PUBLIC INTERNATIONAL LAW NOTES

Nov 13

THREE REGIMES / DIVISIONS OF PIL

1. Law of Peace
a. Law of treaties – creation of treaties, withdrawal of treaties
b. law of the sea,
c. diplomatic relations, etc
2. Laws of War
a. Engaging in War (Jus Ad Bellum) – how a state may lawfully use force. General Rule use
of force is prohibited but there are instances where it may be permitted
b. Conduct of War (Jus in Bello) – rules of war, international humanitarian law
3. Laws of Neutrality
a. Conduct of States not engaged in war
b. Neutralized State vs Neutral State
i. Neutralized – They are bound not to engage in war by treaty/agreement in
exchange for their continued existence. Usually previously colonized states
ii. Neutral – State that is not participating in any conflict while other states are
engaging in war

- Law of Peace may still apply during times of War (Human rights, jus cogen norms, etc)

IS PIL A LAW?

WHY DO SOVEREIGN STATES OBEY INTERNATIONAL LAW

HOW IS PIL “FORMED” AND “ENFORCED” TO MAKE IT LAW

- Enforcement of PIL thru Self-Help measures

o Classic – Retorsion and Reprisal
o Now we have “countermeasures”

Formal vs Material Sources of PIL

1. Formal – It is binding by the very fact of how it (law) was created. A treaty can be recognized as
both formal and material sources. You looking at the Binding characteristic of a treaty between
two States. The fact that both states consented to be bound by the treaty gives the treaty its
binding effect.
2. Material – where you can actually locate the obligation in International Law. You look at the
provisions of a treaty to see the kind of obligations imposed on both consenting states
DECEMBER 4, 2017

GUIDELINES IN DETERMINING WHICH SOURCE OF PIL PREVAILS OVER THE OTHER:

 Jus Cogens norms always prevail (art 53 of Convention on the Law of Treaties, 1969)
 Lex posterior derogate priori
 Lex posterior generalis non derogate priori speciali
 Lex specialis derogate legi generali
 Consider “Desuetude” (mutual rejection by the parties of a treaty usually due to emergence of
new norm)

JUS COGENS AND ERGA OMNES

WHAT WILL BIND SOVEREIGN STATES?

 Public Internation Law (art 38 ICJ Statute)

 Unilateral Declaration of State Doctrine (See: Nuclear Tests Cases and the 2006 ILC Guiding
Principles on Unilateral Declarations of States). A unilateral declaration binds the State
internationally when:
o Publicly made and manifesting will to be bound
o Made by an authority vested with the power to do so (Heads of State, Heads of Gov’t,
Minister of Foreign Affairs)
o Made orally or in writing
o Addressed to the Int’l Community or to specific state or entity
o Stated in clear and specific terms
o Consistent with jus cogens
o Will not bind third party states who do not accept it
o Not validly revoked

PHILIPPINE PRACTICE ON SOURCES OF INTERNATIONAL LAW

Sec 2, Art II of 1987 Constitution – Incorporation Doctrine

What had been incorporated could be CIL or general principles of Int’l Law – “generally accepted
principle of international law” – general, broad statement

USA vs. GUINTO (182 SCRA 645) – The rule that a state may not be sued without its consent,
now expressed in art xvi, sec 3 of the 1987 Constitution, is one of the generally accepted priniciples of
international law that we have adopted as part of the law of our land under Art II, Sec 2. Even without
such affirmation, we would still be bound by the generally accepted principles of international law under
the doctrine of incorporation. Under this doctrine, as accepted by the majority of the states, such
principles are deemed incorporated in the law of every civilized state as a condition and consequence of
its membership in the society of nations. Upon its admission to such society, the state is automatically
obligated to comply with these principles in its relations with other states.
Consider ICSID in State Immunity

The International Center for Settlement of Investment Disputes (of the World Bank Group) to which the
PH is a party, is an international agreement between States (about 159 signatories) allowing foreign
investors to directly initiate a “suit” for arbitration or conciliation involving disputes against states (e.g.
violation by a member state of the “Fair and equal treatment rule”

REYES vs BAGATSING (125 SCRA 553) – The Philippines is a signatory of the Vienna Convention of
Diplomatic Relations adopted in 1961… The second paragraph of its Article 22 reads: “2. The receiving
state is under a special duty to

DECEMBER 16, 2017

LAW OF TREATIES

Q: What is the difference between a “signatory” from a “party” to a treaty?

As to obligation, a signatory is not obliged to comply with the substantive provisions of the
treaty, except for Art 18, VCLT (Acts which defeat purpose of treaty).

Q: Distinguish “Signature” from “Ratification”

Q: Distinguish “Treaty Law” from “Law of Treaties”

JANUARY 6, 2016

Interpretation of Treaties

Basic Rules:

1. Text of Treaty (in good faith + ordinary meaning + context + object and purpose)
2. Intent of the Party
3. Object and Purpose of the Treaty

Means of Interpretation:

a. Preparatory Works (Travaux Preparatoires)

b. Circumstances of Conclusion (contemporaneity)
Municipal Law and Competence to Conclude Treaties

Article 46, VCLT:

1. A state may not invoke the fact that its consent to be bound by a treaty has been expressed in
violation of a provision of its internal law regarding competence to conclude treaties as
invalidating its consent unless that violation was manifest and concerned a rule of its internal
law of fundamental importance.
2. A violation is manifest if it would be objectively

Authorized Representative of the State - Article 7, VCLT

Invalid or Defective Treaties

- Head of State or Government disregards constitutional requirement for ratification (theory) vs

Art 46
- Unauthorized Representative
- Ultra Vires (Art 47) when restriction had been made known the other party prior to expression
of consent
- Error (Art 48) (a. about a fact or situation which was assumed to exist at the time of the
conclusion of the treaty, b. formed essential basis of consent and c. state has not contributed to
the error)
- Fraud (art 49)
- Corruption of Representative (Art 50)
- Coercion of Representative (Art 51)
- Coercion of State by the threat or use of force (Art 52)
- Contravenes Jus Cogens (Art 53)

Termination of Treaties

- Pacta sunt servanda (art 26)

- Grounds for termination, denunciation, withdrawal or suspension:
o Application of the treaty (art 42)
o Application of the VCLT (art 42)
o Consent of all the parties, e.g. “desuetude” (art 54)
o Discharge through material breach (art 60)
o Impossibility of performance (art 61)
o Fundamental change of circumstance (art 62)
o Emergence of new jus cogens (art 64)
o Outbreak of war (for bilateral treaties)
PRE-FINALS
January 27, 2018
Peoples’ “Right to Self-determination”
- A CIL; a jus cogens and erga omnes norm
- Art 1(2) and Art 55 of the UN Charter, and defined in Art 2 of GA resolution entitled
Declaration on the Granting of Independence (1960): “All peoples have the right to self-
determination; by virtue of that right they freely determine their political status and
freely pursue their economic, social, cultural development” in common Art 1 of ICCPR
and ICESCR, and in 1970 Declaration on Friendly Relations UN GA 2625.

Secession and Statehood

Opinion of the SC of Canada in re secession of Quebec (1998):
Question: is there a right to self-determination under intl law that would give the National
Assembly, Legislature or Govt of Quebec the right to effect Quebec’s unilateral secession from
Canada?”
- Secession is not authorized by the Constitution of Canada
- Intl Law does not specifically authorize nor prohibit unilateral secession
- But, states have the implied duty (erga omnes) to recognize peoples’ right to self-
determination
- Right to self-determination must be exercised within the framework of sovereign states
and consistent with territorial integrity of those states (“right to internal self-
determination” vs “right to external self-determination” ~unilateral secession~)
When Right to External SD may be exercised
SC of Canada: “the intl law right to SD only generates, at best, a right to external self-
determination in situations of former colonies; where a people is oppressed, as for example
under foreign military occupation; or where a definable group is denied meaningful access to
govt to pursue their political, economic, social and cultural dev’t

Recognition of State and Government

- Recognition will have legal effects in both intl law and domestic law
- Recognition of State must be distinguished from Recognition of Government
- Recognition of State has been traditionally suggested to be an additional requisite for
statehood (under Constitute Theory) along with Sufficient Degree of Civilization.
 Recognition of State
- Theories on Legal Effects of Recognition of State in IL:
o Constitutive
o Declaratory
- Art 3 of Montevideo Convention acknowledges Declaratory Theory, to wit: The political
existence of the State is independent of recognition by the other states. Even before
recognition , the State has the right to defend its integrity and independence.

Kadic vs Karadzic (US 1995)

Issues:
1. WoN some violations of the law of nations may be remedied when committed by those
not acting under the authority of a state;
2. If so, WoN genocide, war crimes and crimes against humanity are among the violations
that do not require state action;
3. WoN a person, otherwise liable for a violation of the law of nations, is immune from
service of process because he is present in the United States as an invitee of the UN.

Effects of Recognition on the Recognizing State

- Full diplomatic relations, except in the case of de facto recognition
- Right to sue in courts of recognizing state
- Entitlement to property of state within recognizing state
- Recognition being retroactive, validates past acts of recognized state or government (ie
act of state and sovereign immunity covers past, present and future acts) see underhill
vs Hernandez.
Recognition of Government
Approaches (note: recognition is a political question and largely involves discretion of the
executive)
1. Traditional: recognizing state considers: a. effectiveness and control; b. stability and
permanence; c. popular support; d. ability and willingness to fulfil international
obligations
2. Tobar or Wilson Doctrine: precludes recognition of any govt established by
revolutionary means until constitutional reorganization by free election of
representatives
3. Stimson Doctrine: no recognition of a govt established thru external aggression
(adopted by League of Nations)
 4. Estrada Doctrine: If a govt was established thru political upheaval, a state may not issue
a declaration giving recognition to such govt but may merely accept whatever govt is in
effective control without raising the issue of recognition. Dealing or not dealing with the
government is not a judgment on the legitimacy of the said govt

Recognition of Belligerency
- Distinguish between insurgency and belligerency
- Elements of belligerency for purpose of recognition:
o Occupation of substantial portion of territory
o Organized civil govt supported by the majority of the inhabitants in the territory
o Conflict between legitimate govt and the belligerents is serious and outcome is
uncertain
o Belligerents are willing and able to observe laws of war and other intl obligations
- Effects of Recognition:
o Before recognition, the rebels are subject to the municipal laws of the legitimate
government and responsibility generally attaches to the govt for any damage the
rebels may cause third states;
o After recognition, the belligerent community is treated as an international
person for purposes of the conflict and will be governed by the laws of war in its
dealings with the government (and can be held liable for any damage the rebels
may cause third states.
- Subjective recognition of Belligerency, not anymore applicable.
- Objective Criteria of Belligerency: An armed conflict exists whenever there is a resort to
armed forces between States or protracted armed violence between governmental
authorities and organized armed groups or between such groups within a State.
Non-international Armed Conflict
Non-international internal armed conflict vs Internal Disturbance
- Two Tests
Doctrine of State Continuity
Question: Distinguish State Succession from Government Succession?
State Succession – Where there is a change in legal personality of a state, “state succession”
occurs. This involves substitution of new sovereign over a territory. This happens in cases of
cession, annexation, merger; Clean slate doctrine
Efects: 1. Transfer of allegiance of inhabitants; 2. Political laws, automaticall abrogated; non –
political laws, deemed continued unless expressly repealed or inconsistent with domestic laws.
2,3,4
Effects of Government Succession
- All rights of presecessor government are inherited by the new govt
- If change is by peaceful means, new government inherits all obligations
- If change is by violent means, new govt has the option to reject political and personal
obligations, but not those arising out of regular administration of government
Jurisdiction
- Jurisdiction to prescribe law (the authority of a state to make its policy applicable to
persons or activities) (see: restatement 402, except for universal jurisdiction, which is in
restatement 404.
- Jurisdiction to adjudicate (Authority of the state to subject particular persons or things
to its courts.
- Jurisdiction to enforce (concerned with the authority of a state to use the resources of
government to induce or compel compliance with its law; includes authority to arrest.
Territorial Jurisdiction
- State has jurisdiction over property, persons, acts or events occurring within its
territory.
- Subjective Territorial Principle: jurisdiction to prosecute or punish cromes commenced
within their territory but completed or consummated in the territory of another state
- Objective Territorial Principle: certain states apply their territorial jurisdiction to
offenses or acts commence in another state, but (i) consummated or completed within
their territory, or (ii) producing gravely harmful consequences to the social or economic
order inside their territory.
Cases:
1. United States vs. Vasquez-Velasco (1972) – crime was directed against the US even
though the persons attacked were not actually DEA agents. It was enough that the
reason for the attack was because the defendants thought they were DEA agents. As
such, it was taken as an offense towards the United States.
Feb 5, 2018

Nationality Principle in Jurisdiction

- Active Nationality
o States may regulate the conduct of their nationals wherever they are in the
world
- Passive Nationality
o A state may prescribe law for situations where its nationals are victims of the
conduct being regulated
o This has limited scope, usually applicable to terrorist attack

Nottebohm Case (Liechtenstein vs Guatemala ICJ 1995)

- Key Principle: Nationality as a basis for exercising jurisdiction must be real and effective
to give a right to a state who has conferred it. Real and effective link with the state of
nationality necessary. Right to diplomatic protection and protection by means of
international judicial proceedings only arises when proper nationality link exist between
the individual concerned and the state seeking to exercise such rights. (Effective
Nationality Theory)
US vs Columba-Collela (1979)
Facts: A british citizen living in mExico agrees to sell a car that is in mExico but was stolen from
Texas by someone else.
Issue: Can the British citizen be prosecuted under US law
Protective Principle
Objective Territoriality Prinicple?
- The man did not steal the car and while the selling of the car may make it harder for the
victim to get his car back, this connection to harm the US is too weak

US vs Bowman
US vs Romero-Galue
Attorney General of Government of Israel vs Eichmann (1961) – Israel tried and convicted Adolf
Eichmann, who had been captured by Israeli agents in Argentina and brought to Israel for trial.
Eichmann was charged of committing crimes against Jewish people, crimes against humanity,
war crimes and membership in hostile organization as defined in Israels Nazis and Nazi
Collaborators Punishment Law. Eichmann argued that the court had no jurisdiction because he
was captured in a foreign country in violation of International Law

February 10, 2018

PINOCHET CASE
- Spain relied on Universal Jurisdiction to argue for Pinochet’s extradition from England to Spain
- It also relied on Passive Nationality/Personality (Spanish citizens were killed in Chile
- Passive Nationality / Personality was found to be more persuasive than Universal Jurisdiction
- No Territorial Jurisdiction – happened in Chile, not Spain
- No Active Nationality – Pinochet was Spanish
- No Protective Principle – there was no imminent threat to Spain’s national security from Spain

Extradition

Vs. Deportation (unilateral, does need a treaty, destination of deportee is irrelevant)

Conditions:
1. Treaty
2. The Person to be extradited had been charged or convicted of extraditable offense
3. Extraditable offense is (1) Listed and/or (2) covered by “Double or Dual Criminality
Principle/Clause”

Basic Principles in Extradition

- No treaty, no “obligation” to extradite
- Pacta sunt servanda applies
- Dual Purposes: 1. Prosecution, 2. Execution
- Could not cover “political offenses” cf: “Attentat Clause”
- “Rule of Speciality” must be followed
- Ex post facto law prohibition does not apply

Legality of “Abduction” of criminals in foreign territory:

- 3 modes of “rendition”: Extradition, Deportation, Abduction
- Abduction of criminals in the territory of another is understood as “intervention” and
therefore violates customary law and the UN Charter ( Art. 2(4) )
- It can only be justified if done invoking self-defense
US vs Toscanino (1974)
- Toscanino was abducted in Uruguay by an agent of the US, taken to Brazil, and brutally
tortured and interrogated for 17 days. He was then placed on a civilian aircraft bound
 for the US and arrested on arrival. He contended that the district court lacked
jurisdiction over him because of the circumstance of his arrest. Notwithstanding Ker-
Frisbie, the US Court of Appeals for the Second Circuit agreed, ruling that, if the
allegations were true, they were so shocking to the conscience that due process
required that the district court divest itself of jurisdiction.

United States ex rel. Lujan v Gengler (1974)

- Govt-sponsored abduction, in and of itself, did not constitute conduct sufficiently
shocking to violate due process and therefore did not trigger the Toscanino exception to
Ker-Frisbie. Rather, the Toscanino exception required more – such as kidnapping
combined with torture at the hands of agents of the US govt

March 5, 2018
STATE RESPONSIBILTY
- The ILC Draft Articles on State Responsibility for Internationally Wrongful Acts provides
merely for the “secondary rules” in state responsibility
- Read: 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts
with Commentaries.
- Internationally wrongful act -> Draft Art 2 of ILC: (a) action or omission attributable to
the State under International Law; (b) constitutes breach of international obligation of
State.
o Add: The “Nexus” Requirement

Theories on State Responsibility

- Strict Liability Theory (or “objective” or “risk” theory) = liability attaches irrespective of
bad or good faith
- Fault Liability Theory (or “subjective” theory) = liability attaches only upon proof of dolo
(intent) or fault (negligence)
The ARSIWA
- Part 1 – General Principles on State Responsibility
- Part 2 –
- Part 3 –
- …..

“Attributable to the State”

 - Imputability Doctrine (Principle of Attribution)
- A state is liable only for its own acts and omissions, and in this context, the State is
identified with its governmental organs and apparatus, not with the population (nor
with private [vs ultra vires] acts of government agents)
- “6Governmental organs or apparatus”: Domestic Administrative Law is irrelevant. The
issue is to be settled applying international law principles.

March 7, 2018