Midterm Reviewer PUBLIC INTERNATIONAL LAW
Chapter 1. The Nature of International Law
International Law, defined: The law which deals with
the conduct of states and of international organizations
and with their relations inter se, as well as with some of
their relations with persons, whether natural or juridical.
Scope: Has expanded. Beyond the primary concern for
the preservation of peace, it now covers all the interests
of contemporary international and even domestic life.
Is International Law Law? Yes.
The basic challenge to international law as law is the
claim that there can be no law binding sovereign states.
Also, there is no international legislative or executive
body nor a central authority that can make judgments
binding on States.
Legislative: The resolutions of the General Assembly
of the UN are generally not binding.
Executive: Often effectively “hamstrung” by the
veto power.
Judicial: The International Courts of Justice can
bind states only when they consent to be
bound.
Most of the time all the UN can do is censure. It is,
therefore, often said that it is not really law because it is
commonly disregarded.
These objections are based on an exaggerated notion
of sovereignty as embodying an individualist regime.
This is not the reality. The reality is social
interdependence and the predominance of the general
interest.
Although the final enforcer is power, fundamentally,
there is a general respect for law because of the possible
consequences of defiance.
Theories about International Law:
1.) Command Theory:John Austin: law consists of
commands originating from a sovereign and
backed up by threats of sanction if disobeyed. In
this view, IL is not law bec it does not come
from a command of a sovereign. This theory is
generally discredited. The reality is that nations
see IL not as commands but as principles for
free and orderly interaction.
2.) Consensual Theory: IL derives its binding force
from the consent of the states. Treaties and
customs are expressions of consent. In reality,
however, there are many binding rules which are
not derived from consent.
3.) Natural Law Theory: Law is derived by reason
from the nature of man. IL is said to be an
application of natural reason to the nature of the
state-person. Theory has little support now but
much of customary law and generally accepted
principles of law are an expression of natural
law.
4.) Feminist approach: IL literature now influenced
by feminist thinking which aims to render
patriarchal systems, methods and presumptions
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unable to function and unable to retain their
dominance and power.
5.) Some dissenters: see no objective basis for IL.
They see IL as a combination of politics, morality
and self-interest hidden under the smokescreen
of legal language.
Best answer is pragmatic. There is a general respect for
law and concern about the consequences of defiance. IL
is law bec it is seen as such by states and other subjects
of IL.
Brief Historical Development of IL:
Ancient IL governed exchange of diplomatic
emissaries, peace treaties, etc. in world of ancient
Romans and earlier. The progressive rule of jus gentium,
seen as a law “common to all man,” became the law of
the vast Roman Empire.
Modern IL began with the birth of nation-states in the
Medieval Age. Governing principles were derived from
Roman Law or Canon Law which drew from natural law.
Hugo Grotius considered father of modern IL. What he
called “law of the nations” was later given the name “IL”
by Jeremy Bentham.
The positivist approach reinterpreted IL not on basis
of concepts derived from reason but rather on basis of
what actually happened in the conflict between states.
With emergence of notion of sovereignty came the view
of law as commands backed up by threats of sanction.
In this view, IL not law bec not from command of
sovereign.
Significant milestones in development of IL:
1.) Peace of Westphalia (ending 30 yrs war)
established a treaty based framework for peace
cooperation. (it was at this time that pacta sunt
servanda arose.)
2.) Congress of Vienna (ending Napoleonic wars)
created a system of multilateral pol and econ
cooperation.
3.) Covenant of the League of Nations (incl. Treaty
of Versailles ending WWI) created the
Permanent Court of International Justice.
4.) Founding of UN in aftermath of WWII. Shift of
power away from Europe and beginning of truly
universal institution. Universalization advanced
by decolonization which resulted in expansion of
membership of UN. New states, carrying a
legacy of bitterness against colonial powers,
became members.
5.) Cold War period succeeded in maintaining peace
through balancing of 2 super powers.
6.) Dissolution of Soviet Union resulting in end of
Cold War with re-emergence of int’l relations
based on multiple sources of power and not
mainly ideology.
Public and Private International Law
Distinction should be made bet the 2.
Public IL: sometimes referred to only as IL, governs
relationships bet and among states and also their
relations with international orgs and individual persons.
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Private IL: more commonly called conflict of laws, is
really domestic law. It deals with cases where foreign
law intrudes in the domestic sphere where there are
questions of applicability of foreign law or the role of
foreign courts.
Chapter 2. The Sources of International Law
What Sources Are
In the absence of a centralized legislative, executive
and judicial structure, there is no single body able to
legislate and there is no system of courts with
compulsive power to decide what the law is nor is there
a centralized repository of international law. thus,
there’s a problem of finding out where the law is.
Nevertheless, IL exists and there are sources where the
law can be found.
2 Classifications:
1.) Formal sources: The various processes by which
rules come into existence (e.g. legislation, treaty
making and judicial decision making, and the
practice of states.)
2.) Material sources: The substance and content of
the obligation. They identify what the obligations
are. Also referred to as “evidence” of IL. (e.g.
state practice, UN resolutions, treaties, judicial
decisions and writings of jurists).
The doctrine of sources lays down conditions for
verifying and ascertaining the existence of legal
principles. The conditions are the observable
manifestations of the “wills” of states as revealed in the
processes by which norms are formed (treaty & state
practice accepted as law.) The process of verification is
inductive and positivistic.
Sources of International Law:
1.) Custom;
2.) Treaties and other international agreements;
3.) Generally recognized principles of law;
4.) Judicial decisions
5.) Teachings of highly qualified and recognized
publicists.
Custom or Customary Law: A general and consistent
practice of states followed by them from a sense of legal
obligation [opinio juris].
2 basic elements of custom:
1.) The material factor: how states behave;
2.) The subjective/psychological factor: why they
behave the way they do.
The Material Factor: Practice of States
Initial factor for determining existence of custom:
Behavior of states. This includes several elements:
1.) Duration,
2.) Consistency, and
3.) Generality.
Duration:
The required duration can be either short or long.
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Long: The Paquete Havana (exemption of fishing
vessels from capture as prize of war): “By an ancient
usage among civilized nations, beginning centuries ago,
and gradually ripening into a rule of international law…”
Short: North Sea Continental Shelf Cases: short
duration will not exclude the possibility of a practice
maturing into custom provided that State practice
should have been:
1.) extensive,
2.) virtually uniform,
3.) occurred in such a way to show a general
recognition that a rule of law or legal obligation
is involved.
Therefore, duration is not the most important
element. More impt is the consistency and generality of
the practice.
Consistency:
1.) Continuity; and
2.) Repetition. [Asylum Case].
Uniformity and Generality of practice need not be
complete, but it must be substantial. The practice need
not be “in absolute conformity” with the purported
customary rule [Nicaragua v. US].
The Subjective Factor: Why they behave that way
Opinio Juris: belief that a certain form of behavior is
obligatory. This is what makes practice an international
rule. Without it, practice is not law.
Nicaragua case: human consideration by itself does
not constitute opinio juris. “…for a new customary rule
to be formed, not only must the acts concerned “amount
to settled practice,” but they must be accompanied by
the opinio juris sive necesstatis…conduct [must be]
evidence of a belief that this practice is rendered
obligatory by the existence of a rule of law requiring it.
The need for such a belief, i.e. the existence of a
subjective element, is implicit in the very notion of the
opinio juris sive necessitatis.”
Anglo-Norwegian Fisheries Case: Even dissenting
states are bound unless they had consistently objected
to it while the custom was merely in the process of
formation.
Dissent, however, protects only the dissenter and
does not apply to other states.
A state joining the IL system for the 1st time after a
practice has become law is bound by such practice.
Customary law may develop which will bind only
several states, or even only 2 states. But the party
claiming it must prove that it is also binding on the other
party.
Fisheries Jurisdiction Case: When a practice has been
accepted as law and a contrary practice subsequently
arises, such contrary practice can cast doubt on the
alleged law. If the contrary practice should gain general
acceptance, it might instead become the law.
Acceptable evidence of state practice:
1.) Treaties;
2.) Diplomatic correspondence;
3.) Statements of national leaders and political
advisers;
4.) Conduct of states.
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The above, however, do not constitute customary law by
themselves. They must be characterized by opinio juris.
The existence of opinio juris is a matter of proof. The
burden of proving falls on the state claiming it.
Nicaragua v. US: Opinio juris may be deduced from
the attitude of the Parties and of States towards certain
General Assembly resolutions. Consent to such
resolutions is one of the forms of an opinio juris.
“Instant Custom” – Not the product of constant and
prolonged practice. Comes about as a spontaneous
activity of a great number of states supporting a specific
line of action (e.g. aftermath of attack on WTC: coalition
of forces arose supportive of US.)
Treaties or international agreements, whether bilateral
or multilateral, determine the rights and duties of states
just as individual rights are determined by contracts.
Their binding force comes from the voluntary decision of
sovereign states to obligate themselves to a mode of
behavior.
Generally, treaties are only binding on parties.
However, the number of the parties and the generality
of the acceptance of the rules in the treaty can have the
effect of creating a universal law.
“Contract treaties”: Obligations which the law says
must be carried out.
“Law-making treaties”: Law.
Distinction not useful since ALL treaties must be
observed by the parties under the principle of pacta sunt
servanda.
Treaties and Custom
Whether or not treaties override custom depends on
the intention of the parties. If the treaty is intended to
be declaratory of customary law, it may be seen as
evidence of customary law.
Normally, treaties and custom can be
complementary. When there is conflict:
1.) If a treaty comes later than a custom, the treaty
should prevail. A treaty manifests a deliberate
choice of the parties and the principle of pacta
sunt servanda should e followed.
2.) If a later treaty is contrary to a customary rule
that had the status of jus cogens, custom will
prevail.
3.) If custom develops after a treaty, the rule is not
clear. Logical rule: later custom being
expression of later will should prevail. In
Practice: attempt is made to keep the treaty
alive by efforts at reconciling the two.
General Principles of Law Recognized by Civilized
Nations has reference not to principles of IL but to
principles of municipal law common to the legal systems
of the world.
Judicial decisions
Judicial decisions are a subsidiary means for the
determination of the rules of law. however, the decisions
of the court have no binding force except between the
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parties in a particular case. Hence, such decisions do not
constitute stare decisis.
Despite this, the rulings of the ICJ are not only
regarded as highly persuasive in international law
circles, they have also contributed to the formulation of
principles that have become international law.
Similarly, arbitral decisions have been instrumental
on the formation of international law principles.
The Teachings of Highly Qualified Writers and
“Publicists”
The ICJ is generally reluctant to refer to writers but
they are often taken into consideration.
“Publicists” are institutions which write on
international law. they also play a role. However, these
are generally government sponsored; hence, they bear
within themselves a potential for national bias.
Equity
The Permanent Court of International Justice used
equity as a source of law in the case of Diversion of
Water from the Meuse (Netherlands v. Belgium).
They justified the use of equity as a source despite
their not having been expressly authorized to do so by
reasoning that it may be included under “general
principles of law recognized by civilized nations” since in
more than one nation principles of equity have an
established place in the legal system.
Other SupplementaryEvidence
UN Resolutions
Declarations of legal principles and Resolutions by
the United Nations are generally considered merely
recommendatory. But if they are supported by all the
states, they are an expression of opinio juris communis.
“Soft Law”
Also called “non-treaty agreements”, these are
international agreements not concluded as treaties.
Other sources of soft law are administrative rules
which guide the practice of states in relation to IOs.
These are mostly administrative procedures that are
carried out with varying degrees of consistency and
uniformity that may eventually ripen into customary law
or become formalized later on in treaties.
Chapter 3. The Law of Treaties
Generic term: “International agreements”
Other names for treaties:
1.) Conventions;
2.) Pacts;
3.) Covenants;
4.) Charters;
5.) Protocols;
6.) Concordat, etc.
Treaties represent the most deliberate form of
commitment through which governments cooperate with
one another.
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The Vienna Convention on the Law of Treaties is the
law on treaties and governs treaties between states.
Definition of Treaties: “an international agreement
concluded between States in written form and governed
by international law, whether embodied in a single
instrument or in two or more related instruments and
whatever its particular designation.” [The Vienna
Convention]
Requisites for Vienna Convention to apply:
The International agreement must satisfy the def’n:
1.) In writing;
2.) Reflective of the intention of the parties to be
bound; and
3.) Governed by international law.
No particular form is prescribed.
Even unilateral declarations concerning legal or
factual situations may create legal obligations. When it
is the intention of the State to become bound accdg to
its terms, that intention confers on the declaration the
character of a legal undertaking, the State being
thencefprth legally required to follow a course of conduct
consistent with the declaration. [Nuclear Test Cases].
Function of Treaties:
1.) Sources of IL;
2.) They may serve as the charter of IOs;
3.) Transfer territory;
4.) Regulate commercial relations;
5.) Settle disputes;
6.) Protect human rights;
7.) Guarantee investments; etc.
Kinds of treaties from standpoint of relevance as source
of IL:
1.) Multilateral treaties;
a.) Codification treaties,
b.) “law-making treaties”,
c.) both
2.) Treaties that create a collaborative mechanism;
a.) Universal scope
b.) Regional
3.) Bilateral treaties / “contract treaties”
Multilateral treaties are open to all states of the
world. They create norms which are the basis for a
general rule of law.
Treaties that create a collaborative mechanism
operate through the organs of the different states for a
shared purpose (e.g. fishing agreements, regulation of
allocation of radio frequencies)
Bilateral treaties are mostly in the nature of
contractual agreements which create shared
expectations such as trade agreements of different
forms.
Treaties are generally binding only on the parties.
However, the number of the contracting parties and the
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generality of the acceptance of specific rules can have
the effect of creating a universal law.
The Making of Treaties
Steps:
1.) Negotiation;
2.) Adoption of text (consent/2/3 vote);
3.) Authentication of text (signing);
4.) Consent to be bound (e.g. ratification);
5.) Exchange or deposit;
6.) Entry into force of treaties.
Negotiation
1.) Bilateral / Multilateral among small #: originate
from the foreign ministries
2.) Large Multilateral: negotiated in diplomatic
conferences which are run like a legislative
body.
Power to Negotiate
An act relating to the conclusion of a treaty by one
who has no proper authorization has no legal effect
unless confirmed by his state.
Ma’am says that in our case, negotiation is usually
done by someone already in the foreign country (in the
Phil. Embassy) due to lack of funds to send. The DFA
designates who the rep. is going to be.
A person is considered to be representing the State
when:
1.) He produces appropriate full powers; or
2.) It appears from the practice of the States
concerned or from other circumstances that their
intention was to consider that person as
representing the State for such purposes and to
dispense with full powers.
These may be the following:
1.) Heads of State, Heads of Govt and Ministers for
Foreign Affairs;
2.) Heads of diplomatic missions;
3.) Representatives accredited by States.
Authentication of Text
Negotiations conclude with the signing of the
document. The signatures serve as authentication of the
document.
Adoption of the text takes place with the consent of
all the States or, in the case of international
conferences, by the vote of 2/3 of the States present
and voting, unless by 2/3 vote, they decide on another
rule.
Consent to be Bound
Once the document has been signed, there are
stages which follow which culminate in making the
document binding. The most impt step is the consent to
be bound.
The manner of ratification differs from state to state.
Between signature and ratification a state is required not
to engage in acts which can defeat the purpose of the
treaty.
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Ratification is next followed by either exchange of
ratification, in bilateral treaties, or in multilateral
treaties, deposit of ratification.
If there is no deposit with the Office of the UN
SecGen, it cannot be invoked in case of controversy
between the parties.
Accession to a Treaty
States which did not participate in the initial
negotiation may also express their consent to be bound
by “accession.”
Reservations: “a unilateral statement, however phrased
or named, made by a State, when signing, ratifying,
accepting, approving or acceding to a treaty, whereby it
purports to exclude or modify the legal effect of certain
provisions of the treaty in their application to that
State.”
They are different from “interpretative declarations”
which are not meant to be a derogation from the treaty
but an expression of how a state understands its
adoption of a treaty.
These are allowed in deference to the sovereignty of
states except in the ff cases:
1.) Treaty prohibits it;
2.) Treaty provides only for certain specified
reservations to which it is not included;
3.) Reservation is incompatible with the object and
purpose of the treaty.
A proliferation of reservations in multilateral treaties
can defeat the purpose of a treaty. In bilateral treaties,
a reservation by one party means a rejection of the
treaty and necessitates renegotiation. Reservations,
therefore, are meant only for multilateral treaties.
A reservation need not be consented by all parties for
it to be effective. A state can be regarded as a party if
the reservation is not incompatible with the object and
purpose of the Convention and the ICJ has held that
compatibility could be decided by states individually
since if a party objects, they can consider the state as
not a party to the Convention. Thus, it is possible for
different legal relationships to arise among parties to the
same treaty.
Entry into Force of Treaties
Treaties enter into force on the date agreed upon by
the parties. Where no date is indicated, the treaty enters
into force once consent has been given. Multilateral
treaties generally contain a provision which says how
many states have to accept the treaty before it can
come into force.
Treaties can also be put into effect provisionally .
Application of Treaties
Every treaty in force is binding upon the parties to it
and must be performed by them in good faith under the
fundamental rule of pacta sunt servanda.
A party may not invoke a provision of its internal law
as justification for its failure to perform a treaty.
A treaty is binding upon each party in respect of its
entire territory unless a different intention appears.
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Interpretation of Treaties
The interpretation of treaties combines several
approaches:
1.) Objective approach: interpretation accdg to the
ordinary meaning of the words;
2.) Teleological approach: interpretation accdg to
the purpose of the treaty; and
3.) Subjective approach: honors special meaning
given by the parties.
Where there are ambiguities in the meaning of a
treaty, resort may be made as to supplementary
sources, e.g.:
1.) preparatory work;
2.) circumstances of its conclusion.
When the interpretation of treaties is in 2 or more
languages and there is a conflict among official texts:
1.) the language that is agreed upon by the parties
shall prevail; if none
2.) each is equally authoritative and when compared
to each other, the meaning which best reconciles
the texts in light of the object or purpose of the
treaty shall be adopted.
Invalidity of Treaties
Grounds for invalidation of treaties:
1.) error of fact;
2.) fraud;
3.) corruption;
4.) duress;
5.) violation of jus cogens (treaties conflicting with a
peremptory norm of general international law)
A state can lose the right to assert the invalidity of
the treaty thru estoppel, i.e. if after becoming aware of
the ground for invalidation:
1.) it expressly agreed that the treaty is valid,
remains in force or continues in operation;
2.) by reason of its conduct, it may be considered
as having acquiesced the validity of the treaty.
A state may not plead its municipal law as a ground
for invalidating a treaty that has been entered unless
the violation is manifest (objectively evident to any
State conducting itself in the matter in accordance with
normal practice and in good faith) and concerns a rule of
its internal law of fundamental importance.
Amendment and Modification of Treaties
Amendment: A formal revision done with the
participation, at least in the initial stage, by all the
parties to the treaty.
Modification: involves only some parties.
A treaty may be amended by agreement of the
parties. The procedure for this is the same as that for
the formation of treaties.
It is possible, in the case of multilateral treaties, that
amendments affect only some states but only after all
parties have been given the opportunity to consider the
proposed amendments.
Modification, by two or more parties is also allowed
as between themselves alone as long as:
1.) it is not prohibited by the treaty;
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2.) it does not affect the enjoyment by the other
parties of their rights or performance of their
obligations under the treaty;
3.) it is incompatible with the effective execution of
the object and purpose of the treaty as a whole.
Termination of Treaties
A treaty may be terminated or suspended accdg to
the terms of the treaty or with the consent of the
parties.
A treaty with a definite period may also expire. It
may also end when the purpose of the treaty has
already been achieved.
But a mere change of government or severance of
diplomatic relations does not terminate or suspend a
treaty.
Three other impt modes of terminating a treaty:
1.) Material breach;
a.) a repudiation of the treaty not
sanctioned by the present Convention;
b.) violation of a provision essential to the
accomplishment of the object or purpose
of the treaty.
2.) Supervening impossibility of performance – if
the impossibility results from the permanent
disappearance or destruction of an object
indispensable for the execution of the treaty (if
merely temporary, can only suspend). This can’t
be invoked if the impossibility arises as a result
of a breach by that party.
3.) Change of fundamental conditions not foreseen
(rebus sic stantibus) if:
a.) The existence of those circumstances
constituted an essential basis of the
consent of the parties to be bound by
the treaty; and
b.) The effect of the change if radically to
transform the extent of obligations still
to be performed under the treaty.
This can’t be invoked in boundary treaties.
Plus, the changes must have increased the burden
of the obligations to the extent of rendering
performance something essentially diff from the
orig intention [Fisheries Jurisdiction Case.]
Fisheries Jurisdiction Case (UK v. Iceland)
Iceland claims that its agreement with the UK not to
extend its fisheries jurisdiction was no longer binding
due to fundamental change of circumstances.
Held: For this to be a ground for invoking the
termination of a treaty, it should have resulted in a
radical transformation of the extent of the obligations
still to be performed. The change must have increased
the burden of the obligations to be executed to the
extent of rendering the performance something
essentially different from that originally undertaken.
This is not the case here, Iceland cannot validly
invoke rebus sic stantibus in claiming the termination of
the treaty.
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Namibia Case (Advisory Opinion)
The Security Council has resolved that South Africa’s
Mandate (which is considered as an international
agreement) over Namibia was terminated, but this had
been ignored by South Africa. It then resolved that their
cont’d presence there was illegal. It asked the ICJ for an
advisory opinion on the legal consequences of this.
Held: Only a material breach (either: 1. a
repudiation of the treaty not sanctioned by the present
Convention; or 2. the violation of a provision essential to
the accomplishment of the object and purpose of the
treaty) justifies termination. Here, both forms of
material breach had occurred.
They are exercising the right to terminate a
relationship in case of a deliberate and persistent
violation of obligations which destroys the very object
and purpose of that relationship. The silence of a treaty
as to the existence of such right cannot be interpreted
as implying the exclusion thereof.
To say that the power of revocation to the Mandate
could not have been exercised unilaterally but only in
cooperation with South Africa would postulate an
impossibility. For obvious reasons, the consent of the
wrongdoers to such a form of termination cannot be
required.
Danube Dam Case (Hungary v. Slovakia)
Hungary and Czechoslovakia entered into a treaty to
facilitate the construction of dams on the Danube.
Hungary later suspended works due to environmental
concerns in response to which Czechoslovakia carried
out unilateral measures. Hungary claims the right to
terminate the treaty since Czechoslovakia violated the
Treaty by undertaking unilateral measures.
Held: State of necessity not a ground for
termination. It can only be invoked to exonerate.
Impossibility of performance cannot be invoked
either since this was due to Hungary’s non-performance
of certain responsibilities and impossibility cannot be
invoked when it results from that party’s own breach of
an obligation flowing from that treaty.
Fundamental change of circumstances cannot be
invoked either because they were not of such nature
that their effect would radically transform the extent of
the obligations still to be performed. A fundamental
change in circumstances must have been unforeseen;
the existence of the circumstances must have
constituted an essential basis of the consent of the
parties to be bound by the treaty.
It is only a material breach of the treaty itself, and
not of other treaty rules or rules of general international
law, which is a ground for termination.
Czechoslovakia did not act unlawfully. The
notification of termination by Hungary was premature.
Procedure for the Termination of Treaties
1.) Notify other parties (in writing and signed by
one with full powers) of claim, measure
proposed and reasons therefor.
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2.) If no objection had been raised within the period
(not less than 3 months), they may carry out
the measures proposed.
3.) If objection has been raised, they shall seek a
solution.
4.) If no solution has been reached within 12
months:
a.) submit to ICJ,
b.) submit to arbitration, or
c.) request Sec Gen of the UN for procedure
specified in Annex of Convention.
* notification can be revoked any time before it takes
effect.
Authority to Terminate
Logically, authority to terminate should also belong
to the one who has the authority to enter into the
treaty. However, in the Phils., the authority to conclude
treaties is shared between the Senate and the President.
Succession to Treaties
When one state ceases to exist and is succeeded by
another on the same territory, the “clean slate” rule
applies and the new state is not bound by the
commitments of the predecessor unless they agree to be
bound thereto.
The clean slate rule does not apply to treaties
affecting boundary regimes or other territory regimes.
Chapter 4. International Law and Municipal
Law
Dualism v. Monism
Dualist/Pluralist Theory: Positivists – strong emphasis
on state sovereignty. Domestic and international
considered 2 different spheres of law. They favor state
law.
Monist Theory: International and domestic law
considered to belong to only one system of law. IL
considered superior to domestic law.
Municipal Law in International Law
A party may not invoke the provisions of its internal
law as justification for its failure to perform a treaty
[Vienna Convention].
Every state has the duty to carry out in good faith its
obligations arising from treaties and other sources of
international law, and it may not invoke provisions in its
constitution or its laws as an excuse for failure to
perform this duty [Declaration of Rights and Duties of
States].
This follows the dualist tradition and blocks domestic
law from entry into the international arena.
A State which has entered into an international
agreement must modify its law to make it conform to
the agreement.
However, the common teachings of domestic law is
recognized as part of international law but this refers to
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2nd Sem; 2003
rules generally accepted by municipal systems and not
to the municipal law of a particular state.
In a situation where the court must decide a dispute
which turns not upon IL but domestic law, it must seek
to apply it as it would be applied in that country.
International Law in Domestic Law
Dualism also rules when it comes to entry of IL into
the domestic sphere. IL, unless it is made part of the
domestic system, has no role in the settlement of
domestic conflicts.
For dualists, there are two theories as to how IL can
become part of domestic law:
1.) Doctrine of Transformation: it must be expressly
and specifically transformed into domestic law
through the appropriate constitutional machinery
such as an act of Congress.
2.) Doctrine of Incorporation: IL, wherever any
question arises which is properly the object of its
jurisdiction, is adopted in its full extent by eh
common law, and is held to be part of the law of
land.
In the Philippines:
Treaties become part of the law of the land when
concurred in (ratified) by the Senate.
Customary law and treaties which have become
customary law: the Consti adheres to the dualist theory
and adopts the incorporation theory by saying that the
Phils adopts the generally accepted principles of IL as
part of the law of the land. IL has the force of domestic
law and can be used by Phil courts to settle domestic
disputes.
Conflict between International Law and Domestic Law:
International Rule
When there is conflict bet domestic law and IL, the
law which prevails depends on whether the case goes to
a domestic court or to an international tribunal.
International tribunal: A state may not plead its own
law as an excuse for failure to comply with IL. A state
which has contracted valid int’l obligations is bound to
make in its legislation such modifications as may be
necessary to ensure fulfillment of the obligations
undertaken.
Exception: Constitutional violation was manifest and
concerned a rule of its internal law of fundamental
importance. Violation is manifest if it would be evident
to any State conducting itself in the matter in
accordance with normal practice and in good faith.
If it does not fall under exception, it may be ignored
domestically but there is the risk of international
repercussions before an international court.
Conflict between International Law and Domestic Law:
Municipal Rule
Domestic Court: bound to apply the local law.
Generally able to give domestic law a construction which
does not conflict with IL. There should be no conflict bet
our Consti and IL bec our Consti expressly accepts the
general principles of IL as part of the law of the land.
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If there is conflict bet the Consti and a treaty, the
treaty would not be valid and operative as domestic law.
The Consti recognizes the power of the Supreme Court
to declare a treaty unconstitutional. This does not mean,
however, that it loses its character as IL. Under the
dualist theory, which the Consti accepts, the
unconstitutionality of a treaty is purely a domestic
matter.
Note: Provisions of the Consti which are considered
as not being “self-executing”, if not executed with
subsequent legislation, cannot give rise to a cause of
action in the courts.
Treaties and statutes are considered to be of equal
rank. As between an earlier treaty and a later law, the
later one prevails. This rule, however, only applies in the
domestic sphere. The treaty, even if contrary to a later
statute, remains as IL; while an int’l tribunal would not
have the power to reverse the nullification of the treaty
in domestic law, it can take appropriate action in favor
of an aggrieved state.
Head Money Cases (Edye v. Robertson), US case.
[no facts given]
Held: A treaty is a law of the land by which the
rights of the private citizen or subject may be
determined. And when such rights are of a nature to be
enforced in a court of justice, that court resorts to the
treaty for a rule or decisions for the case as it would a
statute.
But there is nothing in this law which makes it
irrepealable or unchangeable. The Consti gives it no
superiority over an act of Congress which may be
repealed or modified by an act of a later date.
Insofar as a treaty made between states can become
the subject of domestic courts, it is subject to such acts
as Congress may pass for its enforcement, modification
or repeal.
Whitney v. Robertson, US case.
Merchants imported a large quanitity of sugar from
the island of San Domingo. They claim that it should be
admitted free of duty under a treaty with Hawaii which
provides for goods similar in kind to be admitted free of
duty.
Held: The act of Congress under which the duties
were collected, authorized their exaction. It is of general
application, making no exception in favor of goods of
any country. It was passed after the treaty and if there
be any conflict, the law must control.
Treaty is on the same footing as an act of legislation.
When the two relate to the same subject, the courts will
endeavor to construe them to give effect to both. If the
two are inconsistent, the one last in date will control the
other.
The duty of the courts is to give effect to the last
expression of the sovereign will.
Treaties are subject to such acts as congress may
pass for its enforcement, modification and repeal.
If the stipulations of a treaty are not self-executing,
they can only be enforced pursuant to legislation to
carry them into effect.
Helen C. Arevalo
2nd Sem; 2003
If they are self-executing, they are still subject to
modifications, and even repeal, by Congress.
Chapter 5. Subjects of International Law
Subjects of international law: Entities endowed with
rights and obligations in the international order and
possessing the capacity to take certain kinds of action
on the international plane. They are those with
international personality. They are actors in the
international legal system and are distinct from objects
of international law.
Objects of IL: Those who indirectly have rights under,
or are beneficiaries of IL through subjects of IL.
Not all subjects of IL enjoy the same rights and
obligations. States remain the predominant actors
although International Organizations may also have
personality [Reparations Case].
States enjoy the fullest personality in IL. IOs are
imperfect subjects along with federated states,
belligerent communities, etc.
States: A community of persons more or less
numerous, permanently occupying a definite portion of
territory, independent of external control, and
possessing an organized govt to which the great body of
inhabitants render habitual obedience.
Elements:
1.) People;
2.) Territory;
3.) Government; and
4.) Sovereignty.
People or Population: A community of persons sufficient
in number and capable of maintaining the permanent
existence of the community and held together by a
common bond of law.
It is of no legal consequence if they possess diverse
racial, cultural, or economic interests. Nor is a minimum
population required.
Territory: A definite territory over which an entity
exercises permanent sovereignty.
However, an entity may satisfy the territorial reqt
even if its boundaries have not been finally settled, if
one or more of its boundaries are disputed, or if some of
its territory is claimed by another state. An entity does
not necessarily cease to be a state even if all its territory
has been occupied by a foreign power or if it has
otherwise lost control of its territory temporarily.
Government: That institutions or aggregate of
institutions by which an independent society makes and
carries out those rules of action which are necessary to
enable men to live in a social state, or which are
imposed upon the people forming that society by those
who possess the power or authority of prescribing them.
IL does not specify what form a govt should have.
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For purposes of IL, it is the national govt that has
legal personality and it is the national govt that is
internationally responsible for the actions of other
agencies and instrumentalities of the state.
A temporary absence of govt does not terminate the
existence of a state.
Sovereignty: Independence from outside control. The
capacity to enter into relations with other States (this is
dependent on recognition).
Self-determination is related to but not identical to the
concept of sovereignty. The right of self-determination is
broader.
The impetus behind the birth of new states is the
principle of self-determination of peoples. All peoples
have the right to self-determination. By virtue of that
right they freely determine their political status and
freely pursue their econ, social and cultural devt.
2 main categories of the various levels of the claim to
self-determination:
1.) Establishment of new states: the claim by a
group within a established state to break away
and form a new entity.
2.) Does not involve the establishment of a new
state. This can simply be claims to be free from
external coercion, or the assertion of the right of
revolution, or the claim for autonomy.
The UN has various means to give effect to self-
determination. But IL has not recognized a right of
secession from a legitimately existing state.
Recognition of States
When a state recognizes another, it means that both
recognize the capacity of each other to exercise all the
rights belonging to statehood. When a state recognizes
the govt of another, it recognizes the capacity of that
govt to represent that state in international affairs.
Can an entity claim to be a state before it is
recognized by other states? 2 views:
1.) Declaratory theory: Recognition is merely
declaratory of the existence of the state and
being a state depends on its possession of the
reqd elements and not upon recognition. A
recognizing state merely accepts an already
existing situation. The weight of authority favors
this view.
2.) Constitutive theory: Recognition constitutes a
state – it is what makes a state a state and
confers legal personality on the entity. This
emphasizes that states are under no oblig to
enter into bilateral relations. But then states
may decide to recognize an entity as a state
even if it does not have all the elements of a
state.
The recognition of states has become less predictable
and more a matter of political discretion. Political
realities have gained primacy over the inclinations to
maintain consistency by applying accepted criteria to
test the fact of statehood. This has led to inconsistency.
Helen C. Arevalo
2nd Sem; 2003
Recent events seem to point towards a trend to attempt
to constitute states through the process of recognition.
Recognition of Government
If a change in govt in an existing state comes about
thru ordinary constitutional procedure, recognition by
others comes as a matter of course.
The problem is acute when a new govt within a state
comes into existence thru extra-constitutional means.
The Tinoco Arbitration (Great Britain v. Costa Rica)
The govt of Costa Rica under Pres. Gonzalez was
overthrown by Tinoco. His govt continued for 2 years,
falling soon after his retirement. The old Consti was
restored and elections held under it.
The Law of Nullities was passed invalidating contracts
with the govt during the period under Tinoco as well as
nullifying the issue of 15M colones currency notes and
the circulation of notes of the nomination of 1,000
colones bills by the Tinoco govt.
Great Britain, on behalf of 2 Brit corps., are claiming
Costa Rica’s indebtedness to one and a concession to
the other which both had been annulled by the said law.
Costa Rica denies liability for the acts and obligations
of the Tinoco govt.
Held: Changes in the govt or the internal policy of a
state do not as a rule affect its position in IL… tho the
govt changes, the nation remains, with rights and
obligations unimpaired.
Under the principle of continuity of states, the state
is bound by engagements entered into by govts that
have ceased to exist; the restored govt is generally
liable for the acts of the usurper.
Non-recognition by other nations of a govt claiming
to be a national personality, is usually appropriate
evidence that it has not attained the independence and
control entitling it by IL to be classed as such. But when
recognition of a govt is determined by inquiry, not into
its de facto sovereignty but into its illegitimacy or
irregularity of origin, their non-recognition loses
evidential weight – it cannot outweigh the evidence of
the de facto character of a govt.
Upright v. Mercury Business Machines Co. (NY case)
Upright sues as the assignee of a trade acceptance
drawn on and accepted by Mercury in payment for
business typewriters sold and delivered to it by a foreign
corp. Mercury alleges that the foreign corp is the
creature of the East German Govt, a govt not recognized
by the US.
Held: A foreign govt, tho not recognized, may
nevertheless have de facto existence which is juridically
cognizable. The acts of such a de facto govt may affect
private rights and obligs arising either as a result of
activity in, or with persons or corps within, the territory
controlled by such de facto govt. Just because a de facto
govt is not recognized, it does not mean that the
corporate creatures of such powers have no juridical
capacity.
Mercury cannot use non-recognition as “some sort of
umbrella to protect it from liability.”
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Consequences of Recognition or Non-recognition
In a world of growing interdependence, there can be
serious consequences for recognition or non-recognition
of govt.
Consequences of Recognition:
1.) Increased prestige;
2.) Increased stability;
3.) Funding agencies opened to the state;
4.) Loans may be facilitated;
5.) Access to foreign courts;
6.) Immunity from suit;
7.) Military assistance;
8.) Financial assistance
Consequences of Non-recognition: bars an entity
from all these benefits or, at least, access to them may
be suspended.
Recognition is a highly political judgment.
Admission of a govt to the UN does not mean
recognition by all the members. It is only to the extent
of the activities of the org.
Termination of recognition occurs when another
regime is recognized. For as long as a state continues to
meet the qualifications of statehood, its status as a state
cannot be derecognized.
Succession of States
Succession or Continuity
Succession: When an existing sovereign disappears
and a new one arises, there is a question as to
succession to rights and obligations
Different views:
1.) New state succeeds to no rights or obligations of
the predecessor state but begins with a tabula
rasa.
2.) Successor state assumes all the obligations and
enjoys all the rights of the predecessor.
3.) Succession have varying effects on state rights
and duties.
Continuity: When a new state arises, there is a
question as to what relation it has to the predecessor
state – on whether it is completely distinct or a
continuation of the predecessor state.
Succession of States…
…to territory: When a state succeeds another state
with respect to particular territory, the capacities, rights
and duties of the predecessor state with respect to that
territory terminate and are assumed by the successor
state.
…to state property: Subject to agreement between
predecessor and successor states,
1.) where part of the territory of a state becomes
territory of another state, property of the
predecessor state located in that territory passes
to the successor state;
2.) where a state is absorbed by another state,
property of the absorbed state, wherever
located, passes to the absorbing state;
3.) where part of a state becomes a separate state,
property of the predecessor state located in the
Helen C. Arevalo 10
2nd Sem; 2003
territory of the new state passes to the new
state.
…to public debts: subject to agreement bet the
states, responsibility for public debts, rights and obliges
under contracts, remain with the predecessor state,
except:
1.) where part of the territory of a state becomes
territory of another state, local public debt, and
the rights and obligations under contracts
relating to that territory, are transferred to the
successor state.
2.) Where it is absorbed by another state, the public
debt, etc. pass to the absorbing state.
3.) Where part of the state becomes a separate
state, local public debt, and rights and
obligations relating to the territory of the new
state, pass to the new state.
…to treaties:
1.) When part of the territory of a state becomes
territory of another state, the treaties of the
predecessor state cease to have effect in respect
of the territory and the treaties of the successor
state come into force there (Moving treaty /
moving boundaries rule).
2.) When a state is absorbed by another state, the
treaties of the absorbed state are terminated
and the treaties of the absorbing state become
applicable to the territory of the absorbed state.
3.) When a part of a state becomes a new state, the
new state does not succeed to the treaty to
which the predecessor state was a party, unless,
expressly or by implication, it accepts such
agreements and the other party agrees (Clean
slate theory).
4.) Pre-existing boundary and other territorial
agreements continue to be binding
notwithstanding (uti possidetis rule).
Fundamental Rights of States
Independence: The capacity of a state to provide for its
own well-being and devt free from the domination of
other states, providing it does not impair or violate their
legitimate rights.
As a right, independence means the right to exercise
within its portion of the globe, to the exclusion of others,
the functions of a state. But restrictions upon a state’s
liberty arising from customary law or from treaties do
not deprive a state of independence.
Flowing from independence are certain other rights
such as jurisdiction over its territory and permanent
population, the right to self-defense and the right of
legation.
Independence also involves the duty not to interfere
in the internal affairs of other states.
Equality of legal rights irrespective of the size or power
of the state.
The UN Charter provides that the org is based on the
sovereign equality of all its members. Each has one vote
in the GA and every state may aspire for the offices in
the various organs.
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Peaceful Co-existence includes:
1.) Mutual respect for each other’s territorial
integrity and sovereignty,
2.) Mutual non-aggression,
3.) Non-interference in each others affairs, and
4.) The principle of equality.
Some Incomplete Subjects
Protectorates: dependent states which have control over
their internal affairs but whose external affairs are
controlled by another state.
Federal State: union of previously autonomous entities.
The central organ will have personality in international
law; but the extent of international personality of the
component entities can be a problem.
Mandated and Trust Territories
Mandated territories were territories placed by the
League of Nations under one or other of the victorious
allies of WWI. The mandate system was replaced by the
trusteeship system after WWII under the trusteeship
council.
Taiwan is a non-state territory which de jure is part of
China. But it is too affluent and strategically located to
be overlooked by international actors.
The Sovereign Order of Malta (who cares?)
The Holy See and Vatican City may have no permanent
population but it is considered a sovereign state in the
field of international relations.
Chapter 6. Jurisdiction Over Territory
Territory in International Law
Territory: An area over which a state has effective
control.
Control over territory is of the essence of a state. The
exact boundaries may be uncertain, but there should be
a definitive core over which sovereignty is exercised.
Acquisition of territory more precisely means acquisition
of sovereignty over territory. Sovereignty over a portion
of the surface of the globe is the legal condition for the
inclusion of such portion in the territory of any particular
state [Las Palmas case].
Territory includes:
1.) Land,
2.) Maritime seas,
3.) Airspace, and
4.) Outer Space.
Helen C. Arevalo
2nd Sem; 2003
Modes of Acquisition of Sovereignty over Territory:
1.) Discovery and Occupation,
2.) Prescription,
3.) Cession,
4.) Conquest and subjugation,
5.) Accretion.
Discovery and Occupation
Occupation: Acquisition of terra nullius.
Terra nullius: Territory which prior to occupation
belonged to no state or which had been abandoned by a
prior occupant.
Abandonment: When the occupant leaves the
territory with the intention of abandoning it.
Western Sahara Case (Advisory Opinion)
Western Sahara is inhabited by organized, but
nomadic, tribes. Spain, Mauritania, and Algeria asserts
sovereign rights over it.
Issue: Whether the Western Sahara was terra
nullius?
Held: It is a cardinal condition of a valid occupation
that the territory should be terra nullius – a territory
belonging to no-one at the time of the act alleged to
constitute the occupation.
Territories inhabited by tribes or peoples having a
social and political organization were not regarded as
terra nullius. The Western Sahara was inhabited by
peoples which, if nomadic, were socially and politically
organized in tribes and under chiefs competent to
represent them.
The court concludes that the materials and
information presented to it do not establish any tie of
territorial sovereignty over the Western Sahara.
Discovery of terra nullius is not enough to establish
sovereignty. It must be accompanied by effective control
[Las Palmas case, below:]
The Island of Palmas (US v. Netherlands)
Palmas sits about halfway between the islands of
Mindanao and Nanusa in the Netherlands Indies. It is,
however, within the boundaries of the Phils as defined
by Spain and thus ceded to the US. An American
General visited Palmas and discovered that the
Netherlands also claimed sovereignty over the island.
Issue: Whether Palmas forms part of territory
belonging to the US or of Netherlands territory?
Held: Sovereignty in the relation bet states signifies
independence. Independence in regard to a portion of
the globe is the right to exercise therein, to the
exclusion of any other state, the functions of a state
(principle of exclusive competence of the State in regard
to its own territory).
Titles of acquisition of territorial sovereignty are
either based on an act of effective apprehension, such
as occupation or conquest, or, like, cession, presuppose
that the ceding and the cessionary power or at least one
of them, have the faculty of effectively disposing of the
ceded territory. In the same way natural accretion can
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only be conceived of as an accretion to a portion of a
territory where there exists an actual sovereignty
capable of extending to a spot which falls within its
sphere of activity. It seems therefore natural that an
element which is essential for the constitution of
sovereignty should not be lacking in its continuation. It
is recognized that the continuous and peaceful display of
territorial sovereignty is as good as a title. Occupation
should be effective. And effectiveness is required not
only for the act of acquisition but also for the
maintenance of the right.
Netherlands displayed acts of indirect and direct
sovereignty over Palmas (US had not) and such display
was continuous and peaceful. Their title of sovereignty,
therefore holds good. Palmas forms in its entirety a part
of Netherlands territory.
Effective control is relative and may depend on the
nature of the case (e.g. whether the territory is
inhabited or not and how fierce the occupants are).
Where there are two or more claimants to a territory,
effective control is also relative to the strength of claims
[Eastern Greenland Case, below:].
Legal Status of Eastern Greenland (Denmark v.
Norway)
A Norwegian proclamation purported to place
portions of Eastern Greenland under Norwegian
sovereignty, on the theory that the territory was terra
nullius, rather than Danish territory. Denmark is asking
the Court to declare the decree invalid.
Held: A claim of sovereignty based not upon some
particular act or title but merely upon continued display
of authority, involves 2 elements each of which must e
shown to exist:
1.) The intention and will to act as sovereign; and
2.) Some actual exercise or display of such
authority.
Another circumstance which the Court must take into
acct is the extent to which the sovereignty is also
claimed by some other power.
In many cases the tribunal has been satisfied with
very little in the way of actual exercise of sovereign
rights, provided that the Other State could not make out
a superior claim. This is particularly true in the case of
claims to sovereignty over areas in thinly populated or
unsettled countries.
The Court is satisfied that Denmark had succeeded in
establishing the possession of a valid title over all of
Greenland.
Helen C. Arevalo 12
2nd Sem; 2003
Prescription
Also requires effective control but the object of
prescription is not terra nullius. Thus, the required
length of effective control is longer than occupation.
Moreover, prescription might be negated by a
demonstrated lack of acquiescence by the prior occupant
[Las Palmas].
Cession: Acquisition of territory thru treaty.
A treaty of cession imposed by a conqueror is invalid.
Thus, there may be s situation where what prevails is
merely a de factp regime.
Conquest: The taking possession of a territory thru
armed force.
For acquisition of conquered territory, it was
necessary that the war ended either by a treaty or by
indication that all resistance had been abandoned.
Moreover, the conqueror must have had the intention of
acquiring the territory and not just of occupying it
temporarily.
This form of acquisition is no longer recognized as
legal.
Accretion and Avulsion
This is sovereignty by operation of nature.
Accretion: The gradual increase of territory by the
action of nature.
Avulsion: A sudden change resulting for instance
from the action of a volcano.
Is Contiguity a Mode of Acquisition?
NO. There is no rule of positive IL to the effect that
islands situated outside the territorial waters should
belong to a state from the fact that its territory forms
part of the terra firma [Las Palmas case].
Intertemporal Law
Rules in effect at the time of the acquisition should
be applied.
Airspace
The air above is considered as an extension of the
territory below. Each state has exclusive jurisdiction
over the air space above its territory (land areas as well
as territorial waters). Therefore consent for transit must
be obtained from the subjacent nation.
No state aircraft (aircraft used in military, customs
and police services) shall fly over the territory of another
state or land thereon without authorization by special
agreement and in accordance to the terms thereof.
Due regard is to be had for the safety of navigation
of civil aircraft. But each state must not use civil aviation
for any purpose inconsistent with the aims of the Civil
Convention on International Civil Aviation which
attempts to provide protection for civilian aircraft.
Scheduled international air service must also have
the state’s special authorization to operate over or into
the territory of a state.
If not engaged in international air service, civil
aircrafts may make flights into or in transit non-stop
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across its territory and make stops for non-traffic
purposes without the necessity of obtaining prior
permission and subject to the right of the state to
require landing.
Civilian aircraft must never be attacked.
State aircraft should not be exposed to unnecessary
and unreasonably great danger by the sovereign – in
relation to the apprehended harmfulness of the
intrusion. It must not be attacked unless there is a
reason to suspect that it is a real threat. It should also
be given a warning to land or change course first.
Outer Space
Sovereignty over airspace extends only until where
outer space begins but where this begins has yet no
definite answer.
Outer space, wherever that might start, and celestial
bodies are not susceptible to appropriation by any state.
The exploration and use of outer space, including
celestial bodies, are carried out for the benefit and in the
interests of all countries and is the province of all
mankind. Outer space and celestial bodies are free for
exploration and use by all states without discrimination
and there shall be free access to all areas of celestial
bodies. There shall be freedom of scientific investigation
and states shall facilitate and encourage int’l cooperation
in such cooperation.
States should not place in orbit, on celestial bodies,
or in outer space any nuclear weapons or other weapons
of mass destruction. Celestial bodies shall be used only
for peaceful purposes.
States should regard astronauts as envoys of
mankind and should render them all possible assistance
in the event of accident, distress, or emergency landing
on the territory of another state party or in the high
seas. The astronauts should be safely and promptly
returned to the State of registry of their space vehicle.
Astronauts of different states should render all
possible assistance to one another when in outer space.
States should immediately inform the other states of
any phenomena they discover in outer space which
would constitute a danger to the life or health of
astronauts.
Chapter 7. Law of the Sea
Territorial Sea: A belt of sea outwards from the
baseline and up to 12 nautical miles beyond.
When this results in overlapping, the dividing line is a
median line equidistant from the opposite baselines. But
the equidistance rule does not apply where historic title
or other special circumstances require a different
measurement.
Baselines: “normal” or “straight”
Baseline: The low-water line along the coast as
marked on large scale charts officially recognized by the
coastal state.
Helen C. Arevalo
2nd Sem; 2003
The width of the territorial sea is measured from the
baseline.
2 ways of drawing the baseline:
1.) “normal” baseline: Drawn following the low-
water line along the coast as marked on large
scale charts officially recognized by the coastal
state. It follows the curvatures of the coast and
therefore would not consist of straight lines.
2.) “straight” baseline: Straight lines are drawn
connecting selected points on the coast without
appreciable departure from the general shape of
the coast. This method is used by archipelagic
states such as ours.
Sovereignty over Territorial Sea
The sovereignty of the coastal state over its
territorial sea and the airspace above it as well as the
seabed under it is the same as its sovereignty over its
land territory.
However, it is subject to the right of innocent
passage by other states. The rule on innocent passage
applies to ships and aircrafts. Submarines must surface.
Innocent Passage: Passage that is not prejudicial to
the peace, good order or security of the coastal state.
Coastal states have the unilateral right to verify the
innocent character of passage, and it may take
necessary steps to prevent passage that it determines to
be not innocent.
The rule on innocent passage also applies to straits.
Internal Waters: All waters (part of the sea, rivers,
lakes, etc.) landwards from the baseline of the territory.
Sovereignty over these waters is the same in extent
as sovereignty over land, and it is not subject to the
right of innocent passage.
However, ports of every state must be open to
foreign vessels and can only be closed when vital
interests of the state so requires, though they may
regulate access to its ports.
Archipelagic Waters: Internal waters created from the
effects of the straight baseline method enclosing an area
which had previously not been considered as such.
A right of innocent passage shall exist.
State may designate sea lanes and air routes above,
suitable for the continuous and expeditious passage of
foreign ships and aircraft through or over its archipelagic
waters and the adjacent territorial sea.
Our Consti considers all waters connecting the islands
as internal waters. There really is no problem, however,
since the rule only applies to those areas which had not
previously been considered as internal. The 1973 Consti
predates the Convention.
Bays: A well-marked indentation whose penetration is in
such proportion to the width of its mouth as to contain
land-locked waters and constitute more than a mere
curvature of the coast. The area of the indentation must
be as large as, or larger than, that of the semi-circle
whose diameter is a line drawn across the mouth of that
indentation.
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The waters of a bay are considered internal waters.
Contiguous Zone: Area of water not exceeding 24
nautical miles from the baseline. It extends 12 nautical
miles from the edge of the territorial sea.
The coastal state exercises authority over that area
to the extent necessary to prevent infringement of its
customs, fiscal, immigration or sanitation authority over
its territorial waters or territory and to punish such
infringement.
However, this power control does not change the
nature of the waters. Beyond the territorial sea, the
waters are high sea and not subject to the sovereignty
of the coastal state.
Exclusive Economic Zone or “Patrimonial Sea”:
Area extending not more than 200 nautical miles beyond
the baseline.
The coastal state has rights over the economic
resources of the sea, seabed and subsoil – but the right
does not affect the right of navigation and overflight of
other states.
The provisions of the EEZ are both a grant of rights
and an imposition of obligations on coastal states
relative to the exploitation, management and
preservation of the resources found within the zone.
2 primary obligations:
1.) Ensure through proper conservation and
management measures that the living resources
of the EEZ are not subjected to overexploitation.
This includes the duty to maintain and restore
populations of harvested fisheries at levels which
produce a “maximum sustainable yield.”
2.) Promote the objective of “optimum utilization” of
the living resources. If it does not have the
capacity to harvest the allowable catch, it must
grant access to other states.
The delimitation of overlapping EEZs between
adjacent states is determined by agreement.
The Continental (Archipelagic) Shelf refers to:
1.) The seabed and subsoil of the submarine areas
adjacent to the coastal state but outside the
territorial sea, to a depth of 200 meters or,
beyond that limit, to where the depth allows
exploitation, and
2.) The seabed and subsoil of areas adjacent to
islands.
The coastal state has the right to explore and exploit
its natural resources, to erect installations needed, and
to erect a safety zone over its installations with a radius
of 500 meters.
The right does not affect the right of navigation of
others. The right does not extend to non-resource
material in the shelf area such as wrecked ship and their
cargoes.
The Deep Seabed: Areas of the seabed and the ocean
floor, and their subsoil, which lie beyond any national
jurisdiction.
Helen C. Arevalo
2nd Sem; 2003
These are the common heritage of mankind and may
not be appropriated by any state or person.
Islands: A naturally formed area of land, surrounded by
water, which is above water at high tide.
Islands can have their own territorial seas, EEZs and
continental shelves.
Rocks which cannot sustain human habitation or
economic life only have a territorial sea.
Artificial islands or installations are not islands.
However, coastal states may establish safety zones
around artificial islands and prescribe safety measures
around them.
The High Seas: All parts of the sea that are not
included in the territorial sea or in the internal waters of
a State.
It is subject to 6 freedoms:
1.) Freedom of navigation;
2.) Freedom of overflight;
3.) Freedom of fishing;
4.) Freedom to lay submarine cables and pipelines;
5.) Freedom to construct artificial islands and
structures;
6.) Freedom of scientific research.
The flag state has exclusive jurisdiction over its ships
on the high seas to the extent not limited by agreement.
By legal fiction, a ship is a floating part of the flag state.
The law of the flag state is applied to it.
Freedom of overflight belongs to both civilian and
military aircraft.
Freedom of fishing also includes the duty to
cooperate in taking measures to ensure the conservation
and mgt of the living resources of the high seas.
Note: high seas are defined as the areas past the
territorial sea. So, it includes the contiguous zone, EEZ,
etc. However, in these areas, as can be seen above, not
all the 6 freedoms apply or they are restricted in some
way.
Mutatis Mutandis: The right of hot pursuit.
Hot Pursuit of a foreign vessel is allowed when:
1.) There is good reason to believe that the ship has
violated laws or regulations of a coastal state.
2.) The pursuit commences when the foreign vessel
is within the:
a.) internal waters,
b.) archipelagic waters,
c.) territorial waters, or
d.) contiguous zone
of the pursuing state.
3.) The pursuit has not been interrupted.
4.) If from the contiguous zone, it may be pursued
only for violations of the rights of the coastal
state in the contiguous zone.
This also applies to violations of applicable laws and
regulations of the coastal state in the EEZ or the
continental shelf including the safety zones of the shelf.
5.) It must stop as soon as the ship enters the
territorial waters of its own or a third state.
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6.) It is carried out by warships / military aircraft or
any other ship or aircraft properly marked for
that purpose.
However, this does not justify sinking of the vessel
pursued.
Settlement of Disputes
Peaceful settlement of disputes is compulsory. If a
bilateral settlement fails, the dispute must be submitted
for compulsory settlement in one of the tribunals clothed
with jurisdiction. The alternatives are:
1.) The International Tribunal for the Law of the
Sea;
2.) The ICJ; or
3.) An arbitral tribunal constituted under the
Convention.
Chapter 12. International Organizations
Establishment, international personality, immunity
International Organization (IO): An organization that
is set up by treaty among 2 or more states.
Establishment: The constituent document of IOs is a
treaty. For this reason, only states are members of IOs.
The object of the treaty is to create new subjects of law
endowed with a certain autonomy, to which the parties
entrust the task of realizing common goals.
International Personality: IOs are held to possess
international personality [Reparations Case].
The charter itself might specifically endow it with
international personality. If it does not, it may be
implied by the functions of the org.
Powers and privileges: not the same as states. They
are limited to the constituent instrument that created
them.
They do not like states possess a general
competence. They are governed by the “principle of
specialty”: they are invested by the States which create
them with powers, the limits of which are a function of
the common interests whose promotion those States
entrust to them. The powers conferred may be by an
express statement in the constituent instrument or
implied from that needed to achieve their objectives
[Advisory Opinion on the Use of Nuclear Weapons].
Immunities
Because they enjoy international personality, they
can also be given the immunities and privileges of
international persons.
Basis for immunity: Not sovereignty but the need for
the effective exercise of their functions.
There is no common law doctrine recognizing the
immunity of IOs. Their immunities come from the
conventional instrument creating them.
The Phil. Court, in several cases, has affirmed this
immunity. However, it was held that their immunity is
not absolute. It is limited to acts performed in an official
capacity.
Helen C. Arevalo 15
2nd Sem; 2003
The United Nations: Structures and Powers
UN: A universal org charged with:
1.) peace-keeping responsibilities;
2.) devt of friendly relations among nations;
3.) achievement of int’l cooperation in solving int’l
problems of an economic, social, cultural and
humanitarian character, and
4.) promotion of human rights and fundamental
freedoms for all human beings without
discrimination.
The UN came into being when the UN Charter came
into force. The membership now includes almost all the
world’s independent nations. As new independent
nations arise, the numbers of members continue to
grow.
Admission to membership is open to all peace-
loveing states which accept the obliges contained in the
Charter and, in the judgment of the org, are able and
willing to carry out these obligs.
The UN is enjoined against intervening in matters
which are essentially within the domestic jurisdiction of
any state.
In the hierarchy of IOs, the UN occupies a position of
pre-eminence. Its charter has an “international
constitutional supremacy clause” which provides that in
case of conflict of obligs under the Charter with those
under another int’l agreement, the Charter would
prevail.
Principal Organs of the UN:
1.) The General Assembly;
2.) The Security Council;
3.) The Economic and Social Council (ECOSOC);
4.) The Trusteeship Council;
5.) The International Court of Justice (ICJ); and
6.) The Secretariat.
General Assembly
All members are represented. It has plenary powers
in the sense that it may discuss any question or any
matters within the scope of the charter.
Important questions (as identified by Charter or by
majority vote of GA): decided by 2/3 majority of the
members voting and present.
Other questions: Only a majority.
Security Council
Has the primary responsibility for the maintenance of
international peace and security.
15 member states.
Permanent members (5):
1.) China;
2.) France;
3.) Russia;
4.) UK; and
5.) US.
Other members (10): Elected for 2 year terms in
accordance with equitable geographic representation.
The Security Council distinguishes between
procedural matters and all other matters.
Not procedural: require 9 affirmative votes, incl. the
concurring votes of the permanent members.
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Midterm Reviewer PUBLIC INTERNATIONAL LAW 2nd Sem; 2003

Decision of whether a matter is procedural or not also 3 Main Objectives:

requires the concurrence of the permanent members.
Hence, a double veto by the permanent members is
possible. An abstention is considered a veto.
ECOSOC
54 members states for 3 year terms.
It has a large number of subsidiary organs, e.g. UN
Commission of Human Rights, and Commission on the
Status of Women.
1.) To promote econ, social and cult devt of the
region thru cooperative programs;
2.) To safeguard the pol and econ stability of the
region against big power rivalry; and
3.) To serve as a forum for the resolution of intra-
regional differences.

Trusteeship Council
Supervises non-self governing territories. Since there
are no more, it has suspended operations.

Secretariat
Comprised of a Secretary General and such staff as it
may require.
The SecGen is elected to a 5 year term by the GA
upon the recommendation of the Security Council,
subject to veto power.
SecGen: The chief administrator of the org and has
the power to bring to the attention of the Security
Council any matter which in his opinion may threaten
the maintenance of int’l peace and security.

International Court of Justice

The principal judicial organ of the UN

Other Agencies
Aside from main organs, there are also specialized
agencies, e.g.:
1.) The World Bank;
2.) The International Monetary Fund (IMF);
3.) The World Health Org (WHO; etc.

Regional Organizations: ASEAN

Regional Organization: International institutions
created by international agreements for the purpose of
dealing with regional problems in general or with specific
matters be they economic, military or political.
These are neither organs nor subsidiary organs of the
UN. They are autonomous international organizations
having an institutional affiliation with the UN by
concluding agreements with the UN.
ASEAN: The regional org of South East Asian nations.
Established with the signing of the Bangkok Declaration
by the 5 orig member states:
1.) Indonesia;
2.) Malaysia;
3.) Phils;
4.) Singapore; and
5.) Thailand.
The ff have joined since then:
1.) Brunei Darussalam;
2.) Vietnam;
3.) Laos; and
4.) Myanmar.
The ASEAN member states united in a joint effort to
promote economic cooperation and the welfare of the
people in the region.

Helen C. Arevalo 16 Section II-D