A PRIMER ON PUBLIC INTERNATIONAL LAW 1 Public international law is not the easiest subject for which to make a primer.

Unlike the Philippine legal system, the international legal system has no defined Congress that enacts laws, nor a Supreme Court with the final word on their interpretation: The entire community of states makes the law and a plurality of tribunals interprets it.! Thus, the process of determining what international laws are laws is necessarily attended by some degree of uncertainty. "n addition, there is the tension between international law as percei#ed by international tribunals, and as percei#ed by Philippine courts. To cite one e$ample, international tribunals will almost certainly deem international law to be superior to municipal %that is, national law&, whereas Philippine courts will almost certainly consider the Constitution to ha#e a higher status. This primer attempts to reiterate the basic doctrines of international law while addressing the abo#e'mentioned problems. "t sets out what are percei#ed to be the established doctrines while pointing out areas of debate and mentioning opinions that, though in disagreement with majority perspecti#es, also command respect. "t likewise sets out the pronouncements of the Philippine Supreme Court on international law (uestions, relating them to the doctrines recogni)ed to be authoritati#e under international law. "t may be noted that older writers tend to di#ide international law into three major di#isions: %*& the laws of peace, %!& the laws of war, and %+& the laws of neutrality. This di#ision, though it may ha#e its merits, is not used for this primer. "nstead, a framework is employed %based somewhat on that followed by ,ugust& that goes from a general discussion of international law %Part -ne& to the norms that apply to particular kinds of international actors %Parts Two to Three&. .here the maker of this Primer states his personal opinion on a subject, the phrase /it is submitted/ will preface such statements.

Part One
*

This is not a full'blown re#iewer, much less a te$tbook, and should not be treated as such %e$cept perhaps in extremis&. 0or one thing, it is sadly incomplete. "ts intent is simply to restate the basics of P"1 and reiterate its most important doctrines in a comprehensible logical framework. This is meant to be a mere supplement to e$isting materials and re#iewers, particularly those of Professor 2erlin 2agallona, ,3 "3T4-5UCT"-3 T- "3T643,T"-3,1 1,. "3 461,T"-3 T- P7"1"PP"36 1,. %!nd ed., *889&, and "sagani Cru), 46:"6.64 "3 PU;1"C "3T643,T"-3,1 1,. %*88+&. The doctrines and principles contained in this primer are culled from a number of materials: te$tbooks'' particularly 2alcolm Shaw, "3T643,T"-3,1 1,. %<th ed., *889&, "an ;rownlie, P4"3C"P16S -0 PU;1"C "3T643,T"-3,1 1,. %*88=&, and the #ery con#enient 4ay ,ugust, PU;1"C "3T643,T"-3,1 1,. %*88>&'' cases, treaties, and the re#iewers made by Professor 2agallona, by ?ustice Cru), and by the UP 1aw students of C!@@<. Special thanks are e$tended to ,tty. 4owena 2orales and ,tty 7arry 4o(ue, and to the other members of the !@@+ UP 1aw ?essup Team.''3eil Sil#a ! To mention some e$amples, there are the "nternational Court of ?ustice, the "nter',merican and 6uropean human rights courts, the "nternational Criminal Court, the arbitral tribunals, etc.

The International Legal System I. International La

"nternational law has been defined as /a body of principles, norms and processes which regulates the relations of States and other international persons, and go#erns their conduct affecting the interests of States as a whole./+ This definition takes into account the de#elopments that occurred after the Second .orld .ar<, among them the new importance of international entities other than states, as well as the awareness that international law is not a mere system of static rules but a matri$ of norms and process that come into being through the interaction of authority and international reality.> A. International La as La ,s noted abo#e, international law does not ha#e structures as rigid and formal as those of municipal legal orders systems like that of the Philippines. There is no Congress to enact laws, no Supreme Court to interpret them, no 6$ecuti#e to enforce them. Conse(uently, some commentators e$press doubts that international law is indeed law, particularly because there seems to be no so#ereign in international law to back its precepts with coerci#e force. 3e#ertheless, it is generally acknowledged that international law is indeed law, albeit e$isting in a more primiti#e legal order than municipal systems. B. Contra!"istin#tions 1. M$ni#i%al La Public international law is distinguished from domesticAmunicipal law in that international law prescribes rules and processes that go#ern the relations of states with each other, and the rights of other entities insofar as they implicate the community of states. "n contrast, municipal law deals with the conduct or status of indi#iduals, corporations, and other /pri#ate/ entities within particular states.B This distinction has been weakened by recent de#elopments in international law, such as the rise of an international human rights regime that protects indi#iduals e#en within, and against, their states, thus creating what may be called a transnational law. This has led some commentators to say that the line between international and domestic law has become /somewhat artificial./ The distinction remains #alid, howe#er, as there remains a dichotomy between the intra'state legal system, where the so#ereign of the state is supreme, and the international legal system, where so#ereign states interact on formally e(ual footing. &. Pri'ate International La Public international law may also be distinguished from pri#ate international law, or conflict of laws. Private international law /is that part of the laws of each State which determines whether
+ <

2agallona * 2agallona * > 4. 7"CC"3S, "3T643,T"-3,1 1,.: P4-;162S ,35 P4-C6SS %*88<&. B ;arry Carter and Philip Trimble, "3T643,T"-3,1 1,. * %!nd ed., *88>&

in dealing with a factual situation in#ol#ing a foreign element, the law or judgment of some other State will be recogni)ed or applied in the forum./9 This definition shows the fundamental difference between public and pri#ate international law, namely that while public international law is international in character and origin, pri#ate international law is national or municipal in character.= C. International an" M$ni#i%al La 1. Theoreti#al ($estions ,s noted abo#e, there is a dichotomy between the international law and the municipal legal order, between the legal system across and beyond states, and that within them. This has led to se#eral different opinions as to the interrelationship between international and municipal law. The %*& monist #iew states that the international and the municipal legal systems are fundamentally part of one legal order, since it is the same indi#idual who is bound by both orders.8 This #iew considers international law to be superior, with domestic law being a mere subset of international law. The %!& dualist #iew, on the other hand, claims that international law and municipal law are two separate systems, with only those problems affecting international relations being within the scope of international law. The %+& monist-naturalist #iew asserts that international law is superior, and that both systems are but part of a higher system of natural law. 0or its part, the %<& coordinationist #iew considers international law and municipal law to be operating in different spheres, but with municipal law generally obliged to be in conformity with international law. These #iews ha#e #arying conse(uences with regard to the (uestion of what effect international norms ha#e within municipal legal systems. 2onists propose that international norms are applicable within municipal systems e#en without some positi#e act of the state or its bodies. 5ualists, on the other hand, propose that, before an international norm can ha#e an effect within a municipal legal system, that norm must be transformed, or adopted into the municipal system through a positi#e act by the domestic legislature. This doctrine is sometimes differently applied to customary norms as opposed to treaty norms. "n some jurisdictions, customary norms may be deemed applicable within the domestic system without legislati#e adoption, whereas treaty norms must first be transformed. &. The Phili%%ine )o#trine o* In#or%oration "n the Philippines, the Constitution itself pro#ides for the incorporation of international law into our legal system and declares that the Philippines /adopts the generally accepted principles of international law as part of the law of the land./ *@ These generally accepted principles refer to norms that are binding on all states,** that is, international custom and the general principles of law.*! These principles, though, as one writer contends, they do not become part of the

9 =

?-:"T- S,1-3C,, P4":,T6 "3T643,T"-3,1 1,. >'B %*88> ed., *88>& Dhereinafter Salonga on P4"1E. Salonga on P4"1 **'*! 8 Salonga on P4"1 *+ *@ Constitution, art. "", sec. ! ** 2agallona << *! 2agallona <>

Constitution*+, nonetheless become part of the Philippine legal system *<, and may be subject to judicial notice as law*>. II. The A#tors in International La

"n international theory, a distinction is sometimes made between the subjects and the objects in the international legal system.*B Under this conception, /DaE subject of the law is an entity capable of possessing international rights and duties and ha#ing the capacity to maintain its rights by bringing international claims./*9 -therwise stated, , subject under international law is an entity that has rights and responsibilities under that law. "t has an international personality in that it can directly assert rights and be held directly responsible under the law of nations. "n other words, it has the faculty of moti#ation. ;y this is meant that it can be a proper party it transactions in#ol#ing the application of the law of nations among members of the international community. ;y contrast, an object of international law is the person or thing in respect of which rights are held and obligations assumed by the subject. "t is, therefore, not directly go#erned by the rules of international law. "ts rights are asserted and its responsibilities imposed indirectly, through the instrumentality of an intermediate agency, which is the subject.*= Some positi#ist theorists concei#ed of the State as the only subject, under international law. *8 Their treaties were the agreements that gi#e rise to con#entional norms their practice, when sufficiently general and accompanied by the belief that the practice is mandated by law, were what ga#e rise to customary norms.!@ Their interaction was what gi#es rise to the system that is go#erned by international law. ,ll other actors, e#en indi#iduals, who participated in international system were mere objects /like FboundariesF or Fri#ersF or FterritoryF./!* Historically, the present decentralized structure of international law, governing and created by sovereign and equal states, is a legacy of the decline of the Medieval commonwealth !n the centuries following the overthrow of "omulus #ugustulus and the disintegration of the $estern "oman %mpire, the perceived ideal polity was the unified &hristian empire, imperfectly concretized in the socio-political system of %uropean feudalism that reached its apex in the offices of pappas atque imperator '' (here was, in that period, an intermingling of allegiances, where the exclusivity of citizenship and of the jurisdiction of monarchs was practically un)nown (he primary unifying force was a common creed '* (his mar)edly +internationalist+ system,
*+ *<

2agallona >B See 2agallona <9 *> 4ules of Court, 4ule *!8, sec. *. *B Cru) *9 ;rownlie >9. *= Cru) **, *88+ *8 7iggins <8, citing ,n)ilotti. See also Salonga, BB. !@ See infra, the discussion under "". !* 7iggins <8 *88< repr. !@@* !! See 2,33,4,S.,2"C7,1, S4664,3C, 4,?,3, U3"T65 3,T"-3S ,35 5-26ST"C ?U4"S5"CT"-3 * %!nd. 6d. *8B*& !+ C,41T-3 7,G6S, 7"ST-4"C,1 6:-1UT"-3 -0 2-5643 3,T"-3,1"S2 + %*8+*&

however, suffered from the wea)ening of the centralizing force of faith and fealty, and from the increasingly strident assertion by monarchs and princes of their sovereign rights vis-,-vis other rulers and even the Pope and the %mperor (he "eformation bro)e the religious unity of the Medieval system'-. and the (hirty /ears0 $ar, in the course of which the religious conflict was transformed into a dynastic duel between 1ourbon and Hapsburg, destroyed the last vestiges of pan-&hristian !mperial power !n its aftermath, the Peace of $estphalia sealed the end of the Medieval ideal, and effectively recognized the juridical existence of a gaggle of equal and independent realms'2 $ith some modifications, this is the system of modern international law, and it is the structure pre-supposed by the &harter0s collective security system (he $estphalian system that was thus formed was founded on several basic ideas (he first and most fundamental of these is sovereignty '3, ta)en to refer to the general legal competence of states, including its power to exercise legislative jurisdiction, and the power to acquire title to territory '4 (he second foundational concept of international law, is that the fundamental equality of states'5, rightfully treated as connected to and proceeding from sovereignty '6 (he principal corollaries of these two basic ideas are threefold7 the recognition of a 8tate0s jurisdiction over a territory and the people on it. the duty of non-intervention in the area of exclusive jurisdiction of other states. and the dependence of international obligations of a 8tate on its consent *9 #s to the last, it was held that a 8tate0s binding itself by treaty to a particular underta)ing did not constitute a violation of sovereignty, as the act of entering into the treaty, and indeed, into binding international agreements, was itself an exercise of sovereignty *: # consequence of these principles, and apropos to our purposes, is the primacy of 8tates as the actors in international law !n the words of ;ernando (eson, +<t=raditional international legal theory focuses upon the rights and duties of states and rejects the contention that the rights of states are merely derivative of the rights and interests of the individuals that reside within them +*' This theory has been undermined by a host of de#elopments, mostly coming after the Second .orld .ar: the rise of international human rights law, the increase in the number and importance of intergo#ernmental organi)ations that are now recogni)ed to be international persons in their own right, the growth of national liberation mo#ement, and the rise of international agencies like the .orld ;ank and the "nternational 2onetary 0und %both created under the ;retton .oods regime&. 3ow, it is acknowledged that not only states are the subjects in international law, but also

!< !>

C,41T-3 7,G6S, 7"ST-4"C,1 6:-1UT"-3 -0 2-5643 3,T"-3,1"S2 + %*8+*& 3ico Schhri#er, (he &hanging nature of 8tate 8overeignty, 9@ ;G"1 B>, BB %*88@& C,41T-3 7,G6S, 7"ST-4"C,1 6:-1UT"-3 -0 2-5643 3,T"-3,1"S2 < %*8+*& !B ?-73 C64,45 4UCC"6, (he >ew !nstitutionalism, C-3ST4UCT"3C T76 .-415 P-1"TG: 6SS,GS -3 "3T643,T"-3,1 "3ST"TUT"-3,1"H,T"-3 <*, <9 %*88=& !9 ;rownlie !8* != 4ajan < !8 See the U3 Charter, art !%*&. +@ ;rownlie !=8 +* ,ramco Case, !9 "3TF1. 1. 46P. **9 %*8B+& ;rownlie !8@ +! 0643,35- 4. T6S-3, , P7"1-S-P7G -0 "3T643,T"-3,1 1,. * %*88=&.

DTEhe United 3ations, colonies and dependencies, mandates and trust territories, the :atican City, belligerent communities, certain international administrati#e bodies, and e#en indi#iduals in some cases. ++ -f late, it has been suggested that the subjectAobject dichotomy should be discarded in fa#or of a theory that focuses less on the difference between holders and non'holders of rights and duties under international law, and more on the interplay of the different actors in international law.+< A. States States remain, in any case, the most important actors in international law. +> , state has been defined as /a group of people, more or less numerous, permanently li#ing in a definite territory, under an independent go#ernment organi)ed for political ends and capable of entering into legal relations with other states./+B ,s may be noted from the definition, it is generally thought that a State /as a person in international law should possess the following (ualifications: %a& a permanent population %b& a defined territory %c& go#ernment and %d& capacity to enter into relations with the other states./+9 This enumeration, though often adopted by jurists, may be completed by further criteria.+= "n any case, these (ualifications ha#e been applied broadly, with some regard for the conte$t and circumstances of the claim for statehood.+8 1. ($ali*i#ations a+ Peo%le /, people is an aggregate of indi#iduals of both se$es who li#e together as a community despite racial or cultural differences. They should be sufficient in number to maintain and perpetuate themsel#es./<@ Sufficiency in number does not, howe#er, re(uire a great number: 3auru, for instance, with >,@@@ people is deemed a State with the same rights and obligations as China, with *,!@@,@@@,@@@ people. "t must be noted, moreo#er, that the 2onte#ideo Con#ention refers to a permanent population, and refers to a stable community.<* ,+ Territory , defined territory need not be e$actly defined by metes and bounds, so long as there e$ists a reasonable certainty of identifying it.<! To take one e$ample, "ndiaFs boundary with Pakistan remains in dispute, but "ndia is deemed to be a State. 3or does territory need to be large for a

++ +<

Cru) ** 7iggins +> ;rownlie >=. +B Cru) *! +9 7iggins +8, (uoting the 2onte#ideo Con#ention on the 4ights and 5uties of States, 5ec. !B, *8++, art. *, <8 Stat. +@89 %*8++&. += ;rownlie 9@ +8 7iggins +8. /D3Eot all the conditions are peremptory,/ ;rownlie 9@. <@ ?-:"T- S,1-3C, ,35 P654- G,P, PU;1"C "3T643,T"-3,1 1,. !> %>th ed., *88!& <* ;rownlie 9@'9*. <! C!@@< 4e#iewer, citing the lectures of Prof. 7arry 4o(ue.

State to e$ist''as illustrated by the e$amples of 2onaco and San 2arino'' albeit if the territory of too small, the state may disintegrate.<+ #+ -o'ernment Co#ernment is the physical manifestation of a state. Salonga opines that /DtEo constitute a State, the inhabitants must ha#e an organi)ed go#ernment e$ercising control o#er, and capable of maintaining law and order./<< Such go#ernment need not be supported by the people, but it has to be capable of effecti#e control. i. E**e#ti'e -o'ernment

7owe#er, though an effecti#e go#ernment is the best e#idence of the e$istence of a State, it has been proposed that effecti#e go#ernment is not always strictly necessary. <> Some states, such as Poland, ;urundi, and 4wanda, were deemed states e#en before their go#ernments were /#ery well organi)ed./<B 0urthermore, the re(uirement of effecti#e go#ernment is not strictly applied when the State, already long'e$isting, happens to undergo a period of ci#il strife or internal chaos due to natural disaster or in#asion,<9 for once statehood is established, neither in#asion nor disorder alone can remo#e its character as a state. Thus, with the collapse of their go#ernments, ,fghanistan and Somalia were deemed failed states, but they remained states. 1ikewise, effecti#eness does not always re(uire full control of territory. ii. -o'ernments "e *a#to an" "e .$re

, distinction is often made between a de jure go#ernment''literally, a go#ernment from law, that is, a go#ernment with color of legitimacy'' and a de facto go#ernment, one that rules without mandate of law. There are three kinds of de facto go#ernment: %*& government de facto in the strict legal sense %one that usurps''either by force or the will of the majority'' the legal go#ernment and maintains control against it& %!& government by paramount force %one that results from the occupation of a state or a part of a state by in#ading forces in time of war& and %+& one that is established as an independent go#ernment by inhabitants of a country who rise in insurrection against a parent state.<= .hat is the effect of a de facto go#ernmentI "t is generally held that so long as a de facto go#ernment is in place, it may command obedience from the inhabitants of the occupied area. , distinction must here be made between %*& laws that enforce public order and regulate social and commercial life and %!& /laws of a political nature or affecting political relations, such as, among others, the right of assembly,/ etc.<8 The first kind of laws remain in effect unless they are changed by the de facto so#ereign, and must be respected by the de facto ruler. -n the other hand, laws of the second kind are deemed suspended or in abeyance during the occupation.>@
<+ <<

Salonga !B Salonga !B <> ;rownlie 9* <B ;rownlie 9* <9 ;rownlie 9* <= Co Jim Chan #. :alde) Tan Jeh and 5i)on, 9> Phil. **+, *!! %*8<>&. <8 Co Jim Chan #. :alde) Tan Jeh and 5i)on, 9> Phil. **+, *!< %*8<>&. >@ Co Jim Chan #. :alde) Tan Jeh and 5i)on, 9> Phil. **+, *!< %*8<>&.

"n sum, the de facto ruler may suspend laws, enact new ones but the establishment of a de facto go#ernment does not by itself abolish all laws and structures of the de jure go#ernment that came before nor does the re'establishment of the de jure go#ernment #oid the acts of the preceding de facto go#ernment.>* "+ In"e%en"en#e/Ca%a#ity to Enter into Relations ,s phrased in the 2onte#ideo Con#ention, independence as the fourth re(uirement for statehood re(uires only the capacity to enter into international relations. Salonga opines that /DtEhe only aspect of freedom that is material is the capacity of a State to deal with other States %foreign affairs& free from e$ternal restraints./>! Thus, what is important is that a State has the external appearance of capacity to enter into international relations /that a State may be acting under the direction of another State is not of concern to international law./>+ ,s ;rownlie notes, /The practice of states has been to ignore'' so far as the issue of statehood is concerned'' #arious forms of political and emotional blackmail and interference directed against the weaker members of the community./>< &. Re#ognition "t has long been disputed in international law whether a State must be recogni)ed for it to be deemed a State. 0or jurists of the constitutivist school, /the political act of recognition is a precondition of the e$istence of legal rights Dof a StateE: in its e$treme form this is to say that the #ery personality of a state depends on the political decision of other states./ >> Unfortunately, recognition of a State is sometimes moti#ated by political factors that e$clude recognition of e#en when the entity has all other preconditions for Statehood. "n contrast, the declaratory #iew states that /recognition is a mere declaration or acknowledgement of an e$isting state of law and fact, legal personality ha#ing been conferred pre#iously by operation of law./ >B The declaratory #iew is more in accord with international law. "t may be noted that recognition need not be done by States indi#idually. Collecti#e recognition or non'recognition is not unknown in international law, particularly through the action of intergo#ernmental organi)ations. Thus, 1iechtenstein was unable to join the 1eague of 3ations because it was not deemed to be a State %at that time, its e$ternal relations were go#erned by other states&, and the United 3ations refused to recogni)e the /states/ like Ciskei that declared independence from South ,frica. 0urthermore, it may also be noted that recognition, though supposed to be declaratory, may ha#e a constituti#e effect in national law. To illustrate, if State , does not recogni)e State ;, then a company sues State ; in a tribunal in State ,, State ; cannot in#oke its state immunity in the tribunal. B. In"i'i"$als
>* >!

Co Jim Chan #. :alde) Tan Jeh and 5i)on, 9> Phil. **+, *!< %*8<>&. Salonga !B >+ Salonga !9. >< ;rownlie 9! >> ;rownlie == >B ;rownlie =9

,s noted abo#e, classical international law considered states to be the only subjects of international law, with indi#iduals ser#ing as mere objects. The opposite, monist #iew, on the other hand, posited that indi#iduals should be deemed subject of international law. The middle #iew, which according to Salonga seems to be the modern #iew, states that /while States are normally the subjects of international law, indi#iduals ha#e become in some degree subjects of that law./>9 The rights and duties of indi#iduals are implicated in se#eral areas of international law. These are discussed below, under Part Three of this Primer. Preliminarily, it must be obser#ed that the most important area of growth in international law with regard to indi#iduals is in international human rights law, at least after the Second .orld .ar. .hereas before, indi#iduals were deemed to be #irtually objects of international law, the present regime of the law considers indi#iduals to ha#e actual rights to be respected by under international law. The protection of human rights is primarily codified in the Uni#ersal 5eclaration of 7uman 4ights. Though it is not a treaty, it is sometimes considered to be authoritati#e interpretation of the U3 Charter pro#isions on human rights.>= 1ikewise considered authoritati#e interpretations are the "nternational Co#enant on Ci#il and Political 4ights, and the Co#enant on 6conomic, Social, and Cultural 4ights >8. 7uman rights law is also contained in regional human rights con#entions. 1astly, it has been proposed that the protection of human rights now e$ists e#en in customary lawB@. C. International Organi0ations "nternational organi)ations are considered subjects of international law /if their legal personality is established by their constituent instrument %charter&. Thus, their status is determined by agreement and not by general or customary law./B* ,n international organi)ation, in any case, needs to fulfill certain criteria of legal personality. B! %*& "t must constitute /a permanent association of states, with lawful objects, e(uipped with organs./ %!& There must be /a distinction, in terms of legal powers and purposes, between the organi)ation DandE its member states./ %+& "t must ha#e legal powers that it may e$ercise /on the international plane and not solely within the national systems of one or more states./ "t has been stated that /DlEegal personality in this conte$t is a relati#e concept in the sense that its constituent rights and duties, or capacities and immunities, are limited to those set forth in the treaty creating the international organi)ation./ B+ 7owe#er, international organi)ations ha#e been deemed to ha#e powers not e$pressly granted in their charters where these unstated powers are implicitly bestowed or necessary to effect the powers e$pressly granted. Thus, in the 4eparations -pinion, the "nternational Court of ?ustice stated that, though the U3 Charter did not e$pressly clothe the United 3ations with the capacity to bring an international claim for reparations, the U3 ne#ertheless possessed this power. /Under international law, the -rganisation must be
>9 >=

Salonga BB 2eron =! >8 2eron =! B@ See, generally, 2eron 98 et seq, particularly =*'=! B* 2641"3 2,C,11-3,, ,3 "3T4-5UCT"-3 T- "3T643,T"-3,1 1,. "3 461,T"-3 T- P7"1"PP"36 1,. +@ %!nd ed., *889& Dhereinafter 2agallonaE. B! 2agallona +@, (uoting ",3 ;4-.31"6, P4"3C"P16S -0 PU;1"C "3T643,T"-3,1 1,. B98 %*8=B& B+ 2agallona +@

deemed to ha#e those powers which, though not e$pressly pro#ided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties./B< III. The Norms o* International La

"n the decentrali)ed system of international law, there is no constitution or legislature to which we can turn when we ha#e to ask: .hat is the lawI Under the present state'dominated theory of international norm formation, it is the many states that themsel#es /create/ international law, the community of states being therefore the legislature and the go#erned of the legal order. Thus, it has been opined that international law arises from the consent of states, which may be e$press in the case of treaty norms, or implied in the case of international custom. A. The So$r#es o* International La The "C? Statute has pro#ided an enumeration of the sources of international law, which the court may apply in the resolution of disputes. These are: /%a& international con#entions, whether general or particular, establishing rules e$pressly recogni)ed by the contracting states %b& international custom, as e#idence of a general custom accepted as law %c& the general principles of law recogni)ed by ci#ili)ed nations %d& subject to the pro#isions of ,rticle >8, judicial decisions and the teachings of the most highly (ualified publicists of the #arious nations, as subsidiary means for the determination of rules of law/ B> This enumeration is the starting'point for any discussion of the sources of international law.BB "t may be noted, at the outset, that letters %a& to %c& of the enumeration constitute the primary sources of law, and %d&, the subsidiary means for identifying the law.B9 "t has been stated, howe#er, that it would be unwise to think that the order of the enumeration pro#ides a hierarchy to be followed in all cases.B= Thus, though treaties are mentioned first, they are not ipso facto superior: , treaty that is contrary to a customary norm that happens to be jus cogens would be in#alid its interpretation may in#ol#e resort to general principles and it may be superseded by subse(uent custom.B8 1. Treaty , /FtreatyF means an international agreement concluded between States in written form and go#erned by international law, whether embodied in a single instrument or in two or more related instruments and whate#er its particular designation./9@ "t may be noted that FtreatiesF under the :ienna Con#ention includes all agreements between states9*, regardless of how they are called. Thus, for purposes of international law, treaties, e$ecuti#e agreements, e$changes of notes, etc. are all treaties. 3ote, howe#er, that Philippine
B< B>

4eparations for "njuries Suffered in the Ser#ice of the United 3ations, ,d#isory -pinion, *8<8 ".C.?. *<9. Statute of the "nternational Court of ?ustice, art. +=%*&. BB 7iggins *9'*= B9 Salonga *= B= ;rownlie <. See also Salonga !@. B8 ;rownlie < 9@ :ienna Con#ention on the 1aw of Treaties, signed 2ay !+, *8B8, art. !%*& 9* See :ienna Con#ention on the 1aw of Treaties, signed 2ay !+, *8B8, art. *.

law makes a distinction between treaties and e$ecuti#e agreements. ;oth are e(ually binding, but only treaties re(uire the concurrence of the Senate for their effecti#ity. a+ 1in"s o* Treaties , treaty constitutes law between the parties, who, under the principle of pacta sunt ser#anda, are re(uired to fulfill their treaty obligations. 9! /"n this sense, all treaties are Flaw'makingF./ 9+ 7owe#er, a distinction is sometimes made between contract treaties and law'making treaties, the former being /bilateral arrangements Dentered into between two or a few StatesE concerning matters of particular or special interest to the contracting parties./ 9< 1aw'making treaties, on the other hand, are e$ecuted by a large number of States %a& to declare the law on a particular subject, %b& to stipulate general rules for future conduct, or %c& to create an international institution.9> The distinction is of decisi#e importance when deciding the (uestion of whether particular treaty obligations ha#e crystalli)ed into customary norms. "t is submitted, howe#er, that the distinction between the two kinds of treaties should not rest on the number of states that e$ecute them, as proposed by one writer 9B, but rather, on the nature and effect of the norms they contain. .hat characteri)es a treaty as lawmaking or legislati#e is the presence of /some inherent or juridical element in those treaties''in some cases, the Fdispositi#eF or FrealF character of the transaction effected by the treaty, and the permanent nature created by or in pursuance of the treaty./99 Thus, although only the United States and Panama were parties to the Panama Canal agreement, the agreement constituted a legislati#e treaty because it implicated general public interest9=: the Canal was simply too important to world trade for the agreement to be merely /contractual./ The same may be said of the Sue) Canal agreement, or the pro#isions of the Treaty of :ersailles that regulated the use of the Jiel Canal98
!t is submitted that a prime example of +legislative+ treaties are the covenants on human rights and those treaties criminalizing certain acts, which the present doctrine of international law recognizes as binding even on non-8tate actors 59 (hus, the !nternational &ourt of ?ustice, when discoursing on the @enocide &onvention, stated that the &onvention was not at all done for the interests of 8tates, but was manifestly adopted for a purely humanitarian and civilizing purposeA !n such a convention the &ontracting 8tates do not have any interests of their own. they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d0etre of the convention &onsequently, in a convention of this type one cannot spea) of individual advantages or disadvantages to 8tates, or the maintenance of a perfect contractual balance between rights and duties 5:

:ienna Con#ention on the 1aw of Treaties, signed 2ay !+, *8B8, art. !B. Salonga *= 9< Salonga *='*8 9> Salonga *8 9B Salonga *='*8 99 ,43-15 5U3C,3 2C3,"4, T76 1,. -0 T46,T"6S !>> %*8B*&Dhereinafter 2c3airE. 9= 2c3air !BB. See the .imbledon Case %Creat ;ritain, 0rance, "taly, ?apan #. Cermany&, P.C.".?. Ser. ,, 3o. * %*8!+&, in 4obert 2ac1ean %ed.&, PU;1"C "3T643,T"-3,1 1,. C,S6;--J 8+'8< %*Bth ed., *88B& Dhereinafter CasebookE. 98 2c3air !BB, !B9'!B=. See particularly the .imbledon Case, at p. !!@. =@ See C6-0046G ;6ST, 1,. K .,4 S"3C6 *8<> *9= %*88<&. =* 4eser#ations to the Con#ention on Cenocide %,d#. -p.&, *8>* ".C.?. 4eports *>, !+.
72 9+

"n any case, whether a treaty is entered into between few or among many states, it is the law between them. /6#ery treaty in force is binding upon the parties to it and must be performed by them in good faith./=! "t is not true, as proposed by one writer, =+ that a treaty must be general to be a source of law. The "C? Statute itself refers to /general or particular/ treaties =<, and international tribunals deem both kinds to be sources of binding norms. Thus, in the Cabciko#o' 3agymaros Case,=> the "C? decreed international liability for the #iolation of a bilateral treaty, and in the 3icaragua Case,=B one of the bases for deeming the United States to be internationally liable was its #iolation of its 0C3 %0riendship, Commerce, and 3a#igation& Treaty with 3icaragua. ,+ Negotiation an" Consent , treaty is first goes through negotiation, after which the te$t of the treaty is adopted by the parties, that is, when they gi#e their consent. 2ultilateral treaties %those with many parties& are adopted through the consent of !A+ of the parties. ,doption merely fi$es the te$t of the treaty it gi#es no binding obligation as yet. States may subse(uently consent to be bound by the terms of a treaty through %*& signature, when the negotiator is authori)ed to sign the treaty or through %!& ratification, the formal consent to the treaty gi#en by the 7ead of State, sometimes in conjunction with the legislature. 4atification may not always be necessary for a treaty to be internationally binding. Signature alone would be sufficient if %a& the treaty pro#ides that signature shall ha#e that effect %b& it is otherwise established that the negotiating States were agreed that signature should ha#e that effect or %c& the intention of the State to gi#e that effect to the signature appears from the full powers of its representati#e or was e$pressed during the negotiation =9 That is, if the State can be shown to ha#e had the intention to be bound by the signature. Similarly, ratification is necessary when %a& the treaty pro#ides for such consent to be e$pressed by means of ratification %b& it is otherwise established that the negotiating States were agreed that ratification should be re(uired %c& the representati#e of the State has signed the treaty subject to ratification ==

=! =+

:ienna Con#ention on the 1aw of Treaties, signed 2ay !+, *8B8, art. !B. Cru) =< "C? Statute, art. +=%*&%a&. => CabcLko#o'3agymaros Project %7ung. #. Slo#.& *889 ".C.?. 9 %Sept. !>&. =B 2ilitary and Paramilitary ,cti#ities in and against 3icaragua %3icar. #. U.S.&, *8=B ".C.?. < %?une !>&. =9 ,rt. *!%*& == art. *<%*&

That is, when the intent was to make it subject to ratification. ,nother mode of gi#ing consent is through %+& accession, the acceptance of treaty by a state that did not participate in its negotiation. "t must here be noted that the negotiation of treaties and their ratification are e$ecuti#e functions, subject, in the Philippines, to concurrence of the Senate. 7owe#er, the effecti#ity of treaties in the Philippines is go#erned by the Treaty clause=8 and thus, treaties must recei#e the concurrence of the Senate before they may be made effecti#e. .ith regard to e$ecuti#e agreements, as noted abo#e, they are considered to be treaties under international law, with the same rules and the same binding effect. 7owe#er, Philippine law distinguishes between them and treaties, and pro#ides that they would be binding e#en without Senate concurrence.8@
xxx !t is not correct to assert that the signing of a treaty has no legal effect 6: #n unratified treaty is imperfectly binding but nonetheless binding6' (hus, the Bienna &onvention on the Caw of (reaties, to which the Philippines is a party6*, provides that a state is obliged to refrain from acts which would defeat the object and purpose of a treaty when it has signed the treaty prior to ratification, unless it has made its intention clear not to become party to the treaty 6- %ven before the codification of the law of treaties in the Bienna &onvention, national and international tribunals as well as the most eminent publicists recognized the existence of an international norm mandating that states must not frustrate the purposes of treaties they have signed but not ratified 62 (hus, it has been affirmed that 8tates, by signing a treaty subject to ratification , have thus limited their freedom of action, 63 and are obliged from the time of signature not to do anything that would diminish the value of any rights which would be created when the treaty enters into force 64 #ny act that violates this principleDwhich is an expression of the principle of good faith-- is fraudulent and invalid in the eyes of the law 65

=8 8@

Constitution, art. :"", sec. !*. ;ayan #. Hamora, +<! SC4, <<8, <=8 %!@@@&. 8* See 7olloway at <+ %*8B9&: /, sur#ey of doctrine and practice re#eals that as a general rule a treaty is considered to be concluded upon signature, and signature alone. 7owe#er, it is not uncommon for conclusion of a treaty to be confused with entry into force, and thus to say that a treaty is not concluded until ratified./ 8! 7olloway at << %*8B9&, citing ;alladore'Pallieri, 4ecueil <8+'<89 at <8+ %*8<8& ?ones 9=, =@ ;"3 C763C, T76 C6364,1 P4"3C"P16S -0 1,. ,S ,PP1"65 ;G "3T643,T"-3,1 C-U4TS ,35 T4";U3,1S *@8 %repr. *8=9& Dhereinafter ;in ChengE, citing 4eser#ations to the Con#ention on Cenocide %,d#. -p.& *8>* ".C.?. 4eports *>, !=. 8+ Tanada #. ,ngara,C.4. 3o. **=!8> 2ay !, *889. 8< :ienna Con#ention, ,rticle *=. 8> ,43-15 5U3C,3 2C3,"4, T76 1,. -0 T46,T"6S !@@ Dciting Torres #s. US, where it was suggested that the United States was responsible for damage done after the signature of a peace treaty but before its ratificationE, !@! D2egadilis #. Turkey, the arbitral tribunal stated that when a treaty is signed, the parties ha#e an obligation to do no action that may prejudice the treatyE %*8B*& Dhereinafter 2c3airE 7olloway, at >8, and note >8, citing 46:U6 5U 54-"T PU;1"C %*8>8& Dstating that the Tribunal Ci#il of the Seine, confirmed by the Court of Paris, held a signed but unratified to be bindingE. See ?. Jlabbers, How to Eefeat a (reaty0s Fbject and Purpose Pending %ntry into ;orce7 (oward manifest !ntent, +< :,35. ?. T4,3S3,TF1 1 !=+, !8>'!8B %!@@*&. 8B 2c3air at *88. 89 2c3air at *@<. 2egadilis Case, = T.,.2. +8@, +8> trans. %*8!B& in ;in Cheng *** "gnacio Torres Case, < "nt. ,rb., +98=, at +=@* %2e$ican'United States Claims Commission, *=B=&, in ;in Cheng *** 46ST,T6263T -0 T76 1,. T7"45: * 46ST,T6263T -0 T76 1,.: T76 0-46"C3 461,T"-3S 1,. -0 T76 U3"T65 ST,T6S, sec. +*!, comment, p. *9< %2ay *<, *8=B& ;rownlie at B**. 8= ;in Cheng ***. See also "gnacio Torres Case, < "nt. ,rb., +98=, at +=@* %2e$ican'United States Claims Commission, *=B=&, in ;in Cheng ***.

&. C$stom Custom, as distinguished from mere usage, in#ol#es practice that reflects a legal obligation and its e$istence of custom re(uires the concurrence of ! elements: an objecti#e element, state practice, and the subjecti#e element of opinio juris. Simply put, /customary international law Fresults from a general and consistent practice of states which is followed by them from a sense of legal obligationF./88 a+ Elements i. State Pra#ti#e

0or custom to e$ist, the customary practice must be both consistent and general. 0or consistency, it is not re(uired that there be complete uniformity in practice, only that there be substantial uniformity.*@@ Cenerality likewise does not re(uire uni#ersality. *@* ,ccording to ;rownlie, the problem regarding generality is the #alue that should be gi#en to the absence of protest on the part of states when faced with a certain practice. *@! "f states ,, ;, C, and 5 do something, and states 6, 0, and C do not object, is the practice to be deemed sufficiently general to constitute custom among themI ,kehurst, for his part, belie#es that the absence of protest could be considered e#idence of the binding nature of the customary practice.*@+ ii. O%inio 2$ris

Fpinio juris sive necessitatis means the belief on the part of States that a particular practice is re(uired by law.*@< "t is the e$istence of opinio juris that distinguishes binding custom from usage, from comity, and from courtesy.*@> "t has been noted that, in most cases, the "C? /is willing to assume the e$istence of an opinio juris on the bases of e#idence of a general practice, or a consensus in the literature, or the pre#ious determinations of the Court or other international tribunals. 7owe#er, in a significant minority of cases the Court has adopted a more rigorous approach and has called for more positi#e e#idence of the recognition of the #alidity of the rules in (uestion in the practice of states./ *@B The 1otus Case %a PC"? case&, the 3orth Sea Continental Shelf Cases, and the 3icaragua Case ha#e been cited as instances of the second group of decisions.*@9 /The choice of approach appears to depend upon the nature of the issues %that is, the state of the law may be a primary point in contention&, and the discretion of the Court./*@=

88

T76-5-4 264-3, 7U2,3 4"C7TS ,35 7U2,3"T,4",3 3-42S ,S CUST-2,4G 1,. + %*8=8&. ;rownlie > *@* ;rownlie B *@! ;rownlie B. *@+ 2. ,kehurst, &ustom as a 8ource of !nternational Caw, <9 ;4"T. G4;J "3T1 1 *, +='+8 %*89<'9>&. See also C. 0it)maurice, (he Caw and Procedure of the !nternational &ourt of ?ustice, +@ ;4"T G4;J. "3TF1 1 *, B= %*8>+&, citing 1auterpacht, !9 ;4"T G4;J "3TF1 1 +8> %*8>@&. *@< See ;rownlie 9 *@> ;rownlie 9 *@B ;rownlie 9 *@9 ;rownlie 9'8 *@= ;rownlie 9
*@@

,+ Parti#$lar an" Lo#al C$stom Custom need not always be general, that is, binding on all or most states. "n the ,sylum Case, *@8 though the "C? ruled that the custom in (uestion did not e$ist among the 1atin ,merican states, it did not thus rule on the ground that local %non'general& custom could not e$ist. The court applied the same standards for determining custom, state practice and opinio juris'' conceding the possibility of local custom'' and simply found what practice there was to be wanting. "n contrast, in the 4ight of Passage Case**@, the Court ruled that there e$isted a bilateral custom by which "ndia was re(uired to allow communication through her territory among the Portuguese encla#es along "ndian territory. #+ C$stom an" Treaty Custom and treaty norms e$ist in the same international legal order, and it is possible for the same norm''for instance, the prohibition of aggressi#e war'' to e$ist both as a customary norm and as a con#entional norm. This may occur in se#eral ways. 0irst, a treaty pro#ision may simply restate a customary norm, as is true of many of the pro#isions in the :ienna Con#ention on the 1aw of Treaties. Second, a treaty pro#ision may crystalli)e into a customary norm. Third, a treaty pro#ision may constitute e#idence of custom.*** 0or a treaty pro#ision to crystalli)e into custom, the pro#ision must be norm'creating that is the treaty must be lawmaking, creating legal obligations which are not dissol#ed by their fulfillment. /1awmaking treaties create general norms for the future conduct of the parties in terms of legal propositions, and the obligations are basically the same for all parties./ **! To demonstrate, if the treaty pro#ides that , must gi#e >@@ tanks to ;, and , does gi#e the tanks, then its obligation is dissol#ed by its fulfillment, and the treaty is not law'making. -n the other hand, if the treaty pro#ides that states , and ; will respect the rights of indi#iduals to due process, then the obligation will sur#i#e its fulfillment, and the treaty is norm'creating. ;ut how does such /crystalli)ing/ happenI Treaty pro#isions only bind the parties to the treaty, but the number of parties, the e$plicit acceptance of rules of law, and, in some cases, the declaratory nature of the pro#isions produce a strong law'creating effect at least as great as the general practice considered sufficient to support a customary rule. ;y their conduct non'parties may accept the pro#isions of a multilateral con#ention as representing general international law.**+ The customary norm, e#en if its content is identical with that of a treaty norm, retains a separate identity.**< Thus, the termination of the treaty obligation will not in itself bring about the dissolution of the customary norm and a state that cannot in#oke another stateFs liability for
*@8 **@

,sylum Case %Colombia #. Peru&, *8>@ ".C.?. !BB. 4ight of Passage o#er "ndian Territory %Portugal #. "ndia&, *8B@ ".C.?. B. *** 2ichael ,kehurst, &ustom as a 8ource of !nternational Caw, <9 ;4"T"S7 G4;J -0 "3T1 1,. *, >+ %*89<'9>& Dhereinafter ,kehurstE, See also 4. ;a$ter, Multilateral (eaties as %vidence of &ustomary !nternational Caw ;4"T"S7 G4;J -0 "3T1 1,. !9>, !8= %*8B>'BB& and ,kehurst, op. cit. at <+, citing 0isheries ?urisdiction Case, *89< ".C.?. +, !B, and 1aurit)en #. Co#ernment of Chile %*8>B& !+ "3TF1. 1. 46P. 9@+, 9!8'+*. **! ;rownlie *! **+ ;rownlie *! **< ;rownlie *+

#iolating a treaty can still in#oke the liability for the breach of custom, e#en if they in#ol#e the same obligation.**> "+ Resol$tions There remains the (uestion of whether resolutions of international organi)ations, particularly those of the U3 Ceneral ,ssembly, may be deemed sources of international law. U3 C, resolutions, it may be noted, ha#e no binding effect under the Charter, sa#e in limited fields like budgetary matters**B, and are generally just recommendations. The C,, in other words, is not a legislature. Such resolutions may nonetheless constitute a kind of state practice, and thus, they are of some significance in the de#elopment of law, particularly customary law. **9 7owe#er, it has been written that resolutions should not be assessed alone, as a shortcut to determining custom, but as a species of practice that may be of use in identifying custom**=. .hat legal significance such resolutions ha#e depends on whether they are binding or recommendatory, on the majorities supporting them, on the repeated practice in relation to them, and on e#idence of opinio juris**8. 3. -eneral Prin#i%les o* La There is some disagreement as to the definition of general principles of law. Some jurists ha#e a natural law conception of the term others referred to the rules accepted in municipal legal systems *!@ and still others defined it primarily in terms of general principles of international law, and then only secondarily to municipal legal principles. *!* ;rownlie prefers -ppenheimFs #iew that the purpose of ,rt. +=%*&%c& was /to authori)e the Court to apply the general principles of municipal jurisprudence, in particular of pri#ate law, in so far as they are applicable to relations of States./*!! "nternational tribunals ha#e had considerable discretion in determining what general principles to apply and how to apply them.*!+ They ha#e used precepts of 4oman law like prescription *!<, estoppel, res judicata,*!> and res inter alios acta as general principles*!B procedural rules such as the use of circumstantial e#idence*!9 and substanti#e obligations like pacta sunt servanda,*!= the

**> **B

2ilitary and Paramilitary ,cti#ities in and against 3icaragua %3icar. #. U.S.&, *8=B ".C.?. <, 8!'8B %?une !>&. U3 Charter, art *9 **9 7iggins !< **= 7iggins != **8 7iggins != *!@ ;rownlie *>'*B ;"3 C763C, T76 C6364,1 P4"3C"P16S -0 1,. ,S ,PP1"65 ;G "3T643,T"-3,1 C-U4TS ,35 T4";U3,1S !'+ %repr. *8=9& Dhereinafter ;in ChengE. *!* Salonga !* ;in Cheng ! *!! ;rownlie *B. See also ;in Cheng + *!+ See ;rownlie *B *!< See ;in Cheng +9+ et se(. *!> See ;in Cheng ++B et se(. *!B Salonga !* *!9 ,s was done by the "C? in the Corfu Channel Case %U.J. #. ,lbania&, *8<8 ".C.?. <. *!= See ;P #. 1ibyan ,rab 4epublic, >+ "3TF1. 1. 46P. !89, and Te$aco -#erseas Petroleum Co. #. 1ibyan ,rab 4epublic, >+ "3TF1. 1. 46P. +=8.

duty to make restitution,*!8 and the duty to obser#e good faith*+@. , tribunalFs power to determine the e$tent of its own jurisdiction %competence de la competence& has also been deemed to be a general principle of law.*+* Tribunals, in addition, ha#e not been consistent in their manner of pro#ing the e$istence of a general principle. "n the 1ibya arbitrations, the arbitrators went through the trouble of studying ci#il law, common law, and "slamic legal systems to pro#e the e$istence of the principle of pacta sunt servanda *+! ;y contrast, in the Corfu Channel Case, the "nternational Court simply declared that the use of circumstantial e#idence was a general principle accepted in international and municipal systems, and left it at that.*++ 4. S$,si"iary So$r#es5 Tri,$nals The decisions of tribunals do not constitute a formal source of international legal norms, but they may constitute e#idence of the state of the law*+<. "t is true that ,rticle +=%*&%d& of the "C? Statute refers to ,rticle >8, which, by limiting the effect of a decision to the parties, pre#ents "C? decisions from ha#ing precedent effect.*+> 7owe#er, the "nternational Court of ?ustice does attempt to be consistent in its rulings, and often cites its past opinions and decisions as well as those of its predecessor, the Permanent Court of "nternational ?ustice %or PC"?&.*+B "n any case, decisions of international tribunals, /e$ercise considerable influence as an impartial and well'considered statements of the law by jurists made in the light of actual problems./*+9 These international tribunals include the "C? and the PC"? permanent regional courts such as the 6uropean Court of ?ustice and the 6uropean and "nter',merican Courts on 7uman 4ights ad hoc and permanent arbitral tribunals*+= like the US'2e$ico Claims Commission and the Permanent Court of ,rbitration, respecti#ely and ad hoc tribunals like "nternational 2ilitary Tribunal at 3urnberg*+8. "t is submitted that these also include organi)ational tribunals such as the panels and appellate body of the .orld Trade -rgani)ation *<@ arbitration facilities like the "nternational Center for the Settlement of "nternational 5isputes %"CS"5& of the .orld ;ank and ad hoc and permanent criminal courts like the tribunals for 4wanda and Gugosla#ia and the new "nternational Criminal Court. 0urthermore, not only international decisions but also the rulings of national courts may be used. "ndeed, the cumulati#e effect of uniform decisions of national courts may afford e#idence of international custom.*<* 6. S$,si"iary So$r#es5 P$,li#ists
*!8 *+@

See Chor)ow 0actory Case %?urisdiction&, P.C.".?., Ser. ,, 3o. *9 %*8!=&. ;in Cheng *@> et se(. *+* ;in Cheng !9>. *+! ;P #. 1ibyan ,rab 4epublic, >+ "3TF1. 1. 46P. !89, and Te$aco -#erseas Petroleum Co. #. 1ibyan ,rab 4epublic, >+ "3TF1. 1. 46P. +=8. *++ Corfu Channel Case %U.J. #. ,lbania&, *8<8 ".C.?. <. *+< ;rownlie *8 *+> Salonga !!. *+B ;rownlie !@, Salonga !!. *+9 Salonga !!'!+ *+= See ;rownlie *8'!@ *+8 ;rownlie !+ *<@ See 0lorentino 0eliciano and Peter 1.7. :an den ;ossche, (he Eispute 8ettlement 8ystem of the $orld (rade Frganization7 !nstitution, Process and Practice, 9> P7"1. 1. ?. *, *<'*8 %!@@@&. *<* Salonga !+

The writings of publicists constitute mere e#idence of law, but on some subjects certain publicists may ha#e considerable influence. ,rbitral and national tribunals tend to depend on the writings of international jurists*<!, and e#en the .orld Court may rely on them to a considerable e$tent.*<+ The problem, though, is that some publicists may be e$pressing not what the law is %le$ lata& but what they think the law should be or will become %le$ ferenda& and any appraisal of publicists will tend to colored by subjecti#e factors.*<< Sources analogous to the writings of publicists include the draft articles of the "nternational 1aw Commission, 7ar#ard 4esearch drafts*<>, and, it is submitted, the separate and dissenting opinions of judges of the .orld Court. 7. Other So$r#es o* La Some jurists contend that the list in the "C? Statute is not e$clusi#e, that there are other sources of law. 5etter, in fact, gi#es a lengthy enumeration of other possible sources.*<B "t is submitted, howe#er, that while they may indeed constitute legitimate sources of obligation, they arguably fall within the #ery wide ambit of general principles of law. a+ E8 Ae9$o et Bono ,rticle +=%!& of the "C? Statute states that the "nternational Court may rule e$ ae(uo et bono when the parties to a dispute so agree. 6$ ae(uo et bono literally means Ffrom what is e(uitable and goodF, and some writers consider this to be e(ui#alent to the application of e(uity. -thers, howe#er, distinguish this from e(uity, asserting that e$ ae(uo et modo implies the use of compromise, conciliation and friendly settlement between the parties.*<9 ,+ E9$ity 6(uity refers to the application of standards of justice that are not contained in the letter of the e$isting law. 6(uity has often been applied by international tribunals, particularly in maritime demilitation cases and territorial disputes*<=. #+ Unilateral )e#larations Unilateral declarations ha#e figured prominently in at least two cases before the "nternational Court and its predecessor, the Permanent Court. "n the 6astern Creenland case *<8, the statement of 3orwayFs 0oreign 2inister "hlen precluding difficulty o#er 5enmarkFs territorial claim led the Permanent Court to resol#e that 5enmark not only had a superior claim, but that 3orway was bound by the "hlen 5eclaration not to oppose it. "n the 3uclear Test Cases, the "nternational Court ruled that, in #iew of the statement of 0rance that it would cease atmospheric nuclear tests,
*<! *<+

;rownlie !<'!> ;rownlie !> *<< ;rownlie !<'!> *<> ;rownlie !> *<B See "3C4"5 56TT64, T76 "3T643,T"-3,1 16C,1 -4564 *<9 4,G ,UCUST, PU;1"C "3T643,T"-3,1 1,. 9* %*88>&. *<= See 1and, "sland and 2aritime 5ispute %6l Sal#ador #. 7onduras, 3icaragua inter#ening&, *88! "C? %Sept. **&. *<8 1egal Status of 6astern Creenland %5enmark #. 3orway&, PC"? Ser. ,A;, 3o. >+ %*8++&.

there had ceased to be a dispute, since 0rance had bound itself to do what ,ustralia and 3ew Healand wanted. The Court affirmed that declarations made by way of unilateral acts, concerning legal or factual situations, may ha#e the effect of creating legal obligations. 3othing in the nature of a quid pro quo, nor any subse(uent acceptance, nor e#en any reaction from other States is re(uired for such declaration to take effect. 3either is the (uestion of form decisi#e. The intention of being bound is to be ascertained by an interpretation of the act. The binding character of the undertaking results from the terms of the act and is based on good faith interested States are entitled to re(uire that the obligation be respected.*>@ B. The Stat$s o* Norms 1. 2$s Cogens Certain norms are deemed to ha#e a superior status in international law, such that they admit of no derogation. These peremptory or non'derogable norms are referred to as jus cogens, and must be distinguished from jus dispositivium, which states may derogate from or limit through their agreements*>*. ;y contrast, when a treaty pro#ision #iolates jus cogens norms, it would be #oid and a subsisting treaty pro#ision would be #oided by the creation of a new peremptory norm.*>! &. Erga Omnes Certain international obligations may be of such a nature that their #iolation by any state allows any other state to in#oke the #iolatorFs liability, e#en if only one state or only a few incurred direct material damage. These would be erga omnes obligations. This grant of standing is premised on the idea that the maintenance of some norms are of interest to the entire world community, such that a #iolation of the obligation connected to these norms would injure the interest, not only of the state directly offended, but of all states.*>+ D,En essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising #is'M'#is another State in the field of diplomatic protection. ;y their #ery nature the former are the concern of all States. "n #iew of the importance of the rights in#ol#ed, all States can be held to ha#e a legal interest in their protection they are obligations erga omnes. Such obligations deri#e, for e$ample, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from sla#ery and racial discrimination.*><
*>@

Nuoted from a summary in the "C? website %http:AAwww.icj'cij.org& of the 3uclear Tests Case %3ew Healand #. 0rance&, *89< "C? %5ec. !@&. *>* 2agallona !!'!+ *>! :ienna Con#ention on the 1aw of Treaties, signed 2ay !+, *8B8, arts. >+, B<. *>+ See ;arcelona Traction, 1ight, and Power Company, 1td. Case %Second Phase& %;elgium #. Spain&, *89@ "C? 4eports +, +!, paras ++'+<. *>< ;arcelona Traction, 1ight, and Power Company, 1td. Case %Second Phase& %;elgium #. Spain&, *89@ "C? 4eports +, +!, paras ++'+<, (uoted in 7ugh Thirlway, (he Caw and Procedure of the !nternational &ourt of ?ustice, :639:656, B@ ;4"T. G4;J. "3T,1. 1. *, 8+ %*8=8&.

Part T o The State in International La I:. So'ereignty an" 2$ris"i#tion A. So'ereignty So#ereignty is the supreme and uncontrollable power inherent in a State by which that State is go#erned.*>> "t is /permanent, e$clusi#e, comprehensi#e, absolute, inalienable, and imprescriptible./*>B So#ereignty is also used to describe the general legal competence of states, including its power to e$ercise legislati#e jurisdiction, and the power to ac(uire title to territory.*>9 "n connection with this, we must mention the concept of the fundamental e(uality of states, which is sometimes spoken of in connection with so#ereignty. *>= The principal corollaries of the so#ereignty and e(uality of states are %*& jurisdiction o#er a territory and the people on it, %!& the duty of non'inter#ention in the area of e$clusi#e jurisdiction of other states, and %+& the dependence of international obligations of a State on its consent.*>8 The whole of international law on so#ereignty /could be e$pressed in terms of the coe$istence of so#ereignties./*B@ 1. )istin#tions So#ereignty may be %*& legal or %!& political. 1egal so#ereignty is the authority to issue final commands whereas political so#ereignty pertains to the power behind the legal so#ereign or the sum of influences that operate upon it.*B* So#ereignty may also be %*& internal or %!& e$ternal. "nternal so#ereignty pertains to a StateFs power to control its own internal affairs, whereas e$ternal so#ereignty refers to independence, a StateFs power /to direct its relations with other States./*B! So#ereignty may be distinguished from administration. So#ereignty implies continued e$istence of legal personality, so that administration of a State by foreign powers would not ipso facto mean the cessation of so#ereignty. &. So'ereignty an" International O,ligations ,s noted abo#e, a key corollary of so#ereignty is the fact that whether or not a State is bound by an international obligation, whether customary or con#entional, is dependent on its consent.*B+
*>> *>B

"S,C,3" C4UH, P7"1"PP"36 P-1"T"C,1 1,. !B %*88=&. Cru) PP1 *>9 ;rownlie !8* *>= See the U3 Charter, art !%*&. *>8 ;rownlie !=8 *B@ ;rownlie !8@ *B* Cru) PP1 *B! Cru) PP1 !B'!9 *B+ ;rownlie !=8

Thus, when a State binds itself by treaty to a particular undertaking, this obligation does not constitute a #iolation of so#ereignty. 4ather, the act of entering into the treaty, and indeed, into binding international agreements, is itself an e$ercise of so#ereignty.*B< "t may be noted that the U3 Charter recogni)es the reser#ed domain of domestic jurisdiction, and states that nothing in the Charter authori)es the U3 to inter#ene in what is essentially within this reser#ed domain or re(uires members to submit such matters to settlement under the Charter. *B> /The general position is that the Freser#ed domainF is the domain of state acti#ities where the jurisdiction of states is not bound by international law: the e$tent of this domain depends on international law and #aries according to its de#elopment./ *BB The reser#ation of this domain is subject to an important limitation, that it is without prejudice to the use of enforcement measures under Chapter :"" of the Charter.*B9 B. 2$ris"i#tion ?urisdiction refers to particular aspects of the general legal competence of states called so#ereignty, and refers to legislati#e, judicial, and administrati#e competence. *B= -therwise stated, /DsEtate jurisdiction is the power of a state under international law to go#ern persons and property by its municipal law./*B8 This may be criminal or ci#il, and may be e$clusi#e or concurrent with other states.*9@ State jurisdiction includes prescripti#e jurisdiction %the power to prescribe rules& and enforcement jurisdiction %the power to enforce them&. *9* The latter includes both e$ecuti#e and judicial enforcement.*9! The rules of State jurisdiction identify the persons and property within the permissible range of a stateFs law and its procedures for enforcing that law. They are not concerned with the content of a stateFs law e$cept in so far as it purports to subject a person to it or to prescribe procedures to enforce it.*9+ 1. Bases o* 2$ris"i#tion "n the e$ercise of jurisdiction, particularly criminal jurisdiction, there are fi#e justifications for e$ercising it. There is the %*& territoriality principle, by which jurisdiction is determined by reference to the place where the crime is committed, and %!& the nationality principle, the doctrine that a court has jurisdiction if the offender is a national of the forum state. There are also %+& the protecti#e principle, by which a court is #ested with jurisdiction if a national interest is injured, %<& the uni#ersality principle, by which jurisdiction is established if the accused is in the custody of the forum state, %applicable to, for instance, piracy and hijacking& and %>& the passi#e personality principle, by which a court has jurisdiction if the #ictim of the forum state. *9<
*B< *B>

,ramco Case, !9 "3T1 1 46P **9 %*8B+& ;rownlie !8@ U3 Charter, art. !%9& *BB ;rownlie !8+ *B9 U3 Charter, art. !%9& *B= ;rownlie +@* *B8 7arris !B< *9@ 7arris !B<. *9* 7arris !B<. *9! 7arris !B< *9+ 7arris !B<. *9< ,ugust <B9, ;rownlie +@+.

The last may be applicable when a State seeks to prosecute alleged terrorists who injured its nationals. "n the Philippines, the territorial principle is the general rule in criminal cases *9>. 7owe#er, Philippine law allows for the uni#ersality principle with regard to piracy, treason, espionage, and mutiny,*9B and the protecti#e principle in cases of counterfeiting *99, and for, it is submitted, the nationality principle in cases of public officers*9=. &. The Limits o* Com%eten#e "nternational law may pro#ide for e$ceptions to the e$ercise of jurisdiction by a State. The three principal areas of e$ception are with regard to %*& State immunity and %!& diplomatic immunities and pri#ileges. The doctrine of so#ereign or state immunity pro#ides that /domestic courts must decline to hear cases against foreign so#ereigns out of deference to their roles as so#ereigns. This doctrine is based on the so#ereign e(uality of states*98, as e$pressed in the ma$im par in parem non habet imperium,*=@ as well as the consideration that a contrary policy would /unduly #e$ the peace of nations./*=* There are two ways of applying this doctrine. Under %*& absolute so#ereign immunity, a state is absolutely immune and cannot be sued in a foreign court no matter what act it is sued for. -n the other hand, under %!& restricti#e so#ereign immunity, a State is immune from suits in#ol#ing go#ernmental actions %jure imperii&, but not for those arising from purely commercial or non' go#ernmental acti#ity %jure gestionis&*=!. The Philippine Supreme Court recogni)es the second theory, and has established certain rules in its application. ,mong other rules, %*& e#en contracts may be co#ered by the immunity if they were entered into pursuant to a go#ernmental purpose such as the establishment of an embassy*=+, and %!& State officers may be immune if they are sued as State officers*=<, pro#ided that they acted within their authority*=>. The test is whether, assuming the public officer is found liable, enforcement of the decision will re(uire an affirmati#e act on the part of the State. "f the answer is yes, then the act in (uestion would be co#ered by State immunity*=B. "t may be noted that the concept of go#ernmental acts has been e$panded to include agrarian reform.*=9

*9> *9B

4e#ised Penal Code, art !, *st par. 4PC, art. !%>&, arts. **<'*!+. *99 4PC, art. !%!'+&. *9= 4PC, art. !%<& *98 Sanders #. :eridiano, *B! SC4, == %*8==&, in ,ugust <9B. *=@ 1iterally, an e(ual among e(uals has no power to command, or better, one has no authority o#er oneFs e(uals. Sanders #. :eridiano, *B! SC4, == %*8==&, in ,ugust <9B. *=* Sanders #. :eridiano, *B! SC4, == %*8==&, in ,ugust <9B. *=! ,ugust <9B'<99 *=+ 7oly See #. 4osario, !+= SC4, >!< *=< Sanders #. :eridiano, *B! SC4, == %*8==&, *=> 0estejo #. 0ernando, >@ -C *>>B, in Cru) PP1 +<. *=B Cru) PP1 *=9 See ,CC0, #. 0ederation of 1abor Unions, +@ SC4, B<8, in Cru) PP1

:.

Territory

Territorial so#ereignty is /the right to e$ercise therein, to the e$clusion of any other state, the functions of a state./*== This is not absolute, and may be limited by applicable duties under international law. Thus, a State may not cause injury to aliens within its borders, and may not allow acts within its borders that may harm the en#ironment in other states.*=8 "n spatial terms, there are four types of jurisdictional regimes o#er territory: %*& territorial so#ereignty, %!& the regime of territories not subject to the regime of any state but ha#e a regime of their own %e.g., trust territories&, %+& res nullius, i.e., subject matter legally susceptible to state ac(uisition but not yet placed under territorial so#ereignty, and %<& res communis, pertaining to those territories not capable of being places under state so#ereignty %e.g., outer space&.*8@ A. A#9$isition o* Territory 1. Metho"s o* a#9$iring territory a+ )is#o'ery This is historically the most important method of ac(uiring territory. Though international law formerly allowed for ac(uisition of title to territory through mere disco#ery, the law at present re(uires that this be followed up with effecti#e occupation. Under the present law, disco#ery gi#es the State an inchoate title that entitles it to perfect its claim by e$ercising effecti#e control o#er the area within a reasonable time. ,+ O##$%ation This is the ac(uisition by a state of terra nullus, %unoccupied land, or land not possessed by any other state*8*&, whether that land was ne#er occupied or was abandoned. *8! The re(uires %*& the making of a claim by the state, usually through disco#ery, and %!& the subse(uent e$ercise of effective control o#er the territory, through occupation or other acti#ity. .hat constitutes effecti#e control depends on the condition of the land and the acti#ity of other claimants. "f the land is desolate, minimal e$ercise of authority may be necessary. "f there are other claimants attempting to e$ercise their own control, an international tribunal weighing the competing claims may look into the per#asi#eness of the control undertaken. *8+ , third re(uirement is %+& animus occupandi, the intent to acts as so#ereign. This is important to show, for instance, if occupation is made a titre de suverain %under the authority of a so#ereign& and is not merely the act of pri#ate persons.*8< #+ A##retion
*== *=8

,ugust **+ Trail Smelter ,rbitration %US #. Canada&, + 46P. "3TF1 ,4;. ,.,45S *8@> %*8+=, *8<*&, in ,ugust **>. See the 3uclear Tests Cases, *89+ "C? 88, in ,ugust **+. *8@ ;rownlie *@> *8* :on Clahn +*! *8! ,ugust **= *8+ See 1egal Status of 6astern Creenland %5enmark #. 3orway&, PC"? Ser. ,A;, 3o. >+ %*8++&. *8< ,ugust **='8

,ccretion is /the gradual deposit of soil by a ri#er flowing past a shore or by an ocean along its coasts./*8> ,s a mode of ac(uiring title, this follows the principle that what is added follows the principal thing to which the adding is done *8B. Thus, a riparian State would generally ac(uire title to the accretion to its coasts. "+ Pres#ri%tion Prescription occurs when a State continually occupies and ac(uires title to land that formerly belonged to another state. This is different from abandonment in that abandonment means a retreat from territory. -n the other hand, in prescription, a state occupies territory that is claimed by another state and e$ercises so#ereignty o#er it, the owner making no protest. 6#entually, the original title lapses, and the occupying state ac(uires lawful title.*89 e+ Cession "n #oluntary cession, a State relin(uishes title o#er territory to another, usually through a treaty.*8= 7istorically, cession has happened through sale %such as the 1ouisiana and Cadsden Purchases, as well as the sale of ,laska to the US by 4ussia&, e$change of territory, and gift*88. *+ Con9$est Con(uest, or subjugation, is the ac(uisition of territory through the use of force !@@. This is no longer a #alid means of ac(uiring title, aggressi#e war been presently condemned by the U3 Charter!@* and by customary law!@!. ;ack when it was lawful, the legal re(uirements for title to #est in the con(uering state was its possession of %*& the intent to appropriate, and %!& the ability to maintain control of, the subjugated territory, the latter fact demonstrated by undisputed de facto possession o#er a sufficient period of time. !@+ Con(uest ga#e the #ictorious state the right to e$ercise rights of property and so#ereignty o#er the subjugated territory.!@< "t may be noted that con(uest need not mean the anne$ation of the entire territory of the defeated State. The #ictor may simply continue to occupy a part of the territory of the #an(uished. Title in this case is usually based on a kind of abandonment by the loser!@>. &. Intertem%oral La

*8> *8B

:on Clahn +*B :on Clahn +*B *89 :on Clahn +*9 *8= :on Clahn +*= *88 :on Clahn +*8 !@@ ,ugust **8 !@* U3 Charter, art. !%<& !@! 2ilitary and Paramilitary ,cti#ities in and against 3icaragua %3icar. #. U.S.&, *8=B ".C.?. < %?une !>&. !@+ .. 6. 7,11, , T46,T"S6 -3 "3T643,T"-3,1 1,. >== %*=8>&. !@< ,. .. 0reeman, @eneral >ote on the Caw of $ar 1ooty, ,2. ?. "3TO1. 1. 98>, 98B %*8<B& 7all >=9'>==, >8!' >8+, *@> ?. 7. 2erryman, (hin)ing #bout the %lgin Marbles, =+ 2"C7. 1. 46:. *==*, *=89 %*8=>&. !@> :on Clahn +!*

Under the doctrine of inter'temporal law, the rights deri#ed from a legally significant act depend on the norms of law in force at the time the act was concluded. !@B Thus, whether a State has ac(uired title to a particular area of territory depends on the law at the time the act of ac(uisition was done, and not on international law as it stands today !@9. 7owe#er, in the "sland of Palmas case, the judge e$tended the principle and said that the continued e$istence of a right ac(uired under the old law depends on the law as it e#ol#es. This decision has been much critici)ed!@=. B. Air an" S%a#e , State has complete so#ereignty o#er the airspace o#er its territory and its territorial sea, and has jurisdiction o#er an aircraft from the moment it enters the said airspace !@8. , State may take reasonable action to pre#ent o#erflights o#er its territory, though one writer contends that this does not allow a State to shoot down a ci#ilian airliner that strays into its airspace, as the USS4 did in *8=+.!*@ -n the other hand, a State has no rights of so#ereignty in outer space, which, with the moon and all celestial bodies, constitutes /the pro#ince of all mankind/ !**. The (uestion now is where airspace and so#ereignty ends, and outer space and res communis begins. C. The La o* the Sea The legal regime of the seas depends on whether the waters in (uestion are part of the territorial waters, the contiguous waters, or whatnot. , key step in determining this is the drawing of baselines on which the e$tent of such waters are based. 1. Baselines The normal baseline /Fis the low water line along the coast as marked on large'scale charts officially recogni)ed by the coastal state.F To #isuali)e, one might imagine the line wherein the surface of the water and the land meet at low tide. This would be the low water line, which would normally be the baseline. This baseline is used when a coast is relati#ely straight and unindented./!*! -n the other hand, when a coast is /deeply indented or cut into, or if there is a fringe of islands along the coast in its immediate #icinity/, then straight baselines are used. These are drawn by connecting the seaward most low water points of the coastlines or of the island fringe. !*+ 7owe#er, the use of straight baselines is subject to some limitation. "t is re(uired %*& that the straight baselines must not appreciably depart from the direction of the coast, %!& that the sea areas within the baselines be sufficiently close to the land to be co#ered by the regime of internal waters, and %+& that the straight baselines not be drawn by a State in such a manner that it would cutoff another stateFs territorial sea from the high seas or an e$clusi#e economic )one.!*<
!@B !@9

?. 7. 2erryman, (hin)ing #bout the %lgin Marbles, =+ 2"C7. 1. 46:. *==*, *8@@ %*8=>& ;rownlie *!9. ;rownlie *!9 !@= ;rownlie *!9 !@8 ,ugust <*<, <*9 !*@ ,ugust <*< !** ,ugust <!@, citing the -uter Space Treaty, adopted ?an. !9, *8B9, art. *, B9! U3TS **8. !*! ,ugust +=@ !*+ ,ugust +=@ !*< ,ugust +=*

!. Waters&16 a+ Internal Waters&17 "nternal waters are those waters on the inland side of the baselines, and are generally go#erned by customary international law. These waters include ports, harbors, ri#ers, lakes, canals, and na#igable waterways. "nternal waters are treated as part of a StateFs land territory, and is subject to the full e$ercise of so#ereignty: Thus, the coastal state may designate which waters to open and which to close to foreign shipping. This power has limitations, howe#er. Ships in distress ha#e the right to enter foreign ports to a#oid danger, and there is the presumption that ports will be open sa#e for good reason. "n addition, States may enter into 0riendship, Commerce, and 3a#igation treaties that allow access to their ports, and internal waters may be go#erned by other treaties such as those that go#ern some na#igable 6uropean ri#ers. Ships that are allowed entry into internal waters are entitled to lea#e, e$cept that coastal states may detain unseaworthy ships or those that damaged or may damage its seas or other ocean )ones. They may also detain them under legal process, such as for security in ci#il actions or #iolations of custom laws. States legally ha#e the right to e$ercise full jurisdiction o#er a foreign ship, sa#e when it is state' owned. 7owe#er, but states in practice e$ercise no control o#er internal matters, e$cept %*& when an offense on a ship affect the peace or good order of the coastal state, %!& when inter#ention is re(uested, and %+& when a non crew member is in#ol#ed. ,+ Territorial Waters These waters stretch up to *! miles from the baseline on the seaward direction. They are subject to the jurisdiction of the coastal state, which jurisdiction almost appro$imates that which is e$ercised o#er land territory, e$cept that the coastal state must respect the rights to %*& innocent passage and, in the case of certain straits, to %!& transit passage. The latter will be discussed under the following topic. !nnocent passage means na#igation through the territorial sea without entering internal waters, going to internal waters, or coming from internal waters and making for the high seas. 0or passage to be innocent, %a& it must in#ol#e only acts that are re(uired by na#igation or by distress, and %b& it must not prejudice the peace, security, or good order of the coastal state. #+ Straits The regime of transit passage applies to straits that are used for international na#igation from the high seas or 66H to another part of the high seas or the 66H. (ransit passage is the freedom of na#igation or o#erflight for the purpose of e$peditious or continuous passage from high seas or 66H to high seas or 66H.
!*> !*B

Cenerally, ,ugust +99 et seq generally, ,ugust +=*'+=B

"+ Contig$o$s 0one The waters of this )one may stretch up to !< miles from the baselines. There is little jurisdiction e$ercised o#er this )one. "n this )one, the coastal State may e$ercise the control necessary to pre#ent or punish infringement of its fiscal, customs, immigration or sanitary laws within territorial waters. -ne writer says that this means that a coastal State may turn back a ship that plans to commit illegal acts in territorial waters or arrest a ship lea#ing territorial waters that #iolated local law!*9. e+ The E8#l$si'e E#onomi# ;one , coastal state may establish an 66H that may stretch up to !@@ miles from its baselines. .ithin this )one, a State may regulate nonli#ing and li#ing resources, other economic resources, artificial installations, scientific research, and pollution control. "t may be noted that, under the U3C1-S, states ha#e the so#ereign right to e$ploit the resources of this )one, but shall share that part of the catch that is beyond its capacity to har#est. This is at #ariance with the Philippines Constitution, which reser#es the 66H e$clusi#ely to 0ilipinos!*=. *+ The <igh Seas Under the customary regime of freedom of the high seas, there is nearly complete freedom of action in the high seas for the #essels of all states. -ne e$ception is in the case of %*& hot pursuit, where a ship that #iolates a coastal StateFs laws in its territorial waters or other ocean )ones is chased by the StateFs warships or military aircraft. ,nother is with regard to %!& the right of #isit, by which a warship or military aircraft may approach and board a ship when there are reasonable grounds to suspect that the ship is engaged in piracy, sla#e trade, etc. 3. Ar#hi%elagoes ,rchipelagic states are those that are made up of a group of islands, prime e$amples being the Philippines and "ndonesia. Such states are allowed to draw straight baselines around their outermost islands, and the waters inside these lines constitute archipelagic waters. The State has full so#ereignty o#er these waters, sa#e that it must pro#ide for archipelagic sea lanes and air routes through them. Such passage is go#erned by nearly the same regime that go#erns transit passage. "f the State does not pro#ide for such sea and air routes, then other states may use routes traditionally used for international na#igation. 4. The Continental Shel* The continental shelf consists of the seabed and subsoil of the submarine areas that e$tend beyond a coastal stateFs territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin. "f the shelf does not e$tend beyond !@@ miles, then the coastal State may claim up to !@@ miles outward if it e$tends beyond this, the State may claim a larger area, but no more than +>@ miles from its baselines. !*8 Such State has so#ereign rights to
!*9 !*=

,ugust +8+ 2agallona *@@. !*8 ,ugust +8=

e$plore and e$ploit the natural resources of the shelf. 7owe#er, it must be noted that the regime of the shelf does not affect the regime of the waters and airspace abo#e it. :I. State Res%onsi,ility

State responsibility is a fundamental principle in international law that mandates that when a state breaches its obligation to another state, international responsibility is established between them.!!@ Put another way, /DeE#ery internationally wrongful act of a State entails the international responsibility of that State./!!* .hether it is wrongful or not depends on international law, and its wrongfulness is not affected by a contrary characteri)ation in domestic law.!!! State responsibility must be distinguished from the substanti#e obligation whose breach gi#es rise to it, and from the liability to make reparation. The breach is what gives rise to state responsibility the liability to make reparation is the consequence of the state responsibility. To illustrate: State ; has an obligation to respect the right of State ,. State ; breaches that obligation, so that State ; incurs responsibility to State ,. ,s a conse(uence, State ; is now liable to pay to State , reparations, make restitution, etc. This latter duty, needless to say, is distinct from the obligation breached. State responsibility is distinct from relationship to indi#idual responsibility. 6ither or both may arise from the same facts, and neither e$cludes the other. 0or instance, is ,lpha'+, leader of the State of Cybertron, launches an aggressi#e war against the State of Care'a'lot, ,lpha may be held indi#idually responsible for starting the war, while Cybertron will incur state responsibility to Care'a'lot. A. The Re9$isites o* State Res%onsi,ility5 the Brea#h There is an internationally wrongful act of a State when conduct consisting of an action or omission: %a& "s attributable to the State under international law and %b& Constitutes a breach of an international obligation of the State.!!+ "t is generally thought that loss or damage to the offended state is not necessary for state responsibility to e$ist the breach of obligation will be enough. , major publicist e#en doubts that a blow to national honor is necessary for satisfaction to be necessary!!<, and cites a casePthe !Gm #lone &asePthat seemed to in#ol#e the imposition of liability for the breach itself. !!> "n any case, we must distinguish this from cases where there was, in fact, loss or damage, e$cept that there was no neat method to (uantify them for the purpose of determining compensation.!!B
!!@

"nternational 1aw Commission, 5raft articles on 4esponsibility of States for internationally wrongful acts, 46P-4T -0 T76 "3T643,T"-3,1 1,. C-22"SS"-3 -3 T76 .-4J -0 "TS 0"0TG'T7"45 S6SS"-3, U.3. C,-4 Sess. >B, Supp. 3o. *@, chp.":.6.*, art. *, in U.3. 5oc. ,A>BA*@ %!@@*& Dhereinafter ,S4E. !!* ,S4, art. * !!! ,S4, art. + !!+ ,S4, art. !. See 7iggins !!< ;rownlie, <B+ !!> ;rownlie <B!. !!B See, howe#er, 2. S7,., "3T643,T"-3,1 1,. ><! %*889&, who considers the e$istence of loss or damage resulting from the breach to be an important factor in determining the e$istence of state responsibility.

1. The ,rea#h ;or what is state responsibility incurredH State responsibility may be incurred for an act or omission, which produces a breach of an international obligation, whether the obligation rests on treaty, custom, or another source,!!9 pro#ided that the State was bound by the obligation at the time of the breach.!!= "f the act is not of a continuing character, then the breach of the obligation will occur at the moment of the act if the act is continuing, then the breach subsists during the period in which the act continues.!!8 5oes the act constituting the breach ha#e to be illegal %that is, forbidden by international law& for it to gi#e rise to state responsibilityI 3o, !+@ for all that is re(uired is that so long as the act not be in conformity with its international obligations.!+* To illustrate, if Cary forgets that he has date with 1ara on their anni#ersary, he would not be breaking Philippine law %since, last " checked, thereFs no law against forgetting&. 3onetheless, he would be incurring responsibility to 1ara, and would conse(uently ha#e to apologi)e and make amends %and gro#el and kneel and e$plain...&. Thus, for so long as they constitute a #iolation of an international obligation, state responsibility may arise from both %*& illegal acts, and %!& lawful acts. -ne e$ample of a lawful act gi#ing rise to state responsibility is ,rt. *@B of the *8=@ U3C1-S. ,nother is the subject matter of the (rail 8melter case, which arose from the pollution in US territory caused by a smelter in Canadian territory. 7ere ,Canada was held liable, although there was no international norm against allowing a smelter to operate inside oneFs borders. ,cts constituting abuse of right also constitute instances of lawful acts causing international liability.!+! a+ The Ne#essity o* =a$lt or Mali#e .hether fault or malice is necessary for state responsibility to be incurred is a matter under debate. -ne theory states the state responsibility is based on %*& the presence of culpa or dolus malus. 7owe#er, although certain arbitral awards seem to use this theory, it has been noted that many of them refer to breaches arising in particular conte$ts. The &orfu &hannel &ase, often cited to back this theory, does not, in fact, support it. "t is true that in that case, the "C? cited the knowledge of ,lbania %the fact that they could not ha#e not known that mines were being laid in the Corfu Channel& as a basis for ,lbaniaFs responsibility. 7owe#er, that knowledge was only in#oked as a precondition to ,lbaniaFs being responsible. To e$plain: There is an obligation in international law to warn #essels of the presence of mines in an area. 7owe#er, this obligation will not arise unless the State in (uestion knows that there are mines in the area. 7ence, the StateFs knowledge is a precondition for the obligation to arise. That does not, howe#er, mean that Corfu Channel espouses culpa as the test of state responsibility. "ndeed, its doctrine could be used to go either way.!++
!!9 !!=

;rownlie <!8 ,S4, art. *! ,S4, art. *+ !!8 ,S4, art. *< !+@ See ;rownlie <<B'<<9 !+* ,S4, art. *! !+! ;in Cheng. ;ut see ;rownlie <<=. 7e concedes that Qthe doctrine is a useful agent in the progressi#e de#elopment of law, butR as a general principle, it does not e$ist in positi#e law.S 7e likewise contends that the doctrine could lead to instability. !++ See ;rownlie, at p.<<+.

The theory of %!& objective Ior strictJ liability states that fault is not necessary for state responsibility to be incurred. This seems supported by state practice, by most decisions of arbitral and judicial tribunals, and by most publicists !+<. ,ccording to this theory, the only re(uirements for state responsibility to arise with regard to a State are: %a& agency, and %b& causal connection between the breach, and the act or omission imputable to the State. !+> The moment these are pro#en, the mere fact that an act results in a breach is enough. ,+ C$l%a Though it has been stated that the general rule for determining liability is objecti#e responsibility, the theory of culpa may be rele#ant in certain special situations. Thus, it may be rele#ant to e$amine the e$istence of culpa %a& when the breach results from acts of indi#iduals not employed by the state or from the acti#ities of licensees or trespassers on its territory !+B %b& when a state engages in lawful acti#ities, in which case responsibility may result from culpa in e$ecuting these lawful acti#ities %c& when determining the amount of the damages %d& when due diligence or liability for culpa is stipulated in a treaty. #+ Intent an" Moti'e The principle of objecti#e responsibility renders the e$istence or non'e$istence of intent irrele#ant and the fact that a state officialOs ultra #ires act is accompanied by malice will not affect the stateOs responsibility %and it will still be liable&. 7owe#er, intent and moti#e may be rele#ant in some cases. Thus: *. Proof of dolus on the part of leading state organs will sol#e the problem of imputability in particular cases. !. The e$istence of a deliberate intent to injure Qmay ha#e an effect on the remoteness of the damageS and may help to establish the breach of duty. +. 2oti#e and intent may be a specific element in defining permitted conduct. 0or instance, a& "t was formerly the rule that e$propriation of foreign property is unlawful if the object is political reprisal or retaliation b& ,ction supposedly done in self defense may become unlawful if the purpose is, for instance, to use the action for purposes of effecting con(uest. &. The Stan"ar" o* )iligen#e 5iligence is rele#ant where the conduct of indi#idual State officials, rather than state organs, is concerned, state responsibility arises if the state Qfailed to e$ercise the due diligence which could reasonably ha#e pre#ented such conduct.S'*4 "n those cases when due diligence is rele#ant, there is the (uestion of whether the due diligence standard is objecti#e, or whether its look to a StateOs ability to fulfill its obligations. The %*& -bjecti#e #iew says that ability to fulfill is irrele#ant, while the %!& 4elati#ist #iew says
!+<

"ncluding 7iggins. See ;rownlie <<@ See ;rownlie, <<@. !+B %but see the notes under Im%$ta,ility.& !+9 7iggins *>>'*>B
!+>

otherwise. "t may be noted that in the Tehran 7ostages Case, the "nternational Court of ?ustice seemed to embrace the second %relati#ist& theory, for in declaring that "ranian authorities has failed in their duty to protect US diplomats, the Court noted that the "ranian authorities %*& were aware of their obligations, and %!& and had the means to fulfill them, yet %+& failed to do so!+=. "n any case, due diligence is not the only rele#ant standard, for QDtEhe standard by which the duty of care with regard to an obligation is to be tested is determined by reference to the particular re(uirements of the obligation.S Thus, in particular obligations, a standard higher than due diligence may be re(uired. -ne e$ample is the duty to protect diplomatic missions, which re(uires the state to take positi#e, specific measures of protection. ,nother e$ample concerns inherently ha)ardous acti#ities in the en#ironmental sphere, where Qit is increasingly suggested that there is an absolute duty of care, reflected in resultant strict liability.S!+8 B. Re9$isites o* Res%onsi,ility5 Im%$ta,ility "t has been stated that a state may be %*& directly liable'' for instance, for the acts of state organs in their official capacity'' or %!& #icariously liable'' for e$ample, for the acts of pri#ate indi#iduals when the state is negligent in pre#enting or punishing them.!<@ The essential difference between the two types of liability is that in direct liability, a state is in direct breach of its international obligations, while in #icarious liability, the state /is at one remo#e/ from the injurious conduct: it becomes liable for being negligent in pre#enting or punishing the act, and not for the act itself.!<* "t is submitted that the imputability doctrine in international law may be summari)ed thus: a State is only responsible for its own acts or omissions. Thus a State is generally responsible for the acts of state organs and officials because these are agents of the State. !<! .ith regard to pri#ate indi#iduals, a State is directly responsible for their acts only when they act as its agents. .hen they are not acting as State agents, a State is responsible not for their acts directly, but for the StateFs own negligence in not trying to stop the acts of the erring indi#iduals. .hen they are not agents, and the State has no negligence, then the State has no act or omission for which to be responsible. 7ence the rule in, for instance, re#olutions.!<+
Knder the negligence doctrine, a 8tate becomes indirectly liable for the acts of individuals when it has the international obligation to exert efforts to prevent their acts or to prosecute the miscreants for their acts, and the 8tate maliciously or negligently fails to do so

1. State organs an" o**i#ers The conduct of a State organ is considered to be the act of that State, whate#er the function of that organ, whate#er position it holds in the organi)ation of the State, whether it is the organ of
!+= !+8

7iggins *>B 7iggins *>B'*>9 !<@ -ppenheim >@*'>@! !<* -ppenheim >@! !<! See 7iggins *>@. ;ut see also 7iggins *>>'*>B !<+ This is just my opinion, howe#er, and it seems to hold little water in the case of dependent states, e$cept if these are deemed agents or organs of the dominant state. .hen in doubt, in #iew of the dominant trend in international law, we go with strict responsibility.

the central go#ernment or a local unit of the State. !<< ,n organ is any person or entity that is considered an organ of the State under its domestic law.!<> "t is recogni)ed in international law that the acts of public officials, when done with apparent authority or in their official capacity ,!<B are imputable to their State, e#en when these acts are beyond their authority or contra#ene superior orders!<9. This is affirmed by the most eminent publicists,!<= as well as by international tribunals. !<8 Thus, the "nternational 1aw CommissionFs ,rticles on State 4esponsibility state that e#en the ultra #ires acts of a public official is imputable to a State when they act in their official capacity, !>@ e#en when these acts #iolate the laws or orders of the state itself. Parenthetically, it may be noted that the C, resolution that appro#ed the articles was appro#ed by a consensus of States.!>* "n any case, whether the e$ecuti#e or administrati#e officer of high rank or of low, the State will still be responsible!>!. Thus, in the 4ainbow .arrior ,rbitration, where 0rench agents, using e$plosi#es, sank the Creenpeace ship 4ainbow warrior as it was berthed in the harbor of ,uckland, 3ew Healand, 0rance admitted responsibility and was ordered by the U3 Secretary' Ceneral %who was asked to arbitrate& to apologi)e to 3ew Healand and pay UST9 million as compensation. The (uestion has been asked as to why is the state is responsible for the acts of its officersP whether this results from of the officialFs act in itself, or because other go#ernment organs failed to sufficiently deal with the conse(uences of the erring officialFs acts. ;rownlie says that it depends on the law applied to the particular facts of each case !>+. 7owe#er, it is submitted that, since objecti#e liability is the norm, it might be safe to surmise that the State would be responsible for the act itself, albeit the failure to prosecute the offender would add to the liability. a+ Personal a#ts o* State o**i#ers "f the act is a personal act of the officer %as opposed to an act done in his official capacity&, whether a State will be responsible depends on the acti#ity and conse(uences in each case. Thus, when the standard of conduct re(uired is #ery high, it would be inappropriate to make a distinction between personal acts and acts within apparent authority, and the State will be liable.
!<< !<>

,S4, art. <%*& ,S4, art. <%!& !<B Caire claim %0rench'2e$ican Claims Commission, *8!8&, > 46P. "3TF1 ,4;.,.,45S >*B %@pinion of :er)ijl&, in 7arris at <8+'<8<. 46P-4T -0 T76 "3T643,T"-3,1 1,. C-22"SS"-3 -3 T76 .-4J -0 "TS 0"0TG'T7"45 S6SS"-3, U3 C,-4, Sess. >B, Supp. 3o. *@, p. *@!, U.3. 5oc. ,A>BA*@. See the 5raft ,rticles on State 4esponsibility, C, 4esolution >BA=+, ,A4esA>BA=+, ,nne$, art. >, 9. !<9 ,S4, art. 9 !<= 4. 7"CC"3S, "3T643,T"-3,1 1,.: P4-;162S ,35 P4-C6SS *>@'*>* %*88<&. See also ". ;rownlie, P4"3C"P16S -0 PU;1"C "3T643,T"-3,1 1,. <>@ %*88=& !<8 ;rownlie at <>+, citing the Caire claim, > 46P. "3TF1 ,4;.,.,45S >*B, >+@'+* %*8!8&, the 2aal case, *@ 46P. "3TF1 ,4;.,.,45S 9+@, 9+!'9++ %*8@+&, 1a 2asica case, ** 46P. "3TF1 ,4;. ,.,45S ><8, >B@ %*8*B&, and the Goumans case, *< 46P. "3TF1 ,4;. ,.,45S **@, **B %*8*B&. See Union ;ridge Company Case, B 46P. "3TF1 ,4;.,.,45S *+= %*8!<& in 5.?. 7arris, C,S6S ,35 2,T64",1S "3 "3T643,T"-3,1 1,. >@B'>@9 %*88=& Dhereafter 7arrisE the Caire claim, in 7arris at <8!'<8+. !>@ ,A4esA>BA=+, != ?anuary !@@!, ,nne$, arts. >, 9. !>* See the listing in http:AAwww.un.orgA5eptsAdhlAresguide.htm, last #isited 3o#ember *@, !@@!. !>! ,S4, art. < !>+ ;rownlie <>@'<>*

"t is submitted that an instance of this would be in the case of members of the armed forces, since a State is re(uired to e$ercise a higher standard of prudence in the discipline and control of soldiers, and /#ery strict accountability/ for their misconduct is often the norm. .ith military officers of any rank, the due diligence re(uired is so high it approaches strict liability. ,+ Control .here a StateFs breach is the failure to e$ercise ade(uate control o#er the erring officers, what matters is the amount of control which should ha#e been e$ercised in the particular circumstances, not the amount of actual control. Thus, if some police officers of State , gun down a diplomat from State ; while they are on patrol, State , cannot escape liability by saying that it was not actually super#ising them at the moment of incident. The point is that it should have duly super#ised them at that time. #+ O**i#ials a#ting in "i**erent #a%a#ities "t may happen that the same indi#idual may be an officer of more than one state. This becomes a thorny matter when, for instance, State , sues State ; for the conduct of U, who is an official of both states. -ne publicist says that /DfEormal capacity may create an estoppel, or at least a presumption of fact, in such cases, but on particular factsS it may be necessary to determine which state e$ercises control in order Qto do justice.S'2"+ Parti#$lar State o**i#ers an" organs !n ;ederal states States are responsible for the acts of local units!>>. (he Cegislature The international responsibility of a State may arise: %*& from the damage that results from a legislati#e act or omission or %!& from the act or omission itself. ,n e$ample of the second is a situation where a treaty re(uires that certain pro#isions be placed in municipal %i.e., national& law, and the legislature does not legislate accordingly. (he &ourts Some instances when a state would be liable for the acts of the judiciary are when the decision of the court constitutes a denial of justice, or when the court fails to enforce a treaty to which the State is bound. &. Pri'ate In"i'i"$als , state is generally not responsible for the acts of indi#iduals. The e$ception is when there is %*& adoption or %!& negligence, on the part of the State sought to be held liable. "n adoption, a State adopts the acts of indi#iduals as its own, and thus becomes responsible for their internationally wrongful acts!>B. Such adoption would occur when %*& the State encourages these acts, %!& the indi#iduals effecti#ely act as agents in performing the offending acts, and %+& the State endorses as its own the acts of the indi#iduals.!>9
!>< !>>

;rownlie <>= ,S4, art <%*& !>B ,S4, art. ** !>9 7iggins *><

6#en if there is no adoption of the acts of pri#ate indi#iduals, a State may ne#ertheless be indirectly liable for their acts. This happens when the State has an international obligation to e$ert efforts to pre#ent the internationally wrongful acts of such indi#iduals, or to prosecute the miscreants for their acts, and the State maliciously or negligently fails to do so. This becomes of some importance in cases of internal strife or disturbance. The general rule is that a State is not responsible for loss or damage in times of re#olution unless its Co#ernment failed to e$ercise due diligence to pre#ent its occurrence. The test, therefore, is whether due diligence was exercised to pre#ent harm to foreigners and foreign interests. Substantial neglect to take action amounting to official indifference or conni#ance will create responsibility for damage to foreign public and pri#ate property. 3ote, howe#er, that if the re#olutionary mo#ement wins and takes power, it will be responsible for the illegal acts or omissions of its forces during the conflict, as well as for those of the pre#ious go#ernment. This would be true whether the re#olutionary mo#ement establishes a new state or a new go#ernment.!>= The ,merican 5iplomats in Tehran case of some interest in this regard. !>8 The subject incidents arose after the Shah, a close US ally, was o#erthrown by the re#olution led by ,yatollah Jhomeini. .hen the US decided to allow the Shah to enter the US for medical treatment, demonstrators in#aded the US embassy in Tehran and sei)ed e#eryone present. "ranian security forces did not try to pre#ent the in#asion or to get the hostages released. "nstead, "ranian go#ernment officials e$pressed appro#al of the militantsO actions. ,yatollah Jhomeini declared that the embassy and the hostages would remain as they were until the US handed o#er the Shah. The "nternational Court distinguished between the first stage of the hostage taking, the initial take'o#er of the embassy and the second stage, the continued detention of the hostages. The Court held that the first stage was not directly imputable to "ran, since the militants were not shown to ha#e been acting as agents of the go#ernment, notwithstanding the way they were encouraged by state officials. 7owe#er, the Court found that the failure of "ranian security forces to protect the embassy or take steps to liberate them was a breach of "ranOs duty under the :ienna Con#ention. The second stage, on the other hand, was directly imputable to "ran, as a conse(uence of the appro#al and adoption gi#en them by officials of the "ranian go#ernment, which was of such nature as to make the militantsO acts constitute state acts. "n the second stage, "ran had already adopted the acts of the hostage'takers. 3. Other States a+ The )e%en"ent State "f the dependent state is so controlled by the dominant state that it cannot be deemed as retaining separate international personality, then the dominant state will be responsible for the dependent stateOs acts. The same is true when a state assumes international responsibility for another go#ernment. 7owe#er, when the dependent state retains enough legal powers to maintain a separate personality, and it still conducts its own foreign relations, whether the su)erain %the dominant state& will be responsible for the dependent stateOs actions will depend on the circumstances.
!>= !>8

;rownlie <>>'<>9, 7iggins *>> United States 5iplomatic and Consular Staff in Tehran %US #. "ran&, *8=@ "C? +.

,+ 2oint Tort*easors The doctrine is still unclear as to the manner in which responsibility would e$ist, when two states jointly commit an international wrong. ;rownlie notes that, though solidary liability should e$ist in principle, there is little practice thereon. "f there is joint participation by two or more states in an unlawful action, should the offended state make a joint claim against both offenders, should it make a claim against the State that directly committed the acts complained, or may it proceed against the offender states separatelyI "n >auru v #ustralia %where 3auru filed a claim against ,ustralia for e$ploiting the formerOs phosphate resources& the "nternational Court held that, e#en though it was possible that ,ustralia, UJ, and 3ew Healand had solidary liability, a claim made against just one of them was admissible. C. Conse9$en#es o* State res%onsi,ility Cenerally, the State will, as a conse(uence of its international responsibility, be obliged to cease the wrongful act, should it be continuing, and to gi#e suitable reassurances that it will not be repeated.!B@ 1. Stan"ing 0ollowing the rule in the South .est ,frica cases %*8BB&, a State cannot sue on a particular right or interest unless that right or interest was #ested in that State by some instrument, or some rule of law. "n other words, that State has to ha#e legal standing. "t must be noted that in the ;arcelona Case as well as in the 6ast Timor case, the "C? has acknowledged that all states may ha#e standing to in#oke liability for the #iolation of erga omnes obligations. This is recogni)ed as well in the ,rticles of State 4esponsibility. 7owe#er, the acknowledgement of erga omnes standing in the 6ast Timor case did not pre#ent the "C? from throwing out the case. The Court said that erga omnes standing did not take away the jurisdictional re(uirements for the Court to act, particularly the re(uirement that States must consent to the e$ercise of jurisdiction by a Court before the Court may ha#e competence to judge their dispute. &. Relie*s The following forms of reparation may be claimed by the injured party: %*& declaratory relief, %!& satisfaction, %+& restitution, and %<& compensation. a+ )e#laratory Relie* Q"n some cases a declaration by a court that as to the illegality of an act constitutes a measure of satisfaction %or reparation in the broad sense&.S!B* "n some cases, howe#er, tribunals may gi#e declaratory judgments when %*& this is, or the parties deem this to be, the proper way to deal with
!B@ !B*

,S4, art. +@ ;rownlie <B!

a dispute, %as in disputes o#er territory, when a declaratory rather than an e$ecutory form of judgment is appropriate& and %!& the object Qis not to gi#e satisfaction for the wrong recei#ed.S!B! ,+ Satis*a#tion Satisfaction is a measure other than restitution or compensation which an offending state is bound to take. There are three objects of satisfaction, which are often cumulati#e: %*& apology and other acknowledgment of wrongdoing %!& punishment of indi#iduals concerned and %+& taking of measures to pre#ent a recurrence of the wrong. Satisfaction may take pecuniary form, but this would not necessarily mean this already or only constitutes compensation. Pecuniary satisfaction and compensation are distinguished in their intention, the former being meant to be a token of regret and acknowledgement of wrongdoing %a monetary /sorry/&, the latter being intended to make up for or repair the damage done. #+ Restit$tion 4estitution in#ol#es wiping out all the conse(uences of the breach and re'establishing the situation which would probably ha#e e$isted had the act not been committed. 4estitution can take ! forms: %*& legal restitution, the declaration that an offending treaty, law, e$ecuti#e act, or other, is in#alid and %!& specific 4estitution, or restitution in kind. Specific restitution, howe#er, is rarely pro#ided, in part because of the difficulty on enforcing such a claim on a so#ereign State. The refusal of the US to pay damages to 3icaragua as a conse(uence of the "C? decision is a case in point. "n certain cases, restitution may be demanded by #irtue of a particular obligation imposed by international law. This would be the case in territorial disputes %when State , returns State ;Fs territory&. Chorzow Factory Case (Judgment No. 13) ,fter it lost .orld .ar ", Cermany ceded the territory of Upper Silesia to Poland. ,n agreement was e$ecuted in Cene#a to maintain the economic status (uo in the ceded territory. ,fterwards, howe#er, a Polish court ordered the ownership of the Cerman' owned Chor)ow factory to be registered in the name of the Polish Treasury. Held: ,ny breach of an engagement in#ol#es an obligation to make reparation. 4eparation of a wrong may consist in an indemnity corresponding to the damage which the nationals of the injured State ha#e suffered as a result of the act. 4eparation must, as far as possible, wipe out all the conse(uences of the illegal act and re'establish the situation which would ha#e e$isted if the act had not been committed. To determine the amount of reparation, these principles should be used in determining compensation due for an act contrary to international law: 4estitution in kind, payment of a sum corresponding to the #alue of the restitution, and the award for losses sustained which would not be co#ered by the first two. "+ Com%ensation
!B!

;rownlie <B!

Compensation is payment of money as a #aluation of the wrong done. "n the Chor)ow case, the Permanent Court said that the amount of the compensation must correspond to %*& /the #alue which a restitution in kind would bear,/ and %!& /the award of damages for loss sustained which would not be co#ered by restitution in kind or payment in place of it./ ;rownlie notes that international tribunals are reluctant to allow the imposition of penal damages %reparation for the mere commission of the breach& in international law, which one may take to mean that loss or damage is the preferred basis for the reparation. -ther commentators, howe#er, note the imposition of puniti#e damages, unrelated to the damage inflicted.!B+ ). Cir#$mstan#es %re#l$"ing rong*$lness , State may escape liability on se#eral possible grounds: %*& if the wronged State consented to the offender StateFs act, %!& if the offender StateFs act was done in self'defense, %+& if it constitutes a countermeasure taken against the wronged State, or %<& if it was done in compliance with the offender StateFs obligations under a peremptory norm!B<. %>& "f the author of the wrongful act has no other reasonable way, in a situation of distress, to sa#e his life or the life of a person entrusted to his case, then the State would not be liable for the act unless the State caused the distress or the act in (uestion will cause a greater peril!B>. 1ikewise, %B& if the act was done due to force majeure, the occurrence of an irresistible force or unforeseen e#ent beyond the StateFs control which makes it impossible to perform the obligation under the circumstances!BB. , stateFs liability may also be precluded if %9& its act was done in due to a state of necessity. 0or the plea of necessity to prosper, the act %a& must be the only way to safeguard an essential interest from a gra#e and imminent peril!B9, and %b& must not seriously impair an essential interest of the State or States to which the obligation breached is owed, or of the international community as a whole!B=. The e$istence and imminence!B8 of such a peril must be duly established, for Qmere apprehension of a possible VperilO could not sufficeS!9@ W its e$istence must not be clouded by uncertainty.!9* 2oreo#er, the means employed to a#ert the purported peril must be such as are
!B+ !B<

-PP6376"2FS "3T643,T"-3,1 1,. >++ %4obert ?ennings, ,rthur .atts, 8th ed., *88!& ,S4, arts. !@, !*, !!, !B. !B> ,S4, art. !< !BB ,S4, art. !+ !B9 ,S4, art. !>%*&%a&. See Societe Commerciale de ;elgi(ue, *8+8, PC"? Series ,A;, 3o. 9=, p. *B@ 4ussian "ndemnity Case %*8*!&, ** 46P "3TF1 ,4;. ,.,45S <<+ -scar Chinn Case, *8+< P.C.".?. %ser. ,A;&, 3o. B+, at B>, **!'**< %separate opinion of ?udge ,n)ilotti,& in "nternational 1aw Commission, &ommentaries to the draft articles on "esponsibility of 8tates for internationally wrongful acts, 4eport of the "nternational 1aw Commission on the work of its 0ifty'third session, chp.":.6.!, C,-4 Sess. >B, Supp. 3o. *@, p. *8<'!@B, U.3. 5oc. ,A>BA*@ %!@@*& and citing CabcLko#o'3agymaros Project %7ung. #. Slo#.& *889 ".C.?. 9, at para. >< %Sept. !>&. See also The -bser#er and the Cuardian #. United Jingdom, *< 6ur. 7.4. 4ep. *>+, %6C74, *88!& Soering #. UJ, ** 6ur. 7.4. 4ep.<+8 %*8=8& "nternational 1aw Commission, &ommentaries to the draft articles on "esponsibility of 8tates for internationally wrongful acts, 4eport of the "nternational 1aw Commission on the work of its 0ifty'third session, chp.":.6.!, C,-4 Sess. >B, Supp. 3o. *@, p. *8<'!@B, U.3. 5oc. ,A>BA*@ %!@@*&, citing Societe Commerciale de ;elgi(ue, *8+8, PC"? Series ,A;, 3o. 9=, p. *B@ 4ussian "ndemnity Case %*8*!&, ** 46P "3TF1 ,4;. ,.,45S <<+ -scar Chinn Case, *8+< P.C.".?. %ser. ,A;&, 3o. B+, at B>, **!'**< %separate opinion of ?udge ,n)ilotti,&. !B= ,S4, art. !>%*&%b&. See CabcLko#o'3agymaros Project %7ung. #. Slo#.& *889 ".C.?. at para. >= %Sept. !>&. !B8 ,. 5. 2c3air, ed., ! "3T643,T"-3,1 1,. -P"3"-3S !+! %*8>B& D2c3air -pnionsE. !9@ CabcLko#o'3agymaros Project %7ung. #. Slo#.& *889 ".C.?. 9, para. >< %Sept. !>&. !9* CabcLko#o'3agymaros Project %7ung. #. Slo#.& *889 ".C.?. 9, para. >>. %Sept. !>&.

absolutely necessary to a#ert the alleged danger!9! and the obligation #iolated must not e$clude the possibility of e$cluding necessity.!9+ These standards ha#e been considered to be of a customary character by the "C?!9<. Part Three The In"i'i"$al :II. Nationality A. In general 3ationality /refers to membership in a political community, one that is personal and more or less permanent, not temporary./!9> -therwise stated, it is the bond that unites indi#iduals with a gi#en state, that identifies them as members of that entity, that enables them to claim its protection, and that also subjects them to the performance of such duties as their state may impose on them.!9B 3ationality and citi)enship are often said to be distinct concepts. D.Ehile citizens are limited to those who are endowed with political and civil rights in the body politic of a State, the term FnationalsF includes citi)ens as well as persons who, not being citi)ens, owe permanent allegiance to the State and are entitled to its protection. "n other words, all citi)ens are nationals, but not all nationals are citi)ens.!99 To illustrate, the inhabitants of ,merican Samoa are nationals, but not citi)ens, of the United States. They owe allegiance to the United Stated and can e$pect its protection %say, if a SamoanFs rights are #iolated in 0iji&'' but they cannot e$ercise certain political rights. They cannot #ote in US presidential elections, for instance.!9= B. The Im%ortan#e o* Nationality 3ationality is of great importance in international law. "t determines whether a State can undertake diplomatic protection'' if can demand reparations from another State for the harm done to an indi#idual '' for a State can so protect only those persons who are its nationals. !98 0urthermore, it may allow a State to claim legislati#e and judicial jurisdiction o#er an indi#idual e#en outside its territory. "n the Philippines, a ci#il law country, /the national law of an indi#idual regulates his ci#il status and condition, his family rights and duties, the intrinsic
!9!

..4. 2,33"3C %ed.&, + 5"P1-2,T"C C-446SP-3563C6 -0 T76 U3"T65 ST,T6S: C,3,5",3 461,T"-3S *9=<' *=B@, p. <!! %*8<+&. ,.5. 2c3air %ed.&, ! "3T643,T"-3,1 1,. -P"3"-3S !! %*8>B&. !9+ ,rticles of State 4esponsibility, supra note art. !>%!&%a&. !9< CabcLko#o'3agymaros Project %7ung. #. Slo#.& *889 ".C.?. 9 %Sept. !>&. !9> Salonga on P4"1 *B! !9B C647,45 :-3 C1,73, 1,. ,2-3C 3,T"-3S: ,3 "3T4-5UCT"-3 T- PU;1"C "3T643,T"-3,1 1,. *8= %>th ed., *8=B&. !99 Salonga on P4"1 *B+ !9= :on Clahn *89 !98 Salonga on P4"1 *B+. See the 3ottebohm case %1iechtenstein #. Cuatemala&, *8>> ".C.?. <

#alidity of his will, the rights of succession to his properties./ !=@ 0urthermore, some countries claim to e$ercise criminal jurisdiction e#en o#er the acts of their nationals abroad. !=* "t may be noted that Philippine income ta$ laws apply e#en to citi)ens abroad, although %at present, considering the fluid nature of Philippine ta$ law& only income earned in the Philippines is ta$ed. C. )etermining Nationality "t is generally acknowledged that a State has liberty to determine who are and who are not its nationals, the conditions for the conferment of nationality, and the conditions and means for its depri#ation.!=! 7owe#er, this power is not unlimited, for certain international norms may limit its e$ercise.!=+ 0or instance, it may be noted that the Uni#ersal 5eclaration of 7uman 4ights, besides recogni)ing the right to nationality, mandates that /DnEo one shall be arbitrarily depri#ed of his nationality nor denied the right to change his nationality./ !=< 1ikewise, the "nternational Co#enant on Ci#il and Political 4ights pro#ides that e#ery child shall ha#e the right to ac(uoire nationality.!=> 0urthermore, a grant of nationality may be recogni)ed as #alid yet be deemed to be ineffecti#e in an international forum. Thus, in the 3ottebohm case, 1iechtensteinFs grant of nationality to 3ottebohm was gi#en no effect as against Cuatemala by the "nternational Court. !=B The Court acknowledged 1iechtensteinFs power to decide 3ottebohmFs nationality under its domestic law, but noted that not all acts in domestic law are gi#en binding effect as against other States, particularly in an international tribunal.!=9 :III. The Prote#tion o* Aliens Under international law, States are obliged to undertake the protection of foreign nationals in their territory from injury or loss, particularly as a conse(uence of unlawful acts. !== States are especially bound to protect foreign nationals from the illegal acts of their own public officials. !=8 0ailure to do so is an omission!8@ that gi#es rise to liability on the part of the state. This duty to protect may be #iolated in se#eral ways. "t may be breached %*& when the state itself or its organs or officers, under the color of authority, #iolate the rights of aliens. The State
!=@ !=*

Salonga on P4"1 *B!, citing the Ci#il Code of the Philippines %*8<8&. Salonga on P4"1 *B+ !=! :on Clahn *8= !=+ :on Clahn *8=, citing 3ationality 5ecrees "ssued in Tunis and 2orocco, ,d#isory -pinion, PC"?, Ser. ;, 3o. < %*8!<&. !=< Uni#ersal 5eclaration of 7uman 4ights, U3 Ceneral ,ssembly 4esolution !*9, %"""&, art. *@, U.3. 5oc. ,A=*@ %*8<=& . Salonga on P4"1 *B+. !=> "nternational Co#enant on Ci#il and Political 4ights, in force 2ar. !+, *89B, art. *<, 888 U.3.T.S. *9*, reprinted in B ".1.2. +B= %*8B9&. !=B 3ottebohm case %1iechtenstein #. Cuatemala&, *8>> ".C.?. <. !=9 3ottebohm case %1iechtenstein #. Cuatemala&, *8>> ".C.?. <. !== ;arcelona Traction, 1ight, and Power Company, 1td. Case %Second Phase& X89@ "C? 4eports +, +!, para. ++ ?. ;4"641G, T76 1,. -0 3,T"-3S !9B et seq %*8B+& (uoted in "3T643,T"-3,1 1,. %;.6. Carter, P.4. Trimble, eds. *88>& =>@ Dhereafter CarterE 4,G ,UCUST, PU;1"C "3T643,T"-3,1 1,. +>B %*88>& Dhereafter ,ugustE. See 7.0. :,3 P,37UGS, T76 4-16 -0 3,T"-3,1"TG "3 "3T643,T"-3,1 1,. << %*8>8& Dhereafter :an PanhuysE. See also ;rierly, op. cit., in Carter =>@'=>*, citing the Pans#e)ys'Saldutiskis 4ailway Case %6stonia #. 1ithuania&, PC"? 4eports, Series ,A; 9B, p. *B and 2. 4aga))i, !nternational Fbligations %rga Fmnes7 (he Moral ;oundation and &riteria of !dentification in Cight of (wo ?apanese &ontributions, T76 46,1"TG -0 "3T643,T"-3,1 1,.: 6SS,GS "3 7-3-4 -0 ",3 ;4-.31"6 <>B, <>B %C. S. Coodwin'Cill and S. Talmon, eds. *888&. !=8 3oyes Claim, B 46P. "3TF1 ,4;.,.,45S +@=, in 7arris at ><+. See ;rierly op. cit. at =><. !8@ 7iggins at <8.

is liable for such officersF acts when these acts are done by these officers in their official capacity, since such acts are directly imputable to the state that employed them. !8* , state may also be liable %!& when it fails to e$ercise due diligence to pre#ent injury or conse(uent damage from being inflicted on aliens by state officers and indi#iduals. 1astly, a State is liable for failure to protect the rights of aliens %+& when it fails to undertake diligent efforts to prosecute and punish the miscreants who #iolated the rights of aliens and inflicted harm upon them. A. The Minim$m Stan"ar" There are two standards by which the treatment of aliens is judged under international law. -ne is the %*& national standard, under which States are re(uired to treat foreigners in the same way that it treats its citi)ens. This standard precludes the discrimination of aliens, but it is grie#ously insufficient for what if the State treats its own citi)ens badly, or neglects their safety and welfareI There would be no discrimination, but there would be e(ual pain. The %!& international standard, by contrast, re(uires that a State should treat foreigners with a minimum standard of care set by international law, independently of how it treats its own citi)enry. "nternational law is on the side of the "nternational Standard. Thus, States must comply with minimum standards set by international law,!8! e#en regardless of the way they treat their own nationals.!8+ B. )i%lomati# Prote#tion There was, for a long time, no set remedy under international law for the #iolation of the rights of aliens, though there were diplomatic protests and responses. ;eginning in the nineteenth century, States locked in dispute o#er the treatment of foreigners created arbitral tribunals to adjudicate claims of harmed citi)ens for damages. This would usually happen after some internal strife in, for instance, 2e$ico, wherein foreigners would be harmed or their properties taken or damaged by the contending forces. The State of the foreigner, for instance, the United States, would protest, and to resol#e their differences, the States would constitute a arbitral body, often called a Claims Commission, though a duly e$ecuted ,greement. 0or e$ample, the US' 2e$ico Claims Commission %whose rulings are a fertile source of international norms, particularly on state responsibility& was created through an agreement in .ashington. The citi)ens would then present their claims to this tribunal, and the tribunal would, if it finds that the State is responsible, order that State to pay damages. The rise of permanent tribunals in the twentieth century, such as the Permanent Court and the "C?, ga#e States a permanent forum in which to resol#e their disputes and claim liability for the harm done to their citi)ens. Under the doctrine of diplomatic protection, the State comes before the tribunal to ask relief for the #iolation of the rights of the 8tate through the harm done to its citi)ens, and the tribunal would award damages to the 8tate.!8< This places the indi#idual at some disad#antage, for a State has full discretion to make the claim or not, and if it chooses not to sue, then the indi#idual has no redress.
!8*

Caire claim, in 7arris at <8!'<8< 46P-4T -0 T76 "3T643,T"-3,1 1,. C-22"SS"-3 -3 T76 .-4J -0 "TS 0"0TG'T7"45 S6SS"-3, -fficial 4ecords of the Ceneral ,ssembly, 0ifty'si$th session, Supplement 3o. *@ %,A>BA*@&, p. *@!. See the discussion supra. See also the 5raft ,rticles on State 4esponsibility, C, 4esolution >BA=+, ,A4esA>BA=+, ,nne$, art.9. !8! 3eer claim %US'2e$ican Ceneral Claims Commission, *8!B& in 7arris at >!+ .. 1e#i, C-3T62P-4,4G "3T643,T"-3,1 1,.: , C-3C"S6 "3T4-5UCT"-3 *99 %*898&. !8+ :an Panhuys at <>'<B. !8< -PP6376"2FS "3T643,T"-3,1 1,. >*! %4obert ?ennings, ,rthur .atts, 8th ed., *88!&.

, re(uirement of diplomatic protection is the e$haustion of local remedies, which re(uirement is a general principle of international law.!8> Thus, a StateFs claim before an international tribunal for the harm to its citi)en would be disallowed if it is shown that the citi)en failed to e$haust the remedies a#ailable to him in order to obtain redress for the #iolation. 7owe#er, the State that is in#oking the objection must show that there are indeed effecti#e remedies a#ailable within its jurisdiction.!8B "f it fails to carry this affirmati#e burden, then the objection would not be sustained, and the suit would be gi#en due course.
I>. <$man Rights

>ations are commanded under international law'64 to underta)e the protection of basic human rights, especially the rights to life'65, to dignity, and to be provided with adequate remedies for the violation of fundamental rights '66 !n particular, the !nternational &ovenant on &ivil and Political "ights I!&&P"J and the Knited >ations &harter-- as interpreted by the subsequent practice of 8tate parties *99-- impose the obligation to promote and protect human rights*9: ;urthermore, the existence of its obligation under customary international law is evidenced by the widespread acceptance of numerous international conventions*9' and instruments stating this hallowed principle, *9* it being settled international doctrine
!8> !8B

6lletronica Sicula, S.p.,. %61S"& %U.S. #. "taly&, *8=8 "C?. 6lletronica Sicula, S.p.,. %61S"& %U.S. #. "taly&, *8=8 "C?. !89 See 46ST,T6263T -0 T76 1,. T7"45: ! 46ST,T6263T -0 T76 1,.: T76 0-46"C3 461,T"-3S 1,. -0 T76 U3"T65 ST,T6S, sec. 9@*, comment, p. *>! %2ay *<, *8=B&. !8= 1ars ,dam 4ehof, #rticle *, T76 U3":64S,1 56C1,4,T"-3 -0 7U2,3 4"C7TS: , C-2263T,4G 9+, 9+ %Cudmundur ,lfredsson, et al., eds., *88!&. !88 See "nternational Co#enant on Ci#il and Political 4ights, art. !%+& 2cCann and -thers #. United Jingdom, 6ur. Ct. of 7um. 4ts. %Ser.,&, 3o. +!< %*88>&, para. *B*. +@@ "nternational Co#enant on Ci#il and Political 4ights , art. ! Uni#ersal 5eclaration of 7uman 4ights, art. 9 U3 Ceneral ,ssembly 4esolution !*9, %"""&, *@ 5ecember *8<=. Ceneral ,ssembly 4esolution <@A*<<, ,A46SA<@A*<<, *+ 5ecember *8=>, ,336U, 5eclaration on the 7uman 4ights of "ndi#iduals .ho are not 3ationals of the Country in which They 1i#e, Preamble Ceneral ,ssembly 4esolution ><A*@8, ,A46SA><A*@8, !> 0ebruary !@@@, article 8, nos. +'<, articles *9, !* Ceneral ,ssembly 4esolution ><A*B<, ,A46SA><A*B<, !< 0ebruary !@@@, no. <, Preamble, *st par., *@th par., *>th par, *Bth par. Ceneral ,ssembly 4esolution >@A*=B, ,A46SA>@A*=B, B 2arch *88B, no. +, Preamble, paras. 8, *+, Ceneral ,ssembly 4esolution >!A*++, ,A46SA>!A*++, !9 0ebruary *88=, no. <, Preamble, paras. 8, *<. See :ienna Con#ention on the 1aw of Treaties, signed !+ 2ay *8B8, entered into force !9 ?anuary *8=@, art. +*%+& Dhereinafter :ienna Con#entionE C. ;eyani, (he Cegal Premises for the !nternational Protection of Human "ights, T76 46,1"TG -0 "3T643,T"-3,1 1,.: 6SS,GS "3 7-3-4 -0 ",3 ;4-.31"6 !*, !< %*888& Dhereinafter ;eyaniE, citing ;. Simma and P. ,lston, (he 8ources of Human "ights Caw7 &ustom, ?us &ogens, and @eneral Principles, *! ,UST4,1",3 G4;J "3TF1 1 =!, =+ %*8=='=8&. +@* Charter of the United 3ations, Preamble, para. !, articles * %*&, >>, >B "nternational Co#enant on Ci#il and Political 4ights, arts. !, =, 8. See also ;eyani at !< Criton C. Tornaritis, (he !ndividual as a 8ubject of !nternational Caw and !nternational &riminal "esponsibility, * , T46,T"S6 -3 "3T643,T"-3,1 C4"2"3,1 1,. *@+'*@>, **< %2. Cherif ;assiouni, :ed P. 3anda, eds. *89+&. +@! "CCP4, art. ! "nternational Co#enant on 6conomic Social and Cultural 4ights, art. ! Charter of the United 3ations, Preamble, para. !, articles * %*&, >>,>B. See 6uropean Con#ention for the Protection of 7uman 4ights and 0undamental 0reedoms, 3o#.<, *8>@, +*! U.3.T.S. !!* ,merican Con#ention on 7uman 4ights, 3o#. !!, *8B8, 8 ".1.2. B9+ %*89@& ,frican Charter on 7uman and PeopleOs 4ights, ?une !9, *8=*, !* 1.1.2. >8 %*8=*&. See ;eyani at ++, citing T76-5-46 264-3, 7U2,3 4"C7TS 1,.'2,J"3C "3 T76 U3"T65 3,T"-3S *8= %*8=B&. +@+ Uni#ersal 5eclaration of 7uman 4ights, article 9, U3 Ceneral ,ssembly 4esolution !*9, %"""&, *@ 5ecember *8<=. Ceneral ,ssembly 4esolution <@A*<<, ,A46SA<@A*<<, *+ 5ecember *8=>, ,336U, 5eclaration on the 7uman 4ights of "ndi#iduals .ho are not 3ationals of the Country in which They 1i#e, Preamble Ceneral ,ssembly 4esolution ><A*@8, ,A46SA><A*@8, !> 0ebruary !@@@, article 8, nos. +'<, articles *9, !* Ceneral ,ssembly 4esolution ><A*B<, ,A46SA><A*B<, !< 0ebruary !@@@, no. <, Preamble, *st par., *@th par., *>th par, *Bth par. Ceneral ,ssembly 4esolution >@A*=B, ,A46SA>@A*=B, B 2arch *88B, no. +, Preamble, paras. 8, *+, Ceneral

that conventions that nations have entered into evidence the existence of a customary norm *9- !ndeed, the duty to protect human rights is peremptory *92, and under custom and convention is an obligation erga omnes, implicating as it does the interest of all nations in the protection of human rights and fundamental freedoms,*93 and entitling all the nations to invo)e the liability of any state for breaching this obligation *94 I8C"J (here exists in the circle of civilised peoples certain principles connected with the value and dignity of human persons which are so essential for the social life of human beings and for the existence of each person that no 8tate belonging to this circle is entitled to brea) such principles Hence the infringement of these principles of humanity remains a punishable crime, even when it is tolerated, promoted or ordered by a 8tate *95 I!&&J

>.

E8tra"ition

6$tradition is /the surrender of an indi#idual accused or con#icted of a crime by a State within whose territory he is found and his deli#ery to the state where he allegedly committed crime or was con#icted of a crime./+@8 Under Philippine law, e$tradition is only done pursuant to a treaty and con#ention, with a #iew to criminal in#estigation or e$ecution of a prison sentence. +*@ Under international law, there is no duty to e$tradite e$cept pursuant to treaty, and in the absence of a treaty, e$tradition would ha#e to be subject to negotiation, subject to the consent of the e$traditing state.+** The e$tradition process has been characteri)ed as a sui generis process. "t is not a criminal proceeding, but it is also not purely an e$ercise of ministerial functions, for the e$ecuti#e authority has the power to %a& assess the completeness of the e$tradition papers, %b& deny the re(uest if on its face and on the face of the e$tradition documents the offense is not e$traditable,
,ssembly 4esolution >!A*++, ,A46SA>!A*++, !9 0ebruary *88=, no. <, Preamble, paras. 8, *<. +@< 2ichael ,kehurst, &ustom as a 8ource of !nternational Caw, <9 ;4"T. G4;J. -0 "3TF1. 1. *, >+ %*89<'9>&. See also 4. ;a$ter, Multilateral (eaties as %vidence of &ustomary !nternational Caw, ;4"T. G4;J. -0 "3TF1. 1. !9>, !8= %*8B>'BB& and ,kehurst at <+, citing 0isheries ?urisdiction Case, *89< ".C.?. 4eports +, !B, and 1aurit)en #. Co#ernment of Chile %*8>B& !+ "3TF1. 1.4. 9@+, 9!8'+*. +@> See Jaren Parker, ?us &ogens7 &ompelling the Caw of Human "ights, 7,ST"3CS "3TF1 ,35 C-2P. 1.4. <**, <*< %*8=8&. +@B See 4eser#ations to the Con#ention on the Pre#ention and Punishment of the Crime of Cenocide, "C? 4eports %*8>*&, p. < at !+ ;eyani !+. +@9 ;arcelona Traction, 1ight, and Power Company, 1td. Case %Second Phase& X89@ "C? 4eports +, +!, para. ++. See 7ugh Thirlway, (he Caw and Practice of the !nternational &ourt of ?ustice, *8B@'*8=8, B@ ;4"T. G4;J. "3TF1. 1. *, 8= %*8=8& and 1egal Conse(uences for States of the Continued Presence of South ,frica in 3amibia %South .est ,frica& notwithstanding Security Council 4esolution !9B %*89@&, "C? 4eports, *89*, p. >B, para. *!B. See also -PP6376"2FS "3T643,T"-3,1 1,. 8+9'8+8 %4. ?ennings, ,. .atts, 8th ed., *88<&, "reland #s. United Jingdom %*89=&, >= "3TF1. 1. 46P. *==, !8*'!8!, 7ersch 1auterpacht, * C-116CT65 P,P64S *<> %*89@&. +@= ; et al. case %?udgment& %Cerman Supreme Court& 3o#ember *>, *8<8, (uoted in ,nthony Cassese, &rimes #gainst Humanity, * T76 4-26 ST,TUT6 -0 T76 "3T643,T"-3,1 C4"2"3,1 C-U4T +>+, +>> %,ntonio Cassese et al., eds. !@@!&. +@8 2agallona 8@ +*@ 2agallona 8* +** 2agallona 8@'8*. "t has been proposed, howe#er, that the rule is different with regard to international crimes, that states ha#e a duty under customary law to prosecute or e$tradite those persons accused of such offenses. .hen a state cannot prosecute effecti#ely, it is bound to e$tradite to a state that is willing and able to so prosecute. This remains, howe#er, a contro#ersial #iew. See 2. C. ;,SS"-U3", C4"26S ,C,"3ST 7U2,3"TG "3 "3T643,T"-3,1 1,. !*8'!!@ %*888&.

and %c& determine if the e$tradition re(uest is politically moti#ated or is a military offense not co#ered by non'military penal legislation.+*! A. Re9$irements *or E8tra"ition Under the principle of %*& speciality, the re(uesting State must specify the crime under the e$tradition treaty for which the fugiti#e or accused is sought, and to be tried only for the offense specified in the treaty+*+. %!& Eouble criminality is sometimes also deemed a re(uirement for e$tradition. B. E8#e%tions to E8tra"ition 1. The Politi#al O**ense E8#e%tion , state may refuse to e$tradite a person when he is charged for a political offense, that is, an act directed against a security of a state. Cenerally, to be a political offense, the alleged act had to ha#e been %*& an o#ert act, %!& done in support of a political rising %+& which rising being connected with a dispute or struggle between two groups in a state as to who would control the go#ernment.+*< "n other words, a political offense may be an act that although it is in itself a common crime, ac(uires a predominantly political character because of the cicumstances and moti#ations under and for which it was committed.+*> ;y way of e$ception to this e$ception, %*& persons accused of offenses that are considered to be crimes against international law must nonetheless be e$tradited, unless they can be effecti#ely prosecuted in the state with custody+*B. Possible e$amples of such crimes are war crimes, crimes against humanity, and genocide, sla#ery, and torture+*9. ,nother e$ception to the political offense e$ception is with regard to %!& attentat clauses. These are pro#isions in the e$tradition treaty that stipulate that an attempt against or taking of the life of a head of state or a member of hisAner family does not constitute a political offense and is therefore e$traditable.+*= &. The Nationality E8#e%tion31? States may refuse to e$tradite persons when they are nationals of the re(uested state. 1atin ,merican and Continental 6uropean countries so refuse, reser#ing for themsel#es the prosecution of their own citi)ens e#en when the alleged crime was carried out somewhere else in the world. 7owe#er, under the doctrine of reciprocity, if a re(uesting State has, in the past, shown willingness to surrender its own citi)ens, then the detaining state is normally willing to e$tradite its own citi)ens, e$cept when its Constitution forbids the surrender of its citi)ens.
+*! +*+

Secretary of ?ustice #. 1antion, +! SC4, *B@, *=*'*=! %!@@@&. 2agallona 8! +*< :on Clahn !B< +*> :on Clahn !B< +*B 2. C. ;,SS"-U3", C4"26S ,C,"3ST 7U2,3"TG "3 "3T643,T"-3,1 1,. !*8'!!@ %*888&. +*9 See ST6:63 4,T364 ,35 ?,S-3 ,;4,2S, ,CC-U3T,;"1"TG 0-4 7U2,3 4"C7TS ,T4-C"T"6S "3 "3T643,T"-3,1 1,. %!nd ed., !@@*&. +*= 2agallona 8*'8! +*8 :on Clahn !B*'!B!

Part =o$r The La s o* War >I. War A. )e*inition (he standard definition of war is that it is an armed conflict between states (hus, Fppenheim0s seminal wor) defines war as +# contention between two or more 8tates through their armed forces, for the purpose of overpowering each other and imposing such conditions of peace as the victor pleases +*'9 (he definition, to be sure, has its criticisms Fne of these is that it does not include the possibility that a formal state of war may exist without armed hostilities. another is that it does not include wars that do not have overpowering the other as the purpose (hus, one author proposes an alternate definition of war as7 a hostile interaction between two or more 8tates, either in a technical or in a material sense $ar in the technical sense is a formal status produced by a declaration of war $ar in the material sense is generated by actual use of armed force, which must be comprehensive on the part of at least one party to the conflict *': !n addition, a distinction is made between inter-state and internal wars, to the former of which the foregoing definition is applicable !nter-state wars are governed by the &harter system, as earlier described, while internal wars, as mentioned above, are considered to be beyond the purview of international law insofar as their initiation is concerned*'', although their conduct is governed by substantially the same standards of humanitarian law &ontemporary terminology, it may be noted, avoids the use of the term 0war0 and presently focuses on the question of the existence of armed conflict !n the new parlance, an armed conflict exists when there is a use of armed force between 8tates or protacted armed violence between governmental authorities and organized armed groups or between such armed groups within a 8tate *'* # transnational armed conflict*'-, in turn, requires only the concurrence of three elements7 I:J the use of armed force I'J between at least two transnational entities I*J which use of force is of a trans-border characterA B. 1in"s o* War
+!@

1. -PP6376"2, ! "3T643,T"-3,1 1,. !@! %9th ed., by 7. 1auterpacht, *8>!&, (uoted in G-4,2 5"3ST6"3, .,4, ,CC46SS"-3, ,35 S610'56063S6 < %!nd ed., *88<&. +!* G-4,2 5"3ST6"3, .,4, ,CC46SS"-3, ,35 S610'56063S6 *>'*B %!nd ed., *88<& +!! See 2ilitary and Paramilitary ,cti#ities in and against 3icaragua %3icar. #. U.S.&, *8=B ".C.?. < %?une !>&, par. !@>. +!+ Prosecutor #. Tadic, Case "T'8<'*'T, 2ay 9, *889 %"nternational Criminal Tribunal for the 0ormer Gugosla#ia, Trial Chamber "", *889&, in **! "3TF1. 1. 46P. !, 9l Prosecutor #. Tadic %?urisdiction&, -ctober !, *88> %"nternational Criminal Tribunal for the 0ormer Gugosla#ia, ,ppeals Chamber, *88>&, in *@> "3TF1. 1. 46P. <*8, <!< +!< See Cabor 4ona, !nteresting (imes for !nternational Humanitarian law7 &hallenges from the +$ar on (error+, !9'0,11 016TC764 0. .-415 ,00. >>, B< %!@@+&.

!n addition, a distinction is made between inter-state and internal wars, to the former of which the foregoing definition is applicable !nter-state wars are governed by the &harter system, as earlier described, while internal wars, as mentioned above, are considered to be beyond the purview of international law insofar as their initiation is concerned*'2, although their conduct is governed by substantially the same standards of humanitarian law C. The 1aws of .ar, in general *.

>II.

2$s a" Bell$m

The present jus ad bellum, as contained in both treaty+!B %especially the United 3ations Charter& and custom+!9. ,. 7istorical ,ntecedents !n the middle ages and the early modern era, as the $estphalian inter-state system rose from the vestiges of the federated &hristian commonwealth, academic discussions of jus ad bellum were dominated by the just war theory proposed by "oman philosophers and developed by such thin)ers as 8t #ugustine, 8t (homas #quinas and ;rancisco 8uarez *'5 Knder this doctrine, a war would be licit or just, only if it complies with all of several conditions *'6, which, under a recent restatement of just war theory, are7 the existence of a just cause, comparatively greater justice on the side fighting the just war, the conduct of war by legitimate authority, right intention, probability of success, proportionality of the destruction to the good sought, and the waging of war as a last "esort7**9 (he just war theory had, in its favor, the commendation of antiquity and religion as well as its intuitive validity. but it suffered from the theoretical disagreements of its adherents as well as from the inattention of governments, which fought less for ratio recta than for raison d0etre !n addition, the virtual destruction of !mperial authority after the !nvestiture controversy **: and of Papal authority in the sixteenth and seventeenth centuries **' removed the supranational
+!>

See 2ilitary and Paramilitary ,cti#ities in and against 3icaragua %3icar. #. U.S.&, *8=B ".C.?. < %?une !>&, par. !@>. +!B 2. Cherif ;assiouni, (he Eefinition of #ggression in !nternational Caw, * , T46,T"S6 -3 "3T643,T"-3,1 C4"2"3,1 1,. *>8, *B* et seq. %2. Cherif ;assiouni, :ed P. 3anda, eds. *89+&. +!9 2ilitary and Paramilitary ,cti#ities in and against 3icaragua %3icar. #. U.S.&, *8=B ".C.?. < %?une !>&. +!= , C. ,rend and 4. ?. ;eck, "3T643,T"-3,1 1,. ,35 T76 US6 -0 0-4C6 *>b et se(.%*88+&. ;ederman, op cit. ?. 4aymond, (he ?ust $ar (heory, http:AAwww.monksofadoration.orgAjustwar.html %#isited *+ ?uly !@@!&. +!8 5. Cole, @ood $ars@ **B 0"4ST T7"3CS !9'+* %!@@*&. S. Thomas ,(uinas, SU22, T76-1-C"C,, !ae !a, N. <@, a.*. at http:AAwww.newad#ent.org. C. 2acksey, $ar, *> T76 C,T7-1"C 63CGC1-P65", %*8*!& at http:AAwww.newad#ent.org. ++@ 3ational Conference of Catholic ;ishops, (he Harvest of ?ustice is 8own in Peace7 # "eflection of the >ational &onference of &atholic 1ishops on the (enth #nniversary of (he &hallenge of Peace , 3o#ember *9, *88+, part ". ;. !. ++* ;aldwin !=8 et seq. ++! The Protestant re#olt of the si$teenth century was allied, in fact, with the centrifugal tendencies of the age, especially the particularism of the #arious kingdoms and principalities of 3orthern 6urope. ;aldwin +>+. The

authorities that could compel governments to abide by the rigors of the just war theory $ith the consequent accentuation of state sovereignty and the rise of positivist theory, the just war theory was eclipsed,*** even in scholarship #ccording to positivism, law proceeded from the will of the sovereign nation, and it was erroneous to suppose that any natural law could limit a state0s right to wage war by requiring just-ness **- (his made for interesting legal consequences (o ta)e one example, positivist theory held that a state could not use force short of war-- such as in reprisals-- except when the requisite conditions were fulfilled, li)e the conditions for reprisals set out by the >aulilaa #rbitration **2 However, even an invalid reprisal could be made legal by the simple expedient of declaring war, for the old theory held that states had the sovereign right to wage war on any other state, for any reason, **3 including conquest**4 (he devastation of two $orld $ars forced nations to rethin) positivism and usher in a new period of jus ad bellum #fter the ;irst $orld $ar, there were many attempts to restrict the initiation war7 the Ceague &ovenant, @eneva Protocol draft of :6'-, the Cocarno (reaties of :6'2, culminating in the @eneral treaty for the "enunciation of $ar I#ugust '4, :6'5J, better )nown as the Lellogg-1riand Pact **5 (hese, however, proved unable to prevent the world0s descent into chaos in the decade after the Pact of Paris. and after the 8econd $orld $ar, the allies drafted the &harter of the Knited >ations, which straitened and strengthened the limitations contained in the &ovenant and the Pact #longside custom, the &harter, mutatis mutandis, constitutes the present jus ad bellum **6 1 (he Present Caw

(he &harter of the Knited >ations was signed in :6-3, initially by the victorious #llies (wo of the avowed purposes of the &harter were to establish a stable post-war system for the maintenance of international peace and security, and to further the protection of human rights and fundamental freedoms*-9 #longside the principle of recognition of the equality of states*-:, these sometimes incompatible objectives have been the animus of much Knited >ations activity (he conception of world order projected by the K> &harter is based on the fundamental principle that any change in the structure of power should be done peacefully *-' (hus, the
princes of southern 6urope were not so ready to break with their ancient 0aith, but they were no less eager to assert their power against the Papacy, hence the near'complete erosion of supranational authority. See 6.6.G. 7,16S, P"3-3-: , STU5G "3 6U4-P6,3 P-1"T"CS ,35 461"C"-3 "3 T76 3"36T663T7 C63TU4G << %*8B!& +++ ,rend, op. cit. at *9. ++< 1. -PP6376"2, ! "3T643,T"-3,1 1,. *99 %7. 1auterpacht, ed. *8<<&. ++> ,. 5. 2C3,"4, T76 16C,1 6006CTS -0 .,4 *B %*8BB&. ++B ,rend op. cit. at *9. -ppenheim op. cit. at *99 ++9 1. -ppenheim, ! "3T643,T"-3,1 1,. <B=, <B9'<B= %*8<<& See also .. 6. 7all, , T46,T"S6 -3 "3T643,T"-3,1 1,. >== %*=8>&. ++= 2. Cherif ;assiouni, (he Eefinition of #ggression in !nternational Caw7 (he &rime #gainst Peace , * , T46,T"S6 -3 "3T643,T"-3,1 C4"2"3,1 1,. *>8, *B@'*B* %2. Cherif ;assiouni, :ed P. 3anda, eds. *89+&. ++8 ;rownlie, in addition, thinks that the Treaty for the 4enunciation of .ar remains in force, that the Pact and the Charter are the ! major sources of the norm limiting force. See 2. Cherif ;assiouni, (he Eefinition of #ggression in !nternational Caw, * , T46,T"S6 -3 "3T643,T"-3,1 C4"2"3,1 1,. *>8, *B* %2. Cherif ;assiouni, :ed P. 3anda, eds. *89+&. +<@ United 3ations Charter, art. * +<* United 3ations Charter, art. !%*& +<! ?ohn C. 3o#ogrod, &ivil 8trife and !ndirect #ggression, *8=, *8=, * , T46,T"S6 -3 "3T643,T"-3,1 C4"2"3,1 1,. %2. Cherif ;assiouni, :ed P. 3anda, eds. *89+&

lynchpin of the &harter0s provisions for the maintenance of international peace was the general prohibition of the use of force contained in #rticle 'I-J, which provides that (he Frganization and its Members, in pursuit of the Purposes stated in #rticle :, shall act in accordance with the following Principles xxx - #ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the Knited >ations (he &harter then provided two exceptions to the prohibition, although the proposition that these exceptions are exclusive remains subject to debate*-*, especially after the 8eptember :: attac)s Fne exception provided in the &harter was the collective security apparatus contained in &hapter B!! of the &harter, which allows for a successive process of conflict resolution, culminating in armed enforcement actions carried out under the aegis of the 8ecurity &ouncil *-(he &ouncil itself is a two-tier affair, an apparent compromise between the majoritarian orientation of the &harter and the interests of the +1ig ;ive+ Ireminiscent of the system wrought by the &ongress of Bienna that came to be overseen by ;rance, %ngland, Prussia, "ussia, and Metternich0s #ustria*-2J !n theory, the permanent &ouncil members would provide the &ouncil0s variant of a general staff*-3, and troop contributions would be given by K> members for &ouncil actions on the basis of agreements *-4 (he second exception to the &harter prohibition was contained in article 2:, which states that +<n=othing in the present &harter shall impair the inherent right of individual or collective selfdefence if an armed attac) occurs against a Member of the Knited >ations, until the 8ecurity &ouncil has ta)en measures necessary to maintain international peace and security + (here is some debate as to whether it creates a conventional exception or merely recognizes a right intrinsic to the status of statehood, albeit the wording of the provision seems to incline towards the latter !n any case, the parameters for this exception were restrictively interpreted by the !nternational &ourt of ?ustice in the >icaragua case Knder the >icaragua holding, these conditions must concur for a claim of self-defense to be valid7 necessity, that is, the use of force must be necessary to defend against an armed attac). immediacy Ithe forcible response must be promptly after the attac)J. and proportionality Ithe force must be proportional to the attac) madeJ ;urthermore, for a state to underta)e collective self-defense for another state, the state under attac) must have declared that it is under attac) and it must have as)ed for assistance *-5 >III. 2$s in Bello

+<+

.. 2"C7,61 46"S2,3, 3U11"TG ,35 46:"S"-3: T76 46:"6. ,35 630-4C6263T -0 "3T643,T"-3,1 ?U5C263TS ,35 ,.,45S =<B'=>* %*89*&. See 2. Cherif ;assioni, (he Eefinition of #ggression in !nternational Caw7 (he &rime #gainst Peace, * , T46,T"S6 -3 "3T643,T"-3,1 C4"2"3,1 1,. *>8, *B< %2. Cherif ;assiouni, :ed P. 3anda, eds. *89+&. +<< See United 3ations Charter, art. <@ +<> C7,416S 063."CJ, "3T643,T"-3,1 1,. *9'*8 %<th ed.& +<B U3 Charter, art. <9 +<9 U3 Charter, art. <+ +<= 2ilitary and Paramilitary ,cti#ities in and against 3icaragua %3icar. #. U.S.&, *8=B ".C.?. < %?une !>&.

>I:.

Ne$trality

A>eutrality rules ma)e war the pre-condition for applicability7 there is no neutral party if there is no war 8uch neutrality, it may be noted, denotes not only the fact of non-participation in a conflict, but li)ewise the duties and rights attendant to such non-participation *-6 !t is based on the idea that, in relation to a conflict between two powers, a third state may choose only between the alternatives of joining in the war and complying with the obligations of neutrality *29 8uch obligations include the duty not to allow the passage of belligerent troops except the injured, escaped prisoners, or those see)ing asylum, and of war material. the duty not to permit belligerent recruitment in neutral territory and not to extend loans to belligerents. and the duty not to permit hostile acts on neutral territory against belligerents *2: # belligerent, in turn, would have the obligation not to do the acts that neutral parties are forbidden to permit on their territories

MATERIALS CITE) A. BooAs an" Treatises 4,G ,UCUST, PU;1"C "3T643,T"-3,1 1,. %*88>& 2. C. ;,SS"-U3", C4"26S ,C,"3ST 7U2,3"TG "3 "3T643,T"-3,1 1,. %*888&. ?. ;4"641G, T76 1,. -0 3,T"-3S %*8B+& ;"3 C763C, T76 C6364,1 P4"3C"P16S -0 1,. ,S ,PP1"65 ;G "3T643,T"-3,1 C-U4TS ,35 T4";U3,1S %repr. *8=9& ",3 ;4-.31"6, P4"3C"P16S -0 PU;1"C "3T643,T"-3,1 1,. %*88=&, "S,C,3" C4UH, P7"1"PP"36 P-1"T"C,1 1,. %*88=&. "S,C,3" C4UH, 46:"6.64 "3 PU;1"C "3T643,T"-3,1 1,. %*88+&. "3C4"5 56TT64, T76 "3T643,T"-3,1 16C,1 -4564 .. 6. 7,11, , T46,T"S6 -3 "3T643,T"-3,1 1,. %*=8>&. "nternational 1aw Commission, &ommentaries to the draft articles on "esponsibility of 8tates for internationally wrongful acts, 4eport of the "nternational 1aw Commission on the work of its 0ifty'third session, chp.":.6.!, C,-4 Sess. >B, Supp. 3o. *@, p. *8<'!@B, U.3. 5oc. ,A>BA*@ %!@@*& .. 16:", C-3T62P-4,4G "3T643,T"-3,1 1,.: , C-3C"S6 "3T4-5UCT"-3 %*898&. 2641"3 2,C,11-3,, ,3 "3T4-5UCT"-3 T- "3T643,T"-3,1 1,. "3 461,T"-3 T- P7"1"PP"36 1,. %!nd ed., *889& ,43-15 5U3C,3 2C3,"4, T76 1,. -0 T46,T"6S %*8B*&. T76-5-4 264-3, 7U2,3 4"C7TS ,35 7U2,3"T,4",3 3-42S ,S CUST-2,4G 1,. %*8=8&. -PP6376"2FS "3T643,T"-3,1 1,. %4obert ?ennings, ,rthur .atts, 8th ed., *88!&. ST6:63 4,T364 ,35 ?,S-3 ,;4,2S, ,CC-U3T,;"1"TG 0-4 7U2,3 4"C7TS ,T4-C"T"6S "3 "3T643,T"-3,1 1,. %!nd ed., !@@*&. ?-:"T- S,1-3C,, P4":,T6 "3T643,T"-3,1 1,. %*88> ed., *88>& ?-:"T- S,1-3C, ,35 P654- G,P, PU;1"C "3T643,T"-3,1 1,. %>th ed., *88!& 2,1C-12 S7,., "3T643,T"-3,1 1,. %<th ed., *889&, 7.0. :,3 P,37UGS, T76 4-16 -0 3,T"-3,1"TG "3 "3T643,T"-3,1 1,. %*8>8&
+<8 +>@

Stone +=@ Stone +=+ +>* Stone +=>'+8*

C647,45 :-3 C1,73, 1,. ,2-3C 3,T"-3S: ,3 "3T4-5UCT"-3 T- PU;1"C "3T643,T"-3,1 1,. %>th ed., *8=B&. B. Com%ilations ;arry Carter and Philip Trimble, "3T643,T"-3,1 1,. %!nd ed., *88>& 4obert 2ac1ean %ed.&, PU;1"C "3T643,T"-3,1 1,. C,S6;--J %*Bth ed., *88B& ,. 5. 2c3air, ed., ! "3T643,T"-3,1 1,. -P"3"-3S %*8>B& ..4. 2anning %ed.&, + 5"P1-2,T"C C-446SP-3563C6 -0 T76 U3"T65 ST,T6S: C,3,5",3 461,T"-3S *9=<'*=B@, %*8<+&. C. Arti#les 2. ,kehurst, &ustom as a 8ource of !nternational Caw, <9 ;4"T. G4;J "3T1 1 * %*89<'9>&. 4. ;a$ter, Multilateral (eaties as %vidence of &ustomary !nternational Caw ;4"T"S7 G4;J -0 "3T1 1,. !9>, %*8B>'BB& 0lorentino 0eliciano and Peter 1.7. :an den ;ossche, (he Eispute 8ettlement 8ystem of the $orld (rade Frganization7 !nstitution, Process and Practice, 9> P7"1. 1. ?. *, *<'*8 %!@@@&. C. 0it)maurice, (he Caw and Procedure of the !nternational &ourt of ?ustice, +@ ;4"T G4;J. "3TF1 1 *, %*8>+& ,. .. 0reeman, @eneral >ote on the Caw of $ar 1ooty, ,2. ?. "3TO1. 1. 98>, %*8<B& ?. 7. 2erryman, (hin)ing #bout the %lgin Marbles, =+ 2"C7. 1. 46:. *==*, %*8=>&. 2. 4aga))i, !nternational Fbligations %rga Fmnes7 (he Moral ;oundation and &riteria of !dentification in Cight of (wo ?apanese &ontributions, T76 46,1"TG -0 "3T643,T"-3,1 1,.: 6SS,GS "3 7-3-4 -0 ",3 ;4-.31"6 <>B, %C. S. Coodwin'Cill and S. Talmon, eds. *888&. 7ugh Thirlway, (he Caw and Procedure of the !nternational &ourt of ?ustice, :639-:656, B@ ;4"T. G4;J. "3T,1. 1. *, %*8=8&. ). International Instr$ments Charter of the United 3ations "nternational Co#enant on Ci#il and Political 4ights, in force 2ar. !+, *89B, art. *<, 888 U.3.T.S. *9*, reprinted in B ".1.2. +B= %*8B9&. "nternational 1aw Commission, 5raft articles on 4esponsibility of States for internationally wrongful acts, 46P-4T -0 T76 "3T643,T"-3,1 1,. C-22"SS"-3 -3 T76 .-4J -0 "TS 0"0TG'T7"45 S6SS"-3, U.3. C,-4 Sess. >B, Supp. 3o. *@, chp.":.6.*, in U.3. 5oc. ,A>BA*@ %!@@*& Dhereinafter ,S4E. 2onte#ideo Con#ention on the 4ights and 5uties of States, 5ec. !B, *8++, art. *, <8 Stat. +@89 %*8++&. -uter Space Treaty, adopted ?an. !9, *8B9, art. *, B9! U3TS **8. Statute of the "nternational Court of ?ustice, art. +=%*&. Uni#ersal 5eclaration of 7uman 4ights, U3 Ceneral ,ssembly 4esolution !*9, %"""&, U.3. 5oc. ,A=*@ %*8<=& . :ienna Con#ention on the 1aw of Treaties, signed 2ay !+, *8B8 E. Cases

1. Phili%%ine #ases ,CC0, #. 0ederation of 1abor Unions, +@ SC4, B<8 ;ayan #. Hamora, +<! SC4, <<8, %!@@@&. Co Jim Chan #. :alde) Tan Jeh and 5i)on, 9> Phil. **+, %*8<>&. 0estejo #. 0ernando, >@ -C *>>B 7oly See #. 4osario, !+= SC4, >!< Sanders #. :eridiano, *B! SC4, == %*8==& Secretary of ?ustice #. 1antion, +! SC4, *B@, %!@@@&. &. International Cases ,ramco Case, !9 "3T1 1 46P **9 %*8B+& ,sylum Case %Colombia #. Peru&, *8>@ ".C.?. !BB. ;arcelona Traction, 1ight, and Power Company, 1td. Case %Second Phase& %;elgium #. Spain&, *89@ "C? 4eports + ;P #. 1ibyan ,rab 4epublic, >+ "3TF1. 1. 46P. !89 Corfu Channel Case %U.J. #. ,lbania&, *8<8 ".C.?. <. Caire claim %0rench'2e$ican Claims Commission, *8!8&, > 46P. "3TF1 ,4;.,.,45S >*B Chor)ow 0actory Case %?urisdiction&, P.C.".?., Ser. ,, 3o. *9 %*8!=&. 6lletronica Sicula, S.p.,. %61S"& %U.S. #. "taly&, *8=8 "C?. CabcLko#o'3agymaros Project %7ung. #. Slo#.& *889 ".C.?. 9 %Sept. !>&. 1a 2asica case, ** 46P. "3TF1 ,4;. ,.,45S ><8, %*8*B&, 1and, "sland and 2aritime 5ispute %6l Sal#ador #. 7onduras, 3icaragua inter#ening&, *88! "C? %Sept. **&. 1aurit)en #. Co#ernment of Chile %*8>B& !+ "3TF1. 1. 46P. 9@+ 1egal Status of 6astern Creenland %5enmark #. 3orway&, PC"? Ser. ,A;, 3o. >+ %*8++&. 2aal case, *@ 46P. "3TF1 ,4;.,.,45S 9+@, %*8@+&, 2ilitary and Paramilitary ,cti#ities in and against 3icaragua %3icar. #. U.S.&, *8=B ".C.?. < %?une !>&. 3ationality 5ecrees "ssued in Tunis and 2orocco, ,d#isory -pinion, PC"?, Ser. ;, 3o. < %*8!<&. 3eer claim %US'2e$ican Ceneral Claims Commission, *8!B& 3ottebohm case %1iechtenstein #. Cuatemala&, *8>> ".C.?. < 3oyes Claim, B 46P. "3TF1 ,4;.,.,45S +@= 3uclear Tests Case %3ew Healand #. 0rance&, *89< "C? %5ec. !@&, a summary in the "C? website %http:AAwww.icj'cij.org& The -bser#er and the Cuardian #. United Jingdom, *< 6ur. 7.4. 4ep. *>+, %6C74, *88!& -scar Chinn Case, *8+< P.C.".?. %ser. ,A;&, 3o. B+, Pans#e)ys'Saldutiskis 4ailway Case %6stonia #. 1ithuania&, PC"? 4eports, Series ,A; 9B, 4eparations for "njuries Suffered in the Ser#ice of the United 3ations, ,d#isory -pinion, *8<8 ".C.?. *<9. 4ight of Passage o#er "ndian Territory %Portugal #. "ndia&, *8B@ ".C.?. B. 4ussian "ndemnity Case %*8*!&, ** 46P "3TF1 ,4;. ,.,45S <<+ Societe Commerciale de ;elgi(ue, *8+8, PC"? Series ,A;, 3o. 9=, p. *B@ Soering #. UJ, ** 6ur. 7.4. 4ep. <+8 %*8=8&. Te$aco -#erseas Petroleum Co. #. 1ibyan ,rab 4epublic, >+ "3TF1. 1. 46P. +=8. Trail Smelter ,rbitration %US #. Canada&, + 4ep. "ntFl ,rb. ,wards *8@> %*8+=, *8<*& Union ;ridge Company Case, B 46P. "3TF1 ,4;.,.,45S *+= %*8!<&

United States 5iplomatic and Consular Staff in Tehran %US #. "ran&, *8=@ "C? +. Goumans case, *< 46P. "3TF1 ,4;. ,.,45S **@, %*8*B&. .imbledon Case %Creat ;ritain, 0rance, "taly, ?apan #. Cermany&, P.C.".?. Ser. ,, 3o. * %*8!+&