Midterm Reviewer PUBLIC INTERNATIONAL LAW 2nd Sem; 2003

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 Ancient IL governed exchange of diplomatic emissaries, peace claim that there can be no law binding sovereign states. treaties, etc. in world of ancient Romans and earlier. The Also, there is no international legislative or executive progressive rule of jus gentium, seen as a law common to all body nor a central authority that can make judgments man, became the law of the vast Roman Empire. binding on States. Modern IL began with the birth of nation-states in the Medieval Legislative: The resolutions of the General Assembly Age. Governing principles were derived from Roman Law or of the UN are generally not binding. Canon Law which drew from natural law. Hugo Grotius Executive: Often effectively hamstrung by the veto considered father of modern IL. What he called law of the power. nations was later given the name IL by Jeremy Bentham. Judicial: The International Courts of Justice can bind The positivist approach reinterpreted IL not on basis of concepts states only when they consent to be derived from reason but rather on basis of what actually bound. happened in the conflict between states. With emergence of Most of the time all the UN can do is censure. It is, notion of sovereignty came the view of law as commands therefore, often said that it is not really law because it is backed up by threats of sanction. In this view, IL not law bec commonly disregarded. not from command of sovereign. These objections are based on an exaggerated notion of Significant milestones in development of IL: sovereignty as embodying an individualist regime. This is 1.) Peace of Westphalia (ending 30 yrs war) established a not the reality. The reality is social interdependence and treaty based framework for peace cooperation. (it was the predominance of the general interest. at this time that pacta sunt servanda arose.) Although the final enforcer is power, fundamentally, 2.) Congress of Vienna (ending Napoleonic wars) created a there is a general respect for law because of the possible system of multilateral pol and econ cooperation. consequences of defiance. 3.) Covenant of the League of Nations (incl. Treaty of Theories about International Law: Versailles ending WWI) created the Permanent Court of 1.) Command Theory:John Austin: law consists of International Justice. commands originating from a sovereign and 4.) Founding of UN in aftermath of WWII. Shift of power backed up by threats of sanction if disobeyed. In away from Europe and beginning of truly universal this view, IL is not law bec it does not come from institution. Universalization advanced by decolonization a command of a sovereign. This theory is which resulted in expansion of membership of UN. New generally discredited. The reality is that nations states, carrying a legacy of bitterness against colonial see IL not as commands but as principles for free powers, became members. and orderly interaction. 5.) Cold War period succeeded in maintaining peace through 2.) Consensual Theory: IL derives its binding force balancing of 2 super powers. from the consent of the states. Treaties and 6.) Dissolution of Soviet Union resulting in end of Cold War customs are expressions of consent. In reality, with re-emergence of intl relations based on multiple however, there are many binding rules which are sources of power and not mainly ideology. not derived from consent. 3.) Natural Law Theory: Law is derived by reason Public and Private International Law from the nature of man. IL is said to be an Distinction should be made bet the 2. application of natural reason to the nature of the Public IL: sometimes referred to only as IL, governs state-person. Theory has little support now but relationships bet and among states and also their relations with much of customary law and generally accepted international orgs and individual persons. principles of law are an expression of natural law. Helen C. Arevalo 1 Section II-D Midterm Reviewer PUBLIC 4.) Feminist approach: IL literature now influenced INTERNATIONAL LAW 2nd Sem; 2003 by feminist thinking which aims to render patriarchal systems, methods and presumptions 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:

Chapter 1. The Nature of International Law

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, theres 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.

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 necesstatisconduct [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 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. Helen C. Arevalo 3 Section II-D Midterm Reviewer PUBLIC INTERNATIONAL LAW 2nd Sem; 2003

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 defn: 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

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. Maam 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. Helen C. Arevalo 4 Section II-D Midterm Reviewer PUBLIC INTERNATIONAL LAW 2nd Sem; 2003

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. 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 cant 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 cant 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. Namibia Case (Advisory Opinion) The Security Council has resolved that South Africas 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 contd 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 Hungarys non-performance of certain responsibilities and impossibility cannot be invoked when it results from that partys 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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Helen C. Arevalo 6 Section II-D

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.

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 intl 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. Helen C. Arevalo 7 Section II-D Midterm Reviewer PUBLIC INTERNATIONAL LAW 2nd Sem; 2003

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 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:

If there is conflict bet the Consti and a treaty, the treaty Treaties and statutes are considered to be of equal rank. As would not be valid and operative as domestic law. The between an earlier treaty and a later law, the later one prevails. Consti recognizes the power of the Supreme Court to This rule, however, only applies in the domestic sphere. The declare a treaty unconstitutional. This does not mean, treaty, even if contrary to a later statute, remains as IL; while however, that it loses its character as IL. Under the dualist an intl tribunal would not have the power to reverse the theory, which the Consti accepts, the unconstitutionality of nullification of the treaty in domestic law, it can take a treaty is purely a domestic matter. appropriate action in favor of an aggrieved state. Note: Provisions of the Consti which are considered as not Head Money Cases (Edye v. Robertson), US case. being self-executing, if not executed with subsequent legislation, cannot give rise to a cause of action in the courts. [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 Not all subjects of IL enjoy the same rights and obligations. irrepealable or unchangeable. The Consti gives it no States remain the predominant actors although International superiority over an act of Congress which may be Organizations may also have personality [Reparations Case]. repealed or modified by an act of a later date. States enjoy the fullest personality in IL. IOs are imperfect Insofar as a treaty made between states can become the subjects along with federated states, belligerent communities, subject of domestic courts, it is subject to such acts as etc. Congress may pass for its enforcement, modification or States: A community of persons more or less numerous, repeal. permanently occupying a definite portion of territory, Whitney v. Robertson, US case. independent of external control, and possessing an organized Merchants imported a large quanitity of sugar from the govt to which the great body of inhabitants render habitual island of San Domingo. They claim that it should be obedience. admitted free of duty under a treaty with Hawaii which Elements: provides for goods similar in kind to be admitted free of 1.) People; duty. 2.) Territory; Held: The act of Congress under which the duties were 3.) Government; and collected, authorized their exaction. It is of general 4.) Sovereignty. application, making no exception in favor of goods of any country. It was passed after the treaty and if there be People or Population: A community of persons sufficient in any conflict, the law must control. number and capable of maintaining the permanent existence of Treaty is on the same footing as an act of legislation. the community and held together by a common bond of law. When the two relate to the same subject, the courts will It is of no legal consequence if they possess diverse racial, endeavor to construe them to give effect to both. If the cultural, or economic interests. Nor is a minimum population two are inconsistent, the one last in date will control the required. other. Territory: A definite territory over which an entity exercises The duty of the courts is to give effect to the last permanent sovereignty. expression of the sovereign will. However, an entity may satisfy the territorial reqt even if its Treaties are subject to such acts as congress may pass boundaries have not been finally settled, if one or more of its for its enforcement, modification and repeal. boundaries are disputed, or if some of its territory is claimed by If the stipulations of a treaty are not self-executing, they another state. An entity does not necessarily cease to be a state can only be enforced pursuant to legislation to carry them even if all its territory has been occupied by a foreign power or into effect. if it has otherwise lost control of its territory temporarily. If they are self-executing, they are still subject to Government: That institutions or aggregate of institutions by modifications, and even repeal, by Congress. which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social Chapter 5. Subjects of International Law state, or which are imposed upon the people forming that Subjects of international law: Entities endowed with society by those who possess the power or authority of rights and obligations in the international order and prescribing them. possessing the capacity to take certain kinds of action on IL does not specify what form a govt should have. the international plane. They are those with international personality. They are actors in the international legal Helen C. Arevalo 8 Section II-D Midterm Reviewer PUBLIC system and are distinct from objects of international law. INTERNATIONAL LAW 2nd Sem; 2003 Objects of IL: Those who indirectly have rights under, or are beneficiaries of IL through subjects of IL.

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 selfdetermination. 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. 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 Ricas 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. Helen C. Arevalo 9 Section II-D Midterm Reviewer PUBLIC INTERNATIONAL LAW 2nd Sem; 2003

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 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 states 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. Helen C. Arevalo 10 Section II-D Midterm Reviewer PUBLIC INTERNATIONAL LAW 2nd Sem; 2003

Peaceful Co-existence includes: 1.) Mutual respect for each others 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.

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 Helen C. Arevalo 11 Section II-D Midterm Reviewer PUBLIC INTERNATIONAL LAW 2nd Sem; 2003

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. Modes of Acquisition of Sovereignty over Territory: 1.) Discovery and Occupation, 2.) Prescription,

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. 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 states 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 Helen C. Arevalo 12 Section II-D Midterm Reviewer PUBLIC INTERNATIONAL LAW 2nd Sem; 2003

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 intl 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.

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. Helen C. Arevalo 13 Section II-D Midterm Reviewer PUBLIC INTERNATIONAL LAW 2nd Sem; 2003

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. The width of the territorial sea is measured from the baseline.

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. 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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Helen C. Arevalo 14 Section II-D

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. 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 intl cooperation in solving intl 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 worlds 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 preeminence. Its charter has an international constitutional supremacy clause which provides that in case of conflict of obligs under the Charter with those under another intl 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. Helen C. Arevalo 15 Section II-D Midterm Reviewer PUBLIC INTERNATIONAL LAW 2nd Sem; 2003

Decision of whether a matter is procedural or not also 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. 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 intl 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. 3 Main Objectives: 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.
Helen C. Arevalo 16 Section II-D