Public International Law

International Law.
Finals: Volume 4 to Volume 5 =) God bless us all=)
Part A Territory Territory in International Law. Territory as an element of a state means an area over which a state has effective control. Note: Sir Ligutan adds Effective Control and Occupation. As the Las Palmas Case, infra, shows, control (and occupation) over territory is of the essence of a state. The exact boundaries might b uncertain, but there should be a definitive core over which sovereignty is exercised. Acquisition of territory more precisely means acquisition of sovereignty over territory.
Modes of Acquisition of Sovereignty over Territory Some of the questions regarding territory are now of historical interest merely. But how they are acquired is still worth examining. The roots of the law on territorial sovereignty are traceable to Roman law provisions governing ownership and possession.
1. Discovery and Occupation Occupation is the acquisition of terra nullius, that is, territory which prior to occupation belonged to no state or which may have been abandoned by a prior occupant. There is abandonment when the occupant leaves the territory with the intention of not returning. Note: Discovery of terra nullius, moreover, is not enough to establish sovereignty. It must be accompanied by effective control. This is the teaching of the Las Palmas case ( 1928 Permanent Court of Arb) 2. Prescription Is also recognized as a mode of acquiring sovereignty over territory. Like occupation, however, prescription requires effective control. But unlike occupation, the object of prescription is not terra nullius. The required length of effective control is longer than occupation. Moreover,
By : Gesal Marie Arnoza . based on Atty. Ligutans summary and Father Bernas PIL Book
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International Law. Finals: Volume 4 to Volume 5 =) God bless us all=)
prescription might be negated by a demonstrated lack of acquiescence by the prior occupant. (Las Palmas) 3. Cession Cession, or acquisition of territory through treaty, is another mode. Thus the United States acquired the Philippines through the Treaty of Paris. It should be noted, however, that a treaty of cession which is imposed by a conqueror is invalid. Thus there may be a situation where what prevails is merely a de facto regime 4. Conquest Conquest was in earlier days the taking possession of a territory through armed force. For acquisition of conquered territory, it was necessary that the war had ended by treaty, or by indication that all resistance has been abandoned. Moreover, the conqueror must have had the intention of acquiring the territory and not just of occupying it temporarily. For instance, the U.S. in Germany had no intention of acquiring the territory. Note: Today conquest as a mode of acquisition is proscribed by international law. 5. Accretion and Avulsion Accretion and Avulsion can also lead to sovereignty over territory. This is sovereignty by operation of nature. Accretion is the gradual increase of territory by the action of nature; avulsion is a sudden change resulting for instance from the action of a volcano. Question. Is Contiguity a mode of acquisition? Because of the closeness of the Spratleys to Philippine territory, it has been argued that the area belongs to the Philippines by contiguity. The Las Palmas case is an argument against contiguity as a basis for sovereignty.
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Part A.2 Other subjects of International Law 1. International Organizations like United Nations. Question: do they have immunity? Ans: Based on the Reparations case (ICJ advisory opinion, 1949) : Yes. United Nations , it must be a necessary implication arising from the charter in order to perform its functions , since the Charter is silent as to its international personality. What is the constitutive element of international organizations? Two theories: 1. Constitution 2. Treaties. Father Bernas said Treaties.
Part B Jurisdiction: Jurisdiction means the authority to affect legal interest. Corresponding to the powers of government, jurisdiction can be: (1)Jurisdiction to prescribe norms of conduct (Legislative jurisdiction),(2) jurisdiction to enforce the norms prescribed (executive jurisdiction), and (3) jurisdiction to adjudicate ( judicial jurisdiction). The scope of a states jurisdiction over a person, thing, or event depends on the interest of the state in affecting the subject in question. Where there are competing interest among various states, there may be a need to establish priorities on the basis of the quality and quantity of the linkages the various states have. For that matter, it is possible for more than one sovereignty to have jurisdiction over the same subject matter.
By : Gesal Marie Arnoza . based on Atty. Ligutans summary and Father Bernas PIL Book Page 3
International law limits itself to criminal rather than civil jurisdiction. Civil Jurisdiction is a subject for private international law or conflicts of law. Writers have come up with five principles as follows: ( Note the following are the recently added principles last time by Sir Ligutan from Bernas Book ) 1.) The territoriality principle; 2.) The nationality principle; 3.) The protective principle; 4.) The universality principle; and 5.) The passive personality principle 1. The Territoriality Principle. The fundamental source of jurisdiction is sovereignty over territory. A State has absolute, but no necessarily exclusive, power to prescribe, adjudicate and enforce rules for conduct that occurs within its territory. For this reason , it is necessary that boundaries be determined. In this regard it is important to recall what was said in the Las Palmas case: To have jurisdiction, occupation is not enough; control must also be established. The Philippines has no problem with surface land boundaries because we have no contiguous neighbors. However, because we are very close to other Asian states, knowing where our boundaries end may be necessary for purposes of determining our exclusive economic zone, treated earlier in Chapter 9. **Effects Doctrine** An Aspect Of the territoriality principle is the effects doctrine. A state also has jurisdiction over acts occurring outside its territory but having effects within it. This was enunciated in the Lotus Case, and early case dealing with jurisdiction. Lotus Case: File E. c. Docket XI
Judgment No. 9 7 September 1927 PERMANENT COURT OF INTERNATIONAL JUSTICE Twelfth (Ordinary) Session The Case of the S.S. Lotus France v. Turkey Judgment
BEFORE:
President: Huber ViceWeiss President: Former Loder President Lord Finlay, Nyholm, Moore, De Bustamante, Altamira, Oda, Anzilotti, Judges: Pessoa National Feizi-Daim Bey Judge:
Represented France: By: Turkey:
Basdevant, Professor at the Faculty of Law of Paris His Excellency Mahmout Essat Bey, Minister of Justice
Perm. Link: http://www.worldcourts.com/pcij/eng/decisions/1927.09.07_lotus.htm Citation: S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7) Publication: Publications of the Permanent Court of International Justice, Series A - No. 10; Collection of Judgments, A.W. Sijthoffs Publishing Company, Leyden, 1927.
Ruling : [84] The conclusion at which the Court has therefore arrived is that there is no rule of international law in regard to collision cases to the effect that criminal proceedings are exclusively within the jurisdiction of the State whose flag is flown.
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[85] This conclusion moreover is easily explained if the manner in which the collision brings the jurisdiction of two different countries into play be considered.
[86] The offence for which Lieutenant Demons appears to have been prosecuted was an act of negligence or imprudence having its origin on board the Lotus, whilst its effects made themselves felt on board the BozKourt. These two elements are, legally, entirely inseparable, so much so that their separation renders the offence non-existent. Neither the exclusive jurisdiction of either State, nor the limitations of the jurisdiction of each to the occurrences which took place on the respective ships would appear calculated to satisfy the requirements of justice and effectively to protect the interests of the two States. It is only natural that each should be able to exercise jurisdiction and to do so in respect [p31] of the incident as a whole. It is therefore a case of concurrent jurisdiction.
2. The Nationality Principle The nationality principle says that every state has jurisdiction over its nationals even when those nationals are outside the State. Blackmer vs Unitited States Facts: The petitioner Harry Blackmer , a citizen of the United States resident in Paris, Franice, was adjudged guilty of contempt of the Supreme Court of the District of Columbia for failure to respond to subpoenas served upon him in France (his residence) and requiring him to appear as witness on behalf of United States at a Criminal Trial in that Court. Each state has the right to decide who are its national using either the principle of jus sanguinis or jus soli or naturalization laws. However, for a state to claim a person as a national, the state must have reasonable connection or an effective link with that person. The consent of the individual alone is not enough for him to belong . The Nottebohm case is illustrative. Effective Nationality Link
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The doctrine on effective nationality link is used to determine which of two states of which a person is a national will be recognized as having the right to give diplomatic protection to the holder of dual nationality. The doctrine in the Nottebohm case.
The Nottebohm Case Liechtenstein vs. Guatamela ICJ . 1955 Rulings cited by Atty. Ligutan =) At the time of his naturalization does Nottebohm appear to have been more closely attached by his tradition, his establishment, his interests, his activities, his family ties, his intentions for the near future to Liechtenstein than to any other State? The essential facts appear with sufficient clarity from the record. They are as follows:
At the date when he applied for naturalization, Nottebohm had been a German national from the time of his birth. He had always retained his connections with members of his family who had remained in Germany and he had always had business connections with that country. His country had been at war for more than a month, and there is nothing to indicate that the application for naturalization then made by Nottebohm was motivated by any desire to dissociate himself from the Government of his country.
He had been settled in Guatemala for 34 years. He had carried on his activities there. It was the main seat of his interests. He returned there shortly after his naturalization, and it remained the center of his interests and of his business activities. He stayed there until his removal as a result of war measures in 1943. He subsequently attempted to return there, and he
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now complains of Guatemala's refusal to admit him. There, too, were several members of his family who sought to safeguard his interests.
In contrast, his actual connections with Liechtenstein were extremely tenuous. No settled abode, no prolonged residence in that country at the time of his application for naturalization: the application indicates that he was paying a visit there and confirms the transient character of this visit by its request that the naturalization proceedings should be initiated and concluded without delay. No intention of settling there was shown at that time or realized in the ensuing weeks, months or yearson the contrary, he returned to Guatemala very shortly after his naturalization and showed every intention of remaining there. If Nottebohm went to Liechtenstein in 1946, this was because of the refusal of Guatemala to admit him. No indication is given of the grounds warranting the waiver of the condition of residence, required by the 1934 Nationality Law, which waiver was implicitly granted to him. There is no allegation of any economic interests or of any activities exercised or to be exercised in Liechtenstein, and no manifestation of any intention whatsoever to transfer all or some of his interests and his business activities to Liechtenstein. It is unnecessary in this connection to attribute much importance to the promise to pay the taxes levied at the time of his naturalization.
The only links to be discovered between the Principality and Nottebohm are the short sojourns already referred to and the presence in Vaduz of one of his brothers: but his brother's presence is referred to in his application for naturalization only as a reference to his good conduct.
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These facts clearly establish, on the one hand, the absence of any bond of attachment between Nottebohm and Liechtenstein and, on the other hand, the existence of a long-standing and close connection between him and Guatemala, a link which his naturalization in no way weakened. That naturalization was not based on any real prior connection with Liechtenstein, nor did it in any way alter the manner of life of the person upon whom it was conferred in exceptional circumstances of speed and accommodation. In both respects, it was lacking in the genuineness requisite to an act of such importance, if it is to be entitled to be respected by a State in the position of Guatemala. It was granted without regard to the concept of nationality adopted in international relations.
Sir Ligutan read this too: Naturalization was asked for not so much for the purpose of obtaining a legal recognition of Nottebohms membership in fact in the population of Liechtenstein, as it was to enable him to substitute for his status as a national of a belligerent State that of a national of a neutral State, with the sole aim of thus coming within the protection of Liechtenstein but not of becoming wedded to its traditions, its interests, its way of life or of assuming the obligationsother than fiscal obligationsand exercising the rights pertaining to the status thus acquired.
Guatemala is under no obligation to recognize a nationality granted in such circumstances. Liechtenstein consequently is not entitled to extend its protection to Nottebohm vis -a-vis Guatemala and its claim must, for this reason, be held to be inadmissible.
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The Court is not therefore called upon to deal with the other pleas in bar put forward by Guatemala or the Conclusions of the Parties other than those on which it is adjudicating in accordance with the reasons indicated above. 3. The protective principle . This principle says that a state may exercise jurisdiction over conduct outside its territory that threatens its security, as long as that conduct is generally recognized as criminal by states in the international community. (Restatement 402 [3] This conditional clause excludes acts committed in exercise of the liberty guaranteed an alien by the law of the place where the act was committed.
The examples given of acts covered by the protective principle are plots to overthrow the government, forging its currency, and plot to break its immigration regulations.
4. The Universality Principle The Universality principle recognizes that certain activities , universally dangerous to states and their subjects, require authority in all community members to punish such acts wherever they may occur, even absent a link between the state and the parties or the acts in question. This principle started with piracy. Piracy in international law means any illegal act of violence or depredation committed for private ends on the high seas or outside the territorial control of any state. Now the principle covers not just piracy but also genocide, crimes against humanity, war crimes, aircraft, piracy, and terrorism. There is also a growing support for universal jurisdiction over crimes against human rights. 5. Passive Personality Principle. The Comment on 402 of Third Restatement says: The passive personality principle asserts that a state may apply law- particularly criminal law- to an act committed outside its territory by a person not its national where the victim of the act was its national. The principle has not been ordinarily accepted for ordinary torts or crimes, but it is increasingly accepted as applied to terrorist and other organized
attacks on a states nationals by reason of their nationality , or to assassination of a states diplomatic representative or other officials .
Part C. 1 Immunity
Immunity from Jurisdiction The general rule is that jurisdiction of a state within its territory is complete and absolute. However, there are two categories of exception to this rule. The first is sovereign immunity and the second is the immunity of the representative of states or diplomatic and consular immunities. Sovereign immunity covers both a head of state and the state itself. State Immunity The principle that the state may not be sued without its consent found in the Philippine Constitution is both municipal law and also international law applicable to foreign states. This is based on the principle of equality of states: par in parem non habet imperium. Note: with the gradual expansion of state involvement in comer, the principle evolved over the years. Immunity came to be reserved only for acts jure imperii (governmental acts) but no for acts jure gestionis (trading and commercial acts). Part C. 2 Diplomatic and consular immunities The immunities and privileges they enjoy are personal in the sense that they benefit the person. But the purpose of the immunities given is functional, that is, to enable them to perform their functions properly. On the part of the receiving state there lie certain obligations to protect the representative and his property office. The law on this subject is very important because of the reliance states place on their representatives in dealing with other states. Diplomatic Immunities: Diplomats are concerned with the political relations of states. The codification of the law on the subject may be found in the Vienna Convention on Diplomatic Relations (1961).
Article 31 1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state. He shall also enjoy immunity from its civil, and administrative jurisdiction. Sir asked on duration of the Immunity . Answer: Article 39 ARTICLE 39 1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed. 2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist. 3. In case of the death of a member of the mission, the members of his family shall continue to enjoy the privileges and immunities to which they are entitled until the expiry of a reasonable period in which to leave the country. 4. In the event of the death of a member of the mission not a national of or permanently resident in the receiving State or a member of his family forming part of his household, the receiving State shall permit the withdrawal of the movable property of the deceased, with the exception of any property acquired in the country the export of which was prohibited at the time of his death. Estate, succession and inheritance duties shall not be levied on movable property the presence of which in the receiving State was due solely to the presence there of the deceased as a member of the mission or as a member of the family of a member of the mission.
Part C.3
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Consuls and consular immunities Consuls are not concerned with political matters. They attend rather to administrative and economic issues such as the issuance of visas.
Part D STATE RESPONSIBILITY Sir Ligutans lecture: On Corfu Channel case: You cannot compensate breach of sovereignty. Requisites of Spousal doctrine: 1. Exhaustion of administrative remedies 2. National of the State (Nottebohm = Real Effective Link of Nationality)
Sir said there is no Res Judicata in International law, but in article 38 par d mentions subsidiary means Here there are 3 kinds of reparation 1. Restitution = which is not applicable in this case. 2. Compensation= Which is not also applicable since you cannot compensate sovereignty 3. Satisfaction= The court ruled on satisfaction, and satisfaction means the acknowledgement of the breach.
The big question in this section is: ARISE?
WHEN DOES STATE RESPONSIBILITY
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Keywords: 1. 2. Identify the breach of an international obligation Attribution for the breach (this depends on the breach itself)
Identify Obligation Consequences [SOURCE]
Breach
Attribute
breach
to
the
state
[STATE RESPONSIBILITY]
The DRAFT ARTICLES ON STATE RESPONSIBILITY was made by the INTERNATIONAL LAW COMMISSION (ILC). Taking almost 40 years to complete, it provides a neutral, procedural framework for state responsibility and does not define the actual breach which gives rise to state responsibility.
In the MAVROMANTIS case, the principle was established that THE PRIMARY NEXUS for diplomatic protection is NATIONALITY. Thus, an injury to the national is also an injury to the State.
However, in NOTTEBOHM, it was established that OTHER STATES ARE NOT BOUND BY ANOTHER'S CLAIM OF NATIONALITY. Determining nationality is a matter of domestic law. When a person, however, is given nationality by 2 states, then the case goes beyond domestic law and goes into the realm of international law. The test for the nationality of a person is THE MOST SIGNIFICANT LINK. In this case, Nottebohm didn't meet the test. Even though he was a national of Liechtenstein, Guatemala was not bound to recognize such citizenship because he did not really "link" himself to Liechtenstein and merely had a citizenship of convenience.
The AMBATIELOS case established that WON a State will take up your case is at the discretion of the State. Individuals are not within the jurisdiction of an international court. The state brings the individual to the international scene only on its discretion. So, WON a state wants to exert diplomatic protection over a citizen is entirely up to it.
Summary so far: State protection is granted because of nationality (Mavromantis). However, WON a state will protect you in the international court is discretionary (Ambatielos).
The grant of nationality is domestic law and the test is the most significant link. BUT other states are not bound to recognize another's recognition of its national (Nottebohm).
Now we come to the BARCELONA TRACTION case, wherein the court held that Belgium had no legal standing to protect the Belgian shareholders of the Barcelona Traction Company, who were victimized by "creeping nationalization." Instead, it ruled that it was Canada which had the right to prosecute claims against Spain, because the company was incorporated in Canada. However, Sir says that applying Nottebohm and the other cases, Belgium should have been allowed to prosecute its case against Spain because the shareholders who suffered injury were Belgium nationals. Sir said, to put a human face to the shareholders, these Belgians were retirees who put their savings into the company and then lost it all (tsk).
In TIMOR GAP, if Portugal relied on Barcelona, then they would have had the right to sue in behalf of the East Timorese because in the Barcelona case, the court mentioned (obiter) about obligations erga omnes. Portugal can sue because self determination is an obligation erga omnes. BUT the court threw out the case because of lack of jurisdiction over Indonesia. Lesson learned is that in cases of self determination, it doesn't matter what state is asking for it in behalf of certain people because self-determination is an obligation erga omnes (no nexus required!) Part C USE OF FORCE
Cornerstone of the Doctrine of Use of Force is Article 2.4 of the UN Charter.
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The UN charter first declares the principle against the Non-Use of Force (Articles 2.3 and 2.4). And the it provides the means necessary to carry out the principles (24.1, 25, 23.1, 27.3, and Chapter 7 which is about the powers of the Security Council.)
What's chapter 7 about? ACTIONS WITH RESPECT THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION.
What triggers chapter 7 when there's fighting within the state? A token request of help from a neighbor. On what grounds? Spill-over argument (things are too messy at my neighbor's place and I'm scared it will spill over to my country) and obligations erga omnes.
After the UN Charter states the General Rule, it states the EXCEPTION to the rule in Article 51, which is the INHERENT RIGHT TO SELF-DEFENSE. As defined in the charter, however, the meaning of "armed attack" causes confusion.
Article 51 Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
So, the UN had to come up with a definition for AGGRESSION. What is aggression? This was defined in the UN GA RESOLUTION 3314 as: Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other
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manner inconsistent with the Charter of the United Nations, as set out in this Definition. Examples of Use of Force:
1. In YUGOSLAVIA vs. UK, it was demonstrated that use of force THROUGH CHAPTER VII is LEGAL, while use of force UNILATERALLY, as in this case, is ILLEGAL. But the caes was still thrown out for lack of jurisdiction.
2. In the UN SECURITY COUNCIL RESOLUTIONS OF 2001 (post 9/11), the Security Council was all set to fight the terrorists (self defense). In Resolution 1368, they had no idea who to attack so they remained seized of the matter. In 1367, they already came out with a decision and concrete things to do or not to do.
3. Operation Desert Storm in 1991 and Enduring Freedom 2003 - When US attacked in 2003, they had to have an excuse so they won't be violating the charter. Their first excuse was pre-emptive self-defense (weapons of mass destruction theory) and their second was that they had residual authority under Chapter 7 from Desert Storm.
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International Law.

Finals: Volume 4 to Volume 5 =) God bless us all=)

International Law. Finals: Volume 4 to Volume 5 =) God bless us all=)

International Law. Finals: Volume 4 to Volume 5 =) God bless us all=)

International Law. Finals: Volume 4 to Volume 5 =) God bless us all=)

International Law. Finals: Volume 4 to Volume 5 =) God bless us all=)

Represented France: By: Turkey:

International Law. Finals: Volume 4 to Volume 5 =) God bless us all=)

International Law. Finals: Volume 4 to Volume 5 =) God bless us all=)

International Law. Finals: Volume 4 to Volume 5 =) God bless us all=)

International Law. Finals: Volume 4 to Volume 5 =) God bless us all=)

International Law. Finals: Volume 4 to Volume 5 =) God bless us all=)

International Law. Finals: Volume 4 to Volume 5 =) God bless us all=)

International Law. Finals: Volume 4 to Volume 5 =) God bless us all=)

International Law. Finals: Volume 4 to Volume 5 =) God bless us all=)

The big question in this section is: ARISE?

WHEN DOES STATE RESPONSIBILITY

International Law. Finals: Volume 4 to Volume 5 =) God bless us all=)

Identify Obligation Consequences [SOURCE]

International Law. Finals: Volume 4 to Volume 5 =) God bless us all=)

Cornerstone of the Doctrine of Use of Force is Article 2.4 of the UN Charter.

International Law. Finals: Volume 4 to Volume 5 =) God bless us all=)

International Law. Finals: Volume 4 to Volume 5 =) God bless us all=)

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