. It cannot citizenship by naturalization in Liechtenstein. He was
be doubted that the US possesses the power granted citizenship soon after. He then returned to
inherent in sovereignty to require the return to his Guatemala.
country of its citizen, resident elsewhere, whenever
the public interest requires it, and to penalize him in Guatemala entered WWII against Germany. It then
case of refusal. ordered the arrest of Nottebohm as a dangerous
enemy alien and deported him to the US, where he
was interred for three years. He then returned to
Nationality of natural persons Liechtenstein after Guatemala refused him
readmission. Guatemala confiscated his property on
Each state has the right to decide who are its the ground that he was an enemy alien.
nationals using either the principle of jus sanguinis
or jus soli or naturalization laws. In 1951, Liechtenstein brought this action against
Guatemala, claiming reparation for its wrongful act
But, to claim a person as a national, the state must of arresting, detaining, expelling, and refusing to
have reasonable connection or an “effective line” readmit Nottebohm. Guatemala claimed that
with that person. The consent of the individual alone Liechtenstein had no right to bring the action since it
is not enough for him to be recognized by other could not exercise its right to protect its nationals
states as a national of the state to which he claims to with respect to Nottebohm, whose status as a
belong. national of Liechtenstein was questionable.

Nationality of corporations ISSUE: Whether the nationality conferred on


Nottebohm by Liechtenstein entitles Liechtenstein to
A state has jurisdiction over corporations organized file this action against Guatemala on behalf of
under its laws. Nottebohm.

Many states also assert jurisdiction over corps. HELD: No, Liechtenstein has no right to file this
whose principal place of business or registered office action.
is located within its territories.
International law leaves it to each State to lay down
States have also sought to regulate corps. organized its own rules governing the grant of nationality.
or having their principal place of business abroad BUT, a State cannot claim that the rules it has thus
when these corps. are owned or controlled by laid down are entitled to recognition by another state
nationals. This last one is controversial. unless it has acted in conformity with the general
aim of making the legal bond of nationality accord
Also more controversial: multi-national corps. which with the individual’s genuine connection with the
register various addresses for diff. Purposes. But State.
this does not interest us because it is a subject for
conflict of laws. Nationality is a legal bond having as its basis a social
fact of attachment, a genuine connection of
Nationality of maritime vessels existence, interests and sentiments, together with
the existence of reciprocal rights and duties. In this
A state has jurisdiction over vessels flying its flag. case, Nottebohm had no real connections with
Each state determines requirements for registration. Liechtenstein other than a few visits to his brother
But flags of convenience might be challenged on the there. On the other hand, the facts show that his
ground of lack of sufficient link. attachment was really to Guatemala where he
resided and carried on his business for 34 years. His
The same rule generally applies to aircraft and naturalization was not based on any real prior
spacecraft. connection with Liechtenstein, nor did it alter his
manner of life upon its conferment. He did not
Effective Nationality Link become wedded to the traditions, interests, and way
of life of Liechtenstein. It appears that Nottebohm
The doctrine on effective nationality link is used to asked for naturalization only because he wanted to
determine which of two states of which a person is a be a national of a neutral state instead of a
national will be recognized as having the right to belligerent state like Germany.
give diplomatic protection to the holder of dual
nationality. The doctrine is found in the following Guatemala is therefore under no obligation to
case: recognize the nationality granted to Nottebohm.
Liechtenstein is not entitled to extend its protection
The Nottebohm Case (Liechtenstein v. to Nottebohm as against Guatemala.
Guatemala)

Nottebohm was a German national by birth. At the


age of 24, he moved to Guatemala, where he

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Stateless Persons
3. THE PROTECTIVE PRINCIPLE
Stateless persons are those who do not have a
nationality. They are either de jure or de facto A state may exercise jurisdiction over conduct
stateless. outside its territory that threatens its security, as
long as that conduct is generally recognized as
De jure stateless persons – those who have lost criminal by states in the international community.
their nationality, if they had one, and have not [This conditional clause excludes acts committed in
acquired a new one exercise of the liberty guaranteed an alien by the law
of the place where the act was committed.]
De facto stateless persons – those who have a
nationality but to whom protection is denied by their Examples: Plots to overthrow the government,
state when out of that state. (ex: refugees) forging its currency, plot to break its immigration
regulations.
Since they do not enjoy protection by any state, how
are they protected against human rights violations, Sample Case: “Lord Haw Haw” was an American
such as deportation to parts unknown? See the citizen who broadcast messages from Germany
following case: seeking to persuade the Allies to surrender. He was
a holder of a British passport. After the war, he was
Mejoff v. Director of Prisons convicted of high treason in the UK. The decision
said that no principle of comity demands that a state
Boris Mejoff was an alien of Russian descent who should ignore the crime of treason committed
was brought to the Phil. as a secret operative by the against it outside its territory. On the contrary, a
Jap forces during the Jap regime in the Phil. Upon proper regard for its own security required that all
liberation, he was arrested as a Jap spy. The those who commit treason, whether within or
People’s Court ordered his release. The Deportation without the realm should be amenable to its laws.
Board found that, having no travel documents,
Mejoff was illegally in this country. The Board of Limitations of the Protective Principle
Commissioners of Immigration ordered his
deportation on the first available transportation to The doctrine is limited to those offenses posing a
Russia. A few months later, two boats of Russian direct, specific threat to national security.
nationality called at the Cebu Port but refused to
take Mejoff alleging lack of authority to do so. However, recently, some academicians have urged a
Mejoff was moved to Bilibid where he languished for more liberal interpretation of the Protective Principle
two years because no ship or country would take when applied to terrorist activities.
him. He filed this petition for habeas corpus.
4. THE UNIVERSALITY PRINCIPLE
ISSUE: Whether Mejoff should be released.
Certain activities, universally dangerous to states
HELD: Yes, he should be released. and their subjects, require authority in all community
members to punish such acts wherever they may
Aliens illegally staying in the Philippines have no occur, even absent a link between the state and the
right of asylum therein, even if they are “stateless.” parties or the acts in question.
However, foreign nationals, not enemy, against
whom no charge has been made other than that The Universal Principle recognizes that certain
their permission to stay has expired, may not offenses are so heinous and so widely condemned
indefinitely be kept in detention. The protection that any state, if it captures the offender, may
against deprivation of liberty without due process of prosecute and punish that person on behalf of the
law and except for crimes committed against the world community regardless of the nationality of the
laws of the land is not limited to Philippine citizens offender or victim or where the crime was
but extends to all residents, except enemy aliens, committed.
regardless of nationality. In this case, Mejoff’s entry
was not unlawful since he was brought in by the Origin of this principle: Piracy
forces of a de facto gov’t whose decrees were law Piracy (def in int’l law): any illegal act of violence
during the occupation. Moreover, the Phil. adopts or depredation committed for private ends on the
the generally accepted principles of international law high seas or outside the territorial control of any
as part of the law of the land, including the Universal state.
Declaration of Human Rights, which guarantees the
right against arbitrary arrest, etc. Other crimes covered by the universality principle,
aside from piracy:
Therefore, Mejoff should be released but placed
under the surveillance of the immigration authorities 1. genocide
or their agents in such form and manner as may be 2. crimes against humanity
deemed adequate to insure that he keep peace and 3. war crimes
be available when the gov’t is ready to deport him. 4. aircraft piracy

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5. terrorism
7. rape, sexual slavery, enforced
There is also growing support for universal prostitution, forced pregnancy,
jurisdiction over crimes against human rights. enforced sterilization, or any other
form of sexual violence of comparable
Definitions gravity – forced pregnancy is the unlawful
confinement of a woman forcibly made
Genocide – any of the following acts committed pregnant with the intent of affecting the
with intent to destroy, in whole or in part, a national, ethnic composition of any population;
ethnical, racial, or religious group, as such:
8. persecution against any identifiable
1. killing members of the group; group or collectivity on political, racial,
2. causing serious bodily or mental harm to national, ethnic, or other grounds –
members of the group; intentional and severe deprivation of
3. deliberately inflicting on the group fundamental rights contrary to int’l law by
conditions of life calculated to bring about reason of the identity of the group or
its physical destruction in whole or in part; collectivity;
4. imposing measures intended to prevent
births within the group; 9. enforced disappearance of persons –
5. forcibly transferring children of the group to arrest, detention or abduction of persons
another group. by, or with the authorization, support, or
acquiescence of a State or a political
Crimes against humanity – any of the following organization, followed by a refusal to
acts when committed as part of a widespread or acknowledge that deprivation of freedom or
systematic attack directed against any civilian to give information on the fate or
population with knowledge of the attack: whereabouts of those persons, with the
intention of removing them from the
Õ “Attack directed against any civilian population” protection of the law for a prolonged period
means the multiple commission of the following acts of time;
against any civilian population, pursuant to or in
furtherance of a State or organizational policy to 10. apartheid – inhumane acts committed in
commit such an attack. the context of an institutionalized regime of
systematic oppression and domination by
1. murder; one racial group over any other racial group
with the intention of maintaining that
2. extermination – includes intentional regime.
infliction of conditions of life, the deprivation
of access to food and medicine, calculated 11. other inhumane acts of a similar
to bring about the destruction of part of a character intentionally causing great
population; suffering, or serious injury to body or
to mental or physical health.
3. enslavement – the exercise of any or all of
the powers attaching to the right of War Crimes – grave breaches of the Geneva
ownership over a person and includes the Convention of 12 August 1949.
exercise of such power in the course of
trafficking persons, in particular women and CASES
children;
Filartiga v. Peña-Irala
4. deportation or forcible transfer of
population – forced displacement of the A wrongful death action was brought by two
persons concerned by expulsion or other nationals of Paraguay in the US Courts. They were
coercive acts from the area in which they the father and sister of a 17-year old Paraguayan
are lawfully present, without grounds who was tortured to death in Paraguay by Peña-Irala
permitted under int’l law; who was Inspector-General of the police.
Jurisdiction was claimed on the basis of the Alien
5. imprisonment or other severe Tort Statute.
deprivation of physical liberty in
violation of fundamental rules of ISSUE: Whether the US Court has jurisdiction over
international law; the case.

6. torture – intentional infliction of severe HELD: Yes, it has jurisdiction. Deliberate torture
pain or suffering, physical or mental, upon a under the color of official authority violates the
person in the custody or under the control universal rules of international law regardless of the
of the accuser; does not include pain or nationality of the parties. The prohibition of torture
suffering arising from, inherent, or has become part of customary law. This is
incidental to lawful sanctions; supported by the Universal Declaration of Human

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Rights and the 1975 Declaration on the Protection of all the crimes that were committed as its own “acts
all Persons from Torture. The Declaration creates an of State.” But that responsibility does not detract
expectation of adherence among its member states, from the personal responsibility of the accused for
and insofar as the expectation is gradually justified his acts.
by State practice, a declaration, may by custom
become recognized as laying down rules binding Eichmann v. Israel (Supreme Court Decision)
upon the States. Indeed, several commentators
have concluded that the Universal Declaration has ISSUE: Whether the State of Israel can punish the
become a part of binding customary international offenses allegedly committed by Eichmann even if it
law. had not existed as a state at the time of the
commission of the offenses; Whether the law can be
applied retroactively to acts committed prior to its
enactment.
The Eichmann Case
HELD: Yes, the State of Israel has jurisdiction.
Adolf Eichmann was a high ranking SS officer who
played a central role in the planning and The crimes established in the Nazi Collaborators Law
implementation of the persecution of Jews in of 1950 must be seen today as acts that have always
Germany, Poland, Hungary, and several other been forbidden by customary international law. They
countries. At the end of the war, he escaped to are acts which are of a universal criminal character
Argentina. In 1960, he was kidnapped in Argentina and entail individual criminal responsibility. The
by Israeli agents. He was then tried under Israel’s enactment of the law was not a retroactive penal
Nazi Collaborators Law and was found guilty by the law, but rather one by which the legislative body of
trial court. The Supreme Court of Israel upheld the Israel gave effect to international law and its
conviction. In 1962, Eichmann went to the gallows, objectives.
the only person ever formally executed by the State
of Israel. It is the universal character of the crimes which
vests in every State the power to try those who
Israel v. Eichmann (Trial Court Decision) participated in the preparation of such crimes, and to
punish them therefor.
ISSUE: Whether Israel has jurisdiction to punish
acts done outside its boundaries by a person who One of the principles whereby States assume the
was not an Israeli citizen and who was acting in the power to try and punish a person for an offense he
course of his duty on behalf of his home country has committed is the principle of universality. It
(Germany). means that the power is vested in every State
regardless of the fact that the offense was
HELD: Yes, Israel has jurisdiction. The power of committed outside its territory by a person who did
Israel to enact the Nazi Collaborators Law under not belong to it, provided he is in its custody at the
which Eichmann was tried is based on a dual time he is brought to trial. This principle has wide
foundation: the universal character of the crimes in support and is universally acknowledged with respect
question and their specific character as intended to to the offense of piracy. There is full justification for
exterminate the Jewish people. applying the principle of universal jurisdiction to this
case, since the international character of “crimes
Jurisdiction is justified under the law of nations: The against humanity” is not in doubt, and the
abhorrent crimes defined in the Nazi Collaborators unprecedented extent of the injurious and
Law are not crimes under Israel Law alone. These murderous effect is not open to dispute. The basic
crimes are grave offenses against the law of nations reason for which international law recognizes the
itself (delicta jurit gentium). The jurisdiction to try right of each State to exercise such jurisdiction in
crimes under international law is universal. piracy applies with greater force to these cases.
Genocide is nothing but the gravest type of crime
against humanity. The State which prosecutes and punishes a person
for that offense acts solely as the organ and agent of
the international community, and metes out
Jurisdiction is also justified under the special
punishment to the offender for his breach of the
connection which the State of Israel has with the
prohibition imposed by the law of nations. Thus, the
crimes: The people of Israel, the Jewish people,
State of Israel was entitled, pursuant to the principle
constituted the target and victim of most of the said
of universal jurisdiction and acting in the capacity of
crimes. The connection between the State of Israel
guardian of international law and agent for its
and the Jewish people has been recognized as an
enforcement, to try Eichmann.
integral part of the law of nations. The crimes
against the Jews very deeply concern the vital
interests of the State of Israel, and under the
protective principle, it has the right to punish the
criminals.

Also, it is true that under international law, Germany


bears not only moral, but also legal responsibility for

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5. THE PASSIVE PERSONALITY PRINCIPLE sources of jurisdiction, but many international legal
scholars agree that the international community
A state may apply law – particularly criminal law – to recognizes its legitimacy. The Hostage Taking
an act committed outside its territory by a person Convention gives each signatory country discretion
not its national where the victim of the act was its to exercise extraterritorial jurisdiction when the
national. offense is committed with respect to a hostage who
is a national of that state if that state considers it
This principle has not been ordinarily accepted for appropriate.
ordinary torts or crimes, but is increasingly accepted
as applied to terrorist and other organized attacks on It is true that the US has been reluctant to accept
a state’s nationals by reason of their nationality, or the passive personality principle for fear that it could
to assassination of a state’s diplomatic lead to indefinite criminal liability for its own citizens.
representatives of other officials. The belief was that foreigners visiting the US should
comply with the laws of the US and should not be
US v. Fawaz Yunis permitted to carry their laws with them. Otherwise,
Americans would face criminal prosecutions for
The Royal Jordanian Airlines Flight 402 was actions unknown to them.
scheduled to depart from Beirut, Lebanon. Several
American citizens were on board the plane. Before However, the theory has been increasingly accepted
the plane could depart, several Arab men hijacked when applied to terrorist and other organized attacks
the plane. The plane left Beirut and landed in on a state’s nationals by reason of their nationality,
Cyprus, Sicily, and went over the airspace of several or to assassinations of a state’s ambassadors, or
Mediterranean countries. It finally landed back in government officials. Perpetrators of crimes
Beirut, where the Arab guys delivered a press unanimously condemned by the international
conference and blew up the plane. community should be aware of the illegality of their
actions. Therefore, qualified application of the
Fawaz Yunis was among the Arab hostage-takers. doctrine to serious and universally condemned
He was indicted under a US court. He contends that crimes will not raise the specter of unlimited and
the US courts have no jurisdiction to prosecute a unexpected criminal liability.
foreign national for crimes committed in foreign
airspace and on foreign soil. He also claims that the
presence of American nationals on board the plane is CONFLICTS OF JURISDICTION
an insufficient basis for exercising jurisdiction by the
US courts. [The plane was registered in Jordan, flew Since there are various principles for assuming
the Jordanian flag, and never landed on American jurisdiction, more than one state may have a valid
soil nor flew over American airspace.] claim to jurisdiction. US courts have developed the
following modes to resolve conflicts of jurisdiction:
ISSUE: Whether the US court has jurisdiction.
1. The Balancing Test – In Timberlane
HELD: Yes, the US court has jurisdiction under both Lumber Co. v. Bank of America, the issue
the universal principle and the passive personality was whether to assume jurisdiction in a
principle. case involving acts emanating from
Honduras. The court employed a tripartite
Under the Universal Principle: The Universal analysis as follows:
Principle recognizes that certain offenses are so
heinous and so widely condemned that any state if it a. Was there an actual or intended
captures the offender may prosecute and punish that effect on American commerce?
person on behalf of the world community regardless
of the nationality of the offender or victim or where b. Is the effect sufficiently large to
the crime was committed. Aircraft piracy and present a cognizable injury to the
hostage taking are crimes that fit within the category plaintiffs?
of heinous crimes for purposes of asserting universal
jurisdiction, as evidenced by several treaties and c. Are the interests of, and link to,
conventions (The Tokyo Convention, The Hague the US including effects on
Convention, The Montreal Convention, International American foreign commerce
Convention for the Taking of Hostages). These sufficiently strong vis-à-vis those
treaties require signatory states to prosecute any of other nations, to justify an
alleged offenders present in its territory. assertion of extraordinary
authority?
Under the Passive Personality Principle: The
Passive Personality Principle authorizes states to If the answer to all three questions is YES,
assert jurisdiction over offenses committed against then the court will assume jurisdiction.
their citizens abroad. It recognizes that each state
has a legitimate interest in protecting the safety of 2. International Comity – Even when a state
its citizens when they journey outside national has basis for exercising jurisdiction, it will
boundaries. This is the most controversial of the five refrain from doing so it its exercise will be

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unreasonable. Unreasonableness is
determined by evaluating various factors, It is a process that is governed by treaty. The legal
such as: right to demand extradition and the duty to
surrender a fugitive exist only when created by
a. the link of the activity to the treaty. The treaty may cover specific crimes only or
territory of the regulating state; all offenses considered criminal by both states.

b. the connection between the The following principles govern extradition:


regulating state and the person
principally responsible for the 1. No state is obliged to extradite unless there
activity to be regulated (ex: is a treaty;
nationality, residence, economic
activity); 2. Differences in legal system can be an
obstacle to interpretation of what the crime
c. the character of the activity to be is; and
regulated;
3. Religious and political offenses are not
d. the existence of justified extraditable.
expectations that might be
protected or hurt by the The procedure for extradition is normally through
regulation; and diplomatic channels.

e. the likelihood of conflict with How extradition rules can be bypassed – see the
regulation by another state. following case:

3. Forum non conveniens – If in the US v. Alvarez-Machain


circumstances of the case, it be discovered
that there is a real unfairness to one of the Alvarez was indicted for participating in the kidnap
suitors in permitting the choice of a forum and murder of a US Drug Enforcement
which is not the natural or proper forum, Administration (DEA) agent and a Mexican pilot. The
either on the ground of convenience of trial DEA believes that Alvarez, a medical doctor,
or the residence or domicile of parties or of participated in the murder of the agent by prolonging
its being the locus contractus or locus his life so that others could torture and interrogate
solutionis, then the doctrine of forum non him. Alvarez was forcibly kidnapped in Mexico and
conveniens is properly applied. flown to Texas where he was arrested by DEA
officials. The District Court concluded that the DEA
The application of the doctrine is was responsible for the abduction.
discretionary with the court. The court
needs to weigh the private interest and the Alvarez moved to dismiss on the ground that the
public interest factors. court lacked jurisdiction because his abduction was a
violation of an extradition treaty between the US and
The private interest factors are: Mexico.

a. access to sources of proof ISSUE: Whether the US court has jurisdiction.


b. availability of compulsory process for
unwilling witnesses HELD: Yes, the US court has jurisdiction.
c. other personal problems which make
trial easy, expeditious, and The applicable rule is Ker v. Illinois, where the US
inexpensive. Supreme Court held that the forcible abduction of a
defendant is no sufficient reason why the party
The public interest factors are: should not answer when brought within the
jurisdiction of the court which has the right to try
a. congestion him for such an offense, and presents no valid
b. desire to settle local controversies at objection to his trial in such court.
home
c. having the case tried in a forum at Moreover, the abduction of Alvarez was not a
home with the applicable law. violation of the extradition treaty between the US
and Mexico. There is nothing in the language of the
treaty that proscribes or prohibits forcible abductions
of people from the territory of the other nation.
EXTRADITION While it outlines the processes and restrictions on
the obligation to extradite, it does not specify the
Extradition is the surrender of an individual by the only way in which one country may gain custody of a
state within whose territory he is found to the state national of the other country for the purposes of
under whose laws he is alleged to have committed a prosecution.
crime or to have been convicted of a crime.

Sheryl 2D 2003 page 8


under the Constitution. On the other hand, we have
DUE PROCESS IN EXTRADITION CASES our national commitment under the RP-US
Extradition Treaty. Considering that the extradition
Sec. of Justice v. Hon. Ralph Lantion (Mark proceeding is only at its evaluation stage, the nature
Jimenez Case) of his right to due process is nebulous and the
degree of prejudice that he will allegedly suffer is
ISSUE: Whether MJ is entitled to the due process weak. Hence, greater weight must be accorded to
rights to notice and hearing during the evaluation the interests of the government.
stage of the extradition process.
This is not to say that MJ is being denied due process
HELD: No, MJ is not entitled to notice and hearing altogether. PD 1069 affords the extraditee the
during the evaluation stage of the extradition opportunity to meet the evidence against him once
process. the petition is filed in court. The time for the
extraditee to know the basis of the request for his
There is no provision in the RP-US Extradition Treaty extradition is merely moved to the filing in court of
and in PD 1069 which implements the treaty, that the formal petition for extradition. The extraditee’s
gives an extraditee the right to demand from the right to know is momentarily withheld during the
Secretary of Justice copies of the extradition request evaluation stage of the extradition process to
from the US government and its supporting accommodate the more compelling interest of the
documents and to comment thereon while the State to prevent escape of potential extradites which
request is still undergoing evaluation. can be precipitated by premature information of the
basis of the request for his extradition.
MJ argues that an extradition proceeding is like a
criminal proceeding, and the evaluation stage is like
a preliminary investigation. Hence, he should be
afforded the right to notice and hearing. This is not
correct. An extradition proceeding is sui generis [of
its particular kind; unique]. It is not a criminal
CHAPTER IX IMMUNITY FROM
proceeding which will call into operation all the rights JURISDICTION
of an accused as guaranteed by the Bill of Rights. To
begin with, extradition does not involve the
General Rule
determination of the guilt or innocence of an
accused. His guilt or innocence will be adjudged in
Jurisdiction of a state within its territory is complete
the court of the state where he will be extradited.
and absolute.
As a rule, constitutional rights that are only relevant
to determine the guilt or innocence of an accused
Exceptions
cannot be invoked by an extraditee especially by one
whose extradition papers are still undergoing
1. Sovereign immunity (covers both a head of
evaluation.
state and the state itself)
Other differences between an extradition proceeding
and a criminal proceeding: 2. Immunity of the representative of states or
diplomatic and consular immunities
EXTRADITION CRIMINAL
Summary in nature Involve a full-blown trial
Rules of evidence are Stricter rules of evidence IMMUNITY OF HEAD OF STATE
less stringent
Quantum of evidence Requires proof beyond Immunity from jurisdiction is enjoyed by both the
required is only prima reasonable doubt head of state and by the state itself.
facie
Courts may adjudge an Judgment of a court Example: Case of Mighell v. Sultan of Johore – The
individual extraditable, becomes executory upon Sultan was sued for breach of promise to marry in a
but the President has the being rendered final British court. The subject of the suit was therefore a
final discretion to private matter. Upon verification of his being a
extradite him sitting foreign sovereign, the case was dismissed.
The immunity that is recognized here is absolute.
Since extradition proceedings are not criminal in
The Pinochet Case
character and the evaluation stage in an extradition
proceeding is not akin to a preliminary investigation,
Pinochet was one of the leaders of a coup that
the due process safeguards in the latter do not
deposed the government of President Allende in
necessarily apply to the former.
Chile. He became head of state in 1974. In a
campaign to destroy leftist political forces in Chile,
MJ’s plea to due process collides with important state
Pinochet’s government arrested thousands of people;
interests which cannot be ignored. The clash of
many were executed, imprisoned, or disappeared.
rights demands a delicate balancing of interests. On
The UN Human Rights Commission condemned
the one hand, MJ claims his right to due process

Sheryl 2D 2003 page 9


Pinochet’s government for torturing detainees. In STATE IMMUNITY
1990, Pinochet stepped down as president. In 1998,
he assumed a lifetime seat in the Chilean Senate. The state may not be sued without its consent. This
While Pinochet was seeking medical treatment in the is both municipal law and also international law
UK, a Spanish judge requested his extradition to applicable to foreign states.
Spain to face charges of human rights violations
committed during his regime. Basis: Principle of equality of states: par in parem
non habet imperium. The perfect equality and
ISSUE: Whether Senator Pinochet is entitled to absolute independence of sovereigns and the
immunity as a former head of state. common interest impelling them to mutual
intercourse have given rise to a class of cases in
HELD: Yes, he is entitled to immunity. A former which every sovereign is understood to waive the
head of state cannot be prosecuted in the municipal exercise of a part of that complete exclusive
courts of a foreign state for his official acts as head territorial jurisdiction.
of state.
When is it applicable?
Under customary international law, it is accepted
that a state is entitled to expect that its former head Immunity is reserved only for acts jure imperii
of state will not be subjected to the jurisdiction of (governmental acts) but not for acts jure gestionis
the courts of another state for certain categories of (trading and commercial acts).
acts performed while he was head of state unless
immunity is waived by the current government of the
state of which he was once the head. The immunity When is it not applicable?
is accorded for the benefit not of the former head of
state himself but for the state of which he was once
the head, and any international law obligations are 1. Trading and commercial acts of the
owed to that state and not to the individual. government - A State may be said to have
descended to the level of an individual and
The rationale is the same for former heads of state can be deemed to have tacitly given its
as it is for current heads of state. In each case, the consent to be sued only when it enters into
obligation in international law is owed to the state, business contracts. It does not apply where
and not to the individual, though in the case of a the contract relates to the exercise of its
current head of state, he will have a concurrent sovereign functions.
immunity ratione personae. It is the state alone
which can waive the immunity. In this case, Chile How to determine if it is a commercial act of
has made no such waiver. the government – Ask whether the foreign
state is engaged in the activity in the
An isolated case was Hilao v. Marcos in which the regular course of business. If the foreign
claim to immunity of the Marcos estate failed. The state is not engaged regularly in a business
facts of that case were unique in that the Philippines or trade, the particular act or transaction
filed a brief, stating that its foreign relations with the must then be tested by its nature. If the
US would not be adversely affected if claims against act is in pursuit of a sovereign activity or an
ex-President Marcos were litigated in the US. In the incident thereof, then it is a governmental
Pinochet case, the government of Chile has asserted act, especially when not undertaken for gain
the immunity. or profit.

Immunity applies only to “acts of state”: It is 2. When the public official acts contrary to
only in respect of certain categories of acts that the law - The doctrine of state immunity may
former head of state is immune from the jurisdiction also not be invoked where the public official
of municipal courts. In order for the act of state is made to account in his capacity as such
doctrine to apply, the defendant’s activities must for acts contrary to law and injurious to the
have been “acts of state” – they must have been rights of plaintiff. The State authorizes only
taken on behalf of the state and not private acts on legal acts by its officers, so that
behalf of the actor himself. In this case, Senator unauthorized acts of government officials or
Pinochet was acting in his sovereign capacity when officers are not acts of State. An action
he committed the crimes imputed to him. He against them is not a suit against the State
organized the commission of these crimes as the within the rule of immunity of the State
head of the government, in cooperation with other from suit.
governments, and he carried these out through the
agency of the police and the secret service. These How should a state claim sovereign immunity?
were sovereign and not private acts. Since the
crimes were committed in his sovereign capacity, The state or international agency wishing to plead
Pinochet is covered by the immunity. sovereign or diplomatic immunity in a foreign court
should request the Foreign Office of the state where
it is sued to convey to the court that said defendant
is entitled to immunity.

Sheryl 2D 2003 page 10


6. members of the administrative and
In the Philippines, the practice is for the foreign technical staff – members of the staff of
government to first secure an executive the mission employed in the administrative
endorsement of its claim of sovereign or diplomatic and technical service of the mission;
immunity.
7. members of the service staff – members
If a foreign sovereign is immune from suit, of the staff of the mission in the domestic
what remedies can one enforce against it? service of the mission;

A person who feels aggrieved by the acts of a foreign 8. private servant – a person who is in the
sovereign can ask his own government to espouse domestic service of a member of the
his cause through diplomatic channels. mission and who is not an employee of the
sending State;

DIPLOMATIC AND CONSULAR IMMUNITIES 9. premises of the mission – buildings or


parts of the buildings and the land ancillary
Official representatives of a state are given thereto, irrespective of ownership, used for
immunities and privileges when they are within the the purposes of the mission, including the
territory of another state. residence of the head of the mission.

The immunities are personal in the sense that they Functions of the Diplomatic Mission
benefit the person.
1. Representing the sending State in the
But the purpose is functional: to enable the receiving State;
representatives to perform their functions properly.
2. Protecting in the receiving State the interest
The receiving state has certain obligations to protect of the sending State and of its nationals,
the representative and his property and office. The within the limits permitted by international
law on diplomatic and consular immunities is law;
important because of the reliance that states place
on their reps in dealing with other states. 3. Negotiating with the government of the
receiving State;

DIPLOMATIC IMMUNITIES 4. Ascertaining by all lawful means conditions


and developments in the receiving state,
Diplomats are concerned with the political relations and reporting thereon to the Government of
of states. the sending State;

The law on the subject is found in the Vienna 5. Promoting friendly relations between the
Convention on Diplomatic Relations. sending State and the receiving State, and
developing their economic, cultural and
Definition of Terms (Who may enjoy diplomatic scientific relations.
immunity):
How diplomatic relations between states are
1. head of the mission – the person charged established:
by the sending State with the duty of acting
in that capacity; Diplomatic relations between states are purely by
mutual consent. Before the head of mission is sent
2. members of the mission – the head of to the receiving state, an agreement must first be
the mission and the members of the staff of obtained.
the mission;
The receiving state may refuse an agreement and
3. members of the staff of the mission – need not give any reasons for such refusal.
the members of the diplomatic,
administrative, technical and service staff of The receiving state may, at any time, and without
the mission; having to explain its decision, notify the sending
state that the head of the mission or any member of
4. members of the diplomatic staff – the diplomatic staff of the mission is persona non
members of the staff of the mission having grata or that any member of the staff is not
diplomatic rank; acceptable. In this case, the sending state shall
either recall the person concerned or terminate his
5. diplomatic agent – head of the mission or functions with the mission. A person may also be
a member of the diplomatic staff of the declared persona non grata or unacceptable even
mission before he arrives in the territory of the receiving
state.

Sheryl 2D 2003 page 11


Rights and Privileges of the Diplomatic Mission: documents or articles intended for official
use.
Article 22 – Inviolability of Premises of the
Mission: 5. The diplomatic courier shall be protected by
the receiving State in the performance of
1. The premises of the mission shall be his functions. He shall enjoy personal
inviolable. Agents of the receiving State inviolability and shall not be liable to any
may not enter them, except with the form of arrest or detention.
consent of the head of the mission.
6. The sending State of the mission may
2. The receiving State is under a special duty designate diplomatic couriers ad hoc who
to protect the premises of the mission shall enjoy the immunities of a diplomatic
against any intrusion or damage and to courier until he has delivered to the
prevent any disturbance of the peace of the consignee the diplomatic bag in his charge.
mission or impairment of its dignity.
Article 29 – Inviolability of Person of the
3. The premises of the mission, their Diplomatic Agent
furnishings and other property thereon and
the means of transport of the mission shall The person of a diplomatic agent shall be inviolable.
be immune from search, requisition, He shall not be liable to any form of arrest or
attachment, or execution. detention. The receiving state shall treat him with
due respect and shall take appropriate steps to
Article 23 – Exemption from Property Taxes: prevent any attack on his person, freedom or
dignity.
1. The sending State and head of the mission
shall be exempt from all national, regional Article 30 – Inviolability of the Private
or municipal dues and taxes in respect of Residence, Papers, Correspondence, and
the premises of the mission, whether owned Property of the Diplomatic Agent
or leased, other than such as represent
payment for specific services rendered. Same protection granted to the residence, papers,
property, and correspondence of the diplomatic
2. Exemption from taxation is NOT applicable agent as that granted to the premises of the mission.
to dues and taxes payable under the law of
the receiving State by persons contracting Article 31 – Immunity from Criminal, Civil, and
with the sending State or the head of the Administrative Jurisdiction
mission.
1. A diplomatic agent shall enjoy immunity
Article 24 – Inviolability of Archives and from the criminal jurisdiction of the
Documents receiving State.

Archives and documents of the mission shall be 2. He shall also enjoy immunity from its civil
inviolable at any time and wherever they may be. and administrative jurisdiction EXCEPT:

Article 27 – Inviolability of Official a. in real actions relating to private


Correspondence immovable property situated in the
territory of the receiving State,
1. The receiving State shall permit and protect unless he holds it on behalf of the
free communication on the part of the sending State for the purposes of
mission for all official purposes. The the mission;
mission may employ all appropriate means,
including diplomatic couriers and messages b. in actions relating to succession in
in code or cipher. However, the mission which the diplomatic agent is
may install and use a wireless transmitter involved as executor,
only with the consent of the receiving state. administrator, heir, or legatee as a
private person;
2. Official correspondence of the mission shall
be inviolable. Official correspondence c. in actions relating to any
means all correspondence relating to the professional or commercial activity
mission and its functions. exercised by the diplomatic agent
in the receiving State outside of his
3. The diplomatic bag shall not be opened or official functions.
detained.
3. A diplomatic agent is not obliged to give
4. Packages constituting the diplomatic bag evidence as a witness.
must bear visible external marks of their
character and may contain only diplomatic

Sheryl 2D 2003 page 12


4. A diplomatic agent is exempt from A diplomatic agent shall be exempt from all dues and
execution except if the case falls under the taxes, personal or real, national, regional or
three exceptions under #2, and provided municipal, EXCEPT:
that the measures of execution can be
taken without infringing the inviolability of 1. indirect taxes normally incorporated in the
his person or his residence. price of goods or services;

5. The diplomatic agent is not exempt from the 2. dues and taxes on private immovable
jurisdiction of the sending state. property situated in the territory of the
receiving state, unless held on behalf of the
Article 32 – Waiver of Immunity State for the purposes of the mission;

1. Immunity from jurisdiction of diplomatic 3. estate, succession, or inheritance tax;


agents and of persons enjoying immunity
under Art. 37 may be waived by the sending 4. dues and taxes on private income derived
State. within the State and capital taxes on
investments made in commercial
2. Waiver must be express. undertakings in the receiving State;

3. The initiation of proceedings by a diplomatic 5. charges levied for specific services


agent or by a person enjoying immunity rendered;
from jurisdiction under Art. 37 shall
preclude him from invoking immunity in 6. registration, court or record fees, mortgage
respect of any counter-claim directly dues, and stamp duty with respect to
connected with the principal claim. immovable property.

4. Waiver of immunity in respect of civil or Article 36 – Exemption from Customs Duties


administrative proceedings shall not be held
to imply waiver of immunity from execution 1. The following are exempt from customs
of the judgment, for which a separate duties, taxes and other related charges for
waiver is necessary. storage, cartage, and other similar services:

Article 33 – Exemption from Social Security a. articles for official use of the
Provisions mission;

1. A diplomatic agent shall be exempt from b. articles for the personal use of a
social security provisions with respect to diplomatic agent or members of his
services rendered for the sending state. family forming part of his
household, including articles
2. The exemption also applies to private intended for his establishment.
servants who are in the sole employ of a
diplomatic agent, provided: 2. Personal baggage of a diplomatic agent
shall be exempt from inspection unless
a. that they are not nationals or there are serious grounds to presume that it
permanent residents of the contains articles not covered by the
receiving state; and exempted items above, or that are
prohibited or controlled by quarantine
b. they are covered by the social regulations of the receiving State. The
security provisions in force in the inspection shall be conducted only in the
sending state or a third state. presence of the diplomatic agent or his
authorized rep.
3. A diplomatic agent who employs persons to
whom the exemption in #2 does not apply, Article 37 – Immunity of members of the family
shall not be exempt from social security and other staff
provisions of the receiving state imposed
upon employers. 1. Members of the family of a diplomatic agent
forming part of his household shall, if they
4. But the diplomatic agent can voluntarily are not nationals of the receiving State,
participate in the social security system of enjoy the privileges and immunities in
the receiving state, provided that it is Articles 29-36.
permitted by the receiving state.
2. Members of the admin and technical staff of
Article 34 – Exemption from Taxation the mission, together with their family
members, who are not nationals or
permanent residents of the receiving state
shall enjoy the immunities under Articles

Sheryl 2D 2003 page 13


29-35, except that the immunity from civil
and administrative jurisdiction shall not Article 41 – Duty of Persons Enjoying Immunity
extend to acts performed outside the course
of their duties. They shall also enjoy the Duty is to respect the laws and regulations of the
privileges under Art. 36, in respect of receiving State.
articles imported at the time of first
installation. Article 42 – Prohibitions

3. Members of the service staff of the mission They may not practice for personal profit any
who are not nationals or permanent professional or commercial activity in the receiving
residents of the receiving State shall enjoy State.
immunity in respect of acts performed in
the course of their duties, exemption from
dues and taxes on the emoluments received CONSULS AND CONSULAR IMMUNITIES
by reason of their employment, and the
exemption granted in Art. 33. Consuls are not concerned with political matters.
They attend to administrative and economic issues,
4. Private servants or members of the mission such as the issuance of visas.
who are not nationals or permanent
residents in the receiving State shall be The governing law is the Vienna Convention on
exempt from dues and taxes on Consular Relations.
emoluments received by reason of their
employment. In other respects, they may Consular Functions
enjoy privileges and immunities to the
extent admitted by the receiving State. 1. Protecting in the receiving State the
interests of the sending State and of its
Article 38 – Immunity of Diplomatic Agents nationals, within the limits permitted by int’l
who are Nationals of Permanent Residents of law;
the Receiving State
2. Furthering the dev’t of commercial,
1. If the receiving State grants additional economic, cultural, and scientific relations
privileges and immunities, a diplomatic bet. the sending state and the receiving
agent who is a national of or permanent state and promoting friendly relations bet.
resident in the State shall enjoy only them;
immunity from jurisdiction and inviolability
in respect of official acts performed in the 3. Ascertaining all lawful means, conditions,
exercise of his functions. and developments in the commercial,
economic, cultural, and scientific life of the
2. Immunity or other members of the staff of receiving State, reporting thereon to the
the mission and private servants who are Gov’t of the sending state and giving
nationals or permanent residents: Only to information to interested persons;
the extent admitted by the receiving state.
But state must exercise its jurisdiction 4. Issuing passports and travel documents to
without unduly interfering with the nationals of the sending State, reporting
performance of the functions of the mission. thereon to the Gov’t of the sending State,
and visas or appropriate documents to
Article 39 – Commencement and Termination of persons wishing to travel to the sending
the Immunities State;

When do the immunities commence? From the 5. helping and assisting nationals of the
moment the person enjoying the immunities enters sending State;
the territory of the receiving State on proceeding to
take up his port or, if already in its territory, from 6. acting as notary and civil registrar;
the moment when his appointment is notified to the
Ministry of Foreign Affairs. 7. safeguarding the interests of national of the
sending State in case of succession mortis
When do they end? When the functions of a person causa in the territory of the receiving State;
enjoying immunity have come to an end, the
immunities cease at the moment when he leaves the 8. safeguarding the interests of minors and
country, or on expiry of a reasonable period in which other persons lacking full capacity who are
to do so, but shall subsist until that time, even in nationals of the sending State, particularly
case of armed conflict. where any guardianship or trusteeship is
required;
With respect to acts performed by the person in the
exercise of his functions as a member of the mission, 9. representing or arranging appropriate
immunity shall continue to subsist. representation for nationals of the sending

Sheryl 2D 2003 page 14


state before the tribunals and other ensure freedom of movement and travel in its
authorities of the receiving state to preserve territory to all members of the consular post.
their rights and interests;
Article 35 – Freedom of Communication
10. transmitting judicial and extra-judicial
documents or executing letters rogatory ☺ 1. The receiving State shall permit and protect
or commissions to take evidence for the free communication on the part of the
courts of the sending state; consular post for all official purposes. The
mission may employ all appropriate means,
11. exercising rights or supervision and including diplomatic or consular couriers,
inspection in respect of vessels having the diplomatic or consular bags, and messages
nationality of the sending state and or in code or cipher. However, the consular
aircraft registered in that state and in post may install and use a wireless
respect of their crews; transmitter only with the consent of the
receiving state.
12. extending assistance to vessels and aircraft
mentioned above and to their crews, taking 2. Official correspondence of the consular post
statements regarding the voyage of a shall be inviolable. Official correspondence
vessel, examining and stamping the ship’s means all correspondence relating to the
papers, and conducting investigations into consular post and its functions.
any incidents which occurred during the
voyage and settling disputes between 3. The consular bag shall not be opened or
master, officers, and seamen; detained. But if the competent authorities
of the receiving state have serious reason to
13. other functions entrusted by the sending believe that the bag contains something
state not prohibited by the laws and other than the correspondence, documents
regulations of the receiving state or to or articles, they may request that the bag
which no objection is taken by the receiving be opened by an authorized rep of the
state or which are referred to in the sending state. If the request is refused, the
international agreements in force. bag shall be returned to its place of origin.

Õ Note that the above functions are always subject 4. Packages constituting the consular bag
to the laws and regulations of the receiving state must bear visible external marks of their
character and may contain only diplomatic
documents or articles intended for official
How the head of a consular post is admitted: use.

The head of a consular post is admitted to the Article 36 – Communication and Contact with
exercise of his functions by an authorization from the Nationals of the Sending State
receiving state termed exequatur. No prescribed
form, but without one, the consul may not enter 1. Consular officers shall be free to
upon his duties. communicate with nationals of the sending
state and to have access to them. Nationals
The receiving State may, at any time, notify the of the sending state shall have the same
sending state, that a consular officer is persona non freedom to communicate and to access
grata or that any other member of the consular staff consular officers of the sending state.
is not acceptable. The sending State shall either
recall the person or terminate his functions with the 2. If he so requests, the competent authorities
consular post. of the receiving state shall, without delay,
inform the consular post of the sending
Duty of the Receiving State state if a national of that state is arrested or
committed to prison or to custody pending
The receiving state has the duty to protect the trial or is detained in any other manner.
consular premises, archives, and interests of the Any communication addressed to the
sending state. The receiving state must insure the consular post by the person arrested shall
unimpeded functioning of the consular offices. be forwarded by the authorities without
delay;
Rights and Privileges of Consuls and Consular
Offices 3. Consular officers shall have the right to visit
a national of the sending state who is in
Article 34 – Freedom of Movement prison, custody, or detention, to converse
and correspond with him and to arrange for
Subject to its laws and regulations concerning zones his legal representation. They shall also
entry into which is prohibited or regulated for have the right to visit any national of the
reasons of national security, the receiving state shall sending state who is in prison, custody or
detention in their district in pursuance of a

Sheryl 2D 2003 page 15


judgment. Nevertheless, consular officers Iranian students seized the US embassy in Tehran
shall refrain from taking action on behalf of and a number of consulates in outlying cities. The
a national who is in prison, custody or Iranian authorities failed to protect the Embassy an
detention if he expressly opposes such later appeared to adopt the students’ actions. Over
action. 50 US nationals were held for 444 days.

Article 41 – Personal Inviolability of Consular HELD: Iran violated its international obligations
Officers under the Vienna Conventions. The Iranian
authorities were fully aware of their obligations
Consular officers shall not be liable to arrest of under these conventions to protect the premises and
detention pending trial EXCEPT in the case of a grave staff of the US Embassy from any infringement of
crime and pursuant to a decision by the competent their inviolability and to ensure the security of such
judicial authority. other persons as might be present on the said
premises. They also had the means at their disposal
Article 42 – Notification of Arrest, Detention, or to perform these obligations, and yet they
Prosecution completely failed to comply. They even endorsed
the action of the militants and have deliberately
If a members of the consular staff is arrested or maintained their occupation of the Embassy and
detained, the receiving state shall notify the head of detention of its staff as a means of coercing the
the consular post. sending state.

Article 43 – IMMUNITY FROM JURISDICTION

1. Consular officers and employees shall be THE ACT OF STATE DOCTRINE


immune from jurisdiction of the judicial and
administrative authorities of the receiving What do you understand by this “act of state
State in respect of acts performed in the doctrine?” It means that local courts cannot pass
exercise of consular functions. upon the validity of the acts of a foreign state.

2. NO IMMUNITY in civil cases, which:


Underhill v. Hernandez
a. arise out of a contract concluded
by the consular officer or employee In 1892, Gen. Hernandez of Venezuela led a
in which he did not contract successful revolution against the legitimate
expressly or impliedly as an agent government. He then entered the city of Bolivar to
of the sending state; assume leadership of the government. George
Underhill was a US citizen who had constructed a
b. are instituted by a third party for waterworks systems for the city of Bolivar under a
damage arising from accidents in contract with the government, and was engaged in
the receiving state caused by a supplying the place with water. He also operated a
vehicle, vessel, or aircraft. machinery repair business. After Hernandez
entered, Underhill applied for a passport to leave the
Article 44 – Liability to Give Evidence city. Hernandez refused in order to coerce Underhill
to operate his waterworks and repair works for the
1. Members of a consular post may be called benefit of the community and the revolutionary
upon to attend as witnessed in judicial or forces. After Underhill was finally allowed to leave,
administrative proceedings. he filed suit in the US to recover damages for the
detention caused by reason of the denial of his
2. A consular employee or a member of the permit to leave, for his alleged confinement to his
service staff shall not decline to give own house, and for certain alleged assaults and
evidence. affronts by the soldiers of Hernandez’s army.

3. If a consular officer should decline to do so, HELD: Underhill is not entitled to damages from
no coercive measure or penalty may be Hernandez. The “act of state doctrine” was
applied to him. formulated thus: Every sovereign state is bound to
respect the independence of every other sovereign
Article 45 – Waiver of Privileges and state, and the courts of one country will not sit in
Immunities judgment on the acts of the government of another,
done within its own territory. Redress of grievances
The sending state may waive the privileges and by reason of such acts must be obtained through the
immunities. means open to be availed of by sovereign powers as
between themselves.
US Diplomatic and Consular Staff in Tehran
Case (US v. Iran)

Sheryl 2D 2003 page 16


The doctrine is not a rule of international law but of
judicial restraint in domestic law whereby courts
refrain from making decisions in deference to the
executive who is the principal architect of foreign
relations.
CHAPTER X STATE
RESPONSIBILITY
The “acts of state doctrine” and separation of
powers
In traditional international law, individuals are
“objects” and not “subjects” of international law.
The doctrine arises out of the relationship between
They do not possess international legal rights which
the branches of government in a system of
they could assert on their own. Whatever wrongs
separations of powers. It concerns the competency
committed against them can be redressed only by
of dissimilar institutions to make and implement
states or organizations with international personality.
particular kinds of decisions in the area of
Individuals can be the subject of state versus state
international relations. The act of the court in
litigation.
passing on the validity of foreign acts of state may
hinder rather than further the country’s pursuit of
PROTECTION OF ALIENS
goals both for itself and for the community of nations
as a whole in the international sphere.
No state is obliged to admit aliens into its territory
unless there is a treaty requiring it. This is an aspect
Limitations of the application of the doctrine:
of sovereignty.
Alfred Dunhill of London, Inc. v. Cuba But realistically, it is difficult to deny admission to
all. So what states do is to impose standards for
Dunhill mistakenly paid Cuba for cigars that had admission. Once admitted, at least under
been sold to Dunhill by certain expropriated Cuban democratic regimes, aliens may not be expelled
cigar businesses. Cuba failed to return the amounts without due process.
mistakenly paid.
From the perspective of the state of their nationality,
ISSUE: Whether the failure to return the amounts aliens are “nationals abroad.” They therefore remain
mistakenly paid was an act of state by Cuba. important to the state of their nationality. States
have a common interest in the protection of aliens.
HELD: No. The concept of an act of state should not The practice of the proper treatment of aliens is
be extended to include the repudiation of a purely based on this commonality of interest. States
commercial obligation owed by a foreign sovereign protect aliens within their jurisdiction in the
or by one of its commercial instrumentalities. expectation that their own nationals will be properly
treated when residing or sojourning abroad.
Kirkpatrick Co. v. Environmental Tectonics Corp

The Nigerian government entered into a contract


with Kirkpatrick for the construction and equipment
of an aeromedical center at Kaduna Air Force Base in Diplomatic Protection
Nigeria. Another company, which lost the bidding for
the contract, found out that Kirkpatrick had bribed There is a well developed customary law for the
Nigerian officials in order to win the bidding. It protection of aliens. The instrument used for the
brought the matter to the attention of the Nigerian protection of aliens is “diplomatic protection.”
Air Force and to the US Embassy in Lagos. The FBI
investigated, and the US Attorney for New Jersey The theory underlying the system is that injury to a
brought charges against Kirkpatrick for violations of national abroad is injury to the individual’s state of
the Foreign Corrupt Practices Act. Kirkpatrick nationality.
pleaded guilty. The losing corporation then brought
a civil action against Kirkpatrick and the other The interest of the state is in the redress of the
parties involved in the bribery for damages. injury to itself and not of the injury to the individual.
Defendants moved to dismiss and invoked the acts
of state doctrine. States enjoy discretion whether or not to espouse
claims raised by individuals in their own behalf.
HELD: The act of state doctrine is not applicable.
The validity of a foreign government act is NOT in Moreover, as indicated in the Nottebohm Case, in the
issue here. The act of state doctrine does not case of persons holding dual nationality, an “effective
establish an exception for cases and controversies nationality link” with the person must exist for a
that may embarrass foreign governments, but state’s interest in an individual to be recognized by
merely requires that, in the process of deciding, the other states.
acts of foreign sovereigns taken within their own
jurisdiction shall be deemed valid. The doctrine has Corporations and Shareholders
no application to the present case because the
validity of a foreign sovereign act is not at issue.

Sheryl 2D 2003 page 17


The doctrine of “effective link” as applied to of humane protection. This is now the
corporations was discussed in the Barcelona Traction widely accepted standard.
Case:
But what is the “minimum international
Barcelona Traction and Power Co. (Belgium v. standard?” It is abstract and not easy to
Spain) determine:

Barcelona Traction was a company incorporated in Neer Claim (US v. Mexico)


Canada. Belgium filed a claim against Spain,
seeking reparation for damages allegedly sustained Mr. Neer was a US national working in
by Belgian nationals, who were shareholders in the Mexico. He was stopped by armed men and
company, as a result of acts contrary to international shot to death. The US claimed that the
law committed towards Barcelona Traction by organs Mexican government had been negligent in
of the Spanish State. their investigation of the murder.

HELD: Belgium has no jus standi to exercise HELD: The Mexican government was not
diplomatic protection of shareholders in a Canadian negligent. The treatment of an alien, in
company with respect to the measures taken against order to constitute an international
it in Spain. delinquency, should amount to an outrage,
to bad faith, to willful neglect of duty, or to
The breach of the obligation of Spain to protect an insufficiency of governmental action so
foreign investments and nationals in its territory, if far short of international standards that
any, was committed against the company. Only the every reasonable and impartial man would
company, which was endowed with legal personality, readily recognize its insufficiency.
could take action in respect of matters that were of a
corporate character. It may be true that a wrong Harvard Draft Convention on the
done to the company frequently causes prejudice to Responsibility of States for Damages
its shareholders. But this does not imply that both (denial of justice)
are entitled to claim compensation. Whenever a
shareholder’s interests are harmed by an act done to Article 9 of the Convention puts the
the company, it is the company that he has to turn “minimum international standard” in terms
to, to institute appropriate action. An act infringing of the more limited concept of “denial of
only the company’s rights do not involve justice.”
responsibility towards the shareholders, even if their
interests are affected. In order for the situation to Denial of justice exists when there is a:
be different, the act complained of must be aimed at
the direct rights of the shareholder as such, which 1. denial, unwarranted delay, or
was not the case here. obstruction of access to courts;

So who has the right to protect the corporation? It 2. gross deficiency in the
is the state of nationality of the corporation (Canada) administration of judicial or
which has the right, and not Belgium. remedial process;

Standard for the protection of aliens 3. failure to provide those guarantees


which are generally considered
Two standards have emerged in modern times to indispensable to the proper
compete for recognition as the acceptable standard: administration of justice; or

1. The doctrine of “national treatment” or 4. a manifestly unjust judgment.


“equality of treatment” – Aliens are
treated in the same manner as nationals of Enforcement Regimes
the state where they reside.
How are issues of violations of the rights of aliens
Advantage: Aliens would enjoy the same resolved?
benefits as local nationals.
1. The ICJ, when its jurisdiction is appealed to
Disadvantage: If the state is tyrannical by states in conflict can resolve such issues.
and its municipal laws are harsh and
violative of human right even of its own 2. Claims may also be settled by ad hoc
citizens, aliens would likewise be subject to tribunals established for the purpose.
such harsh laws.
Examples:
2. “Minimum international standard” –
However harsh the municipal laws might be a. US-Iran Claims Tribunal
against a state’s own citizens, aliens should established by US and Iran to deal
be protected by certain minimum standards

Sheryl 2D 2003 page 18


with claims arising from the Islamic to be such even if it is legal under the municipal law
Revolution; of the State which committed it.
b. UN Compensation Commission
established by the Security Council The international law violated can be customary or
to deal with claims arising from conventional.
Iraq’s invasion of Kuwait.
Attribution to the State
3. States may also enter into lump sum
settlements Acts which can be attributed to the state may be acts
of:
Examples:
1. state organs,
a. US-Cambodia 2. other persons, or
b. US-Vietnam Claims Settlement 3. revolutionaries.
Agreements
Acts of State Organs: instances when the acts
DOCTRINE OF STATE RESPONSIBILITY of state organs are acts of the state

When an injury has been inflicted, there is need to 1. The conduct of any State organ acting in
determine whether the state can be held responsible that capacity shall be considered an act of
for it. the State under international law, whether
the organ exercises legislative, executive,
One of the principles most strongly held by states is judicial, or any other functions, whatever
that if a state violates a customary rule of position it holds in the organization of the
international law or a treaty obligation, it commits an State, and whatever its character as an
“internationally wrongful act.” organ of the central government of a
territorial unit of the State.
The International Law Commission adopted the
Articles on Responsibility of States for Internationally 2. An organ includes any person or body
Wrongful Acts. The draft has been referred to the which has that status in accordance with the
General Assembly for consideration. internal law of the estate.

Internationally Wrongful Act 3. The conduct of an entity which is NOT an


organ of the State but which is empowered
Article 1 of the draft provides that “every by the law of that State to exercise
internationally wrongful act of a State entails the elements of the governmental authority
international responsibility of that State.” What shall be considered an act of the State
Article 1 says is that states must accept under international law, provided the entity
responsibility for actions which have an effect on was acting that capacity in the case in
other international legal persons. No state can question.
escape this responsibility once it has committed an
“internationally wrongful act.” 4. The conduct of a person or group of persons
shall be considered an act of the State
What is an “internationally wrongful act”? under international law if the person or
group of persons was in fact acting on the
There is an internationally wrongful act of a State instructions of, or under the direction or
when conduct consisting of an action or omission: control of, that State carrying out the
conduct.
1. is attributable, not to the persons or
agencies who performed it, but to the State 5. The conduct of a person or group of persons
itself (subjective element); and shall be considered an act of the State
under international law if the person or
2. constitutes a breach of an international group of persons was in fact exercising
obligation of the State (objective element). elements of the governmental authority in
The breach may either be active (through the absence or default of the official
an act) or passive (through an omission). authorities and in circumstances such as to
call for the exercise of those elements of
There is a breach of an international obligation by a authority.
State when an act of that State is not in conformity
with what is required of it by that obligation, 6. The conduct of an organ placed at the
regardless of its origin or character. disposal of a State by another State shall be
considered an act of the former State under
What determines the wrongful character of the act is international law if the organ was acting in
international law and not internal or municipal law. the exercise of elements of the
If an act is internationally wrongful, it does not cease governmental authority of the State at
whose disposal it had been placed.

Sheryl 2D 2003 page 19


proceeding through the Strait of the danger to which
7. The conduct of an organ of a State or of an they were exposed. In fact, nothing was attempted
entity empowered to exercise elements of by Albania to prevent the disaster, and these grave
the governmental authority, such organ or omissions involve its international responsibility.
entity having acted in that capacity, shall be
considered an act of the State under Military and Paramilitary Activities in and
international law even if, in the particular against Nicaragua (Nicaragua v. US)
case, the organ or authority exceeded its
authority or contravened the instructions According to Nicaragua, the US conceived, created,
concerning its exercise. and organized a mercenary army, the contra force,
in Nicaragua. The court found that contra force was
Caire Claim (France v. Mexico) not created by the US, but that a number of the
operations were decided and planned, if not actually
Caire, a French national, was killed in Mexico by by the US advisers, then at least in close
Mexican soldiers after they had demanded money collaboration with them, and on the basis of the
from him. intelligence and logistic support which the US was
able to offer. The US gave assistance to the contra
ISSUE: Whether Mexico is responsible for the force in the form of logistic support, the supply of
actions of its military personnel who acted without or information on the location and movements of the
against the orders of their commanding officers. Sandinista troops, the use of sophisticated methods
of communication, etc. However, the evidence does
HELD: Yes, Mexico is responsible. not warrant a finding that the US gave direct combat
support.
Acts committed by the officials and agents of a State
entail the international responsibility of that State, ISSUE: Whether the contras can be considered as
even if the perpetrator did not have specific organs of the US Government, or as acting on its
authorization. The responsibility of the State is behalf.
purely objective in character. It rests on the idea of
guarantee, in which the subjective notion of fault HELD: No, the contras are not agents of the US
plays no part. government.

But in order to admit this so-called objective The evidence is insufficient to demonstrate the total
responsibility of the State for acts committed by its dependence of the contras on US aid. A partial
officials or organs outside their competence, they dependency may be inferred from the fact that the
must have acted at least to all appearances as leaders were selected by the US, and from other
competent officials or organs, or they must have factors such as the organization, training and
used powers or methods appropriate to their official equipping of the force, planning of operations, the
capacity. choosing of targets, and the operational support
provided. There is, however, no clear evidence that
Corfu Channel Case (UK v. Albania) the US actually exercised such a degree of control as
to justify treating the contras as acting on its behalf.
Two British destroyers struck mines in Albanian Therefore, the contras, remain responsible for their
waters and suffered damage, including serious loss own acts, in particular for alleged violations by them
of life. The mines were allegedly laid by Yugoslav of humanitarian law.
warships.
For the US to be legally responsible, it would have to
ISSUE: Whether Albania is responsible for the be proved that the State had effective control of the
explosions, and whether there is a duty to pay operations in the course of which the alleged
compensation. violations were committed.

HELD: Yes, Albania is responsible. Prior to the Acts of other persons


incident, the Albanian Government was fully aware
of the existence of the minefield, but it did not notify 1. The conduct of a person or group of persons
ships of its existence, as required by international shall be considered an act of state if the
law. It also did not undertake any of the measures person or group of persons was in fact
incumbent on it in such a case. Moreover, based on exercising elements of the governmental
the geographic layout of the Albanian coast, its authority in the absence or default of the
authorities could have easily detected the mine- official authorities and in circumstances
laying. Therefore, it had no excuse for its failure to such as to call for the exercise of those
inform the British ships passing its waters of the elements of authority.
existence of the mines.
2. The conduct of an organ placed at the
The conclusion can thus be drawn that the laying of disposal of a State by another State shall be
the minefield could not have been accomplished considered an act of the former State under
without the knowledge of Albania. It was its duty to international law if the organ was acting in
notify shipping and especially to warn the ships the exercise of elements of the

Sheryl 2D 2003 page 20


governmental authority of the State at Home Missionary Society Claim (US v. Great
whose disposal it had been placed. Britain)

US v. Iran In 1898, Great Britain imposed a “hut tax” on the


natives of the Protectorate of Sierra Leone. In
An armed attack on the US Embassy in Iran was protest of the tax, the natives carried out a serious
carried out by Muslim Student Followers of the and widespread revolt. In the course of the
Imam’s Policy (militants). They overran its rebellion, all the Missions of the US were attacked
premises, seized its occupants as hostages, and and were destroyed, and some of the missionaries
appropriated its property and archives. The Iranian were murdered. The US filed a claim against Great
government did nothing to prevent the attack, stop it Britain on the ground that the revolt was the result
before it reached its completion, or oblige the of the imposition of the “hut tax” which the British
militants to withdraw from the premises and release Government knew was the object of deep native
the hostages. Instead, expressions of approval were resentment. The US alleged that the British
immediately heard from numerous Iranian Government failed to take proper steps for the
authorities. Ayatollah Khomeini himself proclaimed maintenance of order and the protection of life and
the Iranian State’s endorsement of both the seizure property in the face of the danger posed by the
of the premises and the detention of the hostages. natives, resulting in the loss of life and damage to
Khomeini declared that the detention of the hostages property.
would continue until the new Iranian parliament had
taken a decision as to their fate. HELD: Great Britain is not liable to the US.

HELD: Iran is liable for the acts of the militants. No government can be held responsible for the act of
rebellious bodies of men committed in violation of its
The events consist of two phases – the day of the authority, where it is itself not guilty of breach of
attack itself and the period after the attack, when good faith, or of negligence in suppressing
the militants continued to hold the premises and its insurrection.
hostages with the approval of the Iranian State.
The good faith of the British Government cannot be
On the date when the armed attack happened, the questioned, and as to the conditions prevailing in the
conduct of the militants could be directly attributed Protectorate, there is no evidence to support the
to the Iranian State only if it were established that contention that it failed in its duty to afford adequate
they were in fact acting on its behalf. This was not protection for life and property.
established with certainty. On the day of the attack,
the breach of duty of Iran consisted only in its Short v. Iran
inaction and failure to protect the premises of the US
Embassy, even when it was fully aware of its Short, an American National, was employed by
responsibilities and had the means to perform them. Lockheed, an American company in Iran. Three days
before the Islamic Revolutionary Government took
After the date of the attack and the continued office, he was evacuated from Iran on company
occupation of the US Embassy by the militants, the orders because of the deteriorating situation. He
organs of the Iranian State expressed their approval then sought compensation from Iran for salary and
and endorsement of such acts. Once organs of the other losses resulting from his alleged expulsion.
Iranian State had given approval to the acts
complained of and decided to perpetuate them as a HELD: Iran is not liable to Short.
means of pressure on the US, those acts were
transformed into acts of the Iranian State: the Where a revolution leads to the establishment of a
militants became agents of the State, which itself new government, the State is held responsible for
became internationally responsible for their acts. the acts of the overthrown government insofar as
the latter maintained control of the situation. The
successor government is also held responsible for
Acts of Revolutionaries the acts imputable to the revolutionary movement
which established it, even if those acts occurred prior
1. The conduct of an insurrectional movement, to its establishment, as a consequence of the
which becomes the new government of a continuity existing between the new organization of
State, shall be considered an act of that the State and the organization of the revolutionary
State under international law. movement.

2. The conduct of a movement, insurrectional In this case, Short relies on acts committed by
or otherwise, which succeeds in establishing revolutionaries. He is unable, however, to identify
a new State in part of the territory of a pre- any agent of the revolutionary movement, the
existing State or in a territory under its actions of which compelled him to leave Iran. The
administration, shall be considered an act of acts of supporters of a revolution (as opposed to its
the new State. agents) cannot be attributed to the government
following the success of the revolution just as the

Sheryl 2D 2003 page 21


acts of supporters of an existing government are not intervention of foreign diplomatic agents in any
attributable to the government. matter related to the contract be resorted to.” This
was an attempt to limit the ability of a state to give
diplomatic protection to its nationals. The clause
Preliminary Objections was rejected in North American Dredging Company
Claim by the Mexico-US General Claims Commission.
The claim of denial of justice brought before an
international tribunal may be dismissed by The right to seek redress is a sovereign prerogative
interposing the following preliminary objections: of a state and a private individual has no right to
waive the state’s right.
1. lack of nationality link
2. failure to exhaust national remedies
3. waiver
4. unreasonable delay CHAPTER XI INTERNATIONAL
5. improper behavior of the private
complainant
HUMAN RIGHTS LAW

Reparation Human Rights (def) – In general, they are those


inalienable and fundamental rights which are
1. The responsible state is under an obligation essential for life as human beings.
to make full reparation for the injury caused
by the internationally wrongful act. Three Generations of Human Rights

2. Injury consists of any damage, whether 1. First Generation – traditional civil and
material or moral, arising in consequence of fundamental rights;
the internationally wrongful act of a State.
2. Second Generation – social and economic
3. The responsible State may not rely on the rights;
provisions of its internal law as justification
for failure to comply with its obligations. 3. Third Generation – right to peace, clean
environment, self-determination, common
Chorzow Factory Case (Germany v. Poland) heritage of mankind, development, minority
rights.
Poland expropriated a factory at Chorzow, contrary
to the Geneva Convention of 1922 between Germany Some Asian thinkers claim that much of what are
and Poland. Germany filed a claim for damages called human rights are Western concepts alien to
against Poland caused by the illegal expropriation. Asian culture. But the common denominator is the
belief that the individual must be protected and that
HELD: The essential principle contained in the the international community must contribute to the
notion of an illegal act is that reparation must, as far protection.
as possible, wipe out all the consequences of the
illegal act and re-establish the situation which would,
in all probability, have existed if that act had not
been committed. Restitution in kind, or if this is not An Emerging International Bill of Human Rights
possible, payment of a sum corresponding to the
value which a restitution in kind would bear; the What distinguishes port-WWII developments from
award, if need be, of damages for loss sustained earlier human rights tradition is the growing
which would not be covered by restitution in kind or acceptance of the view that the way nations treat
payment in place of it – such are the principles which people under their jurisdiction is no longer just a
should serve to determine the amount of domestic concern but also one that calls for the
compensation due for an act contrary to international attention of the international community. This view
law. represents the chipping away at the old concept of
sovereignty. It recognizes that individuals can be
In this case, the obligation of Poland is to restore the subjects of international law and that they can find
factory and, if this be not possible, to pay its value at protection and remedies within the international
the time of the indemnification, which value is community against abuses by their own government.
designed to take the place of restitution which has
become impossible. In addition, Poland must pay The UN Charter
the compensating loss sustained as a result of the
seizure. The UN became the cradle for the development of
the new international law on human rights. The
Calvo Clause provisions of the UN charter on human rights were
preliminary and represented a beginning which
The “Calvo Clause” was a provision in a contract to would later develop into international law. The
the effect that “under no condition shall the provisions of the UN charter not only marked the

Sheryl 2D 2003 page 22


internationalization of human rights but also set in Commission would find it difficult to draft a
motion the gradual process of legislating text that would command general
international human rights law. acceptance.

The Universal Declaration of Human Rights 3. On the right to life, the Covenant expresses
bias for the abolition of the death penalty
The UDHR was adopted and proclaimed by the and allows its imposition in countries which
General Assembly in 1948. It was, however, not still have it only after conviction for the
seen as law but only as a common standard for most serious crimes. It also says that
nations to attempt to reach. Its authority was “nothing in this article shall be invoked to
primarily moral and political. delay or to prevent the abolition of capital
punishment by any State party to the
It would take another 18 years before the UN could Covenant.”
convert the aspirations of the UDHR into
conventional international law embodied in the A Second Optional Protocol to the Covenant
International Covenant on Civil and Political Rights, was signed by the General Assembly in
the International Covenant on Economic, Social, and 1989, but it has not come into force. The
Cultural Rights, and the Optional Protocol to the Second Protocol provides that no one within
Covenant on Civil and Political Rights. the jurisdiction of a state party to the
protocol shall be executed and that each of
Distinction between a Declaration and a the parties to the protocol shall take all
Covenant necessary measures to abolish the death
penalty within its jurisdiction.
International Covenant – There is a meeting of
the minds of the contracting parties on the specific The Philippines is not a party to the Second
duties and obligations they intend to assume, and Protocol and is not likely to be one in the
the agreement that the undertakings must be near future. Congress has already restored
effectively performed. It leaves no doubt about the the death penalty for heinous crimes.
legal nature of the provisions it contains. The
vinculum juris created by a covenant, generally 4. On the more detailed aspects of physical
absent from a declaration, places a duty on the liberty, arrests, and detention, these are
contracting parties to bring their laws and practices covered by the corresponding provisions of
into accord with the accepted international the Philippine Bill of Rights.
obligations and not to introduce new laws or
practices which would be at variance with such 5. The rights of an accused detailed in the
obligations. Covenant have long been parts of the
Philippine accusatory system as found in the
Declaration – It admits the presumption that Constitution. But the Covenant is more
something less than full effectiveness in terms of law restrictive in the matter of publicity of
is intended. It is often deemed to enunciate moral criminal proceedings where the interest of
rules only. juvenile persons otherwise requires or the
proceedings concern matrimonial disputes
or the guardianship of children. Such
standard would not easily pass the
The Covenant on Civil and Political Rights Philippine tests for publicity and free press.

Life, Liberty and Property, and Equality 6. The Covenant provides that “anyone who
has been a victim of unlawful arrest or
1. The Covenant’s basic provision on the right detention shall have an enforceable right of
to life and on genocide and the general compensation. It also provides that a
guarantee of liberty do not go beyond what person who has been a victim of
Article III Section 1 of the Constitution of miscarriage of justice shall be compensated
the Philippines guarantees. The Covenant, according to law. The only place in the
moreover, does not say when protected life Philippine Constitution providing for such
begins, unlike the Philippine Constitution, compensation is in Sec 12(4) of the Bill of
which protects the “life of the unborn from Rights where Congress is asked to
conception.” compensate violations of rights of persons
under investigation.
2. There is also no provision on the right to
property in the covenant. This is because 7. The guarantee of equality under the
while no one in the Commission questioned Covenant is of “legal equality.” It does not
the right itself, there were considerable embody the aspiration towards lesser
differences in opinion as to the restrictions material inequality which is found in the
to which it should be subject. At a time Covenant on Economic, Social, and Cultural
when property rights had lost much of their Rights.
previous sanctity, it was inevitable that the

Sheryl 2D 2003 page 23


Torture, Ill-treatment, and Prison Conditions Thought, Conscience, Religion, Expression,
Political Freedom
The Covenant proscribes torture and other forms of
ill-treatment that offend not only against bodily The limits on external exercise found in the Covenant
integrity but also against personal dignity. It also are “to protect public safety, order, health, or morals
imposes the requirement of humane prison or the fundamental rights of others.”
conditions.
The Covenant contains explicit protection of the right
Adequate prison conditions are embodied in Section of parents in the matter of religion for their children.
19(2) of the Phil. Bill of Rights, but the fact is that
prison conditions in the Philippines today are far An established religion is not incompatible with the
from adequate. The UN Human Rights Commission covenant.
has expressed the view that imprisonment in
conditions seriously detrimental to a prisoner’s The Covenant also guarantees freedom of
health constitutes violation of the Covenant. expression, the right of assembly and petition, and
political freedom.
Freedom of Movement
Associations and Unions
The Covenant guarantees the rights to travel within
the country, to leave the country, and to change The Covenant has a detailed set of provisions
one’s residence. protecting the right to form associations and unions.
It is silent about the right of government employees
The limitations on these rights are: to form unions.

1. those provided by law; Minorities


2. those necessary to protect national security,
public health, public order, morals, or the The Covenant guarantees “ethnic, religious or
rights and freedoms of others linguistic minorities” the right to enjoy their own
3. those which are consistent with the other culture, to profess and practice their own religion, or
rights in the present Covenant. to use their own language.

Unlike in the Philippine Bill of Rights, the Covenant The concern for minorities has a two-fold aspect:
does not require a court order for the impairment of
liberty of abode. 1. The fear of a secessionist movement by
minorities, threatening territorial integrity of
The Covenant separates the right to return to one’s the state, or about the danger of
country from the right to leave one’s country. Exile interference by other states with which the
is now prohibited by customary law and the minorities are connected by ties of race,
prohibition of exile may even be jus cogens. national origin, language, or religion.

2. A genuine concern for the human rights of


minorities and the desire that minorities will
flourish so as to preserve that diversity of
Legal Personality, Privacy and the Family the human race.

The right to be recognized as a person before the law Self-determination of Peoples


is guaranteed in Article 16.
Self-determination covers two important rights:
One must distinguish between “legal personality” and
“capacity to act.” Legal personality belongs to all, 1. the right freely to determine their political
whether citizens or aliens. Capacity to act may not status and freely pursue their economic,
be available to some by reason of infancy, minority, social, and cultural development; and
or insanity. The guarantee means that state parties
must treat every human being everywhere, male or 2. the right for their own ends, to freely
female, young or old, alien or citizen, as a person dispose of the natural wealth and resources
before the law, enjoying the protection of the law without prejudice to any obligations arising
and of the forces of the law, with power to have out of international cooperation based upon
rights and assume obligations. the principle of mutual benefit and
international law.
When does one become a person? The Covenant
does not say. The Phil. Consti protects the life of the But minorities do not have a right of self-
unborn, but it does not say if the unborn is a person. determination in the sense of the right to secede.
The Civil Code says that the unborn is a person for
purposes favorable to him. Self-determination has an internal and external
aspect.

Sheryl 2D 2003 page 24


1. Internal aspect: Consists of the two rights
enumerated above; The Confidential Consideration Procedure

2. External aspect: Belongs to colonies and Resolution 1503 of the ECOSOC authorizes the Sub-
to the non-self-governing and trust Commission on Prevention of Discrimination and
territories. Protection of Minorities to appoint a working group of
not more than 5 members to meet once a year in
OPTIONAL PROTOCOL ON THE COVENANT ON private meetings to consider all communications with
CIVIL AND POLITICAL RIGHTS a view to bringing to the attention of the Sub-
Commission those communications which appear to
As a supplement to the Covenant on Civil and reveal a pattern of gross and reliably attested
Political Rights, the UN adopted the Protocol to the violations of human rights.
Covenant. This separate treaty is designed to enable
private parties who are victims of human rights The confidential findings of the Sub-Commission are
violations to filed complaints against states which brought to the attention of the Commission on
have ratified the protocol. Human Rights, which submits its report and
recommendation to the ECOSOC. The procedure is
THE COVENANT ON ECONOMIC, SOCIAL, AND kept confidential until the CHR decides to make
CULTURAL RIGHTS recommendations to the ECOSOC.

Rights guaranteed by the Covenant are social The Public Debate Procedure
welfare rights:
Resolution 1235 of the ECOSOC authorizes the CHR
1. to work and its subsidiary Commission on Prevention of
2. to favorable conditions of work Discrimination and Protection of Minorities to
3. to form free trade unions examine reports relevant to gross violations of
4. to social security and insurance human right and to examine whether the violations
5. to special assistance for families reveal a consistent pattern and thereafter make
6. to adequate standard of living recommendations to the ECOSOC.
7. to the highest standard of physical and
mental health The procedure carries out two types of activities:
8. to education including compulsory primary
education 1. It holds annual public debates in which
9. to the enjoyment of cultural and scientific NGOs are given the opportunity to identify
benefits and international contacts. publicly country-specific situations which
deserve attention.
THE DUTY TO IMPLEMENT
2. It engages in studies and investigations
Treaty commitments become part of domestic law. of particular situations through the use of
The self-executing provisions of the covenants must various techniques the Commission might
be implemented in domestic law. Those which are deem appropriate.
not self-executing must be attended to by either
legislative or executive measures.

INTERNATIONAL IMPLEMENTATION OF HUMAN Possible results of these procedures:


RIGHTS LAW
1. embarrassment of countries referred to,
Each country has the obligation to implement human that might generate change in policy;
rights law within its jurisdiction. It can be done
through municipal courts, where proper. There now 2. pressure on governments to take the issue
exist also regional courts with jurisdiction over on a bilateral or multilateral level;
human rights violations. The UN also has a system
for implementation. 3. statements of exhortation from the
Commission or call from the Commission for
The Human Rights Commission all available information;

The HRC is a subsidiary organ of the ECOSOC. There 4. the Commission might appoint a special
are two different procedures used by the HRC for rapporteur to examine and submit a report
responding to violations of human rights: on the issue;

1. confidential consideration 5. the Commission might ask the Security


2. public debate procedure Council to take up the issue with a view to
promulgating sanctions.
Both of these may be supplemented by the
designation of a “thematic rapporteur” or Working THE INTERNATIONAL CRIMINAL COURT
Group to study violations of a specific character.

Sheryl 2D 2003 page 25


The International Criminal Court was created in 1998 dispute may result in the severance of diplomatic
by the Rome Statute. The treaty came into force in relations.
April 2002 when the 60th country needed to establish
the ICC submitted its ratification. The US, however, Examples of disputes: disagreements about:
refuses to ratify it. The Philippines has not ratified it
either. 1. the interpretation of a treaty
2. state boundaries
Significance of the ICC 3. state responsibility

Prior to the establishment of the ICC, international The UN Charter says that all member shall settle
crimes were prosecuted in ad hoc criminal courts. their international disputes by peaceful means in
These tribunals were undermined and weakened by such a manner that international peace and security,
the charges of politically motivated investigations and justice, are not endangered.
and selective justice. Unlike temporary tribunals,
the ICC will be established without any specific PEACEFUL METHODS OF SETTLING DISPUTES
country in mind. Thus, besides enjoying
permanency, it will be neutral. Gradually too, it will 1. Non-Judicial Methods
be able to establish precedents.
a. negotiation
Goal of the ICC b. enquiry
c. mediation
The goal of the ICC is to demand individual and not d. conciliation
collective accountability. It will help facilitate
reconciliation by avoiding condemnation of entire 2. Quasi-Judicial Method (arbitration)
societies.
3. Judicial Method
Jurisdiction of the ICC
Another way of classifying is into judicial and
The jurisdiction of the ICC will be limited to the most diplomatic methods.
serious international crimes: genocide, crimes
against humanity, war crimes, and the crime of NON-JUDICIAL OR DIPLOMATIC METHODS
aggression.
Negotiation
Principle of Complementarity
There are no set rules for negotiation. It may take
The court is meant to be a court of last resort. It place at arm’s length or face to face. But for a
must await referral of a crime wither by a state party negotiated settlement to be legally binding, the
or by the Security Council. The court is not allowed parties must agree to it. The agreement to negotiate
to act when the local judicial system is able and may be formalized in a treaty or in a simple
willing to prosecute. Once a state has taken the exchange of notes.
initiative to investigate a crime, the ICC cannot
intervene. A preliminary step to negotiation might be “good
offices” when a third party tries to bring two
Because of the principle of complementarity, the disputants together. Having been brought together,
effective functioning of the court will depend very the usual first step, often required before judicial
much on the cooperation of state parties. The settlement is negotiation. It may be carried out by
crimes over which the ICC has jurisdiction must first diplomatic correspondence, face-to-face dialogue
be criminalized domestically. between envoys or negotiators. Essentially
negotiation is a give-and-take process of looking for
a win-win solution.

Mediation
CHAPTER XIII PEACEFUL
SETTLEMENT OF It involves the assistance by third parties who either
act as bridge between parties who do not meet, or
INTERNATIONAL DISPUTE who may sit with the disputants to chair meetings,
suggest solutions, cajole, etc. The mediator must be
International Dispute (def) – A dispute in approved by both parties.
international law is a technical term which means a
disagreement on a point of law or fact, a conflict of Inquiry
legal views or interests between two persons.
It is a fact-finding done by a designated group of
A disagreement does not amount to a dispute if its individuals or an institution. When undertaken with
resolution would have no practical effect on the the consent of the parties, it frequently resolves
relationship between the parties. It means that the disputes based solely on questions of fact.

Sheryl 2D 2003 page 26


Conciliation 2. the party against which the award was
rendered did not receive proper notice of
It is a more formal technique whereby the parties the proceedings or was otherwise not
agree to refer controversies to an individual, a group afforded an opportunity to present its case;
of individuals, or an institution to make findings of
fact and recommendations. Parties do not agree to 3. the award deals with matters outside the
be bound by the recommendations, but this clears terms of the agreement to arbitrate;
the air.
4. the constitution of the arbitral tribunal or
QUASI-JUDICIAL METHOD (ARBITRATION) the arbitral procedure was contrary to the
agreement of the parties to the law of the
Arbitration (def) - It is the binding settlement of a state where the arbitration took place;
dispute on the basis of law by a non-permanent body
designated by the parties. 5. the award has not yet become binding on
the parties, or has been suspended or set
The composition, jurisdiction, and the rules of aside by a competent court in the state
procedure to be applied are agreed upon by the where it was made;
parties in a compromis d’arbitrage. States cannot be
required to submit to arbitration unless there is a 6. under the law of the state, the subject
previous agreement making arbitration compulsory. matter of the controversy is not capable of
pecuniary estimation; or
Distinguished from judicial settlement:
7. under the law of the state, recognition or
In arbitration, the parties have a greater say in enforcement would be contrary to public
deciding, for instance, the law to be applied and the policy.
composition of the arbitral tribunal. The process is
more flexible. JUDICIAL METHOD: THE INTERNATIONAL
COURT OF JUSTICE (ICJ)
Three types of arbitral agreements:
CARDINAL RULE: States cannot be compelled to
1. An arbitration clause incorporated as submit disputes to international adjudication unless
part of a treaty – This is commonly found they have consented to it either before a dispute has
in commercial treaties; arisen or thereafter.

2. Treaties whose sole function is to States are also free to limit their acceptance to
establish methods for the arbitration of certain types of disputes and to attach various
disputes – Examples are The Hague conditions or reservations to their acceptance.
Convention for the Pacific Settlement of
Disputes; and All members of the UN are ipso facto parties to the
Statute of the ICJ. Being party to the Statute,
3. Ad hoc arbitral agreements – Example: however, does not mean acceptance of the
the agreement for the settlement of claims jurisdiction of the Court. It simply means that the
between the US and Iran. state may accept the jurisdiction of the court. The
Statute opens the court’s door to member states.
Grounds for challenging arbitral decisions: Only states may be parties in the court.

1. that the arbitral body exceeded its powers; Composition of the Court
2. that there was corruption on the part of a
member of the body; Number of Members
3. that there was failure to state the reasons
for the awards or a serious departure from The Court shall consist of 15 members, no two of
a fundamental rule or procedure; and whom may be nationals of the same state.
4. that the undertaking to arbitrate or the
compromis is a nullity. Qualifications of Judges

The Court shall be composed of a body of


independent judges, elected regardless of their
Arbitral tribunals apply international law unless the nationality from among persons of high moral
parties specify that some other law should be character, who possess the qualifications required in
applied. Domestic courts, however, may refuse to their respective countries for appointment to the
give recognition to awards given by foreign arbitral highest judicial offices, or are jurisconsults of
tribunals on the following grounds: recognized competence in international law.

1. the agreement to arbitrate was not valid Chambers


under applicable law;

Sheryl 2D 2003 page 27


The Court may from time to time form one or more
chambers, composed of 3 or more judges as the * The disputes are settled using international law
Court may determine, for dealing with particular and not by domestic law.
categories of cases, such as labor cases and those
relating to transit and communications. * The Court has jurisdiction only when a case is
referred to it by the parties.
The Court may at any time form a chamber for
dealing with a particular case. The number of judges Ways through which a state may accept
to constitute such a chamber shall be determined by jurisdiction of the court:
the Court with the approval of the parties.
1. on an ad hoc basis;
A judgment given by any of the chambers shall be
considered as rendered by the Court. 2. by adhering to a treaty which accepts the
jurisdiction of the court on matters of
Jurisdiction of the ICJ: Contentious Jurisdiction interpretation or application of the treaty;

The Court exercises two types of jurisdiction: 3. by a unilateral declaration of recognition of


contentious jurisdiction and advisory jurisdiction in relation to any other state
jurisdiction. accepting the same jurisdiction in all legal
disputes. This one creates the optional
Rules on Contentious Jurisdiction: Article 36 system of submitting to the jurisdiction of
the Court.
1. The jurisdiction of the Court comprises all
cases which the parties refer to it and all The Optional System
matters specially provided for in the Charter
of the UN or in treaties and conventions in The optional system is operative only for states that
force. “at any time declare that they recognize as
compulsory ipso facto and without special
2. The states parties to the Statute of the ICJ agreement, in relation to any other state accepting
may at any time declare that they recognize the same obligation, the jurisdiction of the Court in
as compulsory ipso facto and without all legal disputes” enumerated in #2 of Article 36.
special agreement, in relation to any other
state accepting the same obligation, the The Declaration in the optional system may be made
jurisdiction of the Court in all legal disputes unconditionally or on condition of reciprocity on the
concerning: part of several or certain states, or for a certain
time. States can thus limit the extent to which they
a. the interpretation of a treaty; are subjecting themselves to the jurisdiction of the
court.
b. any question of international law;
Reciprocity in the case of Declarations accepting the
c. the existence of any fact which, if compulsory jurisdiction of the Court enables a Party
established, would constitute a to invoke a reservation to that acceptance which it
breach of an international has not expressed in its own Declaration but which
obligation; the other Party has expressed in its Declaration.
Thus, if a party that has made a Declaration
d. the nature or extent of the unconditionally is brought to the court by another
reparation to be made for the that has made a Declaration with conditions, the
breach of an international former can invoke the conditions in the latter’s
obligation. Declaration.

3. The declarations referred to above may be Aerial Incident of 25 July 1955 (US v. Bulgaria)
made unconditionally or on condition of
reciprocity on the part of several or certain In 1946, the US acceded to the optional clause,
states, or for a certain time. thereby accepting the compulsory jurisdiction of the
ICJ. During the ratification process for that
4. Such declarations shall be deposited with accession, the US added a reservation, which
the Secretary General of the UN, who shall excluded from the jurisdiction of the ICJ “disputes
transmit copies thereof to the parties to the with regard to matters which are essentially within
Statute and to the Registrar of the Court. the domestic jurisdiction of the US as determined by
the US.”
5. In the event of a dispute as to whether the
Court has jurisdiction, the matter shall be In 1955, an El Al Israel airliner was driven off course
settled by the decision of the Court. by strong winds in very bad weather. The plane
innocently crossed over into Bulgarian air space.
* Jurisdiction of the ICJ is applicable only to disputes Bulgarian military fighter planes shot it down, killing
between states.

Sheryl 2D 2003 page 28


all of the passengers and crew members, including 6 Case Concerning East Timor (Portugal v.
Americans. Australia)

The US applied to the ICJ for action against Bulgaria Australia entered into a treaty with Indonesia which
for damages based on violations of international law created a Zone of Cooperation in an area between
and the injuries to US nationals. the Indonesian Province of East Timor and Northern
Australia. Portugal, as the administering power of
Bulgaria invoked the reservation made by the US, East Timor, instituted proceedings against Australia,
exempting from ICJ jurisdiction matters within its alleging that in entering into the treaty with
internal competence. According to Bulgaria, its Indonesia, Australia had failed to observe its
airspace security and anti-aircraft defenses were obligation to respect Portugal’s status as
within its domestic jurisdiction. And under the administering Power, East Timor’s status as a non-
principle of reciprocity, it could invoke the self governing territory and the right of the people of
reservation made by the other party, the US. East Timor to self-determination and to permanent
sovereignty over its wealth and natural resources.
The US withdrew its claim, ending the dispute. Australia contended that the ICJ had no jurisdiction
since the case would necessary involve an
Military and Paramilitary Activities in and adjudication of the rights and obligations of
Against Nicaragua (Nicaragua v. US) Indonesia, which had not given its consent to submit
to the jurisdiction of the ICJ.
In 1946, the US made a declaration containing the
following reservation: “this declaration shall remain ISSUE: Whether the ICJ has jurisdiction.
in force for a period of 5 years and thereafter until
the expiration of 6 months after notice may be given HELD: The ICJ has no jurisdiction.
to terminate this declaration.”
The court agreed that Indonesia’s rights and
In 1984, the US deposited with the UN Sec Gen a obligations would be the very subject matter of the
notification referring to the 1946 declaration, proceedings. Since Indonesia has not consented to
stating: “the aforesaid declaration shall not apply to submit itself to the jurisdiction of the ICJ, the court
disputes with any Central American State or arising cannot exercise its jurisdiction over the entire case.
out of or related to events in Central America, any of It is a well-established principle of international law
which disputes shall be settled in such manner as the that the Court can only exercise jurisdiction over a
parties to them may agree.” State with its consent.

Nicaragua filed a claim against the US for damages Separate Opinion of Judge Oda
in connection with military and paramilitary activities
allegedly supported by the US in and against Judge Oda agreed that the ICJ lacks jurisdiction, but
Nicaragua. The US argues that pursuant to the 1984 he argued that the dismissal should not have been
reservation that it made, the ICJ has no jurisdiction based on the absence of Indonesia’s consent but
over the controversy, since it involves a dispute with upon the sole consideration that Portugal lacked
a Central American State. Nicaragua argues that the locus standi. It had no standing to sue because it
ICJ has jurisdiction under the 1946 declaration, had not even established its status as a coastal state
which was not terminated by the subsequent 1984 entitled to the continental shelf in dispute. It did not
declaration, since the US never gave the 6-months show that it had been entrusted with the rights and
notice of termination, as required by the reservation responsibilities of an administering Power for the
that it had made in 1946. Non-Self Governing Territory of East Timor. The
issue on the required consent of the third party was
HELD: The ICJ has jurisdiction. The 1946 therefore irrelevant.
declaration is still binding on the US.
Dissenting Opinion of Judge Weeramantry
The US cannot derogate from the time-limit proviso
included in its 1946 declaration. The notion of The ICJ has jurisdiction because the matter could
reciprocity is concerned with the scope and have been decided on the basis entirely of the
substance of the commitments entered into, obligations and actions of Australia alone, without
including reservations, and not with formal need to make an adjudication of the conduct of
conditions of their creation, duration, or extinction. Indonesia. The actions of Australia in negotiating,
Reciprocity cannot be invoked in order to excuse concluding, and initiating performance of the treaty
departure from the terms of a State’s own with Indonesia and taking measures for its
declaration. Nicaragua can invoke the six months’ application are justiciable on the basis of its
notice against the US, not on the basis of reciprocity, unilateral conduct. The Court could have proceeded
but because it is an undertaking which is an integral to determine whether a course of action had been
part of the instrument that contains it. The 1984 made out against Australia on such actions without
notification cannot override the obligation of the US need for any adjudication concerning Indonesia.
to submit to the jurisdiction of the Court vis-à-vis
Nicaragua. Dissenting Opinion of Judge Skubiszewski

Sheryl 2D 2003 page 29


The ICJ has jurisdiction in this case. To decide on all INTERVENTION
the submissions of Portugal, the Court need not
adjudicate on any powers, rights, and duties of Should a state consider that it has an interest of a
Indonesia. The Court can decide on the lawfulness legal nature which may be affected by the decision in
of some unilateral acts of Australia leading to the the case, it may submit a request to the Court to be
conclusion of the treaty. A decision thereon does not permitted to intervene. The Court shall decide upon
imply any adjudication on Indonesia, nor does it the request.
involve any finding on the validity of the Treaty.
Whenever the construction of a convention to which
PROVISIONAL MEASURES states other than the parties to the case is in
question, the Registrar shall notify all such states.
The Court shall have the power to indicate, if it Every state so notified has the right to intervene in
considers that circumstances so require, any the proceedings; but if it uses this right, the
provisional measures which ought to be taken to construction given by the judgment will be equally
preserve the respective rights of either party. binding upon it.

Pending the final decision, notice of the measures El Salvador v. Honduras – Nicaragua
suggested shall be given to the parties and to the Intervention
Security Council.
Nicaragua sought to intervene in a Land, Island, and
Nicaragua v. US Maritime Frontier Dispute between El Salvador and
Honduras.
Nicaragua applied for the issuance of provisional
measures pending the resolution of the case. HELD: Nicaragua is allowed to intervene.

HELD: The circumstances require that provisional In order to obtain permission to intervene, a State
measures be granted in order to preserve the rights has to show an interest of a legal nature which may
claimed by Nicaragua. It must be emphasized that be affected by the Court’s decision in the case.
the decision to grant the provisional measures in no
way prejudices the question of the ICJ’s jurisdiction El Salvador, in opposing the permission to intervene,
to deal with the merits of the case and leaves argues that Nicaragua must show a valid link of
unaffected the right of the US and Nicaragua to jurisdiction between Nicaragua and the Parties. The
submit arguments in respect of such jurisdiction on Court held that this was not necessary in the case of
the merits. an intervention. The general rule is not other State
may involve itself in the proceedings without the
Case Concerning Legality of Use of Force consent of the original parties. However, in the case
(Yugoslavia v. US) of an intervention, the existence of a valid link of
jurisdiction between the would-be intervenor and the
The Federal Republic of Yugoslavia requested for parties is not a bar to permission being given for
provisional measures against the NATO States intervention. On the contrary, the procedure of
(Belgium, Canada, Italy, Netherlands, Portugal, intervention is to ensure that a State with possibly
Spain, UK, and US) in relation to the bombings being affected interests may be permitted to intervene
carried out by the NATO forces in Yugoslavia. It even though there is no jurisdictional link and it
based its claim on the Genocide Convention. therefore cannot become a party.

HELD: Request denied. Procedural rights of the state permitted to intervene:

The Court need not, before deciding whether or not 1. The intervening state does not become
to indicate them, finally satisfy itself that it has party to the proceedings and does not
jurisdiction on the merits of the case, yet it ought acquire the rights or become subject to the
not to indicate such measures unless the provisions obligations which attach to the status of a
invoked by the applicant appear, prima facie, to party.
afford a basis on which the jurisdiction of the Court
might be established. 2. It has a right to be heard by the Chamber
through submission of a written statement
In this case, when the US ratified the Genocide and participation in the hearings.
Convention, it made a reservation requiring that
before any dispute to which the US is a party may be OBLIGATION TO COMPLY WITH DECISIONS
submitted to the jurisdiction of the ICJ under to
Convention, the specific consent of the US must be The decision of the ICJ has no binding force except
obtained. Since the US did not give its consent, the between the parties and in respect of that particular
Court has no jurisdiction. And because it his no case.
jurisdiction to entertain Yugoslavia’s application, it
also cannot indicate any provisional measure in order The judgment is final and without appeal. In the
to protect the rights invoked by Yugoslavia. event of dispute as to the meaning or scope of the

Sheryl 2D 2003 page 30


judgment, the Court shall construe it upon the their right to freedom from coercion and to the
request of any party. integrity of their territory.

Ground for application for revision of a Article 2(4) of the UN Charter provides: “All Members
judgment: shall refrain in their international relations from the
threat or use of force against the territorial integrity
Discovery of some fact of such a nature as to be or political independence of any state, or in any
decisive factor, which was unknown to the Court and manner inconsistent with the Purposes of the UN.”
to the party claiming the revision at the time when
the judgment was given. The text does not use the word “war.” War is a
technical terms which does not include some uses of
The application for revision must be made at the force. The prohibition in the Charter is broader than
latest within 6 months from the discovery of the new the prohibition of war.
fact.
The prohibition on the use of force is also broad
No application for revision may be made after 10 enough not to cover just those used against the
years from the date of the judgment. territorial integrity and political independence of any
state but also those which are inconsistent with the
Failure to perform the obligations under a purposes of the UN.
judgment:
Corfu Channel Case (UK v. Albania)
In case of failure of one party to comply with its
obligations under a judgment of the ICJ, the other British warships were struck by mines while
party may have appeal to the Security Council, which exercising the right of innocent passage in Albanian
may, if it deems necessary, make recommendations territory. Britain sent additional warships to sweep
or decide upon measures to be taken to give effect the minefields within Albanian territory. Britain
to the judgment. stated that its objective was to secure the mines as
quickly as possible before they were taken away by
This may give rise to enforcement measures, which, the minelayers or Albanian authorities. This was
however, is subject to the veto powers of the presented either as a new and special application of
permanent members. But the winning state may the theory of intervention or as a method of self-
also use alternative methods of enforcement such as protection or self-help.
diplomatic or economic pressure.
HELD: The Court cannot accept the stand of the
ADVISORY JURISDICTION British. It can only regard the alleged right of
intervention as the manifestation of a policy of force
The ICJ may give any advisory opinion on any legal which cannot find a place in international law. As
question at the request of whatever body authorized regards the notion of self-help, the Court cannot
by the UN Charter to make such a request. The UN accept it: between independent states, the respect
Charter empowers the General Assembly and the for territorial sovereignty is an essential foundation
Security Council to make requests for advisory for international relations.
opinion. The General Assembly may also authorize
other UN agencies to seek advisory opinion.
The prohibition of the use of force is not just
Advisory opinions are non-binding. Acceptance or conventional law; it is customary international law.
non-acceptance of the advisory opinion is
determined by the internal law of the institution. Nicaragua v. US

OTHER MORE ACTIVE INTERNATIONAL COURTS There exists in customary law an opinio juris as to
the binding character of the abstention from the use
1. Court of Justice of the European of force. This opinio juris may be deduced from the
Communities attitude of the Parties and of States toward certain
2. The European Court of Human Rights General Assembly resolutions, particularly the
3. The Benelux Court of Justice “Declaration on Principles of International Law
4. The Inter-American Court of Human Rights concerning Friendly Relations and Cooperation
5. International Criminal Court among States in Accordance with the Charter of the
UN. Consent to such resolutions is one of the forms
of expression of an opinio juris with regard to the
principle of customary international law,
CHAPTER XIV THE USE OF independently of the provisions.
FORCE SHORT OF WAR
Separate Opinion of Judge Sette-Camara:
THE USE OF FORCE
The non-use of force as well as non-intervention are
not only cardinal principles of customary
The general principle is that international law
international law but could in addition be recognized
recognizes the autonomy of individual states and

Sheryl 2D 2003 page 31


as peremptory rules of customary international law The general prohibition of the use of force does not
which impose obligations on all states. preclude the right to self-defense. This is found in
Article 51 of the UN Charter:
THE THREAT OF FORCE
“Nothing in the present Charter shall impair the
The Charter prohibits not just the use of force but inherent right of individual or collective self-defense
also the threat of force. if an armed attack occurs against a Member of the
UN, until the Security Council has taken measures
The most typical form of the threat of force is the necessary to maintain international peace and
ultimatum in which the State to which it is addressed security….”
is given a time limit within which to accept the
demands made upon it and is told that if it rejects Nicaragua v. US
the demands, war will be declared on it or certain
coercive measures, such as naval blockade, The general rule prohibiting force established in
bombardment, or occupation of a given territory, will customary law allows for certain exceptions. The
be taken. The threats may also be veiled, which are exception of the right of individual or collective self-
very effective but difficult to detect. defense is also, in the view of States, established in
customary law. Whether the response to an attack
The Legality of the Threat or Use of Nuclear is lawful depends on the observance of the criteria of
Weapons (Advisory Opinion) the necessity and the proportionality of the
measures taken in self defense.
The use of force against the territorial integrity or
political independence of another State or in any Self-defense can only be exercised in response to an
other manner inconsistent with the purposes of the “armed attack.” This means not merely action by
UN is prohibited. regular armed forces across an international border
but also the sending by a State of armed bands on to
But the use of force is not prohibited in cases of the territory of another State, if such an operation,
individual or collective self-defense in case of an because of its scale and effects, would have been
armed attack. The use of force is also lawful in classified as an armed attack had it been carried out
cases where the Security Council may take military by regular armed forces. The concept of armed
enforcement measures. These provisions do not attack does not include assistance to rebels in the
refer to specific weapons. They apply to any use of form of the provision of weapons or logistical or
force, regardless of the weapons employed. The other support. There is also no rule permitting the
Charter neither expressly prohibits, nor permits, the exercise of collective self-defense in the absence of a
use of any specific weapon, including nuclear request by the State which is a victim of the alleged
weapons. attack, this being additional to the requirement that
the State in question should have declared itself to
The entitlement to self-defense is subject to the have been attacked.
conditions of necessity and proportionality. Self-
defense would warrant only measures which are
proportional to the armed attack and necessary to
respond to it.

The Proportionality Principle may not in itself exclude Anticipatory Self-Defense


the use of nuclear weapons in self-defense in all
circumstances. But at the same time, a use of force Is anticipatory self-defense allowed?
that is proportionate under the law of self-defense,
must, in order to be lawful, also meet the Some say that it is allowed on the ground that the
requirements of the law applicable in armed conflict phrase “if an armed attack occurs” is not exclusive.
which comprise in particular the principles and rules This is reminiscent of the view that protection of
of humanitarian law. “vital interests” justifies the use of force. In practical
terms, however, states do not invoke the right
To lessen or eliminate the risk of unlawful attack, because they are afraid that it might be sued against
States sometimes signal that they possess certain them too. Practice on the subject is inconclusive.
weapons to use in self-defense against any State
violating their territorial integrity or political An interesting development in the wake of the 9/11
independence. Whether or not this is a “threat” attack on the WTC is that Article 51 of the UN
depends upon various factors. If the use of force Charter which recognizes the inherent right of self-
itself in a given case is illegal, the threat to use such defense has been used to justify a response against
force will likewise be illegal. In short, if it is to be a non-state aggressor.
lawful, the declared readiness of a State to use force
must be a use of force that is in conformity with the TRADITIONALLY ALLOWABLE COERCIVE
Charter. MEASURES

Certain forms of coercive measures of “self help”


INDIVIDUAL AND COLLECTIVE SELF-DEFENSE
have been traditionally allowed. These are:

Sheryl 2D 2003 page 32


It consists of suspension of all commercial relations
1. severance of diplomatic relations with a state.
2. retorsion
3. reprisals Pacific Blockade
4. embargo
5. boycott It is a naval operation carried out in time of peace
6. non-intercourse whereby a state prevents access to or exit from
particular ports or portions of the coast of another
Severance of Diplomatic Relations state for the purpose of compelling the latter to yield
to demands by the blockading state. It is essentially
Since there is no obligation to maintain diplomatic a warlike act and therefore frowned upon by the UN
relations, severance of diplomatic relations is not Charter.
prohibited. However, this should not be resorted to
unless truly necessary because it might endanger PROTECTION OF NATIONALS ABROAD
peace.
Those who assert the right to defend nationals
Severance should be distinguished from suspension abroad argue that the right to protect nationals
of diplomatic relations. Suspension involves abroad can be defended as an aspect of the right to
withdrawal of diplomatic representation but not of self-defense in Article 51 since population is an
consular representation. essential element of statehood.

Retorsion But the legitimacy of such intervention is not firmly


established in international law.
It is any of the forms of counter-measures in
response to an unfriendly act. Forms of retorsion HUMANITARIAN INTERVENTION
include:
Humanitarian intervention by states in response to
1. shutting of ports to vessels of an unfriendly massive violation of human rights in another states
state begins with the prohibition of force in Article 2(4).
2. revocation of tariff concessions not The prohibition is now considered jus cogens.
guaranteed by treaty Intervention without the authorization of the Security
3. display of naval forces near the waters of an Council violates international law.
unfriendly state
If the Security Council determines that massive
Reprisal violations of human rights occurring within a country
constitute a threat to the peace, and then calls for or
Any kind of forcible or coercive measures whereby authorizes an enforcement action to put an end to
one State seeks to exercise a deterrent effect of these violations, a “humanitarian intervention” by
obtain redress of satisfaction, directly or indirectly, military means is permissible. In the absence of
for the consequences of the illegal act of another such authorization, military coercion employed to
state which has refused to make amends for such have the target state return to a respect for human
illegal acts. rights constitutes a breach of the Charter.

Unlike retorsion, the acts, standing by themselves, As long as humanitarian crises do not transcend
would normally be illegal. Moreover, reprisal must borders and lead to armed attacks against other
be preceded by an unsatisfied demand for states, recourse to Article 51 is not available. The
reparation. use of force cannot be the appropriate method to
monitor or ensure respect for human rights.
Embargo
But Antonio Cassese writes that the law on the
It consists of seizure of vessels, even in the high subject has changed under the shock of genocide
seas. and crimes against humanity. According to him,
under certain strict conditions, resort to armed force
Embargo might also be pacific, as when a state may gradually become justified even without any
keeps its own vessels for fear that it might find their authorization by the Security Council. These
way in foreign territory. There can also be collective conditions are:
embargo, e.g., on import of drugs or of oil.
1. gross and egregious breaches of human
Boycott rights involving loss of life of hundreds or
thousands of innocent people, and
It is a form of reprisal which consists of suspension amounting to crimes against humanity
of trade or business relations with the nationals of an carried out on the territory of a sovereign
offending state. state either by the central government
authorities or with their connivance and
Non-Intercourse support;

Sheryl 2D 2003 page 33


2. crimes against humanity resulting from In 1949, four Geneva “Red Cross” Conventions were
anarchy in a sovereign state; adopted, governing:

3. when the Security Council is unable to take 1. Wounded and Sick in the Field;
any coercive action to stop the massacres 2. Wounded, Sick and Shipwrecked at Sea;
because of disagreement among the 3. Prisoners of War;
Permanent Members of because one or 4. Civilians.
more of the exercises its veto power.
The essence of the Geneva conventions is that
4. when all peaceful avenues which may be persons not actively engaged in warfare should be
explored consistent with the urgency of the treated humanely. The rules apply to any
situation to achieve a solution based on international armed conflict, whether a declared war
means short of force have been exhausted, or not.
but no solution has been agreed upon;
CUSTOMARY AND CONVENTIONAL LAW
5. when a group of states decides to try to halt
the atrocities, with the support or at least Much of what is embodied in the Hague and Geneva
the non-opposition of the majority of the Conventions are customary law. Non-parties to the
Member States of the UN; Convention are covered by the customary law of
armed conflict. It is common practice for a party to
6. when armed force is exclusively used to the a conflict who is not a party to the convention to
limited purpose of stopping the atrocities make a declaration that it will abide by the terms of
and restoring respect for human rights, not the convention.
for any goal going beyond this limited
purpose. Commencement and Termination of Hostilities

Commencement

CHAPTER XV WAR AND Under the Hague Convention, for an armed conflict
to be considered a war in a legal sense, the
NEUTRALITY hostilities should be preceded by a declaration of war
or an ultimatum with a fixed limit.
THE LAWS OF WAR
However, most armed conflicts have commenced
Article 2(4) of the UN Charter prohibits all members without such a declaration or ultimatum. Thus, while
from the threat or use of force against the territorial the Constitution gives the legislature the power to
integrity or political independence of any state. In declare the existence of a state of war and to enact
effect, this provision outlaws war. all measures to support the war, the actual power to
make war is lodged in the executive power. The
However, side by side with this prohibition is the executive power, when necessary, may make war
proliferation of laws of war. Three facts can explain even in the absence of a declaration of war. And as
this paradox: far as the UN Charter is concerned, there is no
provision requiring a declaration of war or an
1. those who resort to the use of arms do not ultimatum. Normally, however, the victims of the
give up until they have achieved victory; attack respond with a declaration of war.

2. given the first fact, humanitarian The commencement of hostilities results in the
considerations dictate the need for rules severance of all normal relations. Political and
which curtail violence beyond what is economic treaties are terminated. Treaties of a
necessary to achieve a state’s goal; humanitarian character remain in force.

3. there still remains in the hearts of the


soldiery an acceptance of chivalry as a Termination
value.
The clearest method of termination is by means of a
THE HAGUE LAW peace treaty. But even in the absence of a peace
treaty, once the combatant states have made a
In 1899, 26 countries met at the Hague and declaration that hostilities have come to an end, the
promulgated Conventions and Declarations. More armed forces are bound by such declaration
conferences were held in 1907. the principles
adopted in these conferences constitute that part of Armistice
the law or armed conflict still known as the Law of
the Hague governing land and naval warfare. Armistice is an agreement to suspend hostilities,
whether local or general. It does not end the
THE GENEVA CONVENTIONS conflict, but it puts an end to active fighting in
accordance with the terms of the agreement.

Sheryl 2D 2003 page 34


Fundamental Rules of International
Protocol I Humanitarian Law Applicable to Armed
Conflicts
Protocol I to the 1949 Geneva Convention created a
new category of international armed conflict. It 1. People out of combat and those who do not
includes within the definition of international armed take part in hostilities are entitled to respect
conflict those in which peoples are fighting against for their lives and moral and physical
colonial domination and alien occupation and against integrity. They shall be protected and
racist regimes in the exercise of their right to self- treated humanely without any adverse
determination. distinctions.

Those engaged in such a conflict receive combatant 2. Don’t kill or injure an enemy who
status and are entitled to combatant rights and surrenders or is out of combat.
duties.
3. Captured combatants and civilians are
METHODS OF WARFARE entitled to respect for their lives, dignity,
personal rights, and convictions. They shall
The Hague Convention prohibits the employment of be protected against all acts of violence and
arms, projectiles or material calculated to cause reprisals. They shall have the rights to
unnecessary suffering. There is a need to balance correspond with their families and receive
military necessity and humanitarian consideration. relief.

Principles: 4. No one shall be subjected to physical and


mental torture, corporal punishment, or
1. States must never make civilians the object cruel or degrading treatment.
of attack and must never use weapons that
are incapable of distinguishing between 5. It is prohibited to employ weapons or
civilian and military targets. methods of warfare of a nature to cause
unnecessary losses or excessive suffering.
2. It is prohibited to cause unnecessary
suffering to combatants. It is prohibited to 6. Attacks shall be directed only against
use weapons causing them such harm or military objectives and not against civilians.
uselessly aggravating their suffering.
States, therefore, do not have unlimited NEUTRALITY
freedom of choice of means in the weapons
they use. In a conflict among various powers, there are always
some who prefer to stay out of the fray. They adopt
an attitude of impartiality towards the belligerents.
Such an attitude must be recognized by belligerents
Basic Rules Governing Armed Conflicts and creates both rights and duties in the neutral
states.
(I’m just putting the more important ones. Please
see pp. 385-389 of the book for the complete text) Belligerents must respect the rights of neutral states.
For their part, neutrals must not engage in activities
The Soldier’s Rules which interfere with the activities of the belligerents.

1. Do not fight enemies who are out of combat From Ma’am’s lecture (I’m not sure if this is correct):
or who surrender. Disarm them and hand
them over to your superior. Neutral states: Neutral with respect to all conflicts

2. Collect and care for the wounded and sick, Neutralized territories: Neutral only with respect to
be they friend or foe. a particular conflict

3. Treat all civilians and enemies in your power NON-INTERNATIONAL CONFLICTS


with humanity.
Civil Wars
4. Prisoners of war must be treated humanely
and are bound to give only information Civil wars or rebellion do not violate international
about their identity. No physical or mental law.
torture of prisoners of war is permitted.
Outside help for governments experiencing rebellion
5. Do not take hostages. is generally considered legitimate provided it is
requested by the government.

Aid to rebels is contrary to international law.

Sheryl 2D 2003 page 35


Common Article 3 Suppression of the Financing of Terrorism makes an
attempt to define it as an act intended to cause:
Traditionally, international law on armed conflict
does not apply to internal conflicts such as civil wars 1. death or serious bodily injury to any
or rebellions. In 1949, it was decided that minimum person; or
humanitarian protection should also be promulgated
to cover internal conflict. Each of the four Geneva 2. serious damage to a state or government
Conventions contain a common Article 3, which says: facility with the intent to cause extensive
destruction of such a place, facility or
In the case of armed conflict not of an international system, or where such destruction results
character, each party to the conflict shall apply as a or is likely to result in major economic loss
minimum the following provisions:
when the purpose of such act, by its nature or
1. Persons taking no active part in the context, is to intimidate a population, or to compel a
hostilities shall be treated humanely, Government or an international organization to do or
without any adverse distinction founded on abstain from doing any act.
race, color, religion, sex, birth, wealth, or
other similar criteria. Is terrorism already a crime against humanity
covered by universal jurisdiction?
2. The wounded and sick shall be collected and
cared for. The attack on the WTC was characterized as a crime
against humanity by several jurists. What led them
An impartial humanitarian body, such as the to arrive at this conclusion was the atrocious
Red Cross, may offer its services to the character exhibited by the act: its magnitude, its
parties. gravity, the targeting of civilians as part of a well-
planned operation.
This does not mean though that the conflict becomes
and international one. Therefore, it does not To characterize terrorism as a crime against
preclude the possibility that any participant in the humanity, it would be necessary to determine what
conflict may be prosecuted for treason. the specific conditions should be for considering an
act as one against humanity. Not every act of
Protocol II terrorism would have the magnitude and gravity of
the September 11 attack.
Protocol II is an international agreement which
regulates the conduct of parties in non-international The importance of the characterization of the
armed conflict. It defines a non-international armed September 11 attack as a crime against humanity is
conflict as armed conflicts “which take place in the that it led to what seems to be a development in the
territory of a High Contracting Party between its international law of self-defense. The magnitude of
armed forces and dissident armed forces or other the attack of September 11 was such that it
organized armed group which, under responsible persuaded the Security Council and NATO to issue
command, exercise such control over a part of its resolutions which justified resort to Article 51 of the
territory as to enable them to carry out sustained UN Charter on collective self-defense without waiting
and concerted military operations and to implement for action by the Security Council.
this protocol.”

The Protocol shall not apply to situations of internal


disturbances and tensions, such as riots, isolated and CHAPTER XVI INTERNATIONAL
sporadic acts of violence, and other acts of a similar
nature, as not being armed conflicts.
ENVIRONMENTAL LAW

Requirements of “material field of application” ENVIRONMENTAL CONCERNS


of Protocol II
The protection of the environment is now a concern
1. the armed dissidents must be under of international law. It is a challenge to the
responsible command; development of international law because its
demands cannot be met without intrusion into the
2. they must exercise such control over a part domestic jurisdiction and sovereignty of states.
of its territory as to enable them to carry
out sustained and concerted military The concern of environmental protection is not just
operations and to implement the Protocol; about the atmosphere, the sea, the land, etc. It is
also about the preservation of the cultural heritage
INTERNATIONAL TERRORISM of mankind as found in archeological and artistic
remains. The goal of environmental protectionists is
Part of the problem in criminalizing terrorism in the rational use of the elements that make up the
international law is the difficulty in defining the act. environment through control, reduction, and
A draft of an International Convention for the

Sheryl 2D 2003 page 36


wherever possible, elimination of the causes of control do not cause damage to the environment of
environmental degradation. other States or of areas beyond the limits of national
jurisdiction.
Inseparable related with environmental concerns are
human rights issues. The protection of the Principle 26 – Man and his environment must be
environment is a vital part of contemporary human spared the effects of nuclear weapons and all other
rights doctrine, for it is a sine qua non for numerous means of mass destruction. States must strive to
human rights, such as the right to health and the reach prompt agreement, in the relevant
right to life itself. international organs, on the elimination and
complete destruction of such weapons.
WHO HAVE ENVIRONMENTAL RIGHTS?
Rio Declaration
In protecting the environment, the real objects of
protection are persons capable of having rights. Principle 4 – In order to achieve sustainable
development, environmental protection shall
SUSTAINABLE DEVELOPMENT constitute an integral part of the development
process and cannot be considered in isolation from it.
The concept of sustainable development recognizes
the competing claims of states in the areas of Principle 5 – All States and all people shall
preservation of the environment and the right to cooperate in the essential task of eradicating poverty
development. The concept encourages development as an indispensable requirement for sustainable
in a manner and according to methods which do not development, in order to decrease the disparities in
compromise the ability of future generations and standards of living and better meet the needs of the
other states to meet their needs. majority of the people of the world.

EMERGING PRINCIPLES Principle 10 – Environmental issues are best


handled with the participation of all concerned
Stockholm Declaration citizens, at the relevant level. At the national level,
each individual shall have appropriate access to
The Conference calls upon governments and peoples information concerning the environment that is held
to exert common efforts for the preservation and by public authorities, including information on
improvement of the human environment, for the hazardous materials and activities in their
benefit of all the people and for their posterity. communities, and the opportunity to participate in
decision-making processes. States shall facilitate
(please see page 399-405 for the full text of the and encourage public awareness and participation by
Stockholm Declaration) making information widely available.

Important Provisions: Principle 13 – States shall develop national law


regarding liability and compensation for the victims
Principle 2 – The natural resources of the earth of pollution and other environmental damage.
must be safeguarded for the benefit of present and States shall also cooperate in an expeditious manner
future generations through careful planning or to develop further international law regarding liability
management. and compensation for adverse effects of
environmental damage caused by activities within
Principle 3 – The capacity of the earth to produce their jurisdiction or control to areas beyond their
vital renewable resources must be maintained and, jurisdiction.
wherever practicable, restored or improved.
Principle 18 – States shall immediately notify other
Principle 5 – The non-renewable resources of the States of any natural disaster or other emergencies
earth must be employed in such a way as to guard that are likely to produce sudden harmful effects on
against the danger of their future exhaustion and to the environment of those States.
ensure that benefits from such employment are
shared by all mankind. Principle 22 – Indigenous people and their
communities and other local communities have
Principle 6 – The discharge of toxic substances or a vital role in environmental management and
of other substances and the release of heat, in such development because of their knowledge and
quantities or concentrations as to exceed the traditional practices. States should recognize and
capacity of the environment to render them support their identity, culture, and interests and
harmless, must be halted in order to ensure that enable their effective participation in the
serious or irreversible damage is not inflicted upon achievement of sustainable development.
ecosystems.
Principle 24 – Warfare is inherently destructive of
Principle 21 – States have the sovereign right to sustainable development. States shall therefore
exploit their own resources pursuant to their own respect international law providing protection for the
environmental policies, and the responsibility to environment in times of armed conflict and
ensure that activities within their jurisdiction or cooperate in its further development, as necessary.

Sheryl 2D 2003 page 37


IMPORTANT ECONOMIC INSTITUTIONS
Principle 25 – Peace, development and
environmental protection are interdependent and 1. The International Monetary Fund (IMF)
indivisible. – provides short-term financing to countries
in balance of payments difficulties;
SOME TREATIES
2. The World Bank – provides long term
The Stockholm and the Rio Declarations are just capital to support growth and development;
declarations that do not have the force of law.
3. International Trade Organization (ITO)
Some conventions which are legally binding on the – promotes a liberal trading system by
parties are: proscribing certain protectionist trade rules.

1. Law of the Sea prohibitions on marine The intended function of the ITO was taken
pollution; over by the General Agreement on
Tariffs and Trade (GATT) and its
2. Vienna Convention for the Protection of the successor the World Trade Organization
Ozone Layer (WTO). The GATT and the WTO are the
most important trade oriented institutions.
3. UN Conference on Environment and They shape domestic import and export
Development – sought to achieve laws which impact on international trade on
stabilization of greenhouse gas goods and services.
concentration in the atmosphere at a level
that would prevent dangerous
anthropogenic interference with the climate KEY PRINCIPLES OF INTERNATIONAL TRADE
system; LAW

4. Kyoto Protocol – also sought to protect the 1. Agreed tariff levels – The GATT contains
atmosphere specified tariff levels for each state. Each
state agrees not to raise tariff levels above
5. Convention on International Trade in those contained in the schedule. But these
Endangered Species of Wild Fauna and Flora can be renegotiated.

6. Convention on Biological Diversity 2. The most favored nation principle


(MFN) – The MFN clause embodies the
principle of non-discrimination. It means
CHAPTER XVII that any special treatment given to a
INTERNATIONAL ECONOMIC product from one trading partner must be
made available for like products originating
LAW from or destined for other contracting
partners. This generally refers to tariff
International Economic Law (IEL) includes all the concessions.
international law and international agreements
governing economic transactions that cross state 3. Principle of National Treatment –
boundaries or that otherwise have implications for Prohibits discrimination between domestic
more than one state, such as those involving the and foreign producers. It means that once
movement of goods, funds, persons, intangibles, foreign producers have paid the proper
technology, vessels, or aircraft. border charges, no additional burdens may
be imposed on their products.
FOUR CHARACTERISTICS OF IEL
4. Principle of tariffication – Prohibits the
1. IEL is part of public international law. use of quotas on imports or exports and the
Treaties alone make this so. use of licenses on importation or
exportation. The purpose is to prevent the
2. IEL is intertwined with municipal law. The imposition of non-tariff barriers. But GATT
balancing of economic treaty law with provides for exceptions on a quantitative
municipal law is important. and temporary basis for balance of
payments or infant industry reasons in favor
3. IEL requires multi-disciplinary thinking, of developing states
since it involves not only economics but also
political science, history, anthropology, EXCEPTIONS TO KEY PRINCIPLES
geography, etc.
General exceptions: Those referring to public
4. Empirical research is very important for morals, public health, currency protection, products
understanding its operation. of prison labor, national treasures of historic, artistic

Sheryl 2D 2003 page 38


or archeological value, and protection of exhaustible
natural resources. EXTENDING SCOPE OF INTERNATIONAL
ECONOMIC LAW
There are also security exceptions and regional
trade exceptions. Of special significance to the IEL now includes intellectual property services,
Philippines are the exceptions for developing sanitary and physiosanitary measures and
nations. investment, as well as the strengthening of the rules
on subsidies, countervailing duties, and anti-
Tanada v. Angara dumping.

Petitioners argued that the Senate gravely abused its


discretion in joining the WTO because it would have
the effect of wiping out local industries and
enterprises and depriving Filipinos of control of the
economy.

HELD: There was no grave abuse of discretion.

The WTO has some built-in advantages to protect


weak and developing economies. Unlike the UN
where major states have permanent seats and veto
powers in the Security Council, in the WTO decisions
are made on the basis of sovereign equality, with
each member’s vote equal in weight to that of any
other. Poor countries can protect their common
interests more effectively through the WTO rather
than through one-on-one negotiations with
developed countries. Within the WTO developing
countries can form powerful blocs to push their
economic agenda more decisively than outside the
Organization. This is not merely a matter of
practical alliances but a negotiating strategy rooted
in law.

Moreover, the WTO Agreement grants developing


countries a more lenient treatment, giving their
domestic industries some protection from the rush of
foreign competition. With respect to tariffs in
general, preferential treatment is given to developing
countries in terms of the amount of tariff reduction
and the period within which the reduction is to be
spread out. As compared to developed countries,
the tariff reduction required of developing countries
is smaller, to be carried out over a longer period of
time.

The GATT itself has provided built-in protection from


unfair foreign competition and trade practices
including anti-dumping measures, countervailing
measures, and safeguards against import surges.
Where local businesses are jeopardized by unfair
foreign competition, the Philippines can avail of these
measures.

DISPUTE RESOLUTION

A Dispute Settlement Body (DSB) has been


established by the WTO Agreement. It consists of
the General Council of the WTO and operates under
the Understanding on Rules and Procedures
Governing the Settlement of Disputes (DSU).

Each state has a right to the establishment of a


panel. The DSU has also provided for a permanent
Appellate Body to handle appeals from a Panel
decision.

Sheryl 2D 2003 page 39