1PIL

notes Cha
Mendoza
JUN E 16 -as Apartheid was not yet prohibited by the existing set of rules then
existing, then ICJ did not rule on the issue
Most Important Facts Covered Today: -the issue was WON there was a norm of discrimination
International Law No longer limited but a viable field of practice: We
live in an ever interconnected world Why is the ruling on South West Africa flawed?
When a state enters into a contract with another state, it derogates its It is flawed because it just evades the issue and it doesn't deal with the
rights as a state and becomes a mere contracting party (can't raise issue just because it is deemed political
domestic law rights) This shows that IL should still look into the humanitarian, moral, social
Opportunities present with WTO or International Criminal Law purposes of law
Universal Jurisdiction: any court has jurisdiction to try criminal cases
deemed as criminal under international law (any court in the planet!) -the legal issue: you should not discriminate on the basis of color
e.g. At Present, Spain is trying war crimes against Americans in Iraq …but at the time the decision was made, discrimination is the norm!
and Palestine ...so if IL = RULES, would be stuck to discrimination as acceptable!
It's an interesting field of study …should consider instead what is good for us (policy-consideration)
Overview of Relevant Topics Binding nature: states accept IL as a means to achieve what is
Why are int'l norms binding? best for us
What is international law?
Who makes international law? HIGGINS: IL as a PROCESS and not the mere application of rules
Why is it binding?
Who enforces international law? WHO MAKES DECISIONS?
Those who are in authority in the states (competent authority, not just 1
Examine Actors branch)
Before, the State is deemed the only actor in International Law. Now,
even Individuals and International Organizations are subjected to IL is a process of decision-making made by competent authorities as
International Law part of a normative system wherein the goal is to determine how to
achieve what is best for us
Elements of a State
Territory ADVANTAGES of looking at IL as a Decision-making process
Population 1. It restates why we have law in the first place: achievement of societal
Sovereignty (Capacity to enter into a treaty, international agreements) ends
Government Same sex marriage
-decision on who to marry is a personal choice, private decision, and
In case of conflict, what applies? International law or domestic law? the state should not interfere/limit this decision to respect personal
claim
On Territory: -if apply rule = IL: same sex marriage is not allowed
Base Line Law
UNCLOS 1. Make IL more dynamic, not stuck with old rules
New Legal Regimes (Continental Shelf) -more reflective of IL
-less vacuum (lacunae): existing rules may not be applicable to new
Concepts Peculiar to States phenomena
Sovereignty
Jurisdiction: exercise of legal competence
1. Narrows the gap between Lex Lata and Lex Ferenda
Treaty: one entered into by parties Lex Lata: law as it is
e.g. NBN-ZTE Project Lex Ferenda: law as it might be
-the lex lata (which is what formalists use to interpret IL) may be the
Other Actors Lex Ferenda when IL is considered as a decision-making process, as
International Organizations: Are they at par with States? we make lex ferenda the lex lata
e.g. Can the WHO enter into a treaty with another state?
Criticisms
1. Difficult to know what to apply
JUN E 18 Vs. you'll know what to apply based on desired goals
Law 1. Less legal (banishes the image of the judge as cold and impartial)
why is it there was already law since time immemorial? Vs. in making choices to achieve what is best for us, consider what is
Even indigenous communities have laws, showing it is not related to humanitarian, political, economical…
the development of the States Basic problem with this critic: it isolates IL from politics
e.g. we can't avoid considering political issues in decision making
Why there are laws
*social order and regulation NATURE of IL
-is it always the case that without law, there would be chaos? Domestic law: Vertical: there's a sovereign from which the law
-Law = norms + values emanates and enforces the law
-it's a normative conduct IL: Horizontal: sovereign states are treated as equals and thus the law
emanates from all of them and there is no central sovereign which
Normative Conduct vs. Normative Sstem imposes a norm which should be followed
CONDUCT: sense of obligatory norms
SYSTEM: the WHY: We have normative conduct because it is SO WHERE DO WE FIND RULES?
prescribed by a normative system Breach of a criminal law in the Philippines vs. in other international
community
Why traditional definition of IL as rules should be disregarded -enforcing body: present in domestic law, non in IL
IL should be seen as a decision-making process
Seeing IL as Rules follow the positivist approach wherein law is set by So why is IL still binding even if there is no enforcing body?
a sovereign power Law is not always for sanctions. It prescribes conduct. It is not the
function of laws to provide penalties and no requirement of an
SOUTH WEST AFRICA CASES (1962) enforcing power for a law to be binding.
-judge Fitzmaurice refused to rule on the issue of Apartheid because it Civil code of the Philippines: it does not require an enforcing body for it
is a political issue; instead, Fitzmaurice used the traditional definition of to be enforced!
IL as rules to rule on the issue
 2PIL
notes
Mendoza
But there are sanctions in IL:
*principle of universal jurisdiction: an international crime may be
prosecuted in any state
*prescription not applicable: an international crime may be prosecuted
even after several years
*UN enforcement pressures
*immunity from suits not applicable as a defense in IL
WHO ARE THE SUBJECTS OF IL?
Subject: the doer of the action
In IL:
1. States: in conventional (meaning treaty) IL
WHY: ICJ statute only recognize States as parties in ICJ
-Individuals are not considered parties though they are affected by the
actions of their states
1. International Organizations
Green peace international, MNCs
1. Individuals
Directly: who files suits/ are sued?
Indirectly: affected by treaties entered by the states
SUBJ: one capable of rights and ascertaining them
IN DECIDING A CASE
e.g. of Breach of Contract
DOMESTIC: look at the contractual relationship and determine who is
right and who is wrong
IL: Lauterpacht:
Will base decision on claims which have varying degrees of legal merit;
who presented a superior claim, not who is right vs wrong
In the absence of International rules, where do you find Int'l rules?
Art. 38, ICJ Statute:
1. The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing
rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as
law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various nations,
as subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a
case ex aequo et bono, if the parties agree thereto.
But what is ICJ Statute? Are we saying that IL is contained only in ICJ
Statute? Why is it that Art 38 is usually cited as a source of law, is IL
limited to those enumerated in Art 38?
NO. ICJ Statute itself recognizes that there are other sources
Is one source superior to another (HIERARCHY in the SOURCES OF
IL)?
YES. Letters a to c are deemed equals, and are deemed more superior
than subsidiary sources under letter d.
TREATY
-voluntary act entered into by a state
-pacta sunct servanda
CUSTOM
-norm
-binding WON a party consented to it
-but before it is considered binding, should prove its elements first:
1. State practice
1. Opinio juris
*it is easier to prove a treaty: it's either there or not
COULD the sources of law concur, or are they mutually exclusive?
They may concur
KURODA VS. JALANDONI
F: Kuroda was charged with crimes based on violations of Geneva and
Hague Conventions (war crimes). Kuroda then assailed the charges
against him, arguing that the Philippines is not a signatory to the said
Cha
conventions, and such, the said violations are not considered crimes in
the Philippines so he cannot be charged with it
H: Art II, Section 3 of the Constitution at that time (incorporation
clause) makes generally accepted principles of IL (GAPIL) part of the
law of the land. Since the provisions of the Geneva and Hague
Conventions merely restated the GAPIL on war crimes at that time,
these provisions are deemed part of the law of the Philippines
-protection of civilians is part of GAPIL
-but sabi ni sir: the incorporation clause is really not needed to make
GAPIL binding as GAPIl is accepted as binding by civilized nations
(Perfecto, separate opinion in Yamashita vs. Styer)
JUN E 23
YAMASHITA VS. STYER CASE
F: Yamashita, previously a POW, is now being charged with War
Crimes. He filed a petition for prohibition and habeas corpus,
requesting that he be reinstated as a POW and assailing the
jurisdiction of the Military Commission to try his case on the ff grounds:
a. No notice to Spain, his protective state
b. MC has no jurisdiction as RP is not anymore an occupied state
c. Not war anymore. SO MC cannot claim that it was constituted in
pursuance to war
H: petition not granted
(but sir merely noted Perfecto's dissenting opinion, as follows):
What is the binding nature of Humanitarian law?
It has been practiced by civilized nations and accepted as binding
War Crimes Penalized: accepted by all civilized states
YAMASHITA & KURODA CASES COMPARED
Kuroda derives binding nature of the charges from the incorporation
clause while in Yamashita, the petitioner himself uses the IL
Conventions to argue his case. Yamashita highlights that IL is binding
because it is practiced and accepted by all civilized states
CUSTOMARY LAW
Elements of Customs
1. General practice
-according to North Sea Case: it should be
a. extensive
b. virtually uniform
c. (though not highlighted by sir) practiced by states which are affected
1. Opinio Juris: psychological belief that it is binding
On Article 38 (1)(b): "International Customs as evidence of a general
practice accepted as law"
Source: General Practice
Evidence: customs
Baligtad! Customs are the concepts and it should be evidenced (or
seen) through the practice of states
Dapat: "International customs as evidenced by a general practice
accepted as law"
What to take into consideration in determining CuSTOMS?
Considering states as actors, acts should be extensive, virtually
uniform (not required to be identical), and these acts are performed by
COMPETENT authorities of the state (who form part of the recognized
state organs)
NATURE of CUSTOMARY LAW in a normative system
If acts contrary to norm, is the law not binding anymore?
Breach of a norm could lead to a birth of a new norm
IF a treaty is not a restatement of a norm, could it morph into a norm?
YES. North Sea.
A Conventional IL which is binding at first on the state privy to the
treaty may evolve into a norm, provided it comply with the elements of
a custom (general practice of affected states and opinio juris)
NORTH SEA CONTINENTAL SHELF CASE
What is the continental shelf?
It is the natural prolongation of the land mass.
Truman Proclamation: US Claimed the continental shelf. (before,
State territory is limited to the land and the sea, not the land under the
sea (continental shelf)
 3PIL
notes
Mendoza
Shell: it's a Dutch Company which first made its killing in exploiting the
North Sea Continental Shelf!
So This is what the case is all about! Resources!
*Denmark and Netherlands are Just Small Countries, compared to
Germany which has a big land mass (and thus, territory)
Problem:
1. shorelines of Denmark and Netherlands are Convex vs. Germany:
Concave
If the equidistance principle (henceforth EP) is applied, Germany would
have only a small portion of the continental shelf compared to its
shoreline and territory
1. Netherlands and Denmark base their arguments on the 1958 Geneva
Convention on Continental Shelf which recommends the use of EP:
however, Germany is a mere signatory to the said Convention and has
not ratified said convention yet
Cha
recognizing EP as an International Norm) and as to states who
are not parties to the Geneva Convention, there is no proof shown
that these states though EP as binding, as opinio juris (Note: this
is what Dean Magi was telling his IPL class: the ICJ requires a
separate proof for Opinio Juris to prove Customs when state
practice itself could be the proof itself!)
SO, PRETEND YOU ARE A COUNSEL IN FRONT OF THE ICJ:
• Has to argue in the active voice
• Address Sir as "Your excellencies"
• Counsel has to call himself, "Applicant"
• Argument = "Submissions"
• In presenting evidence: "We cite the following evidence"
Denmark and Germany ICJ
Netherlands

Ruling of the ICJ: EP to be applied: leave Coastline front Agreement of

1. The 1958 Geneva Convention is not binding on Germany as Germany parties concerned to all method: base the parties, subject to
has not ratified it. portions of the share in the special
1. Even if Germany has ratified the convention, it may still enter a continental shelf that continental shelf on circumstances
reservation as to Article 6 which contains the application of the EP are nearer to a point on the length of the
its own coast than they shoreline
1. Denmark and Netherlands argue that previous conduct of Germany
are to any point on the -just and equitable
(public statements, proclamations) show that Germany is estopped coast of the other party share
from claiming that it does not recognize EP; however, no proof of said
unilateral acts were shown by Denmark and Netherlands so it cannot
estop Germany + Germany made it clear that it wanted an Agreed Argues that EP has
Division (which is the primary mode provided in the 1958 Geneva become an IL Custom
Convention) and not the EP citing the following
1. EP is not a norm just restated in the 1958 Geneva Convention: It was evidence:
just used in the convention because it was convenient. It was not even
considered by the International Law Commission in drafting the 1958 The Geneva Convention was ILC never (actually, German
Geneva Convention. It was merely recommended by the Committee of formed by the considered EP submission is the
Experts which is an almost impromptu and contingent manner of International Law during its deci of ICJ)
propounding EP as method of delimitation (par60 2nd to the last Convention deliberations to
sentence!) The ILC's acts can be form the 1958
1. The 1958 Convention is not a norm-creating treaty: considered evidence of Geneva
a. it allows reservations State practice as the Convention.
"…[reservations] cannot be so in the case of general or concurrence of the Rather, it was only
customary law rules and obligations which, by their very nature, states to the 1 of the 4 methods
must have equal force for all members of the international conventions made by considered by the
community and cannot therefore be the subject of any right of the ILC show opinio Committee on
unilateral exclusion exercisable at will by any one of them in its juris and state practice Experts and it was
own favor" (paragraph 63) …Nomination process chosen out of
a. Article 6 puts primary obligation to delimitation by agreement, and to ILC: elected on convenience.
not by EP: "such a primary obligation constitutes an unusual perception that
preface to what is claimed to be a potential general rule of law" nominees are experts in
a. Special Circumstances are also considered in the application of Customary IL
EP …ILC Codify customary
1. EP is not a norm which was crystallized from the 1958 Geneva norms of IL
Convention ! Their opinions are
a. Art6 is not a norm-creating provision considered subsidiary
a. General practice: lacking sources under Article 38
…"even without the passage of any considerable period of time, a (1) (d) - so should be
very widespread and representative participation in the the last argument
convention might suffice of itself, provided it included that of
States whose interests were specially affected" (but in this case, Germany has recognized the Germany would No evidence was
the states who participated in the 1958 Geneva Convention did 1958 Convention as only be bound if it shown of the alleged
not use EP because most of them are "land-locked" states. binding through its has ratified the unilateral acts of
(paragraph 73) unilateral acts, though it Convention Germany which is
…only 3 years has passed since the creation of the convention? has not ratified it evidence that it has
"Although the passage of only a short period of time is not accepted to be
necessarily, or of itself, a bar to the formation of a new rule of bound by the said
customary international law on the basis of what was originally a convention
purely conventional rule, an indispensable requirement would be
that within the period in question, short though it might be, State 1. # of The # does not No discussion as to
practice, including that of States whose interests are stat evidence virtual status of ratification
specially affected, should have been both extensive and es uniformity of the of the Geneva
virtually uniform in the sense of the provision invoked; and wh EP (as 39 out of Convention. It was
should more over have occurred in such a way as to show a o the many number merely an
general recognition (opinio juris) that a rule of law or legal ratif of states is just introduction to the
obligation is involved." (paragraph 74)! ied minimal) argument of
…only 15 cases used the EP in delimiting continental shelf (out of the Netherlands and
the many states then existing!) but these states may just be 195 Denmark that
practicing EP because of the 1958 Geneva Convention (and not
 4PIL
notes Cha
Mendoza
• Collective Self-Defense: merely protecting El Salvador and other
8 Germany is bound by nearby Central American Countries from the offensive of Nicaraguan
Ge the 1958 Geneva Government
nev Convention even if it
a was a mere signatory
• Nicaraguan Gov't is EVIL!!!!
Co …leftist leanings, communist!
(from Case: acts made as justifications by US):
nve
ntio a. supply arms to armed groups in El Salvador
b. Cross-border military attacks on Honduras and Costa Rica
n
(39) c. Failure to follow "Plan to secure peace"
sho
ws Nicaragua filed an Application against US for US to cease and desist
the overt acts it has been doing
that
this
-initially, US contested ICJ's jurisdiction over them (they filed a
con
ven multilateral treaty reservation)
-since in deciding the case, ICJ cannot apply Multilateral treaties such
tion
is as the UN Charter, the ICJ needed to determine WON the provisions
of the multilateral treaties applicable could be equivalent to customary
beli
eve IL
d
by What are the norms recognized in the decision?
• Prohibition of use of force
Stat
• Right of self-defense (collective Self-Defense)
es
• Principle of non-intervention
to
• State Sovereignty
be
bin
din Why are treaties evidence of Customary IL?
• Status of ratification
g
-evidence of widespread norms
1. 15 15 is just a minimal There is no proof that • States agreed to be bound even if no compelling reason to do so
Stat number of states those 15 states have (evidence of opinio juris)
es applied EP have
hav recognized EP as a GA Resolutions
e binding norm (no -legality of use by a state of nuclear weapons would discuss the
app evidence of Opinio binding nature of GA resolutions
lied Juris)
EP UN Convention is ratified by 191 States!!!
in JUN E 29
deli *take note of evidence relied on by ICJ in providing existence of GPIL
miti in Nicaragua Case
ng *On Collective Self-Defense
thei WON there is such a customary norm?
r >NONE. No state practice, no opinion juris
sha …But there is an INHERENT RIGHT TO SELF-DEFENSE (A51, UN
re Charter)
in …but what is the ultimate requirement?
the AN ARMED ATTACK – par 195 of the case
Co 1. Action by REGULAR ARMED FORCES across an
ntin international border
ent 2. Sending by or on behalf of a State of armed bands, groups,
al irregulars or mercenaries, carries out acts of armed forces
she *SIR: No # required for armed forces sent to qualify it as an
lf armed attack
…can also send PRIVATE Armed forces, not necessarily
1. Article 6 can be Germany submission that it be state’s armed forces
reserved! Can't be actually an *Concept of PROPORTIONALITY and NECESSITY
opinio juris if states explanation of ICJ
can excuse (see above) Contras: Mercenaries, funded and trained by US (this became an
themselves from issue)
applying a norm TEST: WON the contras were DEPENDENT on the support of US
(EFFECTIVE CONTROL TEST)
RATIO: EP is not a customary norm; No evidence of state practice and -such degree of control that contras were acting… (par109)
opinio juris SIR: DOESN’T AGREE: There was still evidence saying that US
intervened in the sovereignty of Nicaragua
NICARAGUA VS. US *On principle of Humanitarian Law (See par 216): Laying of mines >
1986: Reagan was president of US did not warn
Overt Acts of US alleged by Nicaragua
• Laying of mines CUSTOM IL: Why customary?
• Assistance of contras who sought to overthrow Nicaraguan Hague convention: allegedly just codified customary law
Government ---no one wants to question IHL: unanimity in state practice
• Infringement of airspace JUL Y 2
• Joint military maneuvers w/ Honduras No customary norm…
• Economic Strikes *no state – uniform and consistent practice
• Assassination Attempts on Nicaraguan leaders *no opinion juris
Justification of US NUCLEAR WEAPONS CASE
5PIL
notes Cha
Mendoza
For Against >series of resolutions
1. A51 & A42 of UN Against: Prohibition of use of SOM ET IM E… I DON’T KN OW WH EN JUL Y 14?? ?
Convention allows use of force nuclear weapons is custom law
(Oh no! kulang ako ng pages… )
through self-defense 1. UN Charter: prohibition on
-and this does not prohibit use use of force CONTINUATION OF SAUDI ARAMCO DISCUSSION
1. WON ARB can have jurisdiction vs. Saudi?
of nuclear weapons 2. Hague Convention
2. Principle of deterrence prohibiting weapons YES. When it entered into a contract to Arbitrate, it went
down to the level of a contracting party and gave its consent
practiced which distinguish between
3. No convention entered w/c civilians, combatants to be sued
2. What law applies?
prohibits nuclear weapons >> 3. Based on character of
no evidence of opinion juris nuclear weapons, plus IL. The fact that you want to arbitrate, this meant that parties
did not want to be subject to the domestic law of the other
4. No prohibition in customary principle of
IL proportionality, it is -follow Concession Agreement:
>not the law of the investor
prohibited
WHAT ABOUT THE HAVANA 4. States already entered >not law of domestic state
3. What issues to address on the basis of GPIL? What is the
CONVENTION prohibiting the treaties which limit use of
use of weapons which are nukes nature of the concession agreement?
SAUDI: Admin Contract
unable to distinguish between
civilians and combatants? -exercise of state sovereignty
-was a franchise – privilege bestowed on foreign investor
>>>this does not prohibit use
of nuclear weapons which can be revoked at will
ARAMCO: Contract between 2 parties
-breach of contract = SP + damages
International Humanitarian Law (IHL)
-should not make civilians as targets
***PROBLEM: how to FORCE a state to follow the grant of relief?
-no undue suffering to combatants
Agreement to arbitrate = agreement to comply with the decision
*Martens clause in Hague Convention
*Principle of Neutrality
How to convince Saudi Arabia? Used Koran to show to show that a
Concession Agreement = Contract
*What about when it is not time of war?
NUCLEAR WEAPONS have adverse effects which may be contrary to
4. Since a Contract: BOC
IHL
SP: can’t compel State = Impossibility to perform
So damages na lang! Saudi have to pay the COST OF
ICJ’s argument?
Pregone income
I. UN Charter
II. Treaties
BP VS. LIBYA
III. Customs
F: Similar to Texaco vs. Saudi Arabia (Saudi Arabia nationalized the oil
IV. Primciples
extraction churva…which was initially granted through a franchise to
Texaco)
On Customs
H: Clause 28 – Applicable Law
-the mere fact that you have it acts as a deterrent
Libya principles of law
SO NO NEED TO USE IT!
Common to GPIL
No real evidence of Opinio Juris
Then CIL
COUNTER: You just made the Use of Nukes Legal!!! And say that it is
*Apply IL, but for remedies, apply Libyan Law. Libya initially refused to
only prohibited during armed conflict
arbitrate, but arbitral tribunal proceeded. But for Libya to comply with
the award, it used Libyan Law for remedy…
1997: India vs. Pakistan (Nuke Arms race)
----------------------------------------------------------------------------------------------
-just store and process nukes…never mind if it accidentally get fired
---x
RECOGNITION. Elements of statehood?
IHL applies only during armed conflict
Not an element of statehood, but an aspect of statehood
Why not made a treaty:
Textbooks – 2 school of thought:
*UN CHARTER
1. It’s an element!
*PROHIBITION ON BIOLOGICAL WEAPONS
2. Merely declaratory of a state of fact, not an element of
Biological: Organic organisms
statehood
Chemical: doesn’t result from mix of chemicals…
-but if applied in existing controversies, not clear cut
Ashpyxiating: destroys lungs first
Mindanao: Recognition~ self-determination
Nuclear: atomic, energy released through fusion of atoms
NO ESTABLISHED TREATY
When no established relations w/ other states, what makes it
a state?
On PUBLIC HEALTH ISSUE: Query is not related to discharge of
4 elements of statehood – definition
official functions
Gives people right to become a state
-not w/n competence of WHO
e.g. Western Sahara
WHO: Only concerned with public health issues
--------------------------------------x
PERO IF YOU DIE, ISN’T YOUR HEALTH AFFECTED????
Cultural minority right ~ self-determination
-there can be a violation of this w/o violation of right to self-
Long term damage on Environment
determination
--------------------------------------x
What about nuclear free zones treaties????
SIR: Mindanao not proper for self-determination
ICJ: Not evidence
-but now, it’s not mostly Muslim
1. Not an express prohibition
-But Muslims have right to live as muslims – cultural minority rights
2. They still possess nukes
-but right of self-determination accrues to all Filipinos = can’t ignore
3. Only binding upon parties to the treaty
majority
4. Reservation
---------------------------------------------x
GA Assembly resolutions
SUBJECTS OF IL
-conditions of adoptions
-not just states: also non-governmental orgs, IOs
>Voting
-but states continue to be more active participants
6PIL
notes Cha
Mendoza
-STATE: 4 elements in the MONTEVIDEO CONVENTION 6. Legal adviser to American Panel
*note that recognition is not an element as enumerated in the = Philip Jessup
Montevideo convention. However, it is essential -believed that proximity/nearness is not a title so RP doesn’t
have automatic title
GENERAL FEATURES (4 elements of statehood, as stated in the -BUT constructive possession of islands: Archipelago
Montevideo Convention) possessed as a whole
1. TERRITORY: not metes and bounds 7. Max Huber – President of PCIJ
e.g. Palestine – no agreed metes and bounds but have -decided the Eastern Greenland case where Constructive
general idea where it is Possession was upheld. BUT HE HATED THE
2. Permanent Population AMERICANS! So did not use this principle in deciding for US
-not required to be in state all the time August 2003: Indonesia deposited their baselines…
-intent to return
-right to regulate citizenship CASE CONCERNING SOVEREIGNTY OVER PULAU LIGITAN &
-sociological group of people: Share common history, PULAO SIPAADAN
common values Indonesia claims title on the islands vs. Malaysia
3. Government H: For Malaysia – the Turtle Eggs did it!
-formal structure
-not needed to function Light Houses
e.g. Somalia -significance: construction of light houses is to help maintain safety of
-diplomatic functions the seas, which is a duty/obligation arising from sovereignty
4. Capacity to enter treaties -it help guides vessels
-need not be formal -also in Las Palmas Case: Keep people safe…
-willingness to enter relationships with other states *not much evidence is needed for small islands. Small exercise of
-----------------------x sovereignty for small islands
TERRITORY -------------------------------x
-sovereignty in a territory MINQUERS & ECRECHOS CASE – CHANNEL ISLANDS
-jurisdiction UK:
1. Ancient title + effective possession
2. Effective possession alone
Sovereignty Jurisdiction FRANCE:
SOVEREIGNTY: Totality of all Legal competence 1. Original title
functions of state -power to prescribe conduct 2. Effective exercise of sovereignty
e.g. Administration over taxes -power to enforce conduct 3. Fishery zone: islands w/n their part of the fishery zone
-what states do
------------------------------(T_T)
1 state exercising sovereignty and jurisdiction ON ANCIENT MAPS & TREATIES
-may be regulated by treaty -insufficient, in essence, effective occupation
…but construed strictly -------------------------------------x
UK WON! Criminal proceedings instituted in Jersey over a resident of
TITLE TO TERRITORY the Channel Islands, Jersey is a territory of UK
-to the exclusion of whole world
-how exercise: analogous, not identical to exercise of individual WESTERN SAHARA CASE
Analogous = exclusive Now: part of it voted to be part of Morocco
-powers over territory: power of dominion 2 claims of Colonial States
SPAIN: Territory is part of Spanish Colonial Rule
How acquire title to territory? >ICJ: Just protectorate, not occupation
*on Discovery: ICJ: You can’t “discover” a territory which has
ISLANDS OF LAS PALMAS CASE inhabitants already!
US: Treaty of Paris = cession (Discovery of spain) MOROCCO v. Mauritius
Netherlands/Indonesia: Treaty/Contract of Suzerainty wherein the >Are they Islamic? No. They were nomadic people, moving from one
people in las palmas were vassals of Netherlands place to another in search of water
-Taxation >they look up to the Tribal Chief, no concept of sovereignty or any
-defense colonial power
H: NONE Had superior claim
WHO PROVED SUPERIOD CLAIM? >What happened to the inhabitants?
1. Effective occupation …they have right to self-determination, so they could establish
2. Discovery alone is an inchoate title OWN
–should be perfected through effective occupation …government
-establish government in the territory – appended it to …decide how they want to be independent
existing government
SIR’s CRITICISM to the case: ERITREA VS. YEMEN
1. Why did US relied on DISCOVERY??? ERITREA: Succession from Italy
-it is easy for it to prove effective occupation by showing Why? Defeat of Italy by Allied Powers
Churches – Spain ruled through the Churches, as there was Allied Powers transferred Italian territories in Africa
still unity of the Church and State it became TERRA Nullus as Italy did not specify to whom it has
2. Successors state ha right to choose which obligations they transferred the territory, when Ethiopia got it, it successfully exercised
want to inherit – so we are not bound by the treaty of Paris sovereignty over the territory
3. Act a party to PCC YEMEN: Historic Title – Ancient w/ reversion
-RP is not a party to regulation which made Permanent ON MAPS: Only referred to land – mainland, not the islands
Court (so not bound by this decision in Islands of Las INSTEAD, they used: evidence of occupation and geography….
Palmas Case) -share sila!
4. Spain cannot transfer rights which it didn’t have PORTICO DOCTRINE: territory w/n 12 nautical miles to coastal miles
-so would not bind Philippines as Spain has no title to RP -all islands w/n territorial seas belong to the coastal state
…they started shooting at each other!
5. Gen Wood = Governor Gneeral Very poor people shooting at each other
-discovered Dutch flag hoisted on the islands. US was not -so they were compelled to arbitrate
interested in occupying the islands, it was just instigated *NO IL DOCTRINE w/c IMPOSES ALL OR NTOHING BASIS
when the US flag was burned in the territory!
7PIL
notes Cha
Mendoza
SOM ET IM E IN B ETW EEN… I’M NOT SU RE THOUGH… -used in ANGLO-NORWEGIAN FISHERIES CASE (okay,
ano ba talaga?)
Spratlys -guidelines: Art7, UNCLOS (4)
(1) must not depart to any appreciable extent from the
China RP general shape or direction of the coast
*discovery *effective occupation after Japan’s (2) internal waters: sea areas lying within the lines
*effective occupation renounciation sufficiently shall not closely link to land domain
*recognition (3) use low- tide elevations as baselines (so mas malawak
kasi pag low-tide mas malayo ung land from the main land)
MODES OF ACQUIRING TERRITORY X: lighthouses permanently built above sea level
1. Effective occupation + baseline to and from a low-tide elevation received general
2. Acquisitive Prescription recognition
+A13(1), UNCLOS: If situated wholly or partly at a distance
INSUFFICIENT CLAIMS of not more than 12n.miles from mainland or an island
1. Estoppels (4) Economic interests peculiar to the region concerned, as
2. Discovery, inchoate title evidenced by long usage
-dapat always with EFFECTIVE OCCUPATION [ISLANDS + Can’t cut off the territorial sea of another state (from
OF LAS PALMAS CASE] EEZ/High seas)
3. Possession
-dapat w/ animus possidendi Limits to sovereignty over territorial sea: subject to innocent passage
-only evidence of title, but not basis of claim Innocent passage:
4. Constructive possession -continuous and expeditious navigation
-nearby territory of archipelago -not prejudicial to the
-occupied actually *peace
5. Contiguity *good order
-only presumption of occupation *security
6. Conquest …of the coastal state
-illegal!
WHEN PREJUDICIAL
UNCLOS 1. Threat/use of force
INTERNAL WATERS 2. Use of weapons
MILITARY AND PARAMILITARY – NICARAGUA V. US 3. Collect information to the prejudice of defense of other state
F: Laying mines by alleged US personnel on internal waters of 4. Propaganda
Nicaragua, w/o warning both to Nicaragua and to 3rd states 5. Defense, security
H: Coastal state may regulate access to its ports 6. Aircraft launching, landing, taking on board
-coastal states’ law apply in internal waters 7. Military device
-internal waters subject to sovereignty of coastal state 8. Loading/unloading
-subject to RIGHT TO INNOCENT PASSAGE IN TERRITORIAL -se page 193 of brownlie
WATERS (Custom IL)
-with the laying of mines, freedom of navigation hampered Criminal Jurisdiction
…as guaranteed in GR: Flag state has jurisdiction over the vessels found in the territorial
*EEZ sea
*High Seas X: A29, Convention on Territorial Sea
*Contiguous Zones 1. Effects extend to coastal state
-interference with navigation, freedom of communication & maritime 2. Disturbs peace of country
commerce 3. Ship’s master requested assistance of coastal state
4. Suppress illicit traffic of narcotic drugs
SAUDI V. ARAMCO Civil jurisdiction
F: Saudi argues that Aramco can only transport oil w/n internal waters, -can’t stop to exercise civil jurisdiction in re person on board
not on high seas -if against the vessel
H: Ports of every state must be open to foreign vessels and can only GR: Can’t levy
be closed when vital interests of the state so requires X: obligation/liabilities assumed by ship itself in the course or for
purpose of voyage through waters of the coastal state
Territorial Sea
Length: 12 nautical miles beyond (from baseline) On anchoring/stoppage:
Withd: 12 miles GR: Not innocent passage – you’ve stopped eh
X: overlap w/ neighboring litoral states: Use dividing median line X: 1. Incidental to navigation
equidistant from opposite baselines 2. necessary by force majeure
X to X: *historic title 3. distress
*Special circumstances
ANGLO-NORWEGIAN FISHERIES CASE
BASELINE F: Norway
-low-water line along the coast In 1935: Norway issued a decree which delimited certain fisheries zone
…marked on largescale charts exclusively reserved to its nationals
…officilallyrecognized by coastal states -delimitation used straight baselines method

2 ways of drawing: HISTORY

1. Normal baseline
-drawn from low-water line along the coast
-follows curvatures of coast
-normally not straight lines
LOW-WATER MARK (ANGLO-NORWEGIAN FISHERIES
CASE): mean between high and low tides
2. Straight baselines
-for archipelagic states
-drawn connecting selected points on the coast w/o
appreciable departure from the general shape of the coast
*British fisherman fished off Norwegian coast since 1906
1812: Norway decree: 4 mi fishery limit
1869, 1991, 1889 Norway decree: already used Straight lines drawn
from certain outermost parts of the Skjaergaard (rampart of rocks and
islands which fringes much of Norway’s coast)
-UK protested: After series of incidents involving British fishing vessels:
ayaw UK ng Straight baselines, gusto nya ung normal baselines
H: For NORWAY
*Acquiescence: UK did not protest straight baselines method used by
Norway until 1933
8PIL
notes Cha
Mendoza
*Historic Title H: Interpretation of inland waters, in accordance w/ intent of Congress,
*Acceptance: constant and sufficiently long practice was to be elaborated by Courts
*In accordance w/ IL (no IL rule prohibiting it) >>>SPECIAL MASTER
ICJ: Straight baseline -no internationally accepted formula for inland waters so used US
-baseline could only be determined by means of geometric position in conduct of foreign affairs
construction -used California Decree of 1947: bays only inland water if closing line
-HOW: selecting appropriate points on the low-water mark and drawing could be drawn less than 10 mi long enclosing sufficient water area to
straight lines between them satisfy the Boggs formula
UK: Straight lines must not exceed 10mi -but now, US Signatory to Convention on Territorial Sea & Contiguous
ICJ: No GR that it must not exceed 10mi Zone: used Semi-circle test + 24 mi closing line (which is deemed the
-coastal state in best position to appraise local condition dictating stand of US in its foreign relations)
selection *the court adopted the definition of the Convention on Territorial Sea:
*BASIC CONSIDERATIONS: Now A7, UNCLOS (only 3 enumerated single coastline for SLA and International Relations
here, not 4) Calif: Inland waters embraces all ocean areas w/n state’s historic
seaward boundaries, re boundaries at the time they joined the union
EL SALVADOR V. HONDURAS *Court: NO: undermine definiteness as it was vague
ISSUE: Island of Fonseca – dispute arose – tension between El
Salvador and Honduras – led to 1969 armed conflict Straight Baselines
-here, UTI POSSIDENDI argued– but since ambiguous: possession -CALIF: since Convention applicable to those which use straight-
and exercise of sovereignty used to rule instead baseline and California coastline deeply indented, California free to
HELD use straight baseline
*RE ISLANDS: *COURT: No. Choice of which method to use depends on the Federal
>El Tigre to Honduras: Honduras remained in Effective occupation and state!
contemporary assumption 24 mi closing rule
>Meangueara & Meanguerita to El Salvador: as evidenced by >Monteray bay = inland water
*Circular letter w/ ES’s claim >Santa Barbara Channel = not a bay, historically nor fictitiously so not
*1856 & 1879 ES Official journal reports of administrative inland
acts over the islands HISTORIC inland water
*No protest of Honduras, only in 1991 Calif: all are historic inland water
*Post liberation: Administrative acts of ES intensified, w/o *COURT: only federal state can claim Won a water is historic
protest from Honduras
*Testimony of a resident, which was not challenged by Straits
Honduras -used to navigate between 1 high sea/EEZ to another High Sea/EEZ
-allowed: exercise of Transit passage
*RE: FONSECA BAY
-3n. mile – territorial waters – 1917 central American Court of Justice TUNISIA VS. LIBYA
-beyond: Condominium – shared among Honduras, ES, and Nicaragua -can’t use natural prolongation since they share same continental shelf
(they are adjacent states, with share to continental shelf thatoverlaps
US VS. CALIFORNIA -2 lines
F: History 1st line: de facto, employed by each party in dividing petroleum
1st case: US v. CALIF – 1945 concessions
US Claims dominion over 2nd line: take into account change in direction of coast
Submerged lands -extend outer limit of territorial sea until intersect with parallel of latitude
Mineral rights of the point on the coast of Gulf of Gabes?
…under 3 miles belt of sea off coast of California -Kerkennah Islands surrounded by islets and low-tide elevations
H: US has exclusive dominion over it; as for the 3 miles before it, it is >use Half-effect
considered inland water of California …1 line give full effect
Then problem: US wantedto have award in greater degree ….2nd line no effect
Court appointed a SPECIAL MASTER to specify outer limit of inland …bisector line would be the line to be applied
waters
SPECIAL MASTER: Use Boggs Formula to determine inland waters Anglo-French Arbitration
-only a bay having a closing line across its mouth of no more F: Delimitation of continental shelves of France and UK in North Sea
than10miles in lenth and enclosing a sufficient water area: draw belt H: Geological features
around the shore of the indentation having width equal to ¼ the length >same conventionof 1958
of the closing line across entrance But can’t apply equidistance principle, dapat by agreement
>compare area inside the closing line with area of a semicircle with the
diameter of ½ length of the closing line SOM ET IM E ULIT…
>if enclosed area is greater than a semicircle = inland water
-Submerged lands act: states granted title and ownership to lands Notes on Map Cases
beneath navigable waters w/n boundaries of respective state FRONTIER DISPUTE (BURKINA FASO V. MALI)
-include seaward boundaries of state as existed at the time they 2 colonies of France: applied Uti Possidendi Juris
became members of the union -French Effectivities
Max: 3 geographical miles from the coast >several orders
*coastline: composite line of low-water along portion of coast w/c is in >several decrees making territorial boundaries
direct contact with open sea *on estoppels of Mali: Head of Mali agreed to Map
Inland waters not defined so the issue was with regards the ICJ: Mali not stopped. Map-making not finished, just draft
interpretation of what inland waters are *Effectivities
-Outer Continental Shelf Lands Act *ORAL PETITION?
3 mi from coastline: State ICJ Appoint 3 experts to delimit
After that: US SIR: Court only ascertain colonial boundaries, they were not the ones
…natural problem: lumalalim ang Califoria coast to delimit
-but when drilling techniques improved, go ulit!
LIBYA VS. CHAD
ISSUE: Interpretation ng Inland waters -there was a treaty whereby the boundary between the two countries
US: Lie used by special master = coastline were agreed: TREATY OF 1955: Between Italy(Chad) and
CALIF: Use historic title France(Libya)
LIBYA: No boundary exist
…the treaty was already expired
9PIL
notes Cha
Mendoza
…the treaty was entered by the colonial state, not by Libya
CHAD: there is an existing boundary
ICJ: Chad won, boundary existing from the treaty was used
…the treaty, although expired, was still binding and has a life on its
own

ANGLO-NORWEGIAN FISHERIES CASE

F: British incursions became bigger and more frequent on Norway’s
fishing area
Both agree 4 miles territorial waters, but does not agree on where to
start baseline
UK’s: baseline from the mainland
Norway: Straight line: from the farthest point of the Skaarjaerd…
COURT: Consider Geographical considerations
Now: How long? 10 miles vs. longer? LONGER
ON INDRELEIA
UK: Straight
ICJ: not a straight! Internal waters High seas
ON UNILATERAL DELIMITATION Deep sea - common heritage of mankind
ICJ: It is necessarily a unilateral act. Basta sundin guidelines (A7, Internal waters - complete exercise of sovereignty
UNCLOS)
SIR: This is the first time straight baselines method was used. Internal waters ( no ship can sail w/o consent) vs. territorial
Connected with the outermost points of the skaarjaerd sovereignty (compromise)
ON USE OF LOW WATER MARK: unfair naaman kasi masyadong
malayo Contiguous zone
ON ECONOMIC INTEREST: Fisherman of UK? Pano na? -not mandatory
ICJ: still have right to Fish on it because of long usage -4 different jurisdiction:
Should not cut… 1. Custom
1. Health
Archipelagic States Straight Baseline 1. Pollution
Include rocks Outermost points of the islands 1. Sanitary
Max length of baseline!
1:1 to 1:1 (water land) EEZ
-must not have too much water -no sovereignty, just sovereign rights to exploit
naman, or else, din a kayo
archipelago + to avoid using States can be entitled to additional 150 nautical miles if evidence
offshore islands from being base presented that natural prolongation of land mass extends beyond the
points 200 miles

CLIPPERTON ISLANDS (FRANCE VS. MEXICO) Regime of straits

France won because of a Publication…in Hawaii pa! -straits cnnect 2 high seas: state cannot prevent transit passage (no
-Mexico failed to present evidence of historical right and Sovereignty other route)
over islands
-terra nullus sha, so when France found it, France could claim it as Archipelagic regime
theirs -in PI: Territory is by Treaty of Paris
*there’s not much required to be proven when small island involved + -anything inside "box" is Internal waters, not Territorial waters
uninhabited when found BUT: UNCLOS came up with archipelagic waters (internal passage
UNDER DOMESTIC LAW: notice to the whole world = exercise of allowed)
ownership
Archipelagic waters: innocent passage and overflight
JUL Y 28 , TU ESDA Y
Archipelagic transit passage
UNCLOS and maritime territory
Dutch East Indies - the sea should belong to no one for purposes of State parties cannot extend into reservation in UNCLOS
navigation and international trade
Coastal states (maximum sovereignty) vs. non-coastal (limit Baseline petition:
sovereignty) Inter-temporal law: law applicable when right accrued and when right
UNCLOS enforced
-adopted each provision on the basis of consensus and not through
voting Uti possidentis - to achieve stability, colonial boundaries conclusive
-division into maritime zones
Libya vs. Chad: continental boundaries survive treaty

Uti possidenti: applies in PI because of Treaty of paris thus other

states estopped

Kalayaan - now regime of islands not be made part of archipelago

though archipelagic baselines.
AU GU ST 11
What can be used as base points:
What are BAYS? If bay, internal water?
BAY: A body of water surrpounded by land
SEMI-CIRCLE TEST: 24 nautical miles ung distance between two
point sof the mouth
-if with islands: if total distance between islands equal to 24 mi, bay pa
rin!
10PIL
notes Cha
Mendoza
d. w/o nationality
Gulf of Conseca – historic Bay e. fly foreign flag/refused to show flag
Gulf of sidra f. drug trade
-when will states incur responsibility? Liable for loss/damage if did not
Importance of baselines –See UNCLOS find grounds for boarding; but can be exempted from liability if the
Low water mark boarding is supported by probable cause
Rivers: marks STRAITS: Narrow
Harbor facilities – permanent – outermost workds constituting part of -connect 2
harbor High seas
Bays EEZ
Islands – if permanently above water [Norway] Legal regime: Transit passage
Archipelagos – From rocks Right of navigation and over flight for purpose of …
Coral reefs – seaward waterline from coasts Diff:
-low waterline Right to overflight
No suspension of transit passage and innocent passage
Deltas – not underwater for extended period of time – from futherest No requirement w/ submarines
seaward point 3 exceptions to transit passage {a38?]
…there is another route of similar convenience….
Irregular coastlines vs. Archipelagic Coastlines
No departure from direction of coast SEA BED
No draw from low tide elevations -governed by common heritage of mankind
X:light houses -enforced by authorities
Don’t cut territorial sea of another (relevant in the case of Malaysia or
Signapore?) CONTINENTAL SHELF
100 nautical miles excess allowed: 3% -A77(4): Only includes sedentary natural resources
*9:1 = water: land -so if not moving: No sovereign rights over it
For Skaargard – Art 7 -only Sovereign rights, NOT jurisdiction

English Rule: Territorial State has Jurisdiction LIBYA V. MALTA: Determined by distance, not geology
French Rule: Flagstate TUNISIA V. LIBYA: half-effect method
UNCLOS: French US V. CALIFORNIA: not appropriate to RP: We were not a federal
But if couse disturbance: Territorial State has jurisdiction government
e.g. if murder in Contiguous zone: Coastal state has jurisdiction [Art4]
(1) customs SIR’s ARGUMENT: Continental shelf principle in Constitution: Insular
(2) Fiscal shelf = continental shelf so the continental shelf is now included in the
(3) Immigration definition of Philippine Territory
(4) Sanitary AU GU ST 25
HOT PURSUIT [A11] On extradition
-only exercised for matters enumerated above, murder not included GR: No obligation unless there’s extradition treaty
INNOCENT PASSAGE [A19] X: Unilateral treaty
-expeditious & continuous maner e.g. Torture Convention
-not prejudicial to peace, good order, security
NOT INNOCENT – 12 instances! EXTRADITION
*Basically… -conventional and Customary IL recognizes it
1. anything which has nothing to do with innocent – continuous Requirements:
passage 1. DCR
*what if drop and pickup passengers & goods? STILL INNOCENT 2. Right to seek asylum
PASSAGE -refugee status
*What about scuba diving? You’ll be stopping if you scuba dive so NO -political offenses – not covered, or else might affect right to
What if you still want to scuba dive? Get the consent of the coaqstal seek asylum
state RIGHTS
2. Threaten security of coastal state 1. To be not deported back to own state
-what can coastal state do in violation of innocent passage 2. no prosecution from illegal entry
ART 25: Suspend innocent passage
-coastal state could insist that ship leave its territorial waters Asylum: process by which a person applies to seek
*exercise of jurisdiction over ships exercising innocent refugee status but has not yet succeeded: undergo
>cannot acquire double-hull Administrative demonstration first
>what about payment of Pilotage and other fees? Pede! (*Pilotage:
guides with specialized information with the conditions of the territorial WHY IMPORTANT?
waters) Jocjoc Bolante
…a. right to levy charges for specific services -intervention: Not fall w/n exception
…b. jurisdiction, iff adverse effect on good order 1. genuine fear of execution
…c. adopt laws for safety of navigation 2. Part of group
…A21, UNCLOS 3. fleeing armed conflict
4. Fear to be subject to torture
Archipelagic vs. territorial sea on innocent passage
Archipelagic: only 1 ground Refugee status
Territorial Sea: 12 grounds -B4: individual determination
But because of the Africa conflict, many people seek refugee status so
High Seas: A88 for practical purposes, by Group na: UN High Commission on
_peaceful Purpose Refugees – Declaration that People entitled to refugee status
_protect high seas from pollution
Freedom of navigation MARK JIMENEZ CASES
-can board: Reasonable ground for suspecting (A109-110) -procedure
a. piracy 1. request extradition by competent agency
b. slave trade …if sufficient…
c. unauthorized broadcast 2. Petition for extradition
11PIL
notes Cha
Mendoza
ISSUE: When entitled to know reason why he is indicted? dispersing the mob, joined it, opened fire against the Americans, all of
Later decision overrule the 1st whom died
1ST CASE: already entitled to notice when request for extradition H: STATE LIABLE
given Even if
2ND CASE: when the case is filed in court already, issued subpoena …agents acted ultra vires
and warrant of arrest …under supervision of authority
“power to extradite corrupts”
-US and Japanese fond of extraditing How are aliens to be treated?
De facto extradition: deportation - but not treaty, dapat may treaty -started in Los Palmas Claims
*it there’s a well-grounded fear to be subjected to torture, can refuse >protection
EXTRADITION – Convention against torture CORRECT TEST: Minimum standard, not subject to domestic law
*RP never extradited anyone for political offenses CHEVREAU CASE (FRANCE VS. GREAT BRITAIN)
When can invoke sovereign immunity for International Crimes? When -the detained man must be treated in a manner fitting his station, and
liable? which conforms to the standard habitually practiced among civilized
nations
EX PARTE PINOCHET
-torture, murders, hostage-taking ASIAN AGRICULTURAL PRODUCTS CASE
Former ruler of Chile -Due diligence obligation under the minimum standard of customary IL
UK…Pinochet in UK…Spain sought his extradition
H: Torture recognized as International Crime ORGAN
-Pinochet is immune….materiae -exec, legis, judiciary
But since Torture is not an act of a sovereign, no immunity (functional
immunity lang) What arises now? If breach + attributable to the state?
A S F OR TH E PAR T ON IMMU NITIES… Reparation + promise to stop whatever was done
-restoration to the status quo ante
Sorry, no notes kasi naghahabol ng readings… Compensation: Chorzow Factory Case
SEPTEMB ER 15
3rd state’s duty:
Obligation of States when they breach IL
-breach of states 1. not to recognize legal consequences of the breach
…but IL today, there are other actors 2. obligation to compel breaching state to stop breach
…states re-defined Objective characterization of breach

IHR A8: Acting under DIRECT CONTROL

B4 only through State Responsibility NICARAGUA VS. US: Effective control test (dependence of the
Sources of OBLI contras on the support by US)
1. Conventional – pacta sunt servanda PROSECUTOR VS. TADIC: only over all control required
2. customary
Art11: Adoption/Acquiescence
NOW US VS. IRAN
Individual responsibility with IHL F: Iranian mob took over US Embassy. Later adopted by Iran
1st Phase: not attributable
When state entails responsibility …violation of the Vienna Convention on Consular Relations
[articles of International responsibility] Art22: Protect Consular embassy: by enabling the mob to take over US
-adopted 2001: now has to wait to be embodied in a treaty (a mere Embassy
evidence of customary norm) 2nd Phase: Iran Liable
Art2: 2 elements Statements of Ayatollah Komeini
1. attributable to the state -made when they were not yet successful
A10: Conduct of insurgents later successful
2. breach of an international obligation
-2 elements must concur A11: Adoption
Do we need to prove intent, bf, fraud? NO. Strict liability Nicaragua: Effective control
-but relevant in determining REPARATION (but not really final) UN Tribunal: IHL Specialists
2nd element 1st! International obligation 1st proved ICJ: Conflict
What kind of breach? Level of control determines liability of a state over acts of state
*treaty?
*customary? OVERALL Control – lesser degree test vs. effective control
NONE REQUIRED, no distinction -no need to show all elements of effective control
-just show overall, military objective directed by other state:
What would determine WON state is in breach of international law? >subjugation of enemy
Does Articles speak of when breach? >by nature of location…
NO. Deleted. Does not state when breach happens. …destruction of enemy = victory
-substantive IL separated! Only way these drafts were adopted is for it
not to specify violations Art 5 Persons exercising elements of government authority
De Facto
When does an individual act for or on behalf of a state (attribution)?
1. As an organ [A4] Art 5 Parastatal
-if a lowly private of the state tortures a national of an enemy state, e.g. MNC = Shell
could the state of the national espouse the claim of the individual and Invest through a subsidiary company, majority owned by State
claim violation of torture, even if 40% owned by shell
…w/o orders What if utilize paramilitary forces in compelling IPs to forcibly work
…ultra vires (UNOCAL)
YES. Can claim Is the state liable?
e.g. YOUMAN’S CLAIM Jessup: Usually involves state attribution
F: 3 US Nationals (missionaries) were surrounded by Mob. Mayor
ordered the dissipation of the mob. The troops sent, instead of SEPTEMB ER 16
PROSECUTOR VS. TADIC
12PIL
notes Cha
Mendoza
F: Tadic indicted for 30 counts of murder? 2. IHL: Civilian population dislocated
Yugoslavia – serbs
-croatia
3. HRL: Palestenians loss access to social
-muslims needs
1993: Serbs powerful a. Freedom of movement
-murders, maullings, rape in concentration camps b. Children court not to go to school – there’s now
*Tadic is a Serbian! the wall
Tadic’s alibi: He was never present in the concentration camps, and he c. Patients can’t go to the hospital
was only a traffic policeman!
ICJ: WALL VIOLATED IL
TRIAL CHAMBER: W directly identified him!
-Consequences
He was directly liable, even if he alleged to be just coerced by party of
1. Obligation to cease and desist breach
SERBS
2. Repatriation: Destroy Wall
On APPELLATE CHAMBER:
3. Compensate
xxx
4. 3rd states not to recognize the legal consequences of the breach
On Grave breaches of the Geneva Convention
5. compel Israel to abide with their international responsibilities
TC: Absolved: Non-international armed conflict (w/n Yugoslavia)
…Geneva Convention applicable only to International Armed Conflict!
ZAFIRO CASE
AC: The State is responsible if it exercises control over the individual
F: Chinese crew of the Zafiro, when docked in Cavite, looted the town
-not just sending forces to deal with breach of international peace?
which was not within the control of any one, as Spain already
-effective Control applied in Nicaragua was too high a standard, so use
abandoned the town.
OVER ALL CONTROLTEST: “the degree of control, may, however,
What kind of attribution: ART8? Yes!
vary according to the factual circumstances of each case”
-directly ordered by a State
-responsible for Grave Breach of Geneva Convention!
the conflict was INTERNATIONALIZED…
UNION BRIDGE COMPANY CLAIM
1) Bosnia declared independence
-also Art 8
2) Belgrade, Capital of Serbia, Control forces of Bosnia – OVERALL
F: Neutral material removed under mistake and under instructions of
CONTROL
Government
“case to case basis”
*Seizure happened AFTER THE WAR
*Materials seized belonged to US Co, not with UK and Africa
What must be met:
*Property seized by Mr Harrison, the storekeeper of Care Governmetn
1. Coordinated w/ army Railways by UK
…did not have to dictate evey method of warfare *note that the war was between UK and Africa
➢ military objective
➢ Allow forces on how to achieve objective H: Act of Mr. Harrison makes UK Liable
1. Participated in general Manner -for wrongful interference of taking Neutral property

VS. NICARAGUA CASE BOLIVAR

-should still dictate how the objective should be reached (the local …you can’t take property of an Alien w/o compensation
troops in Nicaragua should be dependent on the US for orders…; as
they were not proven to be such, they were deemed to have acted STARETT HOUSING CORPORATION VS. IRAN
independently of US and thus, US is not liable for their acts) -taking of effective use of their proerty
-what is property for purpose of Expropriation?
BOSNIA CASE (REVERTED TO NICARAGUA’S EFFECTIVE F:
CONTROL TEST) -Starett undertook housing project for the republic paid by the Shah of
-overall control wrong! Should still be effective control Iran
-burden of proof not met: no proof of nexus on Genocide -But Shah was deposed (See US vs. Iran: US embassy mobbed!)
-as a result of the mobbing of the US Embassy, the US nationals of
But on EffectiveControl: Starett fled from Iran
-overall control test not enough -Government of Iran continued the project, but replaced the American
-Attribution: law of state responsibility officials
>so attribute acts to a state, should have high degree of control -officious manager appointed
>should prove that the state dictated all that the agents were to do IRAN argues: The project was abandoned, so Starett cannot claim that
…pede siguro if criminal liability, but when you’re making a state liable, it’s property was expropriated without compensation
STRICTER TEST ***Side story: US Freezed Iranian Assets in the US so Iran has to
compensate the investments of US in Iran so that the freezing of their
RAINBOW WARRIOR CASE assets would be ceased…
F: France admitted that it was their Agents who planted explosives on Shah = Marcos at that time
the Rainbow Warrior H: There was taking
-so France liable >No abandonment: US nationals were forced to leave for fear for their
-Under Article 8? lives
On control ulit: Dapat directing…. > it was CREEPING EXPROPRIATION: The appointment of an
officious manager is a way of indirect Taking of property
ISRAEL VS. PALESTINE WALL
-Security Wall AGAN…PIATCO CASE – not assigned, but what the heck, here it
-has goes
*electric sensors -there was taking here? YES
*Sandy loan Although the contract was NULL AND VOID, there was a taking of the
*layered with barb wires RP Government so compensate expenses
ISRAEL: Build wall to protect it from Palestine’s Attack
4 Phases: when dispute came up, there where only 2 phases of the Other forms of expropriation: Taking: adequate and just compensation
wall building done
Palestinians: some left their houses because the wall would be built on Taking: Basta take property rights
where they live (displaced)
-found it difficult to access some social service needs UNOCAL CASE
>>>violated their rights RTC: Dismissed
CA: wala na. May agreement between parties
1. self-determination *UNOCAL Not liable:
13PIL
notes Cha
Mendoza
>2 other companies not impleaded were presumably enjoying Principle of Autonomy
sovereign immunity GR: Treaty applies to parties therein
>does not fall under COMMERCIAL ACTIVITY EXEMPTION (3 in X: A35: Treaties providing for Obligation and rights for 3rd party states
ACTA, none here) (if obligation, States should accept it) – PACTA TERTIS
DOE: The effect in US > Lower gas costs (as they didn’t pay for labor, -even if w/o consent, 3rd states are still bound by an obligation if under
the IPs were enslaved to work for the extraction of gas) –however, this Customary IL
was not the one contemplated in the exemption…
-as to acts of the subsidiary corporation: attributable to the state A36: Rights to 3rd states: presumes assent to State (it’s for their
-Case was allowed to proceed benefit, so they are presumed to be agreeable to it)
-why hold Burma liable when private entity carried the enslavement? A38: Customary IL
Can’t hold Burma liable because it was immune!
But burma and Total jointly operated it! Rebus Sic Stantibus – A62
ART5: Para statal entitles! -Fundamental Change of Circumstances
= Novationin Civil law
Q: Black water contracted by US Government to provide US Troops -has it ever happened that a state would be relieved from its obligation
protection. Blackwater recruited Magdalos. Magdalos were ordered by RIVER CASE: Possibility explored (not sure though if the state has
Blackwater to walk on ground allegedly having landmines. Blackwater been relieved of obligation in this case. Again, not assigned)
was also ordered to do other things. Can you sue US?
Yes. Under Article 5 Grounds for Voiding Treaties: Section …
-but if so, can Blackwater now claim that as they are exercising
governmental authority elements (they are parastatal entities), they are Professorial Chair Lecture ni Sir Roque:
immune….sovereign immunity? NBN-ZTE
-China offered to lend P3T to RP provided they would choose the
Sovereign immunity: unless a state agrees to be sued, you can’t sue a contractor
state How GMA Rationalized tis: Section 4, RA 9184
Can you also hold US liable for torture conducted by private individuals -no bidding required!
contracted by them -China is a socialist country so if dealt with a GOCC, you already dealt
YES. Under orders Article 98 with the state
It would be a treaty, whatever its designation is (art2(1)(a))
VIENNA CONVENTION ON TREATIES
Problems
-restatement of customary norms 1. overpriced
-what is a treaty 2. You won’t see the materials (no bill of materials)
>Capacity to enter a treaty: element of statehood 3. obsolete by the time you use it
-steps in treaty-making: preconditions that must be complied with 4. no prior MB concurrence
*in Vienna, no ratification definition 5. Consti
-pacta sunt servanda
-but can’t stipulate vs. jus cogens norm NORTHRAIL CONTRACT
-provisions when treaty norm subsequently becomes illegal, void ab -forerunner
initio -still with China
-no bidding
On cases >UP Law Center: No finalized design, output, so can’t say it’s
*Simplistic if Vienna convention alone overpriced
>Contracts – pampagulo
-no bidding: Exempt because it’s an Executive Agreement - treaty RA 9184, Section 4
ABAYA VS. DBM: Executive agreements = Treaty -it should apply to ALL GOVERNEMNT PROJECTS
SEC4, RA 9184 -regardless of where the funding came
X: Treaty, Gov’t is a signatory
TIPS sa finals: SIR WOULD ASK CASES WHERE HE USUALLY
PARTICIPATED…uhm…okay… BAYAN VS. ZAMORA
-Constitutionality of VFA
*Why unconstitutional?
SEPTEMB ER 22 Article VII, Section 21 vs Article XVIII, Section 25
(just an executive agreement, not a treaty – no senate concurrence)
Treaty H: However it is designated, it is a treaty. If treated as such by the
Vienna Convention: an international agreement states
…concluded between STATES >already recognized by AN Hubbard
…in written form Dissent, PUno:
…governed by IL 1. only a treaty if concurred in by US Senate
(article 2(4)) 2. Not “Visiting” > basing na
-aspect of statehood: capacity to enter into treaties > we adopted definition of a treaty
Agents ngayon are allowed to enter into treaties in behalf of their Are all such loan agreements = EA = excluded from RA 9184?
states though FULL POWERS
ABAYA VS. EBDANE
When Treaty Binding? F: involves contractor China Road and Bridge Corporation which was
-when signed blacklisted by the World Bank
-when need ratification: when ratified H: No retroactive application of RA 9184
-even if applicable, las part of Section 4(giving exemption to treaties)
*Can states agree to hurt each other? NO. Article 53. Should not provides an exemption: here, there was an EXCHANGE OF NOTES
conflict with other jus cogens norm, PEREMPTORY norm even before the effectivity of the law

What if agent w/o full powers? VOID VIBAL PUBLISHING VS. KOLONWELL
-cited ABaya even when it was not yet fina and executory
What are other grounds that make a treaty VOID? F: there was conflict in interest
1. Error -Vibal used 4 companies to bid
2 Fraud -dapat disqualified
3. Coercion of the agent and of the state -failure of bidding
But WB overruled
14PIL
notes Cha
Mendoza
DECS -if other provisions, pede
PROCUREMENT
TC: panalo si Sir MILITARY AND PARAMILITARY
SC: bayad Vibal -on withdrawal of US from ICJ Jurisdiction
-di na GAD of Fernandez ICJ: Notice must first be given w/n reasonable time before a state can
Ang tinignan withdraw from a treaty
Nature of Loan Agreement: P608: Cited Abaya which does not say
anything that international agreement on loans = Treaty VIENNA CONVENTION
-case which would verify – if decided correctly by SC: Northrail
-how to send Ambassadors
SIR: By sending ambassadors, you’re establishing diplomatic relations
OCTOBER 8
with that country
Ratification 1. Note Verbal to be sent to RS, Agrement hereby requested
PIMENTEL CASE -give chance to RS to check you out because as soon as they give the
-executive act agreement, immunity from jurisdiction attaches
…in VCLOT: Just an evidence that a sate wants to be found 2. Agrement given:
-when immunity attaches? Receive credentials first to RS, but this may
Brownlie: 2 acts be delayed
1. Act of appropriate organ of a state – as required by internal law -so present credentials first to the Minister of FA
2. Deposit instrument of ratification 3. If accepted credentials,
…
PIMENTEL CASE Problems
-Rome statute sought to be ratified *Gino wanted you to deliver package to Timbuktu. Before going to
-evening class of sir roque wanted Executive to ratify the Rome Statute Timbuktu, you went to Monocco first for a vacation. It turns out that the
SC: Does not compel executive, quoting Isagani Cruz’s Book on package contained contraband. Does immunity attach?
Treaty-making process NO. Immunity attaches only when you’re performing your functions –
Then the court says that by ratifying, we are bound you have immunity only whey you’re in transit.
SIR: they missed the whole point! Ratification merely gives the proper
state organ the review *If you hire services of contractor to renovate, can’t pay Ambassador.
-Ratification is not purely an executive act, it needs concurrence of the Immune or not from collection suit?
Senate! -this is specific services rendered
-ambassadorial residences
SALONGA CASE
-majority opinion refutes the minority opinion *what if just rent Ambassadorial residence, the owner of the leased
Grounds: VFA Agreement beyond BAYAN premises, property to be attached. Annotation of the attachment done.
>unequal agreement between parties Can this be done?
>w/o fixed period, not visitation SIR: IF annotation lang (no effect on possession of ambassadorial
>EPC: only American soldiers treated differently when they are residence) okay lang
arrested and convicted
*Driver brought from the country of the ambassador to Timbuktu (to
SC Uhpeld EPC argument serve as a driver). Driver, while in Timbuktu, figured into a stabbing
>violative of VFA: May subject to renegotiation: but RP Still has incident. (note that Driver is same nationality as the ambassador)
custody over US Serviceman SIR: No. Functional immunity. Should be in the course of official duty
-can’t put outside RP Jurisdiction Diplomatic staff: immune from criminal jurisdiction
But if service staff: functional immunity
As to Constitutionality: Still stands
1. Self-executing *If the diplomatic mission is in Forbes Park, and Forbes park has a rule
2. covered by implementing legislation that 1 premises should only contain 1 family. Can Forbes park now
3. RP-US treaty was consented by Senate of US (so implied mali ang enforce the restriction on the use of diplomatic premises when the
BAYAN Case diplomatic premises was used not only as the diplomatic embassy but
-why important to discuss all these? also for the quarters of the diplomatic staff?
Rebut minority opinion that this is not a treaty! SIR: Exempt. Regardless if Head of Mission or diplomatic agent
MEDELIN VS. TEXAS: Not all agreements entered into by US are (refers to the Premises of the Mission)
treaties
+ not all decision of ICJ, even if US is a party to the statute, are *In RP: Multiple accreditation kasi we’re so poor
executory in US
X: Ung 3: Consular vs. diplomatic
1. self-executory Consular: more on commercial transactions – functional immunity only
2. Implementing legislation Diplomatic: more on governmental functions
3. US consented
*Medelin not implemented because US did not consent to the treaty? OCTOBER 13
Majority:
1. self-executory daw ang VFA – pero wala naman sa VFA na ganun US VS. AVENA
2. It’s anchored on Mutual Defense Treaty F: US failed to give notice, failed to grant visitation rights to the
-but hellurh, it was only mentioned in the preamble consular staff of Mexico
Mutual Defense Treaty: can only be invoked if there is an Armed -here, the Mexicans were sentenced to death
Attack C: US court did not acquire jurisdiction
---but this will never happen now because it is prohibited under IL Effect: Failure to comply with this provision in Vienna Convention
-bawal din collective self-defense would result to the divestment of the court’s jurisdiction
3. Zublacky Act – implementing legis daw eh… -gave rise to Mendelin
-executive agreements lang implements nya ICJ: gave provisional measures
-if mere executive agreement, it doesn’t have the effect of Law SIR: This case would seem to say that failure to notify the consular
offices deprives it jurisdiction
ADVISORY OPINION ON RESERVATIONS IN CONVENTION VS
GENOCIDE MINUCHER VS. CA
-reservation made which goes against the purpose of the convention – F: Drug agent in RP was said to have framed a consular officer of
you’re not a party to the convention Pakistan (?). When the latter was found innocent, he sued the Drug
agent
15PIL
notes Cha
Mendoza
1st ruling: not immune e.g. In Africa and Cambodia
On MR: Acted for US, so immune -Genocide wherein many died
SIR: the 2nd ruling violated RP Sovereignty!!! Chapter 7 used to create to prosecute the masterminds
…BUT GENOCIDE. Just 1 country. But many nations – how will it be
UN an int’l peace problem?
-treaty ….Because it’s difficult to prosecute genocide in local courts!!!
-promote peace and stability
-prevent another war *UN SC only conducted recently 1 trial
Why is it that this seems to be selective?
As a treaty, what is provided in UN Charter to achieve goal in avoiding Yugoslavia, Rwanda, Cambodia – they only entered Yugoslavia
another war? SIR: Racist ang UN! If you’re not white, magpatayan muna kayo
Jus ad bellum – use of force = legal
Jus in bellum – IHL = not validly of use of force but WON combatants Opinio Juris: 3rd exception
are liable under IHL
YUGOSLAVIA VS. US
Art2(3) and (4) prohibit use of force -just preliminary objection
GR: Prohibited -Yugoslavia not continuation of Bosnia
X: Art51: Self-defense + US and Spain did not consent to ICJ Jurisdiction
Art42: SC (Security Council) Authorizes it
KOSOVO-NATO
NICARAGUA VS. US Arguments of NATO mems
-justified if there’s an armed conflict 1. Implied Consent of UN SC
-subject to necessity and proportionality Principle of GPIL: Necessity to protect humanitarian law
-when Chapter VIII may be invoked -genocide: Erga Omnes Position: even if not victim state, can claim
…implementing collective security measures that there’s genocide
2. Erga omnes
1. Who implements? Which forces must act? 3. Being Parties to Genocide Convention, should take steps to prevent
---military force? genocide (lex specialis vs. Lex generalis – UN Charter)
2. How to implement? Obligatory on member states 4. Purpose of Self-defense – from threat or actual use of force
-now “threat” invokable, with the development of nukes
UN Forces 5. International humanitarian agency
-manned by volunteers of the UN members, pursuant to an agreement Sir: Sympathetic to the justifications BUT one can’t invoke exceptions
-under the administration and authority of the qMilitary Staff on an ad hoc basis
Committee (combined Chiefs of Staffs of permanent members of the SOLUTION: Democratize UN SC
UNSC) -violates sovereign immunity of states (this issue is actually gasgas)
*note: UN Peace Keeping Force not provided in the UN Charter
OIL PLATFORMS CASE
Is there a blanket authority for UN SC to issue Military Sanctions? Or is F: US bombed offshore oil production complexes allegedly as a
there an order? defense for 2 instances when its vessels were bombed
Art 41: Non-military sanctions first 1.Sea isle city attack: hit by a missile near Kuwait Harbour
>economic embargo
>severance of diplomatic relations
2.Warship struck a mine in International waters near Bahrain
…exhaust non-military sanctions first before resorting to Military -Reprisal! Illegal! You want to get even!
sanctions
SALONGA: VFA not relevant anymore because armed attacks are
DID UN MEMBERS ever have such UN Force? now illegal
No. No Agreement, no UN Force
But UN SC not prevented from implementing through UN ICJ:
Peacekeeping Force 1. US did not prove self-defense
-from states volunteering manpower (in pursuance to UN Convention) 2. Self-defense should be justified
But 1955 Treaty between Iran and US, which was invoked by Iran as
How do these troops ENTER sovereignties? basis for its COA, would only apply if the breach done by US involves
Supposedly, states REQUEST presence of UN Security Forces the violation of Iran’s Freedom of Commerce
-but sometimes, even w/o Request basta to enforce UN SC -in this case, Iran’s Freedom of Commerce NOT BREACHED because:
Resolutions 1. the Oil platforms hit were not functioning anymore
e.g. Operation Desert storm 2. There was already an Oil Embargo on UN before the attacks, so no
-All peacekeeping forces – not pursuant to IL because not in effect on the freedom of Iran to Commerce
accordance with UN Charter
ILLEGAL: NO compliance with UN Charter ICJ JURISDICTION
LEGAL : If allowed by GPIL + There’s UN SC Authority
Can PLO
…US, through a law, made PLO a terrorist group
MURASE: Not a matter of illegality but opposability
UN HEADQUARTERS CASE
-defines what a DISPUTE is
…UN SC has duty to preserve peace
SIR: By way of subject matter jurisdiction, ICJ can take cognizance of
ANY DISPUTE, including interpretation of treaties
ISSUS
1. Use of force: Illegal?
2. UN SC: primary jurisdiction, not exclusive
JURISDICTION OVER PARTIES
GA also can deal with threats to International Peace as well
+ UN SC permanent members have veto powers Consent Given
a.Compulsory consent
Are all use of force b.Reservations allowed
-not authorized Types of Reservations
-not self-defense
…legal?
i. Rationae personae: relating other parties
ii. Rationae tempore: time
Use of force by Humanitarian Intervention is deemed legal iii.Ratione materiae: subject matter
16PIL
notes Cha
Mendoza
*RP applies this kind of reservation
e.g. as to national territory

If with reservation, not compulsory

Where state consent to be bound? Any treaty!

WHO may avail of jurisdiction of court? ONLY STATES
a. Member of UN
b. Non-member, should apply
Steps
1. application
2. Approval of UN

Qualifications of a UN State
1. Peace loving
2. Can carry out the functions as a member

UN SC recommend, GA authorize
> is UN SC recommendation necessary? Indispensable. Required to
have both! [ADMISSION CASE]

*If new state from former state, new state allowed to fly their flag, take
seat in UN GA assembly, is this enough?
No. Objective Criteria

Criteria
Continuation State: Inherent majority of
a. Territory
b. Population
c. Capital
d. Government
e. Land area
f. Public property
* But rule in state succession: successor state can choose what it want
to inherit

Contesting Jurisdiction
_inthe Preliminary Objections
I. Parties
II. Subject Matter
III. It affects a party who has interest but not party, ICJ
can’t exercise jurisdiction (a59)
e.g. Nauru v. Aus
Portugal vs. Aus

PORTUGAL VS. AUS

Indonesia affected
-Indonesia only occupied East Timor by conquest
-Aus entered continental delimitation of shelf with Indonesia over the
area of shelf of East Timor
-Portugal (previous occupant of East Timor) objected: can’t enter treaty
with conquestor

Is exhaustion of remedies required before icj can have jurisdiction

{ELSI CASE}

-if claim in behalf of Nationals: exhaust domestic remedies

-if harm to state itself: not required to exhaust

NAURU VS. AUS

Aus mined away Nauru’s territory and other states
-even if only Australia impleaded (NZ and UK not impleaded), ICJ still
has jurisdiction over the issue
-but Nauru not precluded from claiming vs NZ and UK

MILITARY AND PARAMILITARY ACTIVITIES

-Withdrawal : should be within reasonable period

LOCKERBIE CASE
Libya didn’t want to surrender…