Professional Documents
Culture Documents
1. Customary Law o Dissenting states are bound by custom unless they had
2. International agreement consistently objected to it while the custom was merely in the
3. General principles common to the major legal system process of formation
o It is also possible that after a practice has been accepted as
Commencement of their Existence Can an entity claim to be a state before it is recognized by other states?
Declaratory Theory Constitutive Theory
State, as a person of international law, should possess the following
qualifications: (Montevideo Convention of 1933 on Rights and Duties of Recognition is merely ―declaratory‖ of Recognition ―constitutes‖ a state
the existence of the state
States)
1. Permanent population—PEOPLEa community of persons sufficient Its being a state depends upon its It is what makes a state a state and
in number and capable of maintain the permanent existence of the possession of the required elements confers legal personality on the entity
community and held together by a common bond of law and not upon recognition
States may decide to recognize an
2. Defined territory—an entity may satisfy this requirement even if entity as a state even if it does not
its boundaries have not been finally settled, if one or more of its have all the elements of a state
boundaries are disputed, or if some of its territory is claimed by
another state Recognition of Government—act of acknowledging the capacity of an entity to
An entity does not necessarily cease to be a state even if all its exercise powers of government of a state
territory has been occupied by a foreign power or if it has If a change in government in an existing state comes about through
otherwise lost control of its territory temporarily ordinary constitutional procedure = recognition by others comes as a
matter of course
3. Government—that institution or aggregate of institutions by which
an independent society makes and carries out those rules of action THE TINOCO ARBITRATION
which are necessary to enable men to live in a social state FACTS:
It is the National Government that has legal personality and it is Government of Costa Rica was overthrown by Tenneco. The latter’s
such that is internationally responsible for the actions of other government entered into contracts with British corporations. When
agencies and instrumentalities of the state Tenneco retired and left the country, the old constitution was restored and
Temporary absence of government does not terminate the a Law of Nullities was passed annulling contracts concluded during the
existence of a state Tenneco regime. Great Britain made claims on the basis of the injuries
done to its nationals caused by the annulments.
4. Taiwan—a non-state territory which de jure is part of China The objective of the grant of immunity is to avoid the danger of partiality
and interference by the host country in their internal workings. The end
5. The Sovereign Order of Malta—the Italian Court of Cassation in 1935 result of the protective blanket that has been wrapped around IRRI is the
recognized its international personality efforts of employees to seek redress for violations of labor rights have been
repeatedly rebuffed by SC. For all practical purposes, they are denied the
6. The Holy See and Vatican City—recognized under Lateran Treaty; it full protection for labor guaranteed in the Constitution.
has no permanent population
DFA v. NLRB
ISSUE:
CHAPTER 6 OTHER SUBJECTS OF INTERNATIONAL LAW w/n NLRC could assume jurisdiction over a case of illegal dismissal against
ADB
INTERNATIONAL ORGANIZATIONS
An organization that is set up by treaty among 2 or more states which HELD:
have international personality ADB enjoys immunity from every form of legal process, except in cases
Constituent instruments of international organizations are multilateral arising out of or in connection with the exercise of its powers to borrow
treaties, to which the well-established rules of treaty interpretation money, to guarantee obligations, or to buy and sell or underwrite the sale
apply of securities.
Non-governmental organizations (NGO)—set up by private persons
Although international organizations have personality in international law,
their powers and privileges are by no means like those of states since
it is limited by the constitutional instrument that created them
叶清蓮 Public International Law P a g e |9
WHO v. AQUINO o There are 15 member states, 5 permanent and the others are
HELD: elected for 2 year terms in accordance with equitable
Diplomatic immunity is essentially a political question and courts should geographic representation
refuse to look beyond a determination by the executive branch of the o Distinguishes between
government, and where the plea of diplomatic immunity is recognized and a. Procedural matters
affirmed by the executive branch of the government, it is then the duty of b. All other matters—requires 9 affirmative votes, including
the courts to accept the claim of immunity upon appropriate suggestion by the concurring votes of the permanent members
the principal law officer of the government or other officer acting under o The Charter does not specify what matters are procedural,
this discretion. hence, decision on whether a matter is procedural or not
requires the concurrence of the permanent members
JEFFREY LIANG v. PEOPLE o Abstention = veto
FACTS:
This involved a criminal complaint against Liang, an ADB official, for grave 3. Economic and Social Council (ECOSOC)—has 54 members elected
oral defamation. Appeal was made to the political character of Liang as an for 3 year terms
agent of international organization.
4. Trusteeship Council—supervises non-self governing territories
HELD: o The Council suspended operations after Palau became
Immunity granted to officers and staff of ADB was not absolute; but limited independent on Oct. 1, 1994
to acts performed in an official capacity.
5. International Court of Justice (ICJ)—principal judicial organ of
the UN
The United Nations: Structure and Powers
6. Secretariat—comprises a Secretary General and such staff as the
Came into being on Oct. 24, 1945
Organization may require
A universal organization charged with peacekeeping responsibilities,
o Secretary General—elected to a 5 year term by General
development of friendly relations among nations, achievement of
Assembly upon the recommendation of the Security Council,
international cooperation in solving international problems of an
subject to veto power
economic, social, cultural and humanitarian character, and the
promotion of human rights and fundamental freedoms for all human Other Agencies:
beings without discrimination 1. United Nations Educational, Scientific and Cultural Organizations
UN is enjoined against intervening in matters which are essentially within
(UNESCO)
the domestic jurisdiction of any state
2. International Civil Aviation Organization (ICAO)
International Constitutional Supremacy Clause—in the hierarchy of 3. World Health Organization (WHO)
international organizations, the UN occupies a position of preeminence 4. Food and Agricultural Organization (FAO)
so if there is a conflict with other international agreement, obligations 5. World Bank
under the UN Charter shall prevail 6. International Monetary Fund (IMF)
Principal organs of UN:
1. General Assembly—it has plenary power in the sense that it may Regional Organizations—they are neither organs nor subsidiary organs of UN
discuss any question or any matters within the scope of the They are autonomous international organizations having an
Charter institutional affiliation with UN by concluding agreements with UN
o GA distinguishes between Created by international agreements for the purpose of dealing with
a. Important questions—decided by 2/3 majority of the regional problems in general or with specific matters be they
members voting and present economic, military or political
b. Other questions—decided by the majority
ASEAN—established on Aug. 8, 1967 in Bangkok, Thailand with the signing of
2. Security Council—has primary responsibility for the maintenance the Bangkok Declaration by the 5 original member countries: Indonesia, Malaysia,
of international peace and security Philippines, Singapore and Thailand
In the present instance, the authority to require the absent citizen to return
NATIONALITY PRINCIPLE and testify necessarily implies the authority to give him notice of the
o This is generally supported in customary law requirement. As his attendance is needed in court, it is appropriate that the
o Every state has jurisdiction over its nationals even when those Congress should authorize the court to direct the notice to be given, and that it
nationals are outside the state should be in the customary form of a subpoena. ... The question of the validity
of the provision for actual service of the subpoena in a foreign country is one
Blackmer v. US that arises solely between the government of the United States and the citizen.
Facts: The mere giving of such a notice to the citizen in the foreign country of the
A US consular officer in Paris served Blackmer with a notice to return to requirement of his government that he shall return is in no sense an invasion of
Washington to testify for the US government. His testimony would help to any right of the foreign government and the citizen has no standing to invoke
ascertain the facts during criminal and civil investigations of the scandal. After any such supposed right.
Blackmer ignored this court order to return to the US, the trial judge found him
in contempt of court for failing to appear. Blackmer then petitioned the US Effective Nationality Link – used to determine which 2 states of which a
Supreme Court for relief from the lower court’s contempt order and related fine. person is a national will be recognized as having the right to give diplomatic
protection to the holder of dual nationality
Paris, France, was adjudged guilty of contempt of the Supreme Court of the Nottebohm was born in Germany, and was a German citizen, although he lived
District of Columbia for failure to respond to subpoenas served upon him in in Guatemala since 1903, and conducted a prosperous business there, but never
France and requiring him to appear as a witness on behalf of the United States became a citizen of Guatemala. In 1939, he applied to become a citizen of
at a criminal trial in that court. Liechtenstein. The application was approved even though a requirement was
that he be in residence there for at least 3 years, but there was an exception
Two subpoenas were issued, for appearances at different times, and there was and he became a citizen of Liechtenstein. When he tried to re-enter Guatemala
a separate proceeding with respect to each. The two cases were heard in 1943, he was refused entry (probably because of his original German
together, and a fine of $30,000 with costs was imposed in each case, to be citizenship and because of WWII). Liechtenstein offered Nottebohm protection
satisfied out of the property of the petitioner which had been seized by order against the government of Guatemala and sued Guatemala in the International
of the court. The decrees were affirmed by the Court of Justice.
While it appears that the petitioner removed his residence to France in the However, the government of Guatemala argued that Nottebohm did not gain
year 1924, it is undisputed that he was, and continued to be, a citizen of the Liechtenstein citizenship for the purposes of international law.
United States. He continued to owe allegiance to the United States. By virtue
of the obligations of citizenship, the United States retained its authority over Issue:
him, and he was bound by its laws made applicable to him in a foreign country. Whether the conferment of the Lichtenstein citizenship is not contrary to int'l
Thus, although resident abroad, the petitioner remained subject to the taxing law, and if Lichtenstein's claim on behalf of Nottebohm is admissible in court
power of the United States. For disobedience to its laws through conduct abroad,
he was subject to punishment in the courts of the United States. With respect Held:
to such an exercise of authority, there is no question of international law, but No. The court agreed with Guatemala and held that claims by Lichtenstein
solely of the purport of the municipal law which establishes the duties of the were inadmissible. Although the Court stated that it is the sovereign right of all
citizen in relation to his own government. While the legislation of the Congress, states to determine its own citizens and criteria for becoming one in municipal
unless the contrary intent appears, is construed to apply only within the law, such a process would have to be scrutinized on the international plain in
territorial jurisdiction of the United States, the question of its application, so questions of diplomatic protection. The Court upheld the principle of effective
far as citizens of the United States in foreign countries are concerned, is one of nationality, where the national must prove a meaningful connection to the
construction, not of legislative power. Nor can it be doubted that the United state in question.
叶清蓮 Public International Law P a g e | 17
This principle was previously applied only in cases of dual nationality to PROTECTIVE PRINCIPLE
determine which nationality should be used in a given case. However, Nottebohm o This is generally supported in customary law
had forfeited his German nationality and thus only had the nationality of o State may exercise jurisdiction over conduct outside its territory
Liechtenstein. that threatens its security as long as that conduct is generally
recognized as criminal by states in the international community
Corporations – state has jurisdiction over corporations organized under its o However, this is strictly construed to those offenses posing a direct,
laws specific threat to national security
Maritime vessels – state has jurisdiction over vessels flying its flag Examples of acts covered by Protective Principle:
o Same applies to aircraft and spacecraft a. Plots to overthrow the government
b. Forging its currency
Stateless Persons – persons who have no nationality c. Plot to break its immigration regulations
a. De jure stateless – persons who have lost their nationality, if they had
one, and have not acquired a new one
b. De factor stateless – persons who have a nationality but to whom UNIVERSALITY PRINCIPLE
protection is denied by their state when out of the State o This recognizes that certain activities, universally dangerous to states
and their subjects, require authority in all community members to
Mejoff v. Director of Prisons punish such acts wherever they may occur, even absent a link between
Facts: the state and the parties or the acts in question
Boris Mejoff, a Russian, was captured as a Japanese spy by the US Army
Counter Intelligence Corps on March 18, 1948. He was turned over to the Phil Examples of acts covered by Universality Principle:
Commonwealth Government for appropriate disposition. His case was decided a. Piracy – any illegal act of violence or depredation committed for
on by the Board of Commissioners of Immigration who declared him as an private ends on the high seas or outside the territorial control of any
illegal alien. The Board ordered his immediate deportation. In the meantime, state
we was placed in prison awaiting the ship that will take him back home to Russia. b. Genocide – acts committed with intent to destroy, in whole or in part, a
Two Russian boats have been requested to bring him back to Russia but the national, ethical, racial or religious group
masters refused as they had no authority to do so. Two years passed and Mejoff c. Crimes against humanity – acts committed as part of a widespread or
is still under detention awaiting the ship that will take him home. systematic attack directed against any civilian population
1. Attack directed against any civilian population
This case is a petition for habeas corpus. However, the respondent held that 2. Extermination – internal infliction of conditions of life
the Mejoff should stay in temporary detention as it is a necessary step in the 3. Enslavement
process of exclusion or expulsion of undesirable aliens. It further states that is 4. Deportation or forcible transfer of population
has the right to do so for a reasonable length of time. 5. Torture
6. Forced pregnancy
Issue: 7. Persecution
w/n Mejoff should be released from prison awaiting his deportation. 8. Crime of Apartheid
9. Enforced disappearance of persons
Held: d. War crimes – grave breaches of the Geneva Convention of 12 August
The Supreme Court decided that Mejoff be released from custody but be placed 1949, namely, any of the following acts against persons or property
under reasonable surveillance of the immigration authorities to insure that he protected under the provisions of the relevant Geneva Convention
keep peace and be available when the Government is ready to deport him. In e. Aircraft piracy
the doctrine of incorporation, the Philippines in its constitution adops the f. Terrorism
generally accepted principles of international law as part of the law of Nations.
Also, the Philippines has joined the United Nations in its Resolution entitled Filartiga v. Pena-Irala (see previous notes)
―Universal Declaration of Human Rights‖ in proclaiming that life and liberty
and all other fundamental rights shall be applied to all human beings. The
contention that he remains a threat of to the security of the country is
unfounded as Japan and the US or the Phils are no longer at war.
Adolf Eichmann was a high ranking SS officer who played a central role in the by concealing his true identity. Only after he was kidnapped and brought to
planning and implementation of the persecution of Jews in Germany, Poland, Israel was his identity revealed. After negotiations between the two
Hungary and several other countries before and during World War II. At the end Governments, the Government of Argentina waved its demand for his return
of the war he escaped to Argentina where he lived and worked under an alias and declared that it viewed the incident as closed. The Government of Argentina
until May, 1960 when he was kidnapped by Israeli agents. Argentina complained thereby refused conclusively to grant the accused any sort of protection. The
to the Security Council about this clear violation of Argentine sovereignty. The accused has been brought to trial before the Court of a State which charges him
Security Council, while making it clear that it did not condone Eichmann's crimes, with grave offences against its laws. The accused has no immunity against this
declared that "acts such as that under consideration [the kidnapping of trial and must stand trial in accordance with the indictment.
Eichmann] which affect the sovereignty of a Member State and therefore cause
international friction, may, if repeated, endanger international peace and Eichmann v. Attorney General of Israel (Supreme Court Decision)
security." The Security Council requested the Government of Israel "to make Held:
appropriate reparation in accordance with the Charter of the United Nations One of the principles whereby States assume, in one degree or another, the
and the rules of international law." Argentina did not demand the return of power to try and punish a person for an offence he has committed is the principle
Eichmann, and in August, 1960. the Argentine and Israeli governments resolved of universality. Its meaning is, in essence, that that power is vested in every State
in a joint communique "to regard as closed the incident which arose out of the regardless of the fact that the offence was committed outside its territory by a
action taken by citizens of Israel, which infringed the fundamental rights of the person who did not belong to it, provided he is in its custody at the time he is
State of Argentina." Eichmann was then tried in Israel under Israel's Nazi brought to trial. This principle has wide support and is universally
Collaborators Law (a law enacted after Israel became a state in 1948). He was acknowledged with respect to the offence of piracy jure gentium. [One view]
found guilty and the conviction was subsequently upheld by the Supreme Court holds that it cannot be applied to any other offence, lest this entail excessive
of Israel. On May 31, 1962 Eichmann went to the gallows, the only person ever interference with the competence of the State in which the offence was
formally executed by the State of Israel. committed.
Held: A second school agrees to the extension of the principle to all manner of
It is an established rule of law that a person being tried for an offence against extraterritorial offences committed by foreign nationals. It is not more than an
the laws of a State may not oppose his trial by reason of the illegality of his auxiliary principle to be applied in circumstances in which no resort can be had
arrest or of the means whereby he was brought within the jurisdiction of that to the principle of territorial sovereignty or to the nationality principle, both of
State. The courts in England, the United States and Israel have constantly held which are universally agreed to. [Holders of this view] impose various restrictions
that the circumstances of the arrest and the mode of bringing the accused into on the applications of the principle of universal jurisdiction, which are designed
the territory of the State have no relevance to his trial, and they have to obviate opposition by those States that find themselves competent to punish
consistently refused in all instances to enter upon an examination of these the offender according to either of the other two principles. [One of these
circumstances. reservations is that the extradition of the offender should be offered to the State
where his offence was committed.].
Indeed, there is no escaping the conclusion that the question of the violation of
international law by the manner in which the accused was brought into the A third school holds that the rule of universal jurisdiction, which is valid in
territory of a country arises at the international level, namely, the relations cases of piracy, logically applies also to all such criminal acts or omissions
between the two countries concerned alone, and must find its solution at such which constitute offences under the law of nations (delicta juris gentium)
level. without any reservation whatever or, at most, subject to a reservation of the
kind Oust] mentioned. This view has been opposed in the past because of the
According to the existing rule of law there is no immunity for a fugitive difficulty in securing general agreement as to the offences to be included.
offender save in the one and only case where he has been extradited by the
asylum State to the requesting State for a specific offence, which is not the Notwithstanding the differences there is full justification for applying here the
offence for which he was being tried. The accused was not surrendered to principle of universal jurisdiction since the intentional character of the "crimes
Israel by Argentina, and the State of Israel is not bound by any agreement with against humanity" (in the wide meaning of the term) is, in this case, not in doubt,
Argentina to try the accused for any other specific offence, or not to try him and the unprecedented extent of their injurious and murderous effect is not open
for the offences being tried in the present case. The rights of asylum and to dispute at the present day. In other words, the basic reason for
immunity belong to the country of asylum and not to the offender, and the
叶清蓮 Public International Law P a g e | 19
which international law recognizes the right of each State to exercise such Principles governing Extradition
jurisdiction in piracy offences applies with all the greater force. 1. No state is obliged to extradite unless there is a treaty
2. Differences in legal system can be an obstacle to interpretation of what
the crime is
PASSIVE PERSONALITY PRINCIPLE 3. Religious and political offenses are not extraditable
o This does not enjoy wide acceptance
o State may apply law, criminal law, to an act committed outside its US v. Alvarez-Machain
territory by a person not its national where the victim of the act was Facts:
its national Machain is a citizen and resident of Mexico. He was indicted by US DEA (Drug
o Not accepted for ordinary torts or crimes but is increasingly accepted Enforcement Administration) for participating in the kidnap and murder of a
as applied to terrorist and other organized attacks on a state’s DEA agent, by prolonging the victim's life so others could torture him further
nationals by reason of their nationality, or to assassination of a state’s (allegedly). Machain was forcibly kidnapped from Mexico and brought to Texas
diplomatic representatives or other officials for trial. Respondent moved to dismiss the indictment, claiming that his
abduction constituted outrageous government conduct, and that the district
US v. Fawaz Yunis court lacked jurisdiction to try him because he was abducted in violation of the
extradition treaty between US and Mexico. District court dismissed, and
CONFLICTS OF JURISDICTION – modes of resolving conflict of jurisdiction ordered that he be repatriated to Mexico, and court of appeals affirmed both.
1. Balancing Test – if the answer is yes to all the following questions, then Supreme Court granted certiorari.
the court will assume jurisdiction
a. Was there an actual or intended effect on a state’s foreign commerce? Issue:
b. Is the effect sufficiently large to present a cognizable injury to the Whether there is jurisdiction for a Mexican national, abducted to the US, when
plaintiffs, and, therefore, a violation of the anti-trust law? US and Mexico had an extradition treaty
c. Are the interests of the state sufficiently strong, vis-à-vis those of
other nations, to justify an assertion of extraordinary authority Held:
Yes. The Extradition Treaty says nothing about US and Mexico's obligations to
2. International Comity – state will refrain from exercising its jurisdiction is refrain from abducting people, or the consequences if this happens. The Treaty
it is unreasonable only says that neither party is bound to delivery upon the other its own
o Factors to consider in determining unreasonableness: nationals.
a. Link or connection of the activity to the territory of the regulating
state The Federal Tort Claims Act's exception to waiver of sovereign immunity for
b. Character of the activity to be regulated claims ―arising in a foreign country,‖ bars claims based on any injury suffered in a foreign
c. Existence of justified expectations that might be protected or hurt country, regardless of where the tortuous act or omission occurred and that
by the regulation Álvarez was not entitled to recover damages from Sosa under the
d. Likelihood of conflict with regulation by another state Alien Tort Statute. Thus, the Alien Tort Statute provides a jurisdictional basis,
3. Forum non conveniens – application is discretionary with the court but does not create an independent cause of action, save for a few exceptions
o If in the whole circumstances of the case it be discovered that there is envisioned by Congress at the time of enacting the Alien Tort Statute. These
real unfairness to one of the suitors in permitting the choice of a exceptions include and are limited to: rights of safe passage, rights of
forum which is not the natural or proper forum, either on the ground ambassadors and piracy.
of convenience of trial or the residence or domicile of parties or of its
being the locus contractus or locus solutionis Sec. of Justice v. Hon. Ralph Lantion
Facts:
EXTRADITION – the surrender of an individual by the state within whose On June 18, 1999, the Department of Justice received from the Department of
territory he is found to the state under whose laws he is alleged to have Foreign Affairs of the United States requesting for the extradition of Mark
committed a crime or to have been convicted of a crime Jimenez for various crimes in violation of US laws. In compliance with the related
o This is a process that is governed by a treaty municipal law, specifically Presidential Decree No. 1069 ―Prescribing
o Legal right to demand extradition and the correlative duty to surrender a the Procedure for Extradition of Persons Who Have committed Crimes in a Foreign
fugitive exist only when created by treaty Country‖ and the established ―Extradition Treaty Between the Government of the
o Procedure for extradition is normally through diplomatic channels Philippines and the Government of the United States of
Issues:
1.Whether or not private respondent, Mark B. Jimenez, be granted access to
the official extradition request and documents with an opportunity to file a
comment on or opposition thereto
2.Whether or not private respondent’s entitlement to notice and hearing during the evaluation
stage of the proceedings constitute a breach of the legal duties of the Philippine
Government under the RP-US Extradition Treaty
Held:
The Supreme Court ruled that the private respondent be furnished a copy of
the extradition request and its supporting papers and to give him a reasonable
period of time within which to file his comment with supporting evidence. In
this case, there exists a clear conflict between the obligation of the Philippine
Government to comply with the provisions of the treaty and its equally
significant role of protection of its citizens of its right of due process. The
processes outlined in the treaty and in the presidential decree already pose an
impending threat to a prospective extraditee’s liberty as early as the evaluation stage. It
is not an imagined threat to his liberty, but a very imminent one. On the
other hand, granting due process to the extradition case causes delay in the
process. The rule of pacta sunt servanda, one of the oldest and most
fundamental maxims of international law, requires the parties to a treaty to
keep their agreement therein in good faith. The doctrine of
incorporation is applied whenever municipal tribunals are confronted with
situations in which there appears to be a conflict between a rule of international
law and the provisions of the constitution or statute of a local state. Efforts
should be done to harmonize them. In a situation, however, where the
conflict is irreconcilable and a choice has to be made between a rule of
international law and municipal law, jurisprudence dictates that municipal law
should be upheld by the municipal courts. The doctrine of incorporation decrees
that rules of international law are given equal standing, but are not superior to,
national legislative enactments.In this case, there is no conflict between
international law and municipal law. The United States and the Philippines
share a mutual concern about the suppression and punishment of crime in their
respective jurisdictions. At the same time, both States accord common due
process protection to their respective citizens. In fact, neither the Treaty nor
the Extradition Law precludes the rights of due process from a prospective
extradite.