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BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL LAW
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o The continent formed a political system in which the Nations inhabiting this
part of the world are bound by their relations and various interests into a single
Special Issues in International Law | 2 Semester, S.Y. 2018-2019
body.
Acampado | Adrias | Aguila | Alonzo | Arcenas | Balisong | Callueng | Castillo | Castro
• Immanuel Kant – re-characterize the binding character of international law, proposing
Coscolluela | Ignacio | Matsumura | Peliño | Pleyto | Punsalan | Rayos | Rosales, C. | Sabaupan |
an international federation of republican states along substantially similar lines to Wolff’s
See | Soriano, J. | Sta. Maria | Vargas | Yap | Yrreverre
supreme state, backed by coercive rules, as the only method by which a secure and
lasting peace could be achieved.
CHAPTER 1: INTRODUCTION
(B) FROM POSITIVISM TO THE PRESENT DAY
1. DEVELOPMENT OF THE LAW OF NATIONS
• What is public international law? It is the law of nations developed out the tradition of • States emerged as material, independent entities and international law was one of the
the late medieval ius gentium ways they developed of managing their relations.
o Specialized body of legal thinking about the relations between rulers, reflective o Since the law of nations developed within a system wholly lacking in other
of custom and practice in such matters as treaty making, status of ambassadors, institutions, IL is highly state-centric.
use of oceans, and the modalities of warfare. • Positivism - saw the law as a creation of power, a command of a sovereign enforced by
• Aquinas – law could structure or at least moderate the relations between kingdoms, a sanction; international law was not law above states, but law between states,
principalities, and republics. enforceable, short of war, by way of moral opprobrium or by reciprocal denial of benefits.

th
During the 13 century, international law was essentially a moral question, but it was • John Austin – international law was only ‘law improperly so called’
engaged with issues such as territorial claims, treaties, right of legation, etc. • Jeremy Betham – had no such issue with international law, principally because he
• A signal of development was that war was seen as the prerogative of the sovereign. thought that national sovereigns could also together promulgate international law; they
o It is not the business of the private individual to declare war, because he can were not disabled from collective action.
seek for redress of his rights from the tribunal of his superior. • HLA Hart – distinguished 3 categories of rules:
o It is not the business of the individual to summon together the people during o Primary rules concerning human action and interaction.
wartime. o Secondary rules (adjudication, enforcement, and change)
• International law was European in origin, extending to the whole Mediterranean to o Master ‘rule of recognition’ which enables the observer to identify the
Russia and the Near east, travelling with the colonizers (Americas to Asia, to Africa and components of the system and to treat them as legal.
to Oceania). • Brownlie – whatever the theoretical overlay of law/not law imposed by Hart and
o Colonialism reshaped the world in a Eurocentric Image. positivists in general, the reality of international law told a different story.
o Of the non-European nations only seven managed to retain independence
without formal qualification of sovereignty (Ethiopia, Liberia, Turkey, Thailand, (C) THE BASIS OF OBLIGATION
China, Japan and Afghanistan)
• Eventually international law expanded: creation of international orgs with universal • The classification of a system as legal does not predetermine its effectiveness: witness
membership and treaty making powers, detailed elaboration of the law of the sea, various national law systems in greater or lesser disarray
establishment of permanent bodies, etc. o Question is whether the rules, traditions, and institutions of a given system enjoy
o Positivist wave through the Permanent Court of International Justice indicated at least some salience within the relevant society, meet its social needs, and are
that the rights under IL could be conferred on individuals. applied through techniques and methods recognizably legal-as distinct from
mere manifestation of unregulated force.
2. INTERNATIONAL LAW AS LAW • John Finnis – defended the idea of an international law-particularly customary
international law-able to emerge without being made by anyone without authority to
(A) NATURAL LAW ORIGINS make it, and without the benefit of Hart’s secondary rules for the authorized generation
and alteration of rules.
• IL saw its gradual separation from natural law, a process spurred on by Reformation
and wars of religion (Thirty Years War ending in Peace of Westphalia). 3. THE REALITY AND TRAJECTORY OF INTERNATIONAL LAW
o Natural law emerged from Roman law and Roman Church which conceived
universal ius naturale (natural law) of which ius gentium (Law of peoples) was (A) THE STATE AND SOVEREIGNTY
a subset.
• Grotius – separation of the jus gentium from the jus natural and its modulation into a • States - political entities equal in law, similar in form, the direct subjects of international
law of nations, which applied specifically to the rulers of states. law.
• Law of nations – was a system of norms whether derived from a universally applicable, o Once statehood is generally recognized, a new situation arises: the new state
natural morality or attested by the Consent of Nations is sovereign, has sovereignty and this is true no matter how fragile its
• Wolff – collective society could not be promoted unless states formed a universal condition or diminutive its resources.
political entity, a ‘supreme state’ form which would proceed the law of nations. • Kingsbury – emphasized the disadvantages of any normative transformation
• Les Droit des gens - claimed to be the first international law textbook • As a concept, sovereignty carries limited substantive consequences and is consistent
• Vattel – was in contrast with Wolff; political balance or equilibrium of power for Vattel. with a range of internal forms of government. It is also capable of responding to

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developments on the international plane as seen with the rise of international the international order and possessing the capacity to take certain kinds of action
obligations. on the international plane. They are those who have international personality.

• The relationship is a symbiotic one. o Objects of international law are those who indirectly have rights under or are
beneficiaries of international law through subjects of international law.

(B) THE INSTITUTIONAL STRUCTURE • Is “public international law” law? One may argue that the Basic challenge to
international law as law is the claim that there can be no law that binds sovereign states,
• 2 organizations which were the product of war: and that there exists no international legislative body, international executive, and
o League of Nations est. by US Pres. Woodrow Wilson; part of the Peace of central authority that can make judgments binding on states (because now it only
Versailles in 1919. bounds states who consent to be bound) (see positivist theory/command theory).
§ Did not outlaw war per se. However, the classification of a system as legal does not predetermine its effectiveness.
§ Sought to use the institution of war as a response to the violation (See John Finnis).
of its provisions. • Why are states subjects of international law?
§ Art. XVI: sought to guarantee the key commitments or covenants • What is public versus private international law?
which positioned the League as a system for collective security and o Public International Law governs the relationships between and among states
as guarantor of the performance under international law (the and also their relations with international organizations and individual persons
provision states that if you violate the provisions, it’s considered as o Private International Law is domestic law which deals with cases where foreign
an act of war) law intrudes in the domestic sphere
o United Nations est. by the Charter of the UN in 1954.
§ Created independent of a peace treaty, avoiding the unfortunate
associations with a punitive peace that dogged the League; broad CHAPTER 2: THE SOURCES OF INTERNATIONAL LAW
discretionary power.
§ 5 permanent members: US, UK, France, China, Russia.
§ These 5 could not be outvoted on key issues. 1. INTRODUCTION
• Ibi societas, ibi ius: where there is social structure, there is law.
(C) A SYSTEM OF INTERNATIONAL LAWS • Sources of IL define the rules of the system.
• What are the sources of international law?
• System which is generally effective o Formal sources - methods for the creation of rules of general application which
• Henkin – almost all nations observe almost all principles of international law and almost are legally binding on their addresses. (But use of term is confusing since it gets
all of their obligations almost all of the time. mixed up with constitutional machinery of law-making within states.
• IL has the char. Of a system, not just a random collection of rules: the basic constructs o Material sources - provide evidence on the existence of rules which, when
of personality, sources, interpretation, and responsibility, provide a framework within established, are binding and of general application.
which rules may be generated, applied, and increasingly, adjudicated upon. • As a sub, IL works on the basis that general consent or acceptance of states can create
rules of general application.
(D) THE TRAJECTORY OF INTERNATIONAL LAW • Treaties: can either be bilateral (between 2 parties) or multilateral (between 3 or more)
• Law of treaties concerns the content of specific obligations accepted by the parties, that
• System itself exists in a persistent and even necessary state of flux. is, it concerns the incidence of obligations resulting from express agreement. But even
• Sovereignty and statehood remain the basic units of currency. if the treaty is generally multilateral, the constraints of the treaty form still apply: in
• States may use their power to modify the law to make rules about statehood itself-and principle, treaties neither oblige nor benefit third parties without their consent.
they have done, notably about colonial self-determination. o Treaties are a source of obligation and not a source of rules of general
application.
(E) SCEPTISM AND IDEALISM
2. THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE

• Koskenniemi – has seen the progress of international law as the function of an


irresolvable duality between apology and utopia. [memorize] Statute of ICJ, Article 38 –
• International law provides a set of techniques for addressing the huge collective action
1. The court, whose function is to decide in accordance with international law such disputes as
problems presented by the co-existence of nearly 200 sovereign states.
submitted to it, shall apply:
• Despite critics, it provides a normative structure for a rules-based system of international
(a) international conventions whether general or particular, establishing rules expressly
society.
recognized by the contesting states;
(b) International customs, as evidence of a general practice accepted as law;
Possible Questions
(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
• When will international organizations be governed by public international law? most highly qualified publicists of the various nations, as subsidiary means for the
• What is the difference between subjects and objects of international law? determination of rules of law
o Subjects of international law are entities endowed with rights and obligations in

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2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, Norwegian coastal zone, with its many bays, islands, islets and reefs. The United
if the parties agree thereto. Kingdom contended, inter alia, that some of the baselines fixed by the decree did
not accord with the general direction of the coast and were not drawn in a reasonable
• Art. 59 provides that decisions have no binding force except between the parties and in manner. In its Judgment of 18 December 1951, the Court found that, contrary to the
respect of that particular case. submissions of the United Kingdom, neither the method nor the actual baselines
• Is there a hierarchy in the sources of international law? There is no express stipulated by the 1935 Decree were contrary to international law. Norway puts
hierarchy, but in one of the drafts the word ‘successively’ appears, but in practice a and forward the 1935 decree as the application of a traditional system of delimitation in
b are the most important. accordance with international law. In its view, international law takes into account
o Source (a) relates to obligations, which will ordinarily prevail as being more the diversity of facts and concedes that delimitation must be adapted to the special
specific. But unwise to think in terms of hierarchy conditions obtaining in different reguons. The Judgment notes that a Norwegian
Decree of 1812, as well as a number of subsequent texts (Decrees, Reports,
3. INTERNATIONAL CUSTOM diplomatic correspondence) show that the method of straight lines, imposed by
geography, has been established in the Norwegian system and consolidated by a
(A) THE CONCEPT OF CUSTOM constant and sufficiently long practice. The application of this system encountered
no opposition from other States. Even the United Kingdom did not contest it for many
• Art. 38: international custom - as evidence of a general practice accepted as law; years: it was only in 1933 that the United Kingdom made a formal and definite
wording is prima facie defective: the existence of a custom is not to be confused with protest. And yet, concerned with maritime questions, it could not have been ignorant
the evidence adduced in its favor. of the reiterated manifestations of Norwegian practice, which was so well- known.
• Judge Read – customary international law - generalization of the practice of states.
• Usage is general practice which does not reflect a legal obligation; carried out of Highlighted by Brownlie: Complete uniformity of practice is not required, but
courtesy i.e. comity and are neither articulated nor claimed as legal requirements. substantial uniformity is, and for this reason in Anglo-Norwegian Fisheries the Court
• e.g. ceremonial salutes at sea, granting parking privileges to diplomatic vehicles. refused to accept the existence of a 10-mile rule for the closing line of baye.
• International comity - species of accommodation: it involves neighborliness, mutual
respect, and friendly waiver of technicalities.
• Particular rules of comity, consistently maintained without reservation may develop into North Sea Continental Shelf (Germany v. Denmark/Holland)
rules of customary law.
• Examples of material sources of custom: diplomatic correspondence, policy statements, Facts: Germany, Denmark, and the Netherlands failed to reach an agreement on
opinions of government legal advisers, official manuals on legal questions, executive how to delimit their continental shelves in the North Sea. Denmark and the
decisions and practices, comments by governments on ILC drafts, legislation, Netherlands both contended that the delimitation of their continental shelves should
international and national judicial decisions etc. be determined in accordance with the principle of equidistance. The delimitation of
the boundaries near the coast had been made on the basis of this principle.
(B) THE ELEMENTS OF CUSTOM However, Germany considered that such an arrangement would result in an
i. DURATION AND CONSISTENCY OF PRACTICE inequitable delimitation for them. Thus, the three states agreed to submit the matter
to the ICJ to determine whether or not the equidistance rule should be applied in
• Is there a period required in the element of duration? No delimiting their continental shelves.
• Should there be absolute consistency?
• Complete uniformity of practice is not required; but substantial uniformity is. Issue: Whether the equidistant principle has been crystallized into customary
international law
Anglo-Norwegian Fisheries (UK v. Norway)
Ruling: No, the Equidistant principle has not crystallized into customary international
Facts: Since 1911 British trawlers had been seized and condemned for violating law. The Court held that the principle of equidistance, as contained in Article 6 of the
measures taken by the Norwegian Government specifying the limits within which Geneva Convention did not form a part of existing or emerging customary
fishing was prohibited to foreigners. In 1935, a Decree was adopted establishing the international law at the time of drafting the Convention. It supported this finding
lines of delimitation of the Norwegian fisheries zone. On 28 September 1949, the based on (1) the hesitation expressed by the drafters of the Convention, the
Government of the United Kingdom filed with the Registry of the ICJ an application International Law Commission, on the inclusion of Article 6 into the Convention and
instituting proceedings against Norway. The subject of the proceedings was the (2) the fact that reservations to Article 6 were permissible under the Convention.As
validity, under international law, of the lines of delimitation of the Norwegian fisheries such, the Court held that the use of the equidistance method is not obligatory for the
zone as set forth in a Decree of 12 July 1935. delimitation of the areas concerned in the present proceedings.

Highlighted by Brownlie: Although the passage of only a short period of time is not
Issue: Whether this decree, which laid down a method for drawing the baselines
necessarily, or of itself, a bar to the formation of a new rule of customary international
from which the width of the Norwegian territorial waters had to be calculated, was
law on the basis of what was originally a purely conventional rule, an indispensable
valid international law.
requirement would be that within the period in question, short though it might be,
State practice, including that of the States whose interests are specially affected,
Ruling: This question was rendered particularly delicate by the intricacies of the
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should have been both extensive and virtually uniform in the sense of the provision around its shores. The United Kingdom challenged this extension of jurisdiction,
invoked;—and should moreover have occurred in such a way as to show a general wherein UK relied upon an earlier treaty agreement between the parties where the
recognition that a rule of law or legal obligation is involved UK agreed to recognize Iceland’s twelve-mile exclusive fisheries jurisdiction in
exchange for Iceland’s agreement to submit all disputes over fisheries jurisdiction to
ii. GENERALITY OF PRACTICE the ICJ. Iceland argued that it was not bound by this agreement to submit all disputes
to the ICJ because of changing legal circumstances in international law. Iceland
• Complete consistency is not required. argued that the standard, default limit for exclusive fisheries jurisdiction for states
• UK v. Iceland (Fisheries jurisdiction) – extension of a fishery zone up to a 12nm limit was typically now twelve miles. This was not the case when Iceland first signed its
which appears now to be generally accepted and to an increasing and widespread agreement with the UK, however, and the agreement to a twelve-mile limit then
acceptance of the concept of preferential rights for coastal states in a situation of special constituted a compromise for Iceland. Due to changing trends in international law,
dependence on coastal fisheries. Iceland argued that its previous agreement to the twelve- mile compromise in
• Omission of an act (e.g. because the States think they have no jurisdiction) is not exchange for ICJ jurisdiction was now void for lack of consideration on the UK’s part.
enough to form a custom. What is important is that such omission is done because of
of opinio iuris to prove that the inaction is not just due to the lack of interest on the issue Issue: Whether Iceland can extend its fishery zone from 12 to 50 miles
(See Lotus case)
Ruling: Iceland’s extension of its fishery zone is not permissible. A fishery zone has
Lotus (France v. Turkey) been accepted to be 12 miles from its baseline and is treated as a general practice
accepted by the states. Although Iceland has preferential rights over the fishery
Facts: A collision occurred on the high seas between a French mail steamer (Lotus) zone, it must reconcile it with the interests of the UK.
and a Turkish collier (Boz-Kourt). Boz-Kourt sank, and 8 Turkish nationals on board
were killed. The 10 survivors of the Boz-Kourt, including its captain, were taken to
Constantinople (Turkey) on board the Lotus. In Turkey, M. Demons, the officer on Highlighted by Brownlie: extension of a fishery zone up to a 12nm limit which
watch of the Lotus who is a French national, and the captain of the Boz-Kourt, appears now to be generally accepted and to an increasing and widespread
Hassan Bey, were charged with manslaughter by a Turkish court. France protested acceptance of the concept of preferential rights for coastal states in a situation of
this, demanding the release of M. Demons or the transfer of his case to the French special dependence on coastal fisheries.
Courts. Turkey and France agreed to refer this dispute on the jurisdiction to the
Permanent Court of International Justice (PCIJ). According to France, the iii. ‘ACCEPTED AS LAW’: OPINIO IURIS SIVE NECESSITATIS
convention of Lausanne does not allow Turkish courts to take cognisance of criminal
proceedings directed against a French citizen for crimes committed outside Turkey. • General practice accepted as law, expressed ordinarily in the term opinion iuris sive
Moreover, that International law states that a State is not entitled to extend the necessitates.
jurisdiction of their courts to crimes that happened abroad even if the victim is a • Nicaragua case – The need for such a belief i.e. existence of a subjective elemnt, is
citizen of their State UNLESS stipulated in a special agreement. Meanwhile Turkey implicit in the very notion of the opinion juris sive necessitates.
contends that it has jurisdiction over the case.
Supra Lotus (France v. Turkey)
Issue: Whether Turkey has jurisdiction over the French national
Facts: A collision between a French and a Turkey steamship where 8 Turkish
nationals were killed. Turkey now claims jurisdiction over the officer on watch of the
Ruling: Both France and Turkey has jurisdiction over the case. There is no principle French ship.
of international law which precludes the institution of the criminal proceedings under
consideration. Consequently, Turkey, by instituting the case, in virtue of the Highlighted by Brownlie: France asserted that the flag state has criminal
discretion which international law leaves to every sovereign State, the criminal jurisdiction over accidents occurring on the high seas which was rejected by the
proceedings in question, has not, in the absence of such principles, acted in a Permanent court. Presumably, opinion iuris should apply to both positive conduct
manner contrary to the principles of international law within the meaning of the and absention, yet in the lotus case, the Court was not ready to accept continuous
special agreement. conduct as evidence of a legal duty and required a high standard of proof of opinio
iuris.
Highlighted by Brownlie: Often the real problem (when determining inaction as
generality of principle) is to distinguish mere absention from protest. It may be that Supra North Sea Continental Shelf (Germany v. Denmark/Holland)
the Court misjudged the consequence of the absence of protest and the significance
of fairly general absention from the prosecution by states other than the flag state. Facts: Germany, Denmark, and the Netherlands failed to reach an agreement on
how to delimit their continental shelves in the North Sea. Denmark and Netherlands
argue that the equidistance principle had become accepted as law by the date of the
Fisheries Jurisdiction (UK v. Iceland) Convention on the Continental Shelf.

Facts: Iceland sought to extend its exclusive fisheries jurisdiction from 12 to 50 miles Highlighted by Brownlie: The Court declined to presume the existence of opinio
iuris based on the practice as at that date. Nor did it accept Nor did it accept that the
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subsequent practice of states based upon the Convention because of two factors: sovereign; in such case the notion of opinion iuris merges into the principle of
(1) Article 6 was directed at agreement was not of a norm-creating character and (2) acquiescence.
the convention was in force for less than 3 years; the state practice was inadequate • Example of regional custom: diplomatic asylum in Latin America, concerning the right
to show a general recognition that a rule of law or legal obligation is involved. of the embassies of other states to give an asylum to political refugees.

(C) THE RELATIVITY OF CUSTOM Right of Passage (Portugal v. India)

• Rules of IL which are universally accepted, and the system of IL is reaffirmed by states Facts: India prevented Portugal from exercising Portugal’s alleged right of passage
in making and responding to claims of right, but the principles of the system mean that over the enclaves in the Indian Peninsula. Portugal thus requested the ICJ to declare
particular rules may have less than universal acceptance, yet still form part of IL. that a right of passage was possessed by Portugal and must be respected by India.
Portugal invokes this right only to the extent necessary for the exercise of its
i. THE PERSISTENT OBJECTOR sovereignty, subject to the regulation and control of India. India, on the other hand,
argues that the right of passage claimed by Portugal was too vague and
• What is the persistent objector? State may exempt itself from the application of a new contradictory.
customary rule by persistent objection during the norm’s formation.
• Evidence of objection must be clear, and there is a rebuttable presumption of Issue: Whether Portugal possessed the right of passage over the territory of India
acceptance. Whatever the theoretical underpinnings of the persistent objector principle, to the extent necessary for the exercise of Portuguese sovereignty over the
it is recognized by international tribunals. enclaves, which right was subject to the regulation and control of India
• Persistent objection rule - reinforces the principle of state consent in the creation of
custom. Ruling: Yes, but only with regard to private persons, civil officials and goods in
general. This does not extend to armed forces, armed police, and arms and
ii. THE SUBSEQUENT OBJECTOR
ammunition. This right of passage was established as a custom. During the British
and post-British periods, the passage of private persons and civil officials had not
• What is the subsequent objector? If a substantial group of states asserts a new rule, been subject to any restrictions beyond routine control. Merchandise other than arms
the momentum of increased defection, complemented by acquiescence, may result in and ammunition had also passed freely subject only, at certain times, to customs
a new rule as was the case concerning the continental shelf. regulations and such regulation and control as were necessitated by considerations
• If the process is slow and neither the new nor the old rule has an overwhelming majority of security or revenue. However, as regards armed forces, armed police and arms
of adherents, the consequence is a network of special relations based on opposability, and ammunition, during the British and post-British periods, Portuguese armed
acquiescence and even perhaps historic title. forces and armed police had not passed between Daman and the enclaves as of
• Situation will normally be transitional in character. right. It is difficult to see why the number of States between which a local custom
may be established on the basis of long practice must necessarily be larger than
Supra Anglo-Norwegian Fisheries (UK v. Norway) two. The Court sees no reason why long continued practice between two States
accepted by them as regulating their relations should not form the basis of mutual
Facts: The subject of the proceedings was the validity, under international law, of rights and obligations between two States. Portugal relied on such a custom to
the lines of delimitation of the Norwegian fisheries zone as set forth in a Decree of establish a right to access to Portuguese enclaves in Indian territory inland from the
12 July 1935. Norway argues that even if the 10nm closing line for bays and certain port of Daman.
rules were part of the general international law, it did not bind Norway because it had
consistently and unequivocally manifested a refusal to accept them. UK admitted the
Highlighted by Brownlie: Some customary norms may be practiced only within a
general principle, while denying that Norway had manifested its supposed refusal to
particular region, creating a “local” customary law. Such a norm is reducible to the
accept the rules. Thus, it regarded the question as one of persistent objection.
level of a bilateral relation, as in this case.
Highlighted by Brownlie: The Court did not deal with the issue in this way, however.
4. TREATIES
Its ratio was that Norway had departed from the alleged rules, if they existed, and
that other states had acquiesced in this practice.
• The most important source of obligation in international law.
• Law-making’ treaties have a direct influence on the content of general international law, an
iii. BILATERAL RELATIONS AND LOCAL CUSTOMS
influence not conveyed adequately by their designation as material sources.
• Some customary norms may be practiced only within a particular region, creating local • Bilateral treaties may provide evidence of customary rules.
customary law; such norm is reducible to the level of a bilateral relation. • There is no dogmatic distinction between ‘law-making’ treaties and other treaties.
• When considering the formation of a bilateral custom, general formulae concerning
(A) ‘LAW-MAKING’ TREATIES
custom will not supplant the need for case-by-case analysis.
• Where a party seeks to vary the general law on a bilateral basis, the proponent of the
• These create legal obligations, one-time observance of which does not discharge the
special right has to give proof of a sense of obligation on the part of the territorial
obligation.
• Create general norms framed as legal propositions to govern the conduct of the parties.
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o Not necessarily limited to their conduct inter se – the expression of an obligation § Example: Optional Clause or a free-standing dispute settlement treaty
in universal or ‘all states’ form is an indication of an intent to create such a general and if customary law rule is arguably the same as that contained in the
rule. treaty.
• Examples: Declaration of Paris of 1856 on neutrality in maritime warfare, the Hague § Nicaragua – US relied on an Optional Clause reservation that excluded
Conventions of 1899 and of 1907 on the law of war and neutrality, the Geneva Protocol of the Court from applying the Organization of American States (OAS)
1925 on prohibited weapons, the General Treaty for the Renunciation of War of 1928, the Charter. The Court avoided the effect of jurisdictional reservation by
Genocide Convention of 1948, and the four Geneva Conventions of 1949 on the protection holding that it was free to apply customary international law (content of
of civilians and other groups in time of war. which was the same as the OAS Charter).
• Although treaties are binding only on the parties, the number of parties, the explicit o Yet states do not cease to have disputes under a treaty merely because the Court
acceptance of these rules by states generally and the declaratory character of the provisions has no jurisdiction over those disputes.
combine to produce a powerful law-creating effect. • General Rule: The requirements of duration, consistency, and generality of practice and
• Non-parties may by their conduct accept the provisions of a convention as representing opinio juris means that customary law is often outpaced by specific treaties.
customary international law. o BUT this is not always the case; in the longer term, customary law may be called
o Example: Hague Convention IV of 1907 and the annexed rules on land warfare. on to mould and even modify treaty texts which cannot realistically be amended,
• In special circumstances, even an unratified treaty may be regarded as evidence of generally however desirable amendment might be.
accepted rules. § Example: Law of self-defense in Article 51 of the UN Charter parallels
o North Sea Continental Shelf – Germany was bound by the provisions of the the right of self-defense which existed in customary international law
Geneva Convention on the Continental Shelf (GCCS) which it had signed but not prior to the Charter. The Charter made no mention of necessity and
ratified. The Court concluded that only the first three articles represented emergent proportionality found in customary international law yet the International
or pre-existing customary law and its basis included reference to the faculty of Court has read them in.
making unilateral reservations, a faculty which applied to some articles but not to
those which (by inference) had a more fundamental status. 5. GENERAL PRINCIPLES OF LAW
§ The treaty itself made the distinction; by contrast the mere existence of
reservations where no provision for reservations is made in the treaty Statute of the International Court of Justice, Article 38, §1(c) – 1. The Court, whose function
will not itself annul the probative value of its provisions. is to decide in accordance with international law such disputes as are submitted to it, shall
o Gulf of Maine and Continental Shelf (Libya/Malta) – considerable weight accorded apply:
to UNCLOS although not yet in force. c. the general principles of law recognized by civilized nations;
• Baxter – North Sea case made it clear that the treaty-making process may also have
unwelcome side-effects called the ‘Baxter paradox.’
o Baxter paradox – treaties declaratory or constitutive of custom may ‘arrest’ its • How do you know it’s a general principle?
further development and that until the treaty is revised or amended, the customary • Article 38(1)(c) of the Statute of the International Court refers to the general principles of law
international law will remain the image of the treaty as it was before it was revised. recognized by civilized nations.
• Is there a concept of an oral treaty? Yes, but it will not be covered under the VCLT. o Is listed after treaty and custom, both of which depend more immediately on state
consent.
(B) RELATION OF TREATIES TO CUSTOM o Nonetheless, these general principles are not considered ‘subsidiary means’ which
is only confined to Art. 38(1)(d).
• When norms of treaty origin crystallize into new principles or rules of customary law, the • Descamps (Belgium) – had natural law concepts in mind; ‘the rules of international law
customary norms retain a separate identity even where the two norms may be identical in recognized by the legal conscience of civilized people.’
content. • Do general principles of law include municipal law?
o A State which fails to become a party to a law-making treaty may find itself • Root (US) – considered that governments would mistrust a court that relied on subjective
indirectly affected by the norms contained in the treaty UNLESS its opposition rises concepts associated with principles of justice.
to the level of persistent objection. • (the accepted definition) Root and Phillimore (UK) – rules accepted in the domestic law of all
o But persistent objection puts a state in an awkward position: it will be unable to civilized states.
invoke the new rule and also be unable to secure from other states continued o Guggenheim – said that Art. 38(1)(c) must be applied in this light.
adherence to the old rule. • (preferable) Oppenheim – to authorize the Court to apply the general principles of municipal
§ Example: US and Japan wanted to continue asserting a maximum 3nm jurisprudence, in particular of private law, insofar as they are applicable to relations of States.
territorial sea despite most states having a standard of 12nm instead. o Significant because tribunals have not adopted a mechanical system of borrowing
Moreover, US relied on UNCLOS provisions despite its repeated failure from domestic law; rather, they have employed or adapted modes of general legal
to ratify. reasoning as well as comparative law analogies in order to make a coherent body
• One significant effect of non-participation in a law-making treaty is inability to invoke its of rules for application by international judicial process.
dispute settlement provisions: a dispute that can only arise under a treaty as between parties • Difficult for state practice to generate the evolution of rules of procedure and evidence as
to the treaty. well as the substantive law that the court must employ.
o May not matter if there is a separate basis for jurisdiction. An international tribunal chooses, edits, and adapts elements from other developed
systems and results in a body of international law which has been influenced by
domestic law but which is still its own creation.
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(A) GENERAL PRINCIPLES OF LAW IN THE PRACTICE OF TRIBUNALS time of the indemnification, which value is designed to take the place of restitution which
(I) ARBITRAL TRIBUNALS has become impossible. To this obligation, in virtue of the general principles of
international law, must be added that of compensating loss sustained as the result of the
• Frequently resorted to analogies from municipal laws. seizure. The impossibility, on which the Parties are agreed, of restoring the Chorzow
• Fabiani – case between France and Venezuela, the arbitrator had recourse to municipal factory could therefore have no other effect but that of substituting payment of the value
public law on the question of state responsibility for state agents, including judicial officers of the undertaking for restitution; it would not be in conformity either with the principles of
for acts carried out in an official capacity; the arbitrator also relied on the general principles law or with the wish of the Parties to infer from that agreement that the question of
of law in assessing damages (claim is based on denial of justice by the Venezuelan courts). compensation must henceforth be dealt with as though an expropriation properly so-
• Russian Indemnity – Permanent Court of Arbitration applied the principle of moratory interest called was involved.
on debts.
• Tribunals show considerable discretion in matters involving general principles. Highlighted by Brownlie: One Party cannot avail himself of the fact that the other has
o Decisions on the acquisition of territory tend not to reflect domestic derivatives of not fulfilled some obligation or has not had recourse to some means of redress, if the
real property and municipal analogies may have done more harm than good. former Party has (by some illegal act) prevented the latter from fulfilling the obligation in
o North Atlantic Fisheries: tribunal considered the concept of servitude but refused question or from having recourse to the tribunal which would have been open to him. It
to apply it. is a principle of international law that any breach of an engagement involves an obligation
to make reparation.
(II) THE INTERNATIONAL COURT AND GENERAL PRINCIPLES
(B) GENERAL PRINCIPLES OF INTERNATIONAL LAW
• The Court has used Art. 38(1)(c) sparingly. General principles normally enter judicial
reasoning without formal reference or label. • May alternatively refer to rules of customary international law, to general principles of law as
• However, the Court has referred on occasion to general notions of responsibility. (See in Art. 38(1)(c) or to certain logical propositions underlying judicial reasoning on the basis of
Chorzoe Factory below) existing international law.
• On occasion, the Court has also relied on the principle of estoppel or acquiescence, • Examples: principles of consent, reciprocity, equality of states, finality of awards and
references to abuse of rights and to good faith, and the most frequent and successful use of settlements, the legal validity of agreements, good faith, domestic jurisdiction, and the
domestic law analogies à evidence, procedure, and jurisdiction. freedom of the seas.
o Thus, references to the rule that no one can be a judge in his own suit, to litis • Many times, these principles may be traced to state practice. However, they are primarily
pendence, to res judicata, to various principles governing the judicial process and abstractions and have been accepted for so long and so generally as no longer to be directly
to the principle universally accepted by international tribunals to the effect that the connected to state practice.
parties to a case must abstain from any measure capable of exercising a prejudicial • Certain fundamental principles of international law are considered peremptory norms.
effect in regard to the execution of a decision to be given. • What is the difference of general principles of law with custom?
o Corfu Channel: Court considered circumstantial evidence and remarked that ‘this
indirect evidence is admitted in all systems of law, and its use is recognized by 6. JUDICIAL DECISIONS
international decisions.’ (A) JUDICIAL DECISIONS AND PRECEDENT IN INTERNATIONAL LAW

Chorzow Factory (Germany v. Poland)


Statute of the International Court of Justice, Article 38, §1(c) – 1. The Court, whose function is
Facts: This case concerns the expropriation by Poland of a factory at Chorzow contrary, to decide in accordance with international law such disputes as are submitted to it, shall apply:
as the Court had held, to the Geneva Convention of 1922 between Germany and Poland d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly
on Upper Silesia. qualified publicists of the various nations, as subsidiary means for the determination of rules
of law.
Issue: Whether there exists an obligation to make reparation Statute of the International Court of Justice, Article 59 – The decision of the Court has no
binding force except between the parties and in respect of that particular case.
Ruling: The Court ruled upon a claim by Germany for an indemnity for the damage
caused by the illegal expropriation. Poland expropriated the Chozrow factory contrary to Statute of the International Court of Justice, Article 63 – 1. Whenever the construction of a
the Geneva Convention prohibiting such. It in fact amounted to a seizure of property convention to which states other than those concerned in the case are parties is in question,
which is void even in spite of compensation. The object of the Geneva Convention is, the Registrar shall notify all such states forthwith.
after all, is to promote the economic life of Upper Silesia. That being the case, Restitution
in kind, or, if this is not possible, payment of a sum corresponding to the value which a 2. Every state so notified has the right to intervene in the proceedings; but if it uses this right,
restitution in kind would bear; the award, if need be, of damages for loss sustained which the construction given by the judgment will be equally binding upon it.
would not be covered by restitution in kind or payment in place of it — such are the
principles which should serve to determine the amount of compensation due for an act
• What are judicial decisions?
contrary to international law. The dispossession of an industrial undertaking — the
• Judicial decisions are not strictly a formal source of law but are regarded as evidence of the
expropriation of which is prohibited by the Geneva Convention — then involves the
law.
obligation to restore the undertaking and, if this be not possible, to pay its value at the
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• Lauterpacht – Art. 59 does not refer to the major question of judicial precedent but to the • Such references above are often a matter of evidence of the law, but the Court aims for
particular question of intervention. consistency and employs the technique of distinguishing previous decisions.
o Art. 63 provides that if a third state avails itself of the right of intervention, the • Attempts have been made to have the Court depart explicitly from an earlier decision but the
construction given in the judgment shall be equally binding on the intervening third Court has either declined to do so or has by-passed the point entirely.
state. o Yet there is no doubt as to the Court’s power to depart from the effect of an earlier
o He thus concludes that Art. 59 directly states what Art. 63 states indirectly. decision.
• BUT the debate in the Committee of Jurists indicates that Art. 59 was not intended merely to
express the principle of res iudicata, but rather to rule out a system of binding precedent. (B) DECISIONS OF INTERNATIONAL TRIBUNALS

Polish Upper Silesia • The quality of decisions of arbitral tribunals vary considerably, but certain arbitral awards
have made notable contributions to the development of the law and the International Court
Facts: Germany entered into a contract with Bayerische Stickstoffwerke Company for the has referred to arbitral decisions on many occasions; it also refers compendiously to the
construction of a nitrate factory at Chorzów. It later on sold the factory to Oberschlesische jurisprudence of international arbitration.
Stickstoffwerke, but the management and working of the enterprise were to remain in the • Depends on the status of the tribunal and of its members, and on the conditions under which
hands of Bayerische. Oberschlesische was duly registered in the land register. Poland it conducts its work.
annulled the registration, declaring that the situation prior to the sale by the Reich was o Examples: judgment of the International Military Tribunal for the Trial of German
restored and transferring the property rights to Poland. Germany filed a case before the Major War Criminals, the decisions of the Iran-United States Claims Tribunal, and
PCIJ. Meanwhile, Poland gave notice to certain persons possessing large rural estates the decisions of the International Criminal Tribunal for the Former Yugoslavia.
near Chorzów factory of its intention to expropriate them. Germany regarded the notices
as contrary to Articles 6-22 of the German-Polish Convention (Geneva Convention). (C) DECISIONS OF THE INTERNATIONAL COURT AND ITS PREDECESSOR
Germany and Poland differ as to the interpretation and application of the provisions • In theory, court applies the law and does not make it, and Art. 59 of the Statute reflects a
defining the conditions in which Poland may carry out expropriations in Upper Silesia feeling on the part of the drafters that the Court was intended to settle disputes as they came
(where Chorzów factory is located), and in the absence of which, German property, rights to it rather than to shape the laws.
and interests may not be expropriated. Poland argues that submissions of the German o Yet, a decision, especially if unanimous or almost, may play a catalytic role in the
Application sought to obtain from the PCIJ an advisory opinion, which would be contrary development of the law.
to the provisions of Article 14 of the Covenant of the League of Nations. Poland also • The Court’s lengthy period of operation has enabled it to lay down a body of procedural case-
argues that the abstract character of the decision asked for is hardly compatible with law which was and is a natural source of inspiration for later tribunals.
Article 59 of the PCIJ’s Statute.
(D) DECISIONS OF NATIONAL COURTS
Issue: Whether the PCIJ has jurisdiction over the case • Art. 38(1)(d) of the Statute of the International Court is not limited to international decisions
but also extends to decisions of national courts.
Ruling: Yes. First, Germany is not asking for an advisory opinion. The interrogative form • Municipal judicial decisions have been an important source of material on the recognition of
in which the submission is formulated does not suffice to establish a construction which governments and states, state succession, sovereign immunity, diplomatic immunity, etc.
would place that submission outside the scope of Article 23 of the Geneva Convention. o However, the value of these decisions varies considerably and individual decisions
More importantly, Article 59 does not exclude declaratory judgments which are expressly may present a narrow, parochial outlook or rest on an inadequate use of sources.
provided for by Article 36 and 63 of the PCIJ Statute and constitute one of the most
important functions of the PCIJ. Article 59 of the PCIJ Statute, which has been cited by 7. OTHER MATERIAL SOURCES
Poland, does not exclude purely declaratory judgments. The object of this article is simply (A) THE CONCLUSIONS OF INTERNATIONAL CONFERENCES
to prevent legal principles accepted by the PCIJ in a particular case from being binding
upon other States or in other disputes. It should also be noted that the possibility of a • The final act or other statement of conclusions of a conference of states may be a form of
judgment having a purely declaratory effect has been foreseen in Article 63 of the PCIJ multilateral treaty, but even if it records decisions not adopted unanimously, the result may
Statute, as well as in Article 36 already mentioned. constitute evidence of the state of law on the subject.

(B) RESOLUTIONS OF THE GENERAL ASSEMBLY


Highlighted by Brownlie: the object of Art. 59 is to prevent legal principles accepted by
the Court in a particular case from being binding on other States or in other disputes.
• Not binding on member states EXCEPT on certain UN organizational matters.
• However, when they are concerned with general norms of international law, acceptance by
all or most members constitutes evidence of the opinions of governments in what is the widest
• It is true that the Court does not observe a doctrine of precedent EXCEPT on matters of
forum for the expression of such opinions.
procedure. But it strives to maintain judicial consistency.
o Examples of law-making resolutions: General Assembly’s Affirmation of the
o Greek and Turkish Populations – relied on the precedent afforded by the
Principles of International Law recognized by the Charter of the Nurnberg Tribunal,
Wimbledon (reflecting the principle that treaty obligations do not entail an
the Declaration of Legal Principles Governing Activities of States in the Exploration
abandonment of sovereignty)
and Use of Outer Space, the Rio Declaration on Environment and Development,
o Reparations for Injuries – relied on a pronouncement in a previous advisory opinion
and the UN Declaration on the Rights of Indigenous Peoples.
for a statement of the principle of effectiveness in interpreting treaties.
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• In some cases, a resolution may have effect as an authoritative interpretation and application Water from the River Muse (Netherlands v. Belguium)
of the principles of the Charter, but each must be assessed in light of all the circumstances,
including available evidence of the states’ opinions on the point or points in issue. Facts: Belgium and Netherlands concluded a treaty concerning the regime for taking water
from the Meuse. Netherlands complained that certain canals (specifically the Neerhaeren Lock)
(C) THE WRITINGS OF PUBLICISTS constructed by Belgium were in violation of the treaty in that the construction would alter the
water level and rate of flow of the Meuse River. Netherlands requested for an injunction and
• For publcists, what is the standard? for a declaratory judgment concerning the actions of Belgium which Netherlands claimed to be
• Included among the ‘subsidiary means for the determination of rules of law.’ (aka ‘la doctrine’ in violation of their treaty. Belgium also filed its counterclaims regarding the navigability of the
in French) Meuse, how Netherlands altered the depth of water in the River Meuse by the Bosscheveld
• “Most highly qualified” – no restrictive effect but authority naturally affects weight. Judge Hudson in his individual opinion had the occasion to use equity as a source of law. The
• Arbitral tribunals and national courts make sometimes copious reference to jurists’ writings.
• National courts are generally unfamiliar with state practice and are ready to rely on secondary Issue: Whether Netherlands is in a position to claim relief
sources as a substitute.
• The International Court might seem to make little use of jurists’ writings but only because of Ruling: No. In equity, the Netherlands is not in a position to have such relief decreed to her.
the process of collective drafting of judgments and the need to avoid an invidious selection Belgium cannot be ordered to discontinue the operation of the Neerhaeren Lock when the
of citations. Netherlands is left free to continue the operation of the Bosscheveld Lock. It is an important
• Fact that the Court makes use of these writers’ work: evidenced by dissenting and separate principle of equity that where two parties have assumed an identical or a reciprocal obligation,
opinions. one party which is engaged in a continuing nonperformance of that obligation should not be
permitted to take advantage of a similar non-performance of that obligation by the other party.
(D) CODIFICATION AND THE WORK OF THE INTERNATIONAL LAW COMMISSION In a proper case, and with scrupulous regard for the limitations which are necessary, a tribunal
bound by international law ought not to shrink from applying a principle of such obvious
• Work of the International Law Commission (ILC) is a source analogous and also (at least) as fairness.
authoritative to the writings of publicists.
• Codification – involves the comprehensive setting down of the lex lata and the approval of Highlighted by Brownlie: Judge Hudson applied the principle that equality is equity, and
the resulting text by a law-determining agency. stated as a corollary that a state requesting the interpretation of a treaty must itself have fulfilled
st nd
o Process carried out at international conferences, beginning at the 1 and 2 its treaty obligations. He observed that under ‘Article 38 of the Statute, if not independently of
Hague Peace Conferences of 1899 and 1907. that Article, the Court has some freedom to consider principles of equity as part of the
• ILC’s membership combines technical qualities and civil service experience so that its drafts international law which it must apply.
may reflect solutions acceptable to government.
• Moreover, it reflects a variety of political and regional standpoints.
• In practice, ILC has found it impossible to maintain a strict separation of its tasks of (B) CONSIDERATIONS OF HUMANITY
codification and of ‘progressive development’ of the law.
• Its works on various topics (notably the law of the sea) has provided the basis for successful • Depends on judge’s subjective appreciation, a factor which cannot be excluded.
conferences of plenipotentiaries and for the resulting multilateral conventions. • These considerations may relate to human values already protected by positive legal
principles, which taken together, reveal certain criteria of public policy that are connected
8. OTHER CONSIDERATIONS APPLICABLE IN JUDICIAL REASONING with principles of law and equity and need no particular justification.
(A) EQUITY IN THE JURISPRUDENCE OF THE INTERNATIONAL COURT o References to principles or laws of humanity in preambles to conventions, in GA
resolutions, and in diplomatic practice.
Statute of the International Court of Justice, Article 38 – 2. This provision shall not prejudice o Provisions of the UN Charter concerning protection of human rights and
the power of the Court to decide a case ex aequo et bono*, if the parties agree thereto. fundamental freedoms have been used as a basis for the legal status of
considerations of humanity.
*Ex aequo et bono – power of arbitrators to dispense with the consideration of the law but consider solely what they
consider to be fair and equitable in the case at hand. Corfu Channel (UK & Northern Ireland v. Albania)

• Equity – considerations of fairness and reasonableness often necessary of the application of Facts: Two British destroyers were severly damaged while crossing the North Corfu Channel,
settled rules of law. which was within Albanian territory. Lives were lost and the United Kingdom Government
• Equity is not itself a source of law, yet may be an important factor in the process of decision- sought after compensation against Albania for damages
making.
• North Sea Continental Shelf – Court had to resort to the formulation of equitable principles Issue: Whether Albania is liable for the loss of lives and damage of the destroyers.
concerning the lateral delimitation of adjacent areas of the continental shelf.
• The power of decision ex aequo et bono involves elements of compromise and conciliation, Ruling: The Court ruled that Albania is liable because it did not matter who laid the mines when
whereas equity in the general sense (equity infra legem) finds application as part of the the ships crossed. What was important was the obligation of the Albanian Government to warn
normal judicial function. the ships that there were mines laid out. Considering that two hours had lapsed between the

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time the coastal defense spotted the ships entering until the explosion, there was enough time o Rousseau – similar views; international law is a law of co-ordination which deals
to warn the British ships. The Court ruled that Albania had the obligation to warn them because with incompatibility between national and international law through state
it would have been easy coastal defense to spot whoever would lay mines on the waters. Such responsibility.
omission of warning led to the grave damage of the ships and the loss of lives. • Pluralism – To talk simply of dualism is to imply that national legal systems all have the same
features. Why should this be? The US is not the Federal Republic of Germany; their relation
Highlighted by Brownlie: Court relied on certain general and well-recognized principles is international, not constitutional, but international law holds them apart; it does not unify
including ‘elementary considerations of humanity, even more exacting in peace than in war. them.
o Each legal system has its own approach to the others.

(C) ‘LEGITIMATE INTERESTS’ 2. RELATIONS OF INTERNATIONAL AND NATIONAL LAW: AN OVERVIEW


(A) INTERNATIONAL LAW’S APPROACH TO NATIONAL LAW
• The applicability of rules of law may depend on criteria of good faith, reasonableness, and (I) IN GENERAL
the like.
• Legitimate interests, including economic interests, may in the circumstances be taken into Articles on the Responsibility of States for Internationally Wrongful Acts, Article 3 – The
account (continental shelf and fishing zones). characterization of an act of a State as internationally wrongful is governed by international
• It is acquiescence and recognition that provide the formal bases for the development of the law. Such characterization is not affected by the characterization of the same act as lawful by
new rules. internal law.

CHAPTER 3: THE RELATIONS OF INTERNATIONAL LAW AND NATIONAL LAW • State cannot plead provisions of its own law or deficiencies in that law in answer to a claim
against it for breach of its obligations under international law.
• Arbitral tribunals, the Permanent Court, and the International Court have consistently
1. THEORETICAL APPROACHES
endorsed this position.
• What is the difference between dualism and monism? (II) NATIONAL LAWS AS ‘FACTS’ BEFORE INTERNATIONAL TRIBUNALS
o Dualism – distinct and independent character of the international law and national
legal systems; international law is perceived as law between states whereas
• Certain German Interests in Polish Upper Silesia – National laws are merely facts which
national law applies within a state, regulating the regulations of its citizens within
express the will and constitute the activities of States, in the same manner as do legal
each other and with that state.
decisions or administrative measures.
§ Conflict between IL and NL: NL would apply as national law.
• Thus, a decision of a national court or a legislative measure may constitute evidence of a
o Monism – national and international law form one single legal order or at least a
breach of a treaty or of customary international law.
number of interlocking orders which should be presumed to be coherent and
consistent. • The concepts of national law as ‘merely facts’ has at least 6 distinctive aspects.
(a) National law may itself constitute or be evidence of conduct in violation of a rule or treaty
§ IL can be applied directly within the national legal order.
§ Hersch Lauterpacht – individuals are the ultimate subjects of or customary law.
international law, representing both the justification and moral limit of the (b) National law may be part of the ‘applicable law’ either governing the basis of a claim or
more commonly governing a particular issue.
legal order. The state is disliked as an abstraction and distrusted as a
vehicle for maintaining human rights. International law is seen as the (c) Whereas the principle iura novit curia applies to international law, it does not apply to
best available moderator of human affairs and also as a condition of matters of national law. International tribunals will generally require proof of national
law, although they may also (subject to due process) undertake their own researches.
legal existence of states and therefore of the national legal systems.
§ Hans Kelsen – monism is scientifically established if IL and NL are part (d) When called upon to apply national law an international tribunal should seek to apply
of the same system of norms receiving their validity and content by an that law as it would be applied in the state concerned.
(e) International tribunals cannot declare the unconstitutionality or invalidity of rules of
intellectual operation involving the assumption of a single basic norm
(Grundnorm). national law as such.
(f) The proposition that an international tribunal ‘does not interpret national law as such’ is
• “The states ought to behave as they have customarily
open to question.
behaved.”
• Above all, neither theory offers an adequate account of the practice of the international and
(III) TREATMENT OF NATIONAL LAW BY INTERNATIONAL TRIBUNALS
national courts.
o Fitzmaurice – attempted to by-pass the debate by arguing that there was no
• In order to decide whether particular acts are in breach of obligations under treaties or
common field of operation: the two systems do not come into conflict as systems
customary law, the Court has had to examine national law relating to a wide range of topics
since they work in different spheres, each supreme in its own field.
of national law. National law is very frequently implicated in cases concerning individuals
o However, there could be conflict of obligations, an inability of the state on the
including those relating to the protection of human rights and the exhaustion of local
domestic plane to act in the manner required by international law in some respect:
remedies.
the consequence of this will not be the invalidity of the state law but the
responsibility of the state on the international plane. • Many treaties refer to ‘nationals’ of the contracting parties and the presumption is that the
term connotes persons having that status under the internal law of one of the parties.
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• Umbrella clause – Each Contracting State shall fulfill any other obligations it may have o Investor-State Arbitration Tribunals - decisions of national court create no res
entered into with regard to investments in its territory by investors of the other Contracting iudicata insofar as the work of the tribunal is concerned, but parties to the
State bilateral or multilateral treaty granting the tribunal jurisdiction may incorporate
procedural roadblocks, such as the fork in the road clause.
(B) INTERNATIONAL LAW BEFORE NATIONAL COURTS: GENERAL CONSIDERATIONS § Fork in the road clause - requires the claimant to elect investor-state
(I) ESTABLISHING INTERNATIONAL LAW BEFORE NATIONAL COURTS arbitration or litigation before the courts of the host state of the
investment as its preferred method of dispute resolution.
• Initial issue: whether the jurisdiction considers international law to be ‘part of’ national law.
o Often constitutional in character and which may be answered differently for (II) INTERNATIONAL RES IUDICATA BEFORE NATIONAL COURTS
customary law and treaties. • Is there res judicata in international law? Decisions by organs of international
• 1949 German Grundgesetz provides in Art. 25 – the general rules of public international law organizations are not binding on national courts without the co-operation of the
shall be an integral part of federal law. national legal system, which may adopt a broad constitutional provision for ‘automatic’
o Once a court has ascertained that there are no bars within its own legal system to incorporation of treaty norms or require specific acts of incorporation or implementation.
applying the rules of international law or provisions of a treaty, the rules are • On the other side of the equation, municipal courts may seek to circumvent the finality of
accepted as rules of law and are not required to be established by evidence, as in such decisions without engaging the question of res iudicata through interpretative
the case of matters of fact and foreign law. legerdemain.
• A decision of the International Curt, even one concerning substantially the same issues as
(II) INTERNATIONAL LAW AS THE APPLICABLE LAW IN THE NATIONAL COURTS those before a national court, does not of itself create a res iudicata for the latter.
o However, it does not follow that a national court should not recognize the validity
• Once a national court has determined that international law is in some way applicable to a of the judgment of an international tribunal of manifest competence and authority,
matter before it, it falls to the court to determine how that law is to sit alongside any national at least for certain purposes.
law that may also be applicable. o States often accord res iudicata to international and domestic arbitral awards.
• Certain issues common to many or all jurisdictions: (Two-pronged: desirable as a matter of common sense since the arguments, from
(a) Courts may be called upon to adjudicate in conflicts between a municipal law and a rule a policy perspective, are well-known; on the other hand, it may be subject of a
of customary international law. treaty obligation.)
(b) Question also arises with respect to treaties, but will take on a more overtly constitutional
flavor (monism v dualism). (iii) RES IUDICATA AND THIRD PARTIES
(c) When applying IL rules, municipal courts may find it necessary to develop the law, • In international law, res iudicata includes issue estoppel, but does not extend to the US
notably where it is unclear or uncertain. doctrine of collateral estoppel (binding upon third parties).
(d) Even in monist systems, court may need to determine the extent to which a rule of IL o But decisions of an international court or tribunal may carry evidentiary weight even
may be directly applied. vis-à-vis third parties. (e.g. national courts dealing with cases of war crimes have
(e) Extent to which the executive may intervene in the court’s application of IL. relied upon findings of the International Military tribunals such as Nuremburg and
(f) Court may be called upon under the rules or Private International Law to apply foreign Tokyo.)
law; (act of state doctrine - court will, as an organ of a sovereign, refuse to pass • Mara’abe v. Prime Minister of Israel - SC of Israel found that the International Court’s Wall
judgment on the acts of another, formally equal sovereign). advisory opinion did not constitute res iudicata but that the Court’s interpretation of
(g) Court, confronted with an intricate issue of IL, may simply concede that it is beyond international law (as opposed to factual determinations) should be given ‘full appropriate
capacity to decide, that is, non-justiciable. weight’.

(C) RES IUDICATA AND THE TWO SYSTEMS 3. INTERNATIONAL LAW IN THE COMMON LAW TRADITION

(I) NATIONAL RES IUDICATA BEFORE INTERNATIONAL COURTS A. DEVELOPMENT OF THE COMMON LAW APPROACH

• Formal point of view: res iudicata is a general principle within the meaning of Article 38(1)(c) • Common law was initially seen and saw itself as the law of the land.
th
of the Statute, applied in tandem by international and national courts. o Situation changed in the 18 century, following the abolition of the conciliar courts
• But there is no effect of res iudicata from the decision of a national court, so far as at the Restoration in the opening up to the common law courts of the field of
international jurisdiction is concerned. international commercial litigation.
o Even if the subject-matter may be substantially the same, the parties may well not • Lord Mansfield - first recorded the principle of ‘incorporation’, that is, international law was
be, at least in the context of diplomatic protection and possibly outside that context ‘part of the law of England’, a tradition he attributed to Lord Talbot and handed on to
also. Blackstone.
• An international tribunal may be bound by its constituent instrument to accept certain o Open-minded approach was qualified in many ways: (1) supremacy of parliament
categories of national decisions as conclusive of particular issues. meant that treaties were not part of English law, and the role of Council in matters
o Some international tribunals afford natural and juridical persons standing against of external relations left a prototype of the act of state doctrine, together with a
states, including decisions of state courts. (e.g. European Court of Human Rights deference to executive authority in matters of the foreign prerogative.
- but only accessible once local remedies have been exhausted)

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B. TREATIES IN ENGLISH LAW o Interpretation of enabling instruments - primary object of interpretation is the
implementing statute, and only at one remove the treaty which implements or
(i) UNINCORPORATED TREATIES. incorporates it. Although international courts and tribunals may rule on the
• England: conclusion and ratification of treaties are within the prerogative of the Crown, and interpretation of a treaty, their rulings are not binding.
if a transformation doctrine were not applied, the Crown could legislate for the subject without o Interpretation of other legislation in light of treaties entered into, both
parliamentary consent, in violation of the basal notion of parliamentary sovereignty incorporated and unincorporated - matter of law; courts do not seek binding
(bedrock of British Constitution). interpretations of treaties from the executive; they will apply international rules of
o The rule does not apply in the very rare cases where the Crown’s prerogative can treaty interpretation, as reflected in the VCLT, rather than the domestic canons of
directly extend or contract jurisdiction without the need of legislation. statutory interpretation.
• As a strong dualist system, English law will not ordinarily permit unimplemented treaties to • Where it is clear that Parliament intended to implement a treaty throguht the legislation, the
be given legal effect by the courts. terms of the legislation are to be construed if possible so as to conform to the treaty.
• Thomas v. Baptiste - The making of a treaty is an act of the executive government, not of the • Salomon v. Commissioners of Customs and Excise: parliament does not intend to act in
legislature. It follows that the terms of a treaty cannot effect any alteration to domestic law or breach of international law, including therein specific treaty obligations. This presumption
deprive the subject of existing legal rights unless and until enacted into domestic law by or applies to unincorporated treaties as much as incorporated ones, but it only applies to
under authority of the legislature. When so enacted, courts give effect to the domestic legislation enacted after a treaty has been signed or ratified. On the other hand, it will apply
legislation, not to the terms of the treaty. even where there is no link between the treaty and the legislation in question. The
• Principle of no direct effect - unimplemented treaties cannot create directly enforceable presumption itself will only act as an aid to interpretation where the statutory provision is open
rights nor deprive individuals of legal rights previously bestowed. to interpretation in that it is not clear on its face.
o Cannot prevail over statutes and not ordinarily contracts capable of enforcement • Ex parte Brind: In construing any provision in domestic legislation which is ambiguous in the
in domestic courts, and their infringement by the UK is domestically without legal sense that it is capable of a meaning which either conforms to or conflicts with the
effect. Convention, the courts will presume that Parliament intended to legislate in conformity with
• R. v. Lyons - Despite the fact that the judiciary is one of the 3 organs of state, it was not the the Convention, not in conflict with it. When a statute confers upon and administrative
responsibility of the courts to uphold the UK’s international obligations in such cases; if the authority a discretion capable of being exercised in a way which infringes any basic human
proposition were true it would completely undermine the principle that the courts apply right protected by the Convention, it may similarly be presumed that the legislative intention
domestic law and not international treaties. was that the discretion should be exercised within the limitations which the Convention
imposes.
(ii) INCORPORATED TREATIES.
• Once a treaty is implemented by Parliament, the resulting legislation forms part of UK law (iv) TREATIES AND THE DETERMINATION OF THE COMMON LAW
and is applicable by the courts as so implemented. • The presumption in favor of interpreting English law in a way which does not place UK in
o In UK, there is no distinction between self-executing and non-self-executing breach of an international obligation applies not only tot statutes but also to the common law.
treaties since all treaties may be classified as non-self-executing as all require • Unincorporated treaties may be used particularly where the common law is uncertain or
legislative action to become law. developing. (e.g. legality of telephone tapping, offense of criminal libel, contempt of court,
o EXCEPTION: In the case of treaties concluded by institutions of the European and freedom of association)
Union, with the European Court of Justice holding these to be directly enforceable • Alcom Ltd. v. Republic of Colombia – involved reference to general international law for the
within member states as part of the acquis communautaire. (But in UK law, EU purposes of statutory interpretation in the context of state immunity.
treaties have this effect because of relevant statute).
• Once enacted, the statute implementing the treaty will function as any other Act of C. CUSTOMARY INTERNATIONAL LAW
Parliament.
• In case of inconsistency between words of a subsequent Act of Parliament versus a prior (i) ‘INCORPORATION’
treaty, the former will prevail. • Doctrine of Incorporation - customary rules are to be considered as ‘part of the law of the
• Legislation to give effect in domestic law to treaty provisions may take various forms: land’ provided that they are not inconsistent with Acts of Parliament.
o Statute may directly enact the provisions of the international instrument, which will • Doctrine of Transformation - custom will only become part of the law of England once
be set out as a schedule to the Act. codified in a statute or in prior authoritative judicial legislation-a doctrine of stasis so far as
o It may employ its own substantive provisions to give effect to a treaty, the text of the common law is concerned.
which is not itself enacted. • Trendtex Trading Corp. v. Central Bank of Nigeria - Since rules of international law have
o It may be that the enacting legislation makes no specific reference to the treaty in changed and do change and courts have given effect to the changes without any Act of
question, though there is extrinsic evidence to show that the statute was intended Parliament, then it follows that rules of international law, as existing from time to time, do
to give effect to it. form part of English law.
o Result: balancing act that requires the court to scrutinize the strength of the • Lord Wilberforce - It may be wise to ‘avoid commitment to more of the admired judgment of
relationship between enacting statute and its parent treaty, and determines the Lord Denning MR than is necessary’.
strength of the latter as an interpretative tool. • Brierly - The position in England is not that custom forms part of the common law, but that it
is a source of English law that the courts may draw upon as required. The doctrine is decisive
(iii) TREATIES AND THE INTERPRETATION OF STATUTES only occasionally.
• Questions surrounding the interpretation of treaties and statutes in English law can generally
be divided into 2 categories:
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• O’Keefe - Outside of immunities cases, it has only twice had a decisive impact on the c. Whether the proposed rule is itself contradicted by some antecedent principle of
outcome, although there are other cases where it has been influential. the common law.
• R v. Jones (Margaret) - (Lord Bingham) There seems to be truth in Brierly’s contention that § West Rand v. R – (Lord Alverstone) Accepted that custom could
international law is not a part, but is one of the sources, of English law. The relationship of contribute to the common law insofar as it was not ‘contrary to the
custom and the common law is more nuanced than either the doctrines of incorporation and principle of her laws as decided by her courts’.
transformation would suggest. § Chung Chi Cheung v. R – (Lord Atkin) Conditioned incorporation on
• What does the Philippines follow? In a sense both. We have incorporation under Art. III consistency ‘with rules finally declared by tribunals’.
Sec. 4 of the Constitution, and transformation under Art. VII Sec. 21 of the Constitution. § Chagos Islanders v. Attorney General – Claim for damages based in
reliance on supposed breach of international human right not to be
(ii) THE PROCESS AND LIMITS OF ‘INCORPORATION’ prevented from returning to one’s home state. The court denied the
• Initial question of or akin to choice of law: Is this a subject matter on which international law claim, noting that even if breach of the right could be said to violate a
has something to say, and which it allows (or even requires) national courts to say? common law as well as customary right, this could not, in itself, give rise
o If the answer to both is yes, the second question is: Is this an area where the to an action for damages.
common law courts retain law-making power or not. d. Problem of precedent
• Where it is appropriate to consider norms of international law, rather than the law of the forum § Trendtex Trading Corp v. Central Bank of Nigeria – International law
or a foreign law, then the courts will take judicial notice of the applicable rules, whereas formal knows no rule of stare decisis.
evidence is required of foreign (national) law. § Thai-Europe Tapioca Service Ltd v. Government of Pakistan – (Scarman
o Courts still have to ascertain the existence of the rules of international law and their LJ) A rule of international law, once incorporated into our law by
effect within the national sphere. decisions of a competent court, is not an inference of fact but a rule of
• 4 Considerations relevant to the question of incorporation: law. It therefore becomes part of our municipal law and the doctrine of
a. Whether the customary international law is susceptible to domestic application. stare decisis applies as much to that as to a rule of law with a strictly
§ Al-Saadoon v. Secretary of State of Defence – (Laws LJ) The proposition municipal provenance.
that the customary rule may be sued as a cause of action in the English § But it is excessively parochial to think that an incorporated rule of
courts is perhaps not so clear cut. It would have to be shown that the international law is entirely domesticated, any more than an incorporated
rule did not conflict with any provision of English domestic law. I treaty. It should be open to the courts to reconsider the rule if there are
apprehend the rule would also have to possess the status of jus cogens indications of material change in international law, and more generally
erga omnes. to track developments in the law.
§ Sosa v. Alvarez-Machain – (Justice Souter) Norms of international law,
to be given direct effect under the Alien Tort Statute, have to be ‘specific, D. NON-JUSTICIABILITY AND ACT OF STATE
universal, and obligatory’.
b. Whether the proposed common law rule is contradicted by any constitutional (i) NON-JUSTICIABILITY
principle. • Several areas of government activity connected with international law remain generally off
§ R v. Jones (Margaret) – In order for a customary norm to be translated limits to the courts.
to the common law, it must conform to the constitution: ‘customary • Abassi v. Secretary of State for Foreign and Commonwealth Affairs – The CA was asked to
international law is applicable in the English courts only where the require the Foreign Secretary to make representations to US government on behalf of British
constitution permits’. nationals detained in Guantanamo Bay, but although the court saw it as US intransigence, it
§ Common law is inferior to statute, a concept flowing directly from the declined to make the orders requested.
doctrine of parliamentary sovereignty. Thus, a customary norm may only • Courts are also reluctant to pronounce issues connected to deployment of armed forces.
be transposed into the common law to the extent that it does not conflict • R v. Jones (Margaret) – (Lord Hoffman) While the House of Lords was, in principle, capable
with an Act of Parliament. of examining the deployment of armed forces by the government, the decision to go to war,
§ Chung Chi Cheung v. R – The courts acknowledge the existence of a fell squarely within the discretionary powers of the Crown to defend the realm and conduct
body of rules which nations accept amongst themselves. On any judicial its foreign affairs.
issue, they seek to ascertain the relevant rule, and, having found it, they • Treaty-making is another area within the traditional non-justiciable Crown prerogative. This
will treat it as incorporated into the domestic law, so far as it is not precludes most adjudication on unincorporated treaties.
inconsistent with rules enacted by statutes or finally declared by their • A v. Secretary of State for the Home Department – (Lord Scott) It is not normally the function
tribunals. of the courts to entertain proceedings the purpose of which is to obtain a ruling as to whether
§ Ex parte Thakrar – A statement in the Immigration Act of 1979 that any an Act of Parliament is compatible with an international treaty obligation entered into by the
exceptions to the rule that a non-patrial required leave to enter the UK executive. The executive has extensive and varied prerogative powers that it can exercise in
were to be found within the Act itself prevented the introduction of an the name of the Crown, but none that permit lawmaking.
additional exception through the operation of customary international • There is a measure of flexibility.
law. o Courts are willing to interpret unincorporated treaties where it is necessary to do
§ Al-Adsani v. Government of Kuwait – (Mantell J) would not accept the so in order to determine rights and obligations under domestic law and thereby
argument that a common law tort of ‘torture’ arising from custom would draw the court into the field of international law.
prevail over the provisions of the State Immunity Act of 1978. o Occidental Exploration & Production Co. v. Ecuador – English principle of non-
justiciability cannot, if it applies, be ousted by consent.
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o Al-Jedda v. Secretary of State for Defence – The act in question provided that
US Constitution, Article VI, §2 – All Treaties made or which shall be made with the authority of
ECHR rights were only applicable to the extent that they were recognized on the
the United States, shall be the supreme Law of the Land and the Judges in every state shall
international law plane, so the court was required to examine the effect of the
be bound thereby, anything in the Constitution of Laws of any state to the contrary
Resolution to determine the scope of the ECHR in the particular circumstance.
notwithstanding.
• Courts have demonstrated that they are willing to consider unincorporated treaties as part of
the process of finding the UK to be in breach of its obligations under international law, though
the determination of breach will have no legal effect of its own. • Treaties are on par with federal legislation, and will prevail over laws enacted by the states.
o A v. Secretary of State for the Home Department – (Lord Bingham) What cannot • United States v. Belmont – External powers of the US are to be exercised without regard to
be justified in the case is the decision to detain one group of suspected state laws or policies. And while this rule in respect of treaties is established by the express
international terrorists, defined by nationality or immigration status, and not language of Article VI of the Constitution, the same rule would result in the case of all
another. international compacts and agreements from the very fact that complete power over
international affairs in the national government and is not and cannot be subject to any
curtailment or interference on the part of the several states.
(ii) JUDICIAL RESTRAINT AND ACT OF STATE • Foster v. Neilsen – Justice Marshall adopted for the US a modified version of the UK’s dualist
• Policy considerations of a similar kind have led courts to apply a further rule of non- model.
justiciability, holding a claim to be barred if it requires determination of the lawfulness or • Factors to determine self-executing status of the treaty under consideration:
validity of acts of a foreign state. a. Purposes of the treaty and the objectives of its creators
• The doctrine prescribes that courts do not adjudicate on matters of international law arising b. Existence of the domestic procedures and institutions appropriate for direct
in disputes between foreign states. implementation
• Butte Gas & Oil Co. v. Hammer – (Lord Wilberforce) The principle of judicial restraint or c. Availability and feasibility of alternative enforcement methods
abstention is not one of discretion but is inherent in the very nature of the judicial process. d. Immediate and long-range consequences of self or non-self-execution
• 2 overlapping doctrines: • Medellin v. Texas – The SC’s current approach utilizes predominantly the text of the treaty
o Judicial restraint – Triggered by issues relating to the transactions of states, and • Murray v. Schooner Charming Betsy – (Marshall) An act of Congress ought never be
requires the court to exercise its discretion to determine whether it is sufficiently construed to violate the law of nations if any other possible construction remains.
equipped to handle the dispute.
§ This is a discretionary principle, but where it applies it is a substantive (ii) CUSTOMARY INTERNATIONAL LAW
bar to adjudication, reflecting the incapacity of a national court to deal • Traditional: US relationship with custom is essentially monist in character.
adequately with certain issues on the international plane. It cannot be • Paquete Habana – Where there is no treaty and no controlling executive or legislative act or
waived, even by the states concerned. judicial decision, resort must be had to the customs and usages of civilized nations.
o Act of State – Refers to the non-justiciability in a national court of the acts of a • Conventional view of custom: source of law–in the sense that state and federal courts may
foreign state within its own territory or, exceptionally, outside it. apply these rules to determine a dispute and in the sense that rules of custom are tools of
§ Ex parte Johnson – Once consent to a re-extradition had been obtained interpretation.
by UK from Austria under the European Convention on Extradition, court • Restatement Third – Customary international law is considered to be like common law in the
could not then proceed to inquire into the quality of the consent so US, but is federal law. But customary law does not ordinarily confer legal rights on individuals
offered. or companies, even rights that might be enforced by a defensive suit such as one to enjoin
§ This is distinct from the doctrine of state immunity. or to terminate a violation by the US of customary international law.
• What are the exceptions to the doctrine of Act of State: • Dubinsky – Links the concerns with emerging efforts to diminish the scope of custom in
1. Acts of a foreign state will be justiciable where their recognition would be contrary American municipal law, principally through the undermining of the Charming Betsy canon.
to English public policy. • Serra v. Lapin – Charming Betsy bears on a limited range of cases and could not apply to
§ Kuwait Airways Corp. v. Iraqi Airways Co. – Include acts of state done purely domestic matters that did not inject considerations of international comity.
in clear violation of international law more generally. But the scope of • Al-Bihani v. Obama – International law could not limit the President’s authority under the
this exception is uncertain. (Lord Steyn) not every rule of public AUMF since: (1) AUMF contained no indication that the customary international humanitarian
international law will create such an exception. law constituted an extra-textual limiting principle; (2) laws of war had not been introduced
2. Arises where Parliament has rendered an issue which is ordinary beyond directly into US law via enabling legislation and therefore could not be a source of authority
competence of the court justiciable. for the court; (3) it was said that the laws of war were so vague that they were of limited use
§ Pinochet – (Lord Nicholls) There can be no doubt that the act of state in determining the scope of the President’s powers under the AUMF and that moreover, ‘we
doctrine leads to a contrary intention shown by Parliament. have no occasion here to quibble over the intricate application of vague treaty provisions and
amorphous customary principles.
E. THE COMMON LAW TRADITION IN THE UNITED STATES
(iii) THE ALIEN TORT STATUTE (ATS)
(i) TREATIES • ATS gives federal courts jurisdiction over cases where the applicable law is customary
• US law views treaties and other international agreements as a source of law. international law where:
1. Plaintiff is an alien.
2. Defendant is responsible for a tort.

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3. Tort in question violates international law, including customary international law. impeachment, constitutional amendments, political status of foreign countries, foreign affairs
• Sosa v. Alvarez-Machain – narrowed the scope of those customary international law rules and the deployment of armed forces)
the breach of which could grant a right of action under the ATS to ‘norms of an international • Kadic v. Karadzic – Not every case of ‘touching foreign relations’ is nonjusticiable and judges
character accepted by the civilized world’ that are ‘defined with a specificity comparable to should not reflexively invoke these doctrines to avoid difficult and somewhat sensitive
th
the features of the 18 century paradigms we have recognized’. decisions in the context of human rights. A preferable approach is to weigh carefully the
• Sarei v. Rio Tinto – The claims of genocide and war crimes fell within the ATS, whereas relevant considerations on a case-by-case basis. This will permit the judiciary to act where
claims alleging crimes against humanity arising from a blockade and racial discrimination did appropriate in light of the express legislative mandate of Congress without compromising the
not. primacy of the political branches in foreign affairs.
• Doctrine of Act of State – In the absence of a treaty or other unambiguous agreements
(iv) NON-JUSTICIABILITY OF POLITICAL QUESTIONS AND ACTS OF STATE regarding controlling legal principles, courts in the US will generally refrain from examining
• Political Question Doctrine – Seeks to remove from judicial scrutiny certain politically the validity of a taking by a foreign state of property within its own territory, or sitting in
sensitive questions thought inappropriate for judicial resolution. judgment on other acts of a governmental character done by a foreign state within its own
• 6 Factors that might render a dispute as non-justiciable: (Baker v. Carr) territory and applicable there.
a. Prominent on the surface of any case held to involve a political question is found o Underhill v. Hernandez – Every foreign state is bound to respect the independence
a textually demonstrable constitutional commitment of the issue to a coordinate of every other sovereign State, and the courts of one country will not sit in judgment
political department on the acts of the government of another done within its own territory. Redress of
b. Lack of judicially discoverable and manageable standards for resolving it grievances by reason of such acts must be obtained through the mean open to be
c. Impossibility of deciding without an initial policy determination of a kind clearly availed of by sovereign powers as between themselves.
for non-judicial discretion o Banco Nacional de Cuba v. Sabbatino – Abandoned the Underhill justification of
d. Impossibility of a court’s undertaking independent resolution without expressing state sovereignty as determinative, though sovereignty still bears on the wisdom
lack of the respect due coordinate branches of government of employing it. Court aligned act of state, like the political question doctrine with
e. Unusual need for unquestioning adherence to a political decision already made considerations of separation of powers, and concerns as to possible adverse
f. Potentiality of embarrassment from multifarious pronouncements by various effects on US foreign policy. Thus, the 3 non-exclusive factors as relevant in
departments on one question. applying the doctrine: (a) Greater the degree of codification or consensus
• Despite the factors, the doctrine has been applied only rarely and idiosyncratically by the SC concerning a particular area of international law to which the act relates, the more
and others in a few discrete domestic fields. (e.g. political apportionment, gerrymandering, appropriate it is for the judiciary to render decisions regarding it; (b) Greater the
o political controversy attending the matter, the more likely the doctrine is to be c. May arise where the act of state complained of is commercial rather than
applied; (c) Where the government that committed the act still exists, the doctrine official.
is more likely to be applied. d. Federal Registration Act (enforcement of arbitration agreements shall
o Doctrine only applies to official or public acts. not be refused on the basis of the Act of State Doctrine)
§ Acts iure imperii – Official or public acts of the sovereign. e. Second Hickenlooper Amendment - act of state doctrine shall not apply
§ Acts iure gestionis – Acts performed in a private capacity. to claims concerning the alleged expropriations in violation of
o Exceptions to Act of State: international law.
a. Won’t apply where US court can look to a treaty or other ‘unambiguous f. May arise in the case of the Torture Victims Protection Act, which allows
instrument regarding controlling legal principles’ the filing of civil suits against individuals who, acting in an official capacity
b. Bernstein exception - will arise where the State Department guides the for a foreign nation, have committed torture or EJK.
courts as to the applicability of the act of state doctrine.

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4. INTERNATIONAL LAW IN THE CIVIL TRADITION

FRANCE GERMANY ITALY RUSSIAN FEDERATION NETHERLANDS SWEDEN COMMON

Customary Contains a renvoi; General rules of public Conforms to the Commonly recognized Constitution is silent as to the Strongly dualist; GR: civil law
international law French Republic, true to international law form generally recognized principles and norms of municipal effect of custom. In nowhere in the jurisdictions adopt a
its traditions, conforms part of the Federal law principles of the international law and principle does not prevail over constitution is monist stance with
to the rules of international law international treaties of domestic legislation, but customary law regard to customary
international public law; the Russian federation domestic statutes seek to mentioned and no international law,
accepts pacta sunt shall be component part incorporate custom into statute purports to with incorporation
servanda of its legal system municipal law on a sui generis integrate customary frequently occurring
basis international law as a at a constitutional
whole into Swedish level.
municipal law; but
Swedish courts apply
principles of
customary IL when
not enshrined in
statute.

Treaties and Places treaties at a German courts will No express provision Treaties concluded by the All treaties binding to Similar to current Supremacy of
national law level superior to apply it as part of for the incorporation of Russian Fed are formally Netherlands as a matter of Dutch liberal treaties over
ordinary legislation but national law. Treaty treaties into municipal integrated into its international law are practice, but in more domestic law; will
inferior to the stands on a similar law; will produce no municipal legal system automatically incorporated recent time, adopts generally prescribe
Constitution. footing to an ordinary effect unless integrated based on Art. 15(4) of its into Dutch municipal system that: an international careful controls over
statute and may be via legislation: Constitution. without need for any treaty will have no the signature and
Treaties will ordinarily repealed expressly or implementing legislation. direct effect unless ratification of
be held to be self- impliedly by later 1. ordinary method - It must be signed and incorporated into international
executing, save where: legislation, though reformulates and ratified. Treaties entered into by municipal law via agreements.
(a) treaty in question there is a heavy interprets the treaty Netherlands must be legislative act.
contains only presumption against before amending Where a treaty is not self- approved by parliament.
obligations directed to this. national legislation in executing, municipal Riksdag’s approval is
and as between states order to achieve effect will be provided via Treaties need not be subject required before gov’t
and (b) it cannot be Treaty provisions will implementation. legislative enactment and to prior approval: concludes an
applied without be considered non-self 2. special method - embellishment, but if self- 1. where exemption from this international
legislative elaboration. exec: contains 2 operative executing, has a direct req. is provided by law. agreement which is
1. treaty excludes provisions: article and legal effect within 2. where they concern binding upon the
direct application authorizing ratification Russian legal system. exclusively treaties for which realm:
2. treaty refers to the and article ordering ‘full approval has already been 1. if agreement
necessity of further implementation’ of the granted. requires the
implementation by treaty. 3. where treaty is for a period amendment or
states parties, either of less than 1 yr and does not abrogation of an act
nationally or Case-by-case impose considerable financial of law or the
internationally mechanism: judge who obligations. enactment of a new
3. treaty provisions in considers that a 4. where treaty is act of law.
question cannot be domestic law provision exceptionally is secret and 2. or if it otherwise
applied as directly as it is incompatible with a confidential. concerns a matter to
(a) does not designate treaty or customary 5. where new treaty merely be decided by the
the responsible international rule, may extends an existing but Riksdag.
administration, (b) submit to the expiring treaty.
does not define a Constitution Court the 6. with respect to changes to
necessary question of no- execution, annexes that are
administrative conformity of that law. already part of an approved
procedure, (c) does treaty.
not designate the
jurisdiction of a
specific court.

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Non-justiciability Doctrine of acte de Strong system of Acts of government are Similar to German Constitutionality of acts of Judicial review was
gouvernement - will judicial review that non-justiciable, basing counterpart. Decisions parliament and treaties shall accepted in 1964 by
exclude judicial review virtually eliminates its position on the and actions or inactions of not be reviewed by the courts. the SC and was
of an executive decision non-justiciability; notion that exercise of state bodies, bodies of introduced in the
where it either: (a) judicial review of government discretion local self-government, Dutch law doesn’t know of a Constitution as a
projects onto executive acts is not is necessary in order to public associations, and political question doctrine in a review for ‘manifest
international plane the an implied right but a preserve certain officials may be appealed sense that those issues error’; non-
manifestation of the deliberate choice in a constitutional or in a court of law (BUT intrinsically connected with justiciability was not
wishes of the French system that political imperatives. COURTS TEND TO SEE legislature are automatically determined by the
authorities and establishes a court for ANY ATTEMPT TO removed from the subject matter, but
consequently only has the purpose of TRANSGRESS THIS competence of courts. by the magnitude of
meaning in the context assessing the RIGHT AS UNCONSTI) perceived
of the relations between conformity of inconsistency.
the French State and an executive acts and
international legislation with the
organization or another Basic Law.
State or (b) exclusively
involves an assessment Germany has not yet
of the appropriateness developed a doctrine
of action from the of non-justiciability
standpoint of foreign based on the cases.
policy.

Acte de gouvernement -
act is based primarily on
considerations relating
to public policy or the
national public services,
whether carried out at
home or abroad, will be
justiciable.

Theory of detachable
acts - act that might
prima facie appear non-
justiciable may
nevertheless be subject
to court jurisdiction if
French authorities have
some independent
choice with regard to
the procedure by which
they perform their
international obligations
and can themselves
take the initiative as
regards the means by
which they comply with
those obligations.

5.CONCLUSION
• Each system is supreme in its own field and neither has hegemony over the other.
• 3 factors: (1) organizational, (2) difficulty of proving the existence of particular rules of
IL, and (3) courts, national and international, will often be concerned with the question
of which is the appropriate system to apply to particular issues arising

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rather than the Milk Code) "Soft law" is an expression of non-binding norms, principles, and
Philippine Constitution Provisions practices that influence state behavior. However, the international law can become part of the
sphere of domestic law ONLY either by transformation or incorporation.
Art. II Sec. 2. The Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land and adheres to
the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. Mijares v. Ranada
Art. VII Sec. 21. No treaty or international agreement shall be valid and effective unless Facts: Ten Filipino citizens who each alleged having suffered human rights abuses such as
concurred in by at least two-thirds of all the Members of the Senate. arbitrary detention, torture and rape in the hands of police or military forces during the Marcos
regime, filed with the US District Court, Hawaii, against the Estate Ferdinand E. Marcos. Trial
Government of USA v. Purganan ensued, and subsequently a jury rendered a Final Judgment and an award of compensatory
and exemplary damages in favor of the plaintiff class with an award of a total of
Facts: This case is a Resolution of Jimenez’s MR stemming from the grant of the Extradition $1,964,005,859.90. The present petitioners filed Complaint with the Makati RTC for the
Court of bail to Jimenez which was subsequently reversed by the SC in a previous case. enforcement of the Final Judgment. Respondent Judge Ranada of the Makati RTC issued the
subject Order dismissing the complaint without prejudice. He opined that the subject matter of
Issue: Whether bail should be granted the complaint was capable of pecuniary estimation, as it involved a judgment rendered by a
foreign court ordering the payment of definite sums of money, allowing for easy determination
Ruling: Our executive branch of government voluntarily entered into the Extradition Treaty, of the value of the foreign judgment. The RTC estimated the proper amount of filing fees was
and our legislative branch ratified it. Hence, the Treaty carries the presumption that its approximately Four Hundred Seventy Two Million Pesos, which obviously had not been paid.
implementation will serve the national interest. Fulfilling our obligations under the Extradition Petitioners submit that their action is incapable of pecuniary estimation as the subject matter
Treaty promotes The obligation to extradite does not find basis in customary international law, of the suit is the enforcement of a foreign judgment, and not an action for the collection of a
nor is it a generally accepted principle of international law, the commitment to extradite being sum of money or recovery of damages. They also point out that to require the class plaintiffs
dependent, by and large, on an extradition treaty between two sovereign states. There is an to pay P 472,000,000 in filing fees would negate and render inutile the liberal construction
absence of a "universal" or "uniform" extradition practice applicable to all states. This lack of a ordained by the Rules of Court, particularly the inexpensive disposition of every action.
"standard" extradition procedure should mean that the Philippines is not obligated to follow
extradition practices from other jurisdictions, particularly when its own Constitution itself has Issue: Whether the petitioners paid the correct filing fees?
provided for such standards. A treaty, entered into by the delegated authority although
occupying an elevated status in the hierarchy of laws predicated on the principle of pacta Ruling: Yes. The Court ruled that the case is covered by Section 7(b)(3), involving as it does,
servanda, cannot override the Constitution, the latter being the ultimate expression of the will other actions not involving property. There is no obligatory rule derived from treaties or
of the People from whom all sovereignty emanates. In case conflict, the of Constitution must conventions that requires the Philippines to recognize foreign judgments, or allow a procedure
prevail. for the enforcement thereof. However, generally accepted principles of international law, by
virtue of the incorporation clause of the Constitution, form part of the laws of the land even if
they do not derive from treaty obligations. The classical formulation in international law sees
Pharmaceutical and Health Care Association of the Philippines v. Duque those customary rules accepted as binding result from the combination two elements: the
established, widespread, and consistent practice on the part of States; and a psychological
Facts: Cory Aquino issued EO No. 51 (Milk Code) in order to comply with the International element known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit
Code of Marketing of Breastmilk Substitutes (ICMBS), a code that was adopted by the World in the latter element is a belief that the practice in question is rendered obligatory by the
Health Assembly.The DOH issued the AO No. 2006-0012, the implementing rules and existence of a rule of law requiring it. The fact that there is no binding universal treaty governing
regulations of the Milk Code. The petitioner in this case, Pharmaceutical and Healthcare the practice is not indicative of a widespread rejection of the principle, but only a disagreement
Association of the Philippines, filed the current petition for certiorari and prohibition, with a as to the imposable specific rules governing the procedure for recognition and enforcement. In
prayer for TRO and injunction. The ICMBS was transformed into domestic law, through the the Philippines, this is evidenced primarily by Section 48, Rule 39 of the Rules of Court which
Milk Code. The Milk Code however, omits the prohibition in the ICMBS on the total ban on has existed in its current form since the early 1900s. Certainly, the Philippine legal system has
promoting breastmilk substitutes to the public. The DOH IRR was issued after the Milk Code. long ago accepted into its jurisprudence and procedural rules the viability of an action for
The WHA Resolutions that came after the ICMBS & the Milk Code impose a total ban on enforcement of foreign judgment, as well as the requisites for such valid enforcement, as
advertising/promoting breast milk substitutes, and also provide that there should be exclusive derived from internationally accepted doctrines. The bare principle, to our mind, has attained
breastfeeding for 0-6 months, and continued breastfeeding up to 24 months. the status of opinio juris in international practice.

Issue: Whether the DOH implement the WHA Resolutions

Ruling: No. These are soft law and are merely recommendatory. Because the Milk Code has
not been amended to include the provisions in the WHA Resolutions, the DOH cannot
implement the WHA Resolutions through IRRs or its powers & functions. (This was the problem
with the IRR-- the invalidated provisions in the IRR adhered more to the WHA Resolutions

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• Once a state has been established, extensive civil strife or the breakdown of order through
CHAPTER 5: CREATION AND INCIDENCE OF STATEHOOD foreign invasion or natural disasters are not considered to affect personality.
• Nor is effective government sufficient, since this leaves open the question of independence
and representation by other states.
1. INTRODUCTION • What is people voluntarily supported legal orders, there is no enforcement, is ther ea
government?
• State
o Type of legal person recognized by international law D. INDEPENDENCE
o But possession of legal personality is not in itself a sufficient mark of statehood • What is independence? This concept is represented by the requirement of “capacity to enter
o Exercise of legal capacities is a normal consequence, rather than conclusive into relations with other states.”
evidence of legal personality • It is the decisive criterion of statehood.
o The criteria of statehood are laid down by law. If this were not the case, then states • Guggenheim – distinguishes a state from other legal orders through 2 quantitative tests
would be able, at its own discretion, to contract out of its obligations under 1. The State has a degree of centralization of its organs not found elsewhere.
international law simply by refusing to characterize the other party as a state. 2. In a particular area, the state is the sole executive and legislative authority.
• In other words, the State must be independent of other state legal orders, and any
2. LEGAL CRITERIA OF STATEHOOD
interference by such legal orders, or by an international agency, must be based on a title of
international law.
Montevideo Convention on Rights and Duties of States, Article 1 --- The State, as a person of
• The emphasis on foreign control is its being “overbearing” in the decision-making of the entity
international law, should possess the following qualifications: (a) a permanent population; (b) a
concerned on a wide range of matters and doing so systematically and on a continuing basis.
defined territory; (c) government; and (d) capacity to enter into relations with the other States.
o There is a distinction between agency and control, on the one hand, and ad hoc
interference and ‘advice’, on the other.
A. POPULATION
• What is population? The Montevideo Convention refers to a “permanent population.” (I). DEPENDENT STATES
• How many people does that compromise? There is no fixed lower limit on population or • Foreign control of the affairs of a state may occur under a title of international law.
territory. A community of persons sufficient in number and capable of maintaining the o Ex: as a consequence of treaty protection, or some other form of consent to agency
permanent existence of the community and held together by a common bond of law 
 or representation in external relations, or of a lawful war of collective defence and
o If there are only 2 people, is that enough? sanction leading to an occupation and imposition of measures designed to remove
• This criterion is intended to be used in association with that of territory, and connotes a stable the sources of aggression.
community. o Ex: allied occupation of Germany under the Berlin Declaration (supreme authority
• This is important because in the absence of the physical basis for an organized community, was assumed in Germany by the Allies)
it will be difficult to establish the existence of a state. • Dependent states are an anomalous category.
• Here, the incidents of personality are not sufficiently distinguished from its existence.
B. DEFINED TERRITORY • “Dependent” – indicates the existence of one or more of the ff. distinctions:
• What is territory?There must be a reasonably stable political community and this must be 1. Absence of Statehood – entity concerned is subordinated to a state so completely
in control of a certain area. as to be within its control + origin of subordination does not establish
• The existence of fully defined frontiers is not required. agency/representation
• What matters is the effective establishment of a political community. 2. State which has made concessions to another state in matters of jurisdiction and
o Ex.: Albania – recognized by a number of states in spite of a lack of settled frontiers administration – to the extent that it had in some sense ceased to be sovereign
o Ex.: Israel – admitted to UN in spite of dispute over its borders 3. State which has legally conferred wide powers of agency and representation in
• foreign affairs to another state
• The principle of universality of UN membership prevails over size. 4. State, which in fact suffers interference from another state and may be a ‘client’
state politically, but which quantitatively is not under the complete and permanent
o Ex.: UN admission of “micro-states”: Liechtenstein, San Marino, Monaco, Andorra
control of the ‘patron’;
• T/F even if one who meets the other requisites but is still in dispute with other states
5. A legal person of a special type, appearing on the international plane for certain
as to borders may be considered as a State.
purposes only
o as in the case of mandated and trust territories and some protectorates.
C. GOVERNMENT
• The category of independence (or sovereignty) can only be applied concretely in light of the
• What is a government? a stable political community supporting a legal order to the
legal purpose of an inquiry and on particular facts.
exclusion of others in a given area.
o The best evidence of a “stable political community” is the existence of effective • Nationality Decrees
o Protectorates have “individual legal characteristics resulting from the special
government with centralized administrative and legislative organs.
conditions… under which they were created, and the stage of their development.”
• However, effective government is in certain cases either unnecessary of insufficient to
o A protected state may provide an example of international representation which
support statehood.
leaves the personality and statehood of the entity represented intact, though from
o Some states have arisen before government was very well organized (e.g. Poland,
Burundi, Rwanda)
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the point of view of the incidents of personality, the entity may be ‘dependent’ in independence, or in the alternative, to first secure the consent of the Council of the
one or more of the senses noted above. League of Nations before taking any such actions. Such condition regarding the obtaining
• US Nationals in Morocco of consent from the Council was not reflected in the Vienna Protocol.
o Involved the creation of a French protectorate
o Under the Treaty of Fez, Morocco remained a sovereign State but it made an Issue: Whether the proposed customs union was contrary to the obligations of Austrial
arrangement of contractual character whereby France undertook to exercise under a Protocol of 1922 “not to alienate its independence” and to “abstain from any
certain sovereign powers in the name and on behalf of Morocco, and, in principle, negotiations or from any economic and financial engagement calculated directly or
all of the international relations of Morocco. indirectly to compromise this independence.
o The relation was one of subordination and not agency.
• Former colonies
Ruling: Voting 8-7, the Court found that the establishment of the customs union regime
o Dependency here exists in the field of development economics and public
would not, in itself constitute an act alienating Austria’s independence; Austria retains the
administration.
possibility of exercising her independence. Austria’s independence is not endangered
o In the field of public administration, colonial analogy is manifested in a state or
within the meaning of Article 88 of the Treaty of Saint-Germain. On the other hand, the
other territorial unit being placed under partial or full administration by an
customs union regime would afford Germany “advantages” withheld from other powers
international organization, thereby losing control over some or all aspects of
when dealing with Austria, such that it has the tendency to threaten the economic
governance and becoming dependent on the administrator.
independence of Austria. Thus, entering into the customs union regime would have the
o The field of development divided states into “developed” or “developing” -- secured
possibility of violating the undertaking given by Austria in the Geneva Protocol No. 1.
by positing an ostensibly universally attainable end point in the status of
‘developed’.
§ Numerous “developing” states are reliant on foreign aid and loans from Highlighted by Brownlie: The customs regime contemplated would be incompatible with
institutions such as the World Bank and the UN Development these obligations. The term “independence” in this case referred to a specialized notion
Programme. of economic relations in a treat, and the obligations were not confined to abstention from
§ Financial aid normally has conditions attached (e.g. use of money, actual and complete alienation of independence.
policies on matters such as human rights, expropriation, or
democratization). The recipient has little choice but to comply if it wants
to gain access to these funds. (II). ASSOCIATION OF STATES
§ They are prone to influence and interferences by the developed world. • Independent states may enter into forms of cooperation by consent and on equal footing.
o Brooks – post-colonial states (former colonies) are failed states and rarely possess • Basis of cooperation
the attributes of robust states in anything other than a purely legal sense. o constitution of an international organization (e.g. UN or WHO)
o Helman and Ratner – “UN Conservatorship” whereby UN manages the affairs of o treaty or custom
the failed state • Example of associations: confederation/federation
o Pfaff – Much of Africa needs a disinterested neocolonialism and suggests that the o Membership here does not affect the legal capacities and personalities of member
EU should collectively assume such responsibilities in cooperation with Africans in (same as effect of membership in some organizations like the EU)
an effort to arrest the continent’s decline and put it on a progressive course.
§ This is a minority position. E. A DEGREE OF PERMANENCE
§ Some African states are already exhibiting solid growth and poverty • Permanence is not necessary to the existence of a state as a legal order.
reduction.
• A state which has only a very brief life may nevertheless leave an agenda of consequential
o Some former colonies elect to stay associated with the former colonial power.
legal questions on its extinction.
§ Guam – American dependent
§ Aruba – part of Kingdom of Netherlands
F. WILLINGNESS TO OBSERVE INTERNATIONAL LAW
§ British Virgin Islands – Crown Colony
• Delictual and other responsibilities are consequences of statehood.
§ Anguilla – Associated state of Britain
§ In these cases, local authorities are responsible for most internal affairs • This is considered a criterion of statehood because it is a condition which an entity can accept
while the “parent” states are responsible for defense and external because it is a state.
relations. • Hyde – Inhabitants must have attained a degree of civilization, such as to enable them to
observe those principles of law which are deemed to govern the members of the international
Austro-German Customs Union society in their relations with each other.
o Usually omitted from enumerations of the elements of statehood
Facts: Germany and Austria agreed to conclude a treaty after drawing up the Vienna G. SOVEREIGNTY
Protocol in March 19, 1931. The purpose of the treaty was to assimilate tariff and • Synonym for independence.
economic policies of the 2 countries on the basis of the principles laid down in the Vienna
• Sovereignty in the sense of the “condition where a state has not exercised its own legal
Protocol. The end goal was to establish a customs union regime. Prior to the Vienna capacities in such a way as to create rights, powers, privileges, and immunities in respect of
Protocol, Austria was obliged, under 2 instruments, 1) Article 88 of the Treaty of Peace
other states.”
of Saint- Germain and 2) Geneva Protocol No. 1 to abstain from acts that would alienate
Austria’s independence or from taking any action likely to compromise such
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A.M.D.G +
o A state which has consented to another state managing its foreign relations or (I). STATES IN STATU NASCENDI
which has granted extensive extra-territorial rights to another state is not • “transitional states”
“sovereign” in this sense.” • What are states in statu nascendi? A political community with considerable viability,
o This definition of sovereignty is confusing (e.g. Germany after 1945 – had a controlling a certain area of territory and having statehood as its objective, may go through a
considerable diminution of sovereignty in this sense but Germany continued to period of travail before that objective has been achieved.
exist as a state) • States frequently first appear as independent belligerent entities under a political authority
called (or that functions as a) provisional government.
US Nationals in Morocco • Once statehood is firmly established, there is a retroactive validation of the legal order during
a period prior to general recognition as a state when some degree of effective government
Facts: The French Government instituted proceedings against USA. Citing the jurisdiction existed.
of the ICJ, several treaties including Economic Co-operation Agreement, Treaty for the • Principle of Effectiveness
Organization of the French Protectorate in the Shereefian Empire, Treaty of Peace and o This dictates acceptance of continuity before and after statehood is firmly
Friendship of September 16th, 1836, and General Act of the International Conference of established.
Algeciras. The crux of the controversy is the Residential Decree of December 30, 1948 • Principle of Self-Determination
which subjected imports from USA to system a licensing control in Morocco. The French o This principle may justify the granting of a higher status to certain types of
government argued that the regulation of imports not involving an allocation of currency, is belligerent entities and exile governments than would otherwise be the case.
in conformity with the economic system which is applicable to Morocco, according to the • The transitional status of states normally lead to independence under the UN.
conventions which bind France and the USA. While USA Government argued that treaty • What is preventing them from being states?
rights of the United States in Morocco forbid Morocco to impose prohibitions on American
imports 3. SOME ISSUES OF STATEHOOD
Issue: Whether Morocco is a sovereign state
• The following are three major situation affecting world order that reflects the current issues
of statehood.
Ruing: Yes. The import regulations enacted by the Residential Decree heavily favored the
French by not imposing any regulations. While the USA and its nationals are subjected to
A. GERMANY SINCE 1945
the strict licensing control. The decree contravenes the Treaty of Algeciras which requires
• The termination of hostilities against the German Reich in June 1945 coincided with the
the “most favoured nation” treatment to the USA. Article 24, where it is "declared that
disappearance of effective national government in its territory.
whatever indulgence, in trade or otherwise, shall be granted to any of the Christian Powers,
the citizens of the United States shall be equally entitled to them". ***As a side note: Sir • The Allied Powers assumed supreme authority with respect to Germany (Allied Control
Ian Brownlie cited this case because of the peculiar situation of Morcoo as a Protectorate. Council took place of the German government).
It is not disputed by the French Government that Morocco, even under the Protectorate, o Instead of a single central government, the Commanders-in-Chief of the Four
has retained its personality as a State in international law. The rights of France in Morocco Powers acted separately in each Zone (of Occupation) and jointly only with respect
are defined by the Protectorate Treaty of 1912. Morocco remained a sovereign State but it to ‘Germany as a whole’.
made an arrangement of a contractual character whereby France undertook to exercise • Their Declaration of 19 December 1950 indicated as follows: ‘The Three Governments
certain sovereign powers in the name and on behalf of Morocco, and, in principle, all of the consider that the Government of the Federal Republic is the only German Government freely
international relations of Morocco. and legitimately constituted and therefore entitled to speak for the German people in
international affairs.’
• Tripartite Convention on Relations
Highlighted by Brownlie: Morroco is a sovereign state, meaning that it had maintained its o This enlarged the authority of the Federal Republic, albeit not unlimited.
basic personality in spite of the French protectorate. o The 3 Western Allies retained ‘the rights and responsibilities, heretofore exercised
or held by them, relating to Berlin and to Germany as a whole, including the
reunification of Germany and a peace settlement.’
H. FUNCTION AS A STATE o The Soviet Union, in response to developments in the Western Zones, on 7
• Entities may exist which are difficult to regard as states but which have a certain, even October 1949 declared the establishment of a German Democratic Republic
considerable international presence. (GDR). A treaty of 20 September 1955 indicated that the GDR held general
• Treaty of Versailles (1919) created the Free City of Danzig. freedom of action in respect of ‘domestic and foreign policy,’ reserving for the
o It had the legal marks of statehood in spite of the fact that it was placed under the USSR the ‘obligations of the Soviet Union and of the GDR under existing
guarantee of the League of Nations and Poland had the power to conduct its international agreements relating to Germany as a whole
foreign relations. • Four Powers relinquished declared their acceptance of separate UN membership and 2
• Italian Peace Treaty of 1947 created the Free Territory of Trieste. German states were admitted to the UN. Hence, the 4 Powers relinquished their remaining
o This was placed under the protection of the Security Council. joint powers in respect of “Germany as a Whole”, including, concretely, what remained of
• These two cases are a congener of statehood and it is their specialized political function and their territorial rights in Berlin. It also provided that Germany shall have accordingly full
their relation to an organization which inhibits the use of the category of statehood. sovereignty over its internal and external affairs which suggests a reversion of authorities
and responsibilities rather than their disappearance.

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• While the two Germanies after 1945 were in some sense successor states, a strong element Continuity State Succession
of continuity persisted to 1990, and was thereafter reaffirmed in the form of the Federal
Republic. The legal personality and the particular rights Arises when one international personality
and duties of the state remain unaltered. takes the place of another (ex. by union or
B. PALESTINE lawful annexation); generally involves
• Since 1993, there was a discussion regarding the “permanent status negotiations” which important changes in the legal status and
were assumed to lead to an independent Palestinian state. rights of the entities concerned.
• There were several agreements made for a “final-status peace agreement” but they still failed
to reach a final status.
• Peace talks stalled after Israel refused to extend a 10-month freeze on settlement activity in Possible Questions
the occupied Palestinian territory. That decision prompted the Palestinian Authority to
withdraw from direct talks with Israel, which had only resumed a few weeks earlier after a • What is a failed state? If it’s short of one or two elements of Art. 1 of the
two-year hiatus. Montevideo Convention (elements of a state)
• Though parties had not reached a final status agreement, Palestine applied for admission to o What is its status?
membership in the UN. • T/F failed states are not States
• Some 130 states have recognized Palestine as a state. • What does the UN do with failed states?
C. KOSOVO
• This is also an unresolved case. CHAPTER 6: RECOGNITION OF STATES AND GOVERNMENTS
• The main issue addressed with regard to Kosovo is the right to self-determination.
• The Court also ruled on the declaration of independence stating that “general international 1. RECOGNITION AS A GENERAL CATEGORY
law contains no applicable prohibition of declarations of independence’. Accordingly, the
‘declaration of independence of 17 February 2008 did not violate general international law’. • Factors to be considered:
• Court chose not to address the consequences of the declaration of independence --- whether 1. Agreements, whether formal or informal
a new state had been created or whether other states would be obliged to recognize it. 2. Unilateral acts or conduct
• As of 2012, some 85 states had recognized Kosovo. • The validity of a claim to territory is not, however, conditioned on its acceptance by other
states.
4. ACHIEVING INDEPENDENCE: SECESSION AND SELF-DETERMINATION • Kinds of recognition:
1. Recognition of another entity as a state
• Self-determination – a principle concerned with the right to be a state. 2. Recognition of that entity’s government as established, lawful, or legitimate (ie., as
o Full/external self-determination – the formation of a new state through secession entitled to represent the state for all international purposes)
(ie., ‘a people’ of a state making their own state).
o Qualified/internal self-determination – when ‘a people’ is expected to achieve self- Legal Status of Eastern Greenland (Denmark v. Norway)
determination within the framework of their existing state. This is achieved by a
state whose government represents the whole of the people on a basis of equality Facts: The Norwegian Minister for Foreign Affairs to the Danish Minister at Oslo, the
and without discrimination, respects the principles of self-determination in its Norwegian Government stated in its Royal Resolution (July 10th, 1931) that the
internal arrangements. occupation in the Eastern Greenland is officially confirmed and is placed under
• Key initial development was the reference to ‘the principle of equal rights and self- Norwegian sovereignty. The Danish Government informed the Norwegian Government
determination of peoples’ in Articles 1(2) and 55 of the UN Charter. that it had submitted the question on the same day to the Permanent Court of International
• Means of achieving self-determination: Justice. The Danish Gov’t contends that (1) Denmark had enjoyed and had peacefully
1. Formation of a new state through secession (ie., withdrawal from a larger state) and continuously exercised an uncontested sovereignty over Greenland for a long time
§ Allowed only in the following situations: (up till 1921, no Power disputed the Danish claim to sovereignty) (2) Norway had
a. Where ‘a people’ is governed as part of a colonial empire recognized Danish sovereignty over the whole Greenland (through conventions and
b. Where ‘a people’ is subject to alien subjugation, domination treaties) and (3) that the Norway is bound by the Ihlen Declaration (Fact#16 but this
or exploitation basically talks about how the Norwegian Minister bound Norway by saying that the Danish
c. Where ‘a people’ is denied any meaningful exercise of its right sovereignty over the whole of Greenland would meet with no difficulties on the part of
to self-determination within the state of which it forms part Norway). Norway counters that Denmark possessed no sovereignty over the area which
2. Association in a federal state Norway occupied because the word "Greenland" is not used in the geographical sense,
3. Autonomy or assimilation in a unitary (non-federal) state but means only the colonies or the colonized area on the West coast and that at the time
of the occupation the area was terra nullius (nobody’s island)
5. IDENTITY AND CONTINUITY OF STATES
Issue: Whether Eastern Greenland belongs to Norway
• Continuity of states – the legal rights and responsibilities of states are not affected by
changes in the head of state or the internal form of government.
Ruling: The Court ruled that Eastern Greenland rightfully belongs to Denmark. Denmark
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A.M.D.G +
had enjoyed and had peacefully and continuously exercised an uncontested sovereignty • Warbick – a bare statement of non-recognition carries five possible meanings:
over Greenland for a long time. With regard to the conventions and treaties, The 1. A statement of neutrality, under which no view is taken deliberately as to the
importance of these treaties is that they show a willingness on the part of the States with entity’s statehood
which Denmark has contracted to admit her right to exclude Greenland. To some of these 2. Driven purely by political calculations (thereby implying recognition of statehood in
treaties, Norway has herself been a Party, and these must be dealt with later because law)
they are relied on by Denmark as constituting binding admissions by Norway that 3. Driven by the understanding that recognition would be unlawful or premature
Greenland is subject to Danish sovereignty. To the extent that these treaties constitute (genuine non-recognition)
evidence of recognition of her sovereignty over Greenland in general, Denmark is entitled 4. Issued on the basis that supervening obligations in custom or treaty prevent
to rely upon them recognition
5. Issued on the basis of a supervening obligation imposed by the Security Council
Highlighted by Brownlie: Norway had, through a declaration by its Foreign Minister, Nils
Ihlen, accepted Danish title to the disputed territory. There the acceptance by Norway of (C) THE ‘DUTY TO RECOGNIZE’
Denmark’s claim was by informal agreement: in other instances formal treaty provisions
will involve recognition of rights. • Is there an obligation to recognize on the part of the states? Lauterpacht and
Guggenheim – recognition is constitutive, but there is a legal duty to recognize.
o Recognition, as a public act of state, is an optional and political act and there is no
legal duty in this regard.
2. RECOGNITION OF STATES o However, in a deeper sense, if any entity bears the marks of statehood, other
states put themselves at risk legally if they ignore the basic obligations of state
(A) THEORETICAL OVERLAY relations.

• Views/Theories regarding the recognition of states: What is the difference between the (D) IMPLIED RECOGNITION
declaratory view and the constitutive view?
1. Declaratory View – recognition is a declaration or acknowledgment of an existing • Is implied recognition conclusive or does this depend on intention?
state of law and fact, legal personality having been conferred previously by • Situations where recognition is implied:
operation of law. 1. Conclusion of a bilateral treaty
§ In other words, what is necessary is that the proposed state has all the 2. Formal initiation of diplomatic relations
elements of a state under the Montevideo Convention. 3. Issue of consular execuaturs
§ Substantial state practice supports the declaratory view. • In terms of evidence in an international tribunal, informal relations, especially if these persist,
§ From whom does the recognition come from? may have probative value on the issue of statehood.
§ How id statehood conferred? o However, as a matter of optional bilateral relations, recognition depends on
2. Constitutive View – the political act of recognition is a precondition of the existence intention.
of legal rights; in its extreme form this implies that the very personality of a state
depends on the political decision of other states. (E) RETROACTIVITY OF RECOGNITION
§ Lauterpacht – there must be “someone” to perform the act of
ascertainment. In the absence of such impartial international organ to • What view does the non-retroactivity of recognition presume?
perform such function, the task must then be fulfilled by states already • Oppenheim – the rule of retroactivity is one of convenience rather than of principle.
existing. • As to basic rights and duties entailed by statehood, delayed recognition cannot be retroactive
• The constitutive view is a matter of principle impossible to accept since it is clearly established because in a special sense it is superfluous (since the rights and duties of states arise from
that states cannot by their independent judgment remove or abrogate any competence of the time they acquire statehood).
other states established by international law. • Optional and conventional relations, however, may be retroactive or not since the area is one
• T/F in the declaratory view, declaration of a state that it is a state is enough. FALSE. of discretion.
Self-serving. • Can delayed recognition be retroactive? Depends on which view you’re subscribing to.

(B) THE VARIED LEGAL CONSEQUENCES OF RECOGNITION AND NON-RECOGNITION (F) RECOGNITION AND MEMBERSHIP OF INTERNATIONAL ORGANIZATIONS

• Recognition is an agreement to establish diplomatic relations. Non-recognition, on the other • Collective recognition may take the form of a joint declaration.
hand, may simply be part of a general policy of disapproval and boycott. • Recognition of other members, or of non-members, may occur in the course of voting on
o Practically, the existence of a state is of little worth unless it is accepted as such admission to membership and consideration of complaints involving threats to or breaches
into the community of nations. of the peace.
• What are the Legal functions of recognition: o It has been argued that admission into the League and the UN entails recognition
1. Determination of statehood by operation of law by all other members, whether or not they voted for admission.
2. A condition of the establishment of formal relations, including diplomatic relations
and the conclusion of bilateral treaties

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• Principle and practice would seem to support admission to membership as evidence of o This is laudable, but difficulties remain.
statehood, and non-recognizing members are at risk if they ignore the basic rights of
existence of an entity. (C) CREDENTIALS AND REPRESENTATION IN INTERNATIONAL ORGANIZATIONS
o However, there is nothing in the Charter, or customary law, which requires a non-
recognizing state to enter into optional bilateral relations with other members. • In practice, the formal requirements for approving credentials have been linked with a
• Does membership in international organizations entail recognition? challenge to the representation of a state by a particular government.
o What if the group admits members based on majority voting but some did not vote?
What happens? (4) COLLECTIVE NON-RECOGNITION AND SANCTIONS
o T/F Non-voting members can submit continuing objection. FALSE. Withdrawal
from the treaty is the remedy • One form of collective non-recognition seen in practice is the resolution or decision of an
organ of the United Nations, based on a determination that an illegal act has occurred
3. RECOGNITION OF GOVERNMENTS • Article 41 (2) of the ILC Articles on the Responsibility of States for Internationally Wrongful
Act takes this further, providing that ‘no State shall recognize as lawful a situation created by
• The legal entity in international law is the state; the government is in normal circumstances a serious breach’ of an obligation arising under a peremptory norm of international law. In
the representative of the state, entitled to act on its behalf. the present context, this obligation entails 2 central duties of absentation
• Does the recognition of government affect statehood? No. Non-recognition of a particular 1. Not to recognize as lawful situations created by a serious breach of international
regime (of government) is not necessarily a determination that the community represented law; and
by that regime does not qualify for statehood. 2. Not to render aid or assistance in maintaining the situation.
o Non-recognition of a government may mean that it is not regarded as a government • It is possible though to refer to such practice as collective non-recognition. The duty of non-
in terms of independence and effectiveness, or that the non-recognizing state is recognition is not, however, absolute. Such as what was stated in Namibia: “In general, the
unwilling to have normal intergovernmental relations with it non-recognition of South Africa’s administration of the Territory should not result in depriving
• T/F since government is an element of statehood, if a recognizing state does not the people of Namibia of any advantages derived from international cooperation. In particular,
recognize the new government, it loses statehood with regard to that non- recognizing while official acts performed by the Government of south Africa on behalf of or concerning
state. FALSE, because indepedence is the controlling element. The other elements are not Namibia after the termination of the Mandate are illegal and invalid, this invalidity cannot be
conclusive. There is a strong presumption of statehood. extended to those acts, such as, the registration of births, deaths and marriages, the effects
of which can be ignored only to the detriment of the inhabitants of the Territory.”
(A) DE IURE AND DE FACTO RECOGNITION
Namibia
• Everything depends on the intention of the government concerned and the general contect
of fact and law. Facts: The General Assembly decided that the Mandate for South West Africa was
• De facto v. de jure recognition terminated and that South Africa had no other right to administer the Territory. The
Security Council called upon South Africa to withdraw its administration from the Territory,
and it declared that the continued presence of the South African authorities in Namibia
De Facto Recognition De Iure Recognition
was illegal and that all acts taken by the South African Government on behalf of or
concerning Namibia after the termination of the Mandate were illegal and invalid; it further
• Acceptance of facts with a dubious legal • The legal, legitimate government of a
called upon all States to refrain from any dealings with the South African Government that
origin (ex. some would argue that the state and is so recognized by other
were incompatible with that declaration. The Security Council decided to request of the
Cory administration was a de facto states (ex. in a decision rendered by the
Court an advisory opinion on the legal consequences for States of the continued
government since it was through EDSA Supreme Court it declared that the
presence of South Africa in Namibia.
People Power) government under Corazon Aquino was
• May be withdrawn a de jure government as the people
have already accepted it and the Issue: What are the legal consequences?
community of nations have recognized
its legitimacy.) Ruling: In its Advisory Opinion, the ICJ found that the continued presence of South Africa
• Irrevocable in Namibia was illegal and that South Africa was under an obligation to withdraw its
administration immediately. It found that State Members of the United Nations were under
(B) RECOGNITION OF GOVERNMENTS IN ABEYANCE an obligation to recognize the illegality of South Africa’s presence in Namibia and the
invalidity of its acts on behalf of or concerning Namibia, and to refrain from any acts
• There is a school of thought supporting the automatic recognition of de facto governments. implying recognition of the legality of, or lending support or assistance to, such presence
and administration. Finally, it stated that it was incumbent upon States which were not
• What is the estrada doctrine? The Estrada Doctrine enunciated by the Mexican Secretary
Members of the United Nations to give assistance in the action which had been taken by
of Foreign Relations in 1930 favored an enclosed view of sovereignty. It claimed that foreign
the United Nations with regard to Namibia. The duty of non-recognition is not absolute.
governments should not judge, for good or bad, governments or changes in governments in
In general, the non-recognition of South Africa’s administration of the Territory should not
other nations, because it would imply a breach to its sovereignty.)
result in depriving the people of Namibia of any advantages derived from international
o This was a means of reducing non-recognition as a source of interference in
cooperation. In particular, while official acts performed by the Government of South Africa
internal affairs.
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A.M.D.G +
on behalf of or concerning Namibia after the termination of the Mandate are illegal and § The act of recognition did not undermine the political or diplomatic goals of the
invalid, this invalidity cannot be extended to such acts of international cooperation executive.

Highlighted by Brownlie: It is possible, though by no means necessary, to refer to such (C) THE POSITION OF THE UNITED STATES COURTS
practice as collective non-recognition. There is no doubt a duty of states parties to a • The US position on the recognition of governments generally is as set out in the Restatement
system of collective security or other multilateral conventions not to support or condone Third:
acts or situations contrary to the treaty concerned.74 The duty of non-recognition is not, 1. An entity not recognized as a state, or a regime not recognized as the government
however, absolute. In general, the non-recognition of South Africa’s administration of the of a state, is ordinarily denied access to courts in the United States;
Territory should not result in depriving the people of Namibia of any advantages derived 2. A regime not recognized as the government of a state is not entitled to property
from international cooperation. In particular, while official acts performed by the belonging to that state located in the United States;
Government of South Africa on behalf of or concerning Namibia after the termination of 3. Courts in the United States ordinarily give effect to acts of a regime representing
the Mandate are illegal and invalid, this invalidity cannot be extended to those acts, such an entity not recognized as a state, or of a regime not recognized as a government
as, for instance, the registration of births, deaths and marriages, the effects of which can of a state, if those acts apply to territory under the control of that regime and relate
be ignored only to the detriment of the inhabitants of the Territory. to domestic matters only.
• The prohibition on access, however, may be relaxed depending on the facts of the case, the
practical consequences of granting or not granting access and the extent to which access is
5. ISSUES OF RECOGNITION BEFORE NATIONAL COURTS germane to the foreign policy goals of the US.
• US courts since the Civil War have acknowledged the acts of non-recognized states,
(A) OVERVIEW provided that such acts ‘ deal solely with private, local and domestic matters and not matters
• Where the local courts are willing or obliged to follow the advice of the executive, the extending the borders of the unrecognized entity.
unrecognized state or government cannot claim immunity form the jurisdiction, obtain
recognition for purposes of conflict of laws of its legislative and judicial acts, or sue in the (D) THE POSITION IN EUROPE
local courts. • A ‘pan-European approach
• As a general rule (to which Switzerland and the Netherlands are notable exceptions) non-
(B) THE POSITION OF THE UNITED KINGDOM COURTS recognized states have no right of appearance, and their ats will not be given effect by
• In matters of recognition, the UK judiciary has historically adhered to 2 closely related European courts.
th
principles. • The position softened somewhat by the later 20 century, as suggested in the attitude of the
o Our states cannot speak with 2 voices on such a matter, the judiciary saying one Italian Court of Cassation: the only prerequisite for the enforcement of a foreign legal rule is
thing, the executive another. its effectiveness, provided that the particular legal provision does not also require reciprocity
o Although both the executive and the judiciary are considered to be manifestations of treatment and so long as the principle of the foreign law to be enforced do not appear
of the state, only the executive is competent to determine foreign policy. incompatible with the fundamental rules of the lex fori, in which case the foreign law is
• In the absence of a certificate, the court may examine executive action to infer that unenforceable for reasons of public policy.
recognition has taken place. But the court is not required to guess at an unexpressed intent, • Differences in approach may depend on the readiness of national courts to apply international
and can look at the matter at large. law. In some states, the judiciary treats the political question of recognition as distinct from
• In Republic of Samalia v Woodhouse Drake and Carey, the following factors were statehood and assesses the capacity of an entity proprio motu rather than deferring to
determinative in the absence of a certificate executive acts.
o Whether the government in question is the constitutional government of the state
o The degree, nature, and stability of its administrative control • Expanding the Namibia exception
o Whether the executive has had any dealings with the purported government and • In Cyprus v Turkey :… the obligation to disregard acts of de facto entities is far from absolute.
the nature of those dealings; and Life goes on in the territory concerned for its inhabitants. That life must be made tolerable
o In marginal cases only, the attitude of other states towards the purported and be protected by the de facto authorities, including their courts; and, in the very interest
government. of the inhabitants, the acts of these authorities related thereto cannot be simply ignored by
• Historically, the practice of the British courts was uniform to the point of rigidity: the acts of third states or by international institutions, especially courts. to hold otherwise would amount
unrecognized states and governments were given no weight. But the courts have adopted a to stripping the inhabitants of the territory of all their rights whenever they are discussed in
number of devices by way of mitigation. an international context, which would amount to depriving them even of the minimum
• The first, which is virtually a legal fiction, operates on the basis of an imputed agency; the standard of rights to which they are entitled.
acts of the unrecognized entity are considered to be performed under powers delegated to it
by the legitimate sovereign. CHAPTER 8: FORMS OF GOVERNMENTAL AUTHORITY OVER TERRITORY
• A second device permits the recognition of private acts internal to the unrecognized states.
Put simply, the English courts have endeavored to recognize rights and obligations which are
of a wholly private law character, unconnected to the grounds for non-recognition. 1. THE CONCEPT OF TERRITORY
• The ‘private acts’ exception was applied in Emin v Yeldag, wherein Lord Denning’s position • What is territory? Territorial sovereignty extends principally over land territory and the
to include all private acts done within a non-recognized state, provided that territorial sea, its seabed and subsoil.
§ There was no statutory prohibition on the recognition of the act, and • Condominium – when an area of territory is under the sovereignty of several states

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• Res nullius – consists of an area legally susceptible to acquisition by states but not as yet sovereignty was transferred where there is an express or implied condition that title should
placed under territorial sovereignty revert back to the grantor,
• Res communis – consisting of the high seas which includes the exclusive economic zones • Examples (situations):
and also outer space, is not capable of being placed under sovereignty. o Monaco: before 2005, its independence was conditional, in that if there was a
vacancy in the crown of Monaco it would become a protectorate of France. Until
2. KEY TERMS AND DISTINCTIONS such a condition operates the tenant had an interest equal in all respects to that of
sovereignty.
(A) SOVEREIGNTY AND JURISDICTION o Mandates created after the First World War: the mandatories, or administering
• State territory and its appurtenances (airspace and territorial sea), together with the states for the various ex-German territories, were nominated by five principal Allied
government and population within its boundaries, constitute the physical and social base for and Associated Powers, in whose favor Germany had renounced sovereignty,
the state.
• The legal competence of states and the rules for their protection depend on and assume the (B) RESIDUAL SOVEREIGNTY
existence of this stable, physically identified base. • Occupation of foreign territory in time of peace may occur on the basis of a treaty with the
• What is the difference between sovereignty and jurisdiction? territorial sovereign. The grantee under the treaty may receive very considerable powers of
o Sovereignty – legal personality of a certain kind, that of statehood administration, amounting to a delegation of the exercise of many of the powers of the
o Jurisdiction – particular aspects of the substance, especially rights or claims, territorial sovereign to the possessor for a particular period.
liberties and powers. Of particular significance is the criterion of consent. • Example:
o Treaty of Peace of September 8, 1951 where Japan agreed that, pending any
(B) SOVEREIGNTY AND OWNERSHIP action to place the Ryukyu Islands under the trusteeship system of the UN, the US
• Imperium – general power of government, administration, and disposition will have the right to exercise all and any powers of administration, legislation and
• Dominium – form of public ownership of property within the state jurisdiction over the territory and inhabitants of the islands, including their territorial
• Fortiori – form of private ownership recognized as such by the law waters.
o Lighthouses in Crete and Samos — the Permanent Court held that in 1913, Crete
(C) SOVEREIGNTY AND ADMINISTRATION and Samos were under the sovereignty of Turkey, which therefore had the power
• What is the difference between sovereignty and administration? to grant or renew concessions with regard to the islands.
• It may happen that the process of government over an area, with the concomitant privileges
and duties falls into the Lighthouse in Crete and Samos (France v. Greece)
• In the case of Germany, what occurred is akin to legal representation or agency of necessity.
nd
After the defeat of Nazi Germany in the 2 world war the four major allied powers assumed Facts: In 1934, France and Greece agreed to seek the opinion of the PCIJ regarding the
supreme power in Germany. The German state did not, however, disappear. concession contracts entered into by the French firm Collas & Michel (hereinafter French
firm) and the Ottoman government (sometimes referred to as Turkey but I just used
• A similar case, long recognized in customary law, is the belligerent occupation of enemy
“Ottoman government” in the digest for uniformity). In its 1934 ruling, the court held that
territory in time of war. Here, there is continued existence of a legal personality and the
the court held that the contract between the French firm and the Ottoman government is
attribution of territory to that legal person and not to holders of the territory for the time being.
operative against the Greek government in so far as it concerns lighthouses situated in
the territories assigned to it after the Balkan wars or subsequently. Furthermore, the
(D) ‘SOVEREIGN RIGHTS’ BEYOND STATE TERRITORY
decision contained a “reservation” wherein the court declared that they were only deciding
• A further source of confusion is the fact that sovereignty is not only used as a description of
on a question of principle. They cannot decide on the territories that were detached from
legal personality accompanied by independence but also as a reference to various types of
the Ottoman government and assigned to Greece after the Balkan wars. Thereafter, the
rights, indefeasible except by special grant, in the patrimony of a state.
Greek Foreign Affairs sent a note verbal to the French. The Greek government conveyed
• For example, ‘the sovereign rights’ a costal state has over the resources of the continental their willingness to execute the judgment, however they believe that the lighthouses in
shelf or a prescriptive right of passage between the main territory and an enclave. Crete and Samos remained outside the ambit of the contract. The French Government
• Rights which are ‘owned’ and in this special sense ‘sovereign’ involve a broader concept, not did not accept this standpoint of Greece; they agreed to submit the dispute to the PCIJ.
reducible to territorial sovereignty.

3. TERRITORIAL ADMINISTRATION SEPARATED FROM STATE SOVEREIGNTY Issue: Whether concession contracts between a French firm and the Ottoman
Government concerning certain lighthouses situated in the territories of Crete, including
• While the concept of territorial sovereignty normally applies in relation to states, there is now the adjacent islets and Samos, were duly entered into and were accordingly operative as
considerable experience with international organizations not only administering territory in regarding Greece.
the capacity of agent but also assuming legal responsibility for territory in respect of which
no state has title. Ruling: The court ruled in the affirmative. The court made reference to Article 9 of
Protocol XII which provided that a state succeeding to the Ottoman government’s territory
(A) TERMINABLE AND REVERSIONARY RIGHTS are subrogated the rights and obligations of its detached territories. The provision is
• Territorial sovereignty may be defeasible in certain circumstances by operation of law, for couched in general terms which led the court to believe that it refers to all territories
example by fulfillment of a condition subsequent or the failure of a condition under which detached from the Ottoman government. The inevitable conclusion is that lighthouses in
Crete and Samos are situated in territories which were assigned to Greece after the

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Balkan wars. Therefore, the court ruled that the contract is operative against the Greek corollary the territorial sea cannot be alienated without the coast itself (no doubt similarly in
government in relation to the lighthouses in Crete and Samos because the latter are part the case of airspace).
of the territories detached from the Ottoman government during the Balkan wars.
Supra Anglo-Norwegian Fisheries
Highlighted by Brownlie: Cete and Samos were under the sovereignty of Turkey, which
therefore had the power to grant or renew concessions with regard to the islands. Facts: The subject of the proceedings was the validity, under international law, of the
“Notwithstanding its autonomy, Crete has not ceased to be a part of the Ottoman Empire. lines of delimitation of the Norwegian fisheries zone as set forth in a Decree of 12 July
Even though the Sultan had been obliged to accept important restrictions on the exercise 1935. Norway argues that even if the 10nm closing line for bays and certain rules were
of his rights of sovereignty in Crete, that sovereignty had not ceased to belong to him, part of the general international law, it did not bind Norway because it had consistently
however it might be qualified from a juridical point of view and unequivocally manifested a refusal to accept them. UK admitted the general principle,
while denying that Norway had manifested its supposed refusal to accept the rules.
(C) INTERNATIONAL LEASES
• These are examples of concessions of territory, including full governmental authority for a Ruling: The Court ruled that the lines laid down by the 1935 Decree for the purpose of
period of years (the New territories of Hong Kong prior to 1997) or even perpetuity delimiting the Norwegian fisheries zone have been drawn in accordance with international
(Guantanamo Bay). In such cases the term ‘lease’ may be applied, but it is no more than a law because the general toleration of the international community on the practices and
superficial guide to the interest concerned: each case depends on its particular facts and delimitations of Norway therefore shows that the Norwegian system was not regarded as
especially on the precise term of the grant. contrary to international law.
• There is presumption that the grantor retains residual sovereignty. Certain type of lease were
however, virtual cessions of territory. Highlighted by Brownlie: Another form of appurtenance appears in the dissenting
opinion of Judge McNair in the Anglo-Norwegian Fisheries case. In his words: ‘[i]nterna-
(D) DEMILITARIZED AND NEUTRALIZED TERRITORY tional law imposes upon a maritime State certain obligations and confers upon it certain
• Restrictions on use of territory, accepted by treaty, do not affect territorial sovereignty as a rights arising out of the sovereignty which it exercises over its maritime territory. The
title, even when the restriction concerns matters of national security and preparation for possession of this territory is not optional, not dependent upon the will of the State, but
defense. compulsory’.43 Attractive though this view may seem at first sight, it raises many
• The same applies where demilitarized zones have been imposed by the Security Council or difficulties. How many of the various territorial extensions are possessed by compulsion
even (in the context of provisional measures) by the International Court. of law? The desire to invest the coastal state with responsibility for the maintenance of
order and navigational facilities is not a sufficient basis for McNair’s rule; indeed, this kind
(E) VASSALAGE, SUZERAINTY, AND PROTECTION of logic would equally support a doctrine of closed seas.
• As noted, a condominium involves a sovereignty jointly exercised by 2 or more states on a
basis of equality. Historically, other types of shared sovereignty have occurred which the
dominant partner, state A, has acquired a significant role in the government of state B, and 5. CONCLUSION
particularly in the taking of executive decisions relating to the conduct of foreign affairs.
• The legal aspects of the relationship will vary with the circumstances of each case, and not (A) THE CONCEPT OF TITLE
too much can be deduced from the terminology of the relevant instruments. • The content of sovereignty has been examined from various points of view. By and large the
• The question of status of colonial protectorates is complex and can only be approached on term denotes the legal competence which a state enjoys in respect of its territory. This
a case by case basis. competence is a consequence of title and by no means coterminous with it. this an important
aspect of state competence, the power of disposition, may be limited by treaty, but the
4. RESTRICTIONS ON DISPOSITION OF TERRITORY restriction, provided it is not total, leaves title unaffected.
• However, the materials of international law employ the term sovereignty to describe both (a)
(A) TREATY PROVISIONS the concept of title, and (b) the legal competence which flows from it.
• States may by treaty agree not to alienate certain parcels of territory in any circumstances, o As a concept of title, the term sovereignty explains (a) why the competence exists
or they may agree not to transfer a particular state or states. Moreover, a state may agree and what its fullest possible extent may be; and (b) whether claims may be
not to unite with another state. enforced in respect of interference with the territorial aspects of that competence
• An obligation not to acquire territory may also be undertaken. In case of a breach of a treaty against a particular state.
obligation not to alienate, or acquire, territory, the grantee may regard the treaty as res inter o As the legal competence which flows from title, this aspect mentions the essence
alios acta, and it is doubtful if the existence of a claim by a third state for breach of a treaty of the title: the validity if claims to territorial sovereignty against other states. The
can result in the nullity of the transfer. equivalent concept in French, titre, has been defined as follows: ‘terme qui, pris
dans le sens de titrre juridique, designe tout fait, acte ou situation qui est la cause
(B) THE PRINCIPLE OF APPURTENANCE et el fondement d’un droit’. In principle, the concept of ownership, opposable to all
• the territory of a state by legal implication includes a territorial sea and the airspace above its other states and unititular, does exist. Thus the first and undisputed occupation of
land territory and territorial sea. Thus is state A merges with state B, state B’s territory will land which is res nullius may give rise to title which is equivalent to dominium of
include the territorial sea and airspace formerly of state A. this simple idea is sometimes Roman law. However, in practice the concept of title employed to solve disputes
described as the principle of appurtenance, and high authority supports the view that as a approximates to the notion of the better right to possess familiar in common law.

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(B) TITLE, DELIMITATION, DEMARCATION Ruling: An inchoate title cannot prevail. The Netherland’s title of sovereignty holds good over
• In a broad sense may questions of title arise in the context of ‘boundary disputes’, but as a the inchoate title of the US. The latter’s title cannot prevail over a definite title founded on
matter of principle the determination of the location in detail of the boundary line is distinct continuous and peaceful display of sovereignty. Further, Spain could not transfer more rights
from the issue of title. than she herself possessed.
• Considerable dispositions of territory may take place in which the grantee enjoys the benefit
of a title derived from the grant although no determination of the precise boundary line is Highlighted by Brownlie: The title alleged by the United States of America as constituting the
made. immediate foundation of its claim is that of cession, brought about by the Treaty of Paris, which
• On the other hand precise determination of the boundary may be made a suspensive cession transferred all rights of sovereignty which Spain may have possessed in the region.…It
condition in a treaty of cession. is evident that Spain could not transfer more rights than she herself possessed.
• The process of determination is carried out in accordance with a special body of rules.
• Example:
o Thalweg principle: in the case of navigable ricer, the middle of the principal channel
CHAPTER 9: ACQUISITION AND TRANSFER OF TERRITORIAL SOVEREIGNTY
of navigation is accepted as the boundary. In the case of non-navigable
watercourses the boundary is constituted by the median line between the two
banks. 1. INTRODUCTION
• The practical aspects of boundaries must be emphasized. Agreement as to the precise
details of a boundary is often followed by separate procedure of demarcation, that is, the • Disputes concerning title to land territory, including islands, and over the precise
marking, literally, of the boundary on the ground by means of posts, stone pillars, and the determination of boundaries are regularly the subject of international proceedings. Recourse
like. to arbitration may be part of the overall peace settlement.
• A boundary may be legally definitive and yet remain undemarcated. • While the occupation of territory not belonging to any state (terra nullius) is no longer a live
• Boundaries which are de facto, either because of the absence of demarcation or because of issue, issues concerning such occupation in the past may still arise. Legally relevant events
the presence of an unsettled territorial dispute, may nevertheless be accepted as the legal may have occurred centuries ago.
limit of sovereignty for some purposes, for example those of civil or criminal jurisdiction,
nationality law, and the prohibition of unpermitted intrusion with or without the use of arms. 2. DETERMINING TITLE

(C) NEMO DAT QUOD NON HABET (A) THE CENTRALITY OF TITLE
• This maxim, together with some exceptions, is a familiar feature of English law but the • If the basic unit of the international legal system is the state, the space which the state
principle is undoubtedly part of international law also. occupies in the world is its territory, traditionally thought of as realty, with the state (a person)
• The effect of the principle is much reduced by the operation of acquiescence and recognition. its proprietor.
• Certain connected principles require consideration • International law developed a notion of entitlement to territory well before the state itself
o First, in principle the adjudication by a tribunal of a piece of territory as between developed as a normative concept. Thereafter title arose not simply by physical occupation
states A and B is not opposable to state C. The tribunal, insofar as adjudication of (i.e. actual administration, often referred to as effectivites) but through acquisition in
itself gives title, only has jurisdiction to decide as between the parties before it. accordance with law—although until 1928, the law included the riled that coerced treaties
o Under certain conditions it is possible that the law accepts the existence of were valid.
encumbrances passes with the territory ceded. • Title prevails over possession, but if title is equivocal, possession under claim of right matters.
• Title to territory, like ownership of land, is normally ‘objective’, but there is no system of
Island of Palmas (Netherlands v. US) registration, no international Torrens title.
• Title may be relative in several quite different contexts:
Facts: The United States and the Netherlands submitted to the Permanent Court of Arbitration o The principle nemo dat quod non habet (no donor can give a greater interest than
the question of which State owned the Island of Palmas (Palmas). Palmas is located within the he or she already has) places a restrictive effect on titles dependent on bilateral
boundary of the Philippines (territory ceded to the United States from Spain as of the 1898 agreement.
Treaty of Paris). Spain first discovered Palmas in the early seventeenth century and thus o A judicial decision on issues of title cannot foreclose the rights of third parties.
claimed title to it. However, Palmas was also considered by the Netherlands to be a part of its o In a situation where physical holding is not conclusive of the question of right,
territory since it began peacefully and continuously possessing the area in 1677 or before. The recognition becomes important, and this may be forthcoming from some states and
US argued that it could claim sovereignty based on the fact that Spain had ceded its title to the not others.
US. Spain could do so because Spain’s title to the island was based on either the discovery of o The compromis on the basis of which a dispute is submitted to a court or tribunal
the island, the 1648 Treaty of Munster, or the geographical unity with other islands (contiguity). may assume that title is to go to one of the two claimants. In Minquiers and Ecrehos
The Netherlands argued that it had possessed and exercised sovereignty even before 1648, the Court interpreted the compromis as excluding a finding that the islets were res
and which was reinforced by subsequent treaties. These treaties included treaties with native nullius or subject to a condominium. In such a case, in the absence of any other
states that established Dutch suzerainty over them. claimant, the result seems to be a title valid against all, but the parties have not
had to come up to any minimum requirements of effective control.
Issue: Whether an inchoate title can prevail over a definite title founded on continuous and o In any event, in instances such as Island of Palmas and Minquiers and Ecrehos,
peaceful display of sovereignty the Court assesses the relative intensity of the competing acts of state authority to
determine which party has the better right.

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o In appropriate circumstances the Court will lean in favour of title in one claimant
even though there are grounds for a finding that the territory was at the relevant (C) THE CRITICAL DATE
time terra nullius. Thus in Eastern Greenland Danish activity in the disputed area • In any dispute a certain date will assume prominence in the process of evaluating the facts.
had hardly been intensive, but the Court refused to consider the area terra nullius. The choice of such a date is within the province of the tribunal and will depend on the logic
o In some cases the sheer ambiguity of the facts may lead the Court to rely on of the law applicable to the facts as well as on the practical necessity of confining the dossier
matters which are less than fundamental, or to seek evidence of acquiescence by to the more relevant facts and thus to acts prior to the existence of a dispute.
one party. In this context it is academic to use the classification ‘inchoate’. A title, • In the latter context the tribunal is simply excluding evidence consisting of self-serving acts
though resting on very preliminary acts, is sufficient as against those without a of parties after the dispute arose. But evidence of acts and statements occurring after the
better title. In coming to a decision on the question of right, it may be necessary to critical date may be admissible if not self-serving, as in the case of admissions against
measure ‘titles’ against each other. interest. There are several types of critical date, and it is difficult and probably misleading to
formulate general definitions: the facts of the case are dominant (including the terms of the
Supra Island of Palmas special agreement empowering the tribunal to hear the case) and there may be no necessity
for a tribunal to choose any date whatsoever.
Highlighted by Brownlie: The relative intensity of the competing acts of state authority
to determine which party has the better right. Supra Eastern Greenland (Denmark v. Norway)

Facts: A suit was instituted before the Permanent Court of International Justice (PCIJ)
(B) THE INTERTEMPORAL LAW
by Royal Danish Government against the Royal Norwegian Gov’t over the legal status of
• In many instances the rights of parties to a dispute derive from a legally significant act done, certain territories in Eastern Greenland. The Norwegian Minister for Foreign Affairs to the
or treaty concluded long ago. Danish Minister at Oslo, the Norwegian Government stated in its Royal Resolution (July
• Fitzmaurice—‘it is an established principle of international law that in such cases the situation 10th, 1931) that the occupation in the Eastern Greenland is officially confirmed and is
in question must be appraised, and the treaty interpreted, in the light of the rules of placed under Norwegian sovereignty.
international law as they existed at the time, and not as they exists today.’
• Island of Palmas—Judge Huber stated the principle and continued: ‘The effect of discovery
Highlighted by Brownlie: In some cases there will be several dates of
by Spain is… to be determined by the rules of international law in force in the first half of the
th
16 century—or (to take the earliest date) in the first quarter of it…’ significance. Eastern Greenland arose from a Norwegian proclamation of 10 July 1931
o Judge Huber gave new dimension to the rule: As regards the question which of announcing occupation of the area. The Court held that ‘as the critical date is July 10th,
1931…it is sufficient [for Denmark] to establish a valid title in the period immediately
different legal systems prevailing at successive periods is to be applied in a
particular case (the so-called intertemporal law), a distinction must be made preceding the occupation.
between the creation of rights and the existence of rights. The same principle which
subjects the act creative of a right to the law in force at the time the right arises,
demands that the existence of the right, in other words its continued manifestation, (D) TERRA NULLIUS
shall follow the conditions required by the evolution of law. • It is land not under the sovereignty or authority of any state; occupation was the mode by
• This extension of the doctrine has been criticized on that grounds that to require title to be which such territory could be acquired.
actively maintained at every moment of time would threaten many titles and lead to instability. • In the modern context, it has fallen into disuse. This is because there remains on the surface
This emphasizes the need for care in applying the rule. of the earth no truly ‘vacant’ territory, but also because the term gradually assumed imperialist
• In any case, the intertemporal principle does not operate in a vacuum: its impact will be overtones when it was used to justify colonization of large areas of inhabited lands through
reduced by the effect of recognition, acquiescence, and the rule that abandonment is not to a theory of European supremacy.
be presumed.
Western Sahara
Supra Island of Palmas
Facts: The Secretary General of the United Nations sent a letter to the President of the
Highlighted by Brownlie: Judge Huber had to consider whether Spanish sovereignty Court for an advisory opinion on Resolution 3292 on the status of Western Sahara’s
over the island subsisted at the critical date in 1898. In doing so he gave a new dimension status as a territory at the time of its colonization by Spain and its legal ties with Kingdom
to the rule: As regards the question which of different legal systems prevailing at of Morocco and the Mauritanian entity.
successive periods is to be applied in a particular case (the so-called intertemporal law),
a distinction must be made between the creation of rights and the existence of rights. The Issue: Whether Western Sahara at the time of colonization by Spain was terra nullius.
same principle “which subjects the act creative of a right to the law in force at the time the
right arises, demands that the existence of the right, in other words its continued Ruling: The Court’s opinion states that Westerns Sahara (Rio de Oro and Sakiet El
manifestation, shall follow the conditions required by the evolution of law. This extension Hamra) at the time of Colonization by Spain was not a territory belonging to no one. The
of the doctrine has been criticized on the grounds that to require title to be actively information furnished to the Court shows that at the time of colonization Western Sahara
maintained at every moment of time would threaten many titles and lead to was inhabited by peoples which, if nomadic, were socially and politically organized into
instability.22 This emphasizes the need for care in applying the rule.23 In any case the tribes and under chiefs competent to represent them. The State practice of the relevant
intertemporal principle does not operate in a vacuum: its impact will be reduced “by the period indicates that territories inhabited by tribes or peoples having a social and political
effect of recognition, acquiescence, and the rule that abandonment is not to be presumed. organization were not regarded as terra nullius. It shows that in the case of such territories
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the acquisition of sovereignty was not generally considered as effected unilaterally
through “occupation” of terra nullius by original title but through agreements concluded C. EFFECTIVE OCCUPATION
with local rulers. On occasion, it is true, the word “occupation” was used in a non-technical • Represents the type of legal relation which in private law would be described as possession.
sense denoting simply acquisition of sovereignty; but that did not signify that the • Eritrea/Yemen – The modern international law of the acquisition of territory generally requires
acquisition of sovereignty through such agreements with authorities of the country was that there be: an intentional display of power and authority over the territory, by the exercise
regarded as an “occupation” of a “terra nullius” in the proper sense of these terms. On of jurisdiction or State functions, on a continuous and peaceful basis.
the contrary, such agreements with local rulers, whether or not considered as an actual • In the absence of formal basis of title, and in a system without registration of title – Possession
“cession” of the territory, were regarded as derivative roots of title, and not original titles plays a significant role.
obtained by occupation of terra nullius. • Legal Possession – Involves a search for an interest worth protection by the law; What is
important is state activity and especially acts of administration: use by local people generally
Highlighted by Browniie: Western Sahara was not Terra nullius because the people of lacks this element and is only tangentially relevant.
the territory were socially and politically organized under chiefs with a capacity to • Occupation – Derives from occupatio in Roman Law, and does not necessarily signify
represent them. In fact the territory was acquired by treaty, not occupation. occupation in the sense of actual settlement and a physical holding.
• Effective occupation in private law is a complex term and it depends on the facts and degree.
• The bar with respect to remote and sparsely settled areas will be set than in the context of
more heavily populated territory.
CHAPTER 9: ACQUISITION AND TRANSFER OF TERRITORIAL SOVEREIGNTY • Effective and Long-established Occupation – Key to a claim of acquisitive prescription,
although courts and tribunals have rarely applied the doctrine as such.
THE ‘MODES’ OF ACQUISITION • Beckett – Island of Palmas case: prescription, Eastern Greenland case: occupation.
• In both cases, the issue was simply which of the 2 competing sovereignties had the better
A. BASIC PRINCIPLES right.
• The Five Modes of Acquisition. • Prescription – Involves usurpation, yet the cases involved, for all practical purposes,
1. Occupation contemporaneous, competing acts of state sovereignty.
2. Accretion • Minquiers and Ecrehos – The issue was one of possession which in the context was equated
3. Cession with sovereignty. Its task was to appraise the relative strength of the opposing claims to
4. Conquest sovereignty over the Ecrehos.
5. Prescription
• Criticism – The labels make the task of analysis more difficult. Supra Eastern Greenland
• Classified into two categories – Original and Derivative.
• Original. Facts: A suit was instituted before the Permanent Court of International Justice (PCIJ)
o Occupation by Royal Danish Government against the Royal Norwegian Gov’t over the legal status of
o Accretion certain territories in Eastern Greenland.
• Derivative. Highlighted by Brownlie: a claim to sovereignty based not upon some particular act or
o Cession title such as a treaty of cession but merely upon continued display of authority, involves
• There are differences in opinion as to the classification of conquest and prescription but such two elements each of which must be shown to exist: the intention and will to act as
classification hold no practical value. sovereign, and some actual exercise or display of such authority.
• The usual analyses do not explain how title is acquired when a new state comes into
existence.
• Events leading to independence of the new state are mostly within the domestic jurisdiction i. DISCOVERY
of another state, yet they are legally relevant to territorial disputes involving the new state.
• In this type of case, there is no ‘root of title’ as such: title is a by-product of events leading to • This category is equally unsatisfactory for the purpose of legal analysis.
the creation of a state as a new source of territorial sovereignty. • It links the concept of discovery to that of terra nullius.
• In determining title, a tribunal will concern itself with proof of the exercise of sovereignty via • At one time, it was thought that this mode conferred complete title, but it gave no more than
conduct a titre de souverain before the critical date or dates, and will not apply the orthodox an inchoate title: an effective act of appropriation seems to have been necessary.
analysis to describe its process of decision. • The modern view is that it gave no more than an inchoate title, an option, as against other
states, to proceed to effective occupation within a reasonable time.
B. ORIGINAL AND HISTORIC TITLE • British and Norwegian practice supports this view.
• A current dispute involves not only reliance upon the exercise of state authority but the • US view – Mere discovery gives no title, inchoate or otherwise.
invocation of an ancient, original, historic title. • The notion of discovery only makes sense if it is placed firmly in the context of effective
• Principle of Immemorial Possession – Basically possession since time immemorial. occupation, and it is best to avoid the category altogether.
• Reliance upon evidence of general repute or opinion as to matters of historical fact. • Title is never inchoate, though it may be weak if it rests on slight evidence of state activity.
• In Asia, traditional boundaries play a significant role.
• International tribunals – Recognized the concept of ancient or original title, but require more
evidence.
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Supra Island of Palmas Highlighted by Brownlie: The Danish claim was based not on any physical presence in
the contested territory, but on a.) long-term presence of colonies in other parts of
Facts: The United States and the Netherlands submitted to the Permanent Court of Greenland, b.) wording of legislation and treaties so as to render them applicable to
Arbitration the question of which State owned the Island of Palmas. Spain first discovered Eastern Greenland, and c.) seeking to have resulting title recognized internationally, was
Palmas in the early seventeenth century and thus claimed title to it. US argued that, as held to be superior to the Norwegian claim based on the wintering of various expeditions
successor to Spain, its title derived from However, Palmas was also considered by the in the territory and the construction of a wireless station there.
Netherlands to be a part of its territory since it began peacefully and continuously
possessing the area in 1677 or before.
iv. INTENTION TO ACT AS SOVEREIGN
Highlighted by Brownlie: Huber responded that, even if discovery without more gave
title at that time, the continued existence of the right must be determined according to the • Animus occupandi or animus possidendi – Requirement of an intention to act as sovereign.
law prevailing in 1898, the critical date. In his opinion the modern law is that ‘an inchoate • Ross – Subjective requirement of ‘the will to act as sovereign’ as ‘an empty phantom’. The
title of discovery must be completed within a reasonable period by the effective occupation subjective criterion is unrealistic in seeking a coherent intention from activity involving
of the region claimed to be discovered numerous individuals often over a considerable period of time.
• Furthermore, the criterion begs the question in many cases where there are competing acts
of sovereignty.
ii. SYMBOLIC ANNEXATION • Functions of animus occupandi.
o Activity must be a titre de souverain in the sense that the agency must be that of
• Symbolic Annexation – Declaration or other act of sovereignty or an act of private persons, the state and not of unauthorized persons.
duly authorized, or subsequently ratified by a state, intended to provide unequivocal evidence o It has a negative role: if the activity is by consent of another state recognized as
of the acquisition of sovereignty over a parcel of territory or an island. the rightful sovereign then no amount of state activity is capable of maturing into
• Subject must be seen as a part of the general question of effective occupation. sovereignty.
• In principle, state activity must satisfy the normal requirements of effective occupation. o State activity taken as a whole may be explicable only on the basis that sovereignty
• Symbolic annexation does not give title except in special circumstance, but it is a part of the is assumed.
evidence of state activity.
• A prior state act of formal annexation cannot after a long interval prevail against an actual D. CESSION
and continuous display of sovereignty by another state, but if the initial act was effective to • A right to territory may be conferred by treaty, provided that the transferee takes in
vest title then a latecomer can only succeed, if at all, on the basis of prescription or accordance with the treaty.
acquiescence. • Actual transfer is not required.
• Clipperton Island – If a territory, by virtue of the fact that it was completely uninhabited is, • Date on which title changes will normally be the date on which the treaty comes into force:
from the first moment when the occupying state makes its appearance there, at the absolute an unratified treaty does not confer sovereignty.
and undisputed disposition of that state, from that moment, the taking of possession must be • Naturally, transferee cannot receive any greater rights than those possessed by the
considered accomplished and the occupation is thereby completed. transferor: nemo dat quod non habet.
• Annexation, though symbolic in form, had legal effect. • Apart from cession and transfer in accordance with treaty, title may exist on the basis of treaty
alone, the treaty marking a reciprocal recognition of sovereignty in solemn form.
iii. EFFECTIVE AND CONTINUOUS DISPLAY OF STATE AUTHORITY • Disputed frontier – Boundary treaty which closes the dispute will create title, previous
unsettled, whereas, a treaty of cession merely transfers an extant (through definitive) title.
• Island of Palmas, Judge Huber – Actual continuous and peaceful display of state functions • Territorial regime is established by a treaty – This settlement achieves permanence which
is in the case of dispute the sound and natural criterion of territorial sovereignty. the treaty itself does not necessarily enjoy: the continued existence of that regime is not
• This is in contrast to the older works on international law. dependent upon the continuing life of the treaty under which the regime is agreed.
• Emphasis on the display of state activity and the interpretation of facts in the light of a legal • AGREEMENTS CONCLUDED WITH INDIGENOUS RULERS
policy which favors stability and allows for the special characteristics of uninhabited and • Treaties between indigenous people and the state were a feature of the period of colonization
remote territories, suggest a change in the law. but are of limited relevance, externally, following the partition of the world into independent
• Modern law concentrates on title, on evidence of sovereignty, and the notion of occupation equal states.
has been refined accordingly. • ‘Scramble for Africa’ – Immense number of treaties were concluded with various African
• By contrast, acts by private persons purporting to appropriate territory may be ratified by the polities.
state and may then constitute evidence of its effective occupation, otherwise, no legal effect. • Arrangements with indigenous rulers were not normally considered as cessions, but gave a
form of derivative title distinguishing the act of acquisition from that of mere occupation.
Supra Eastern Greenland • Island of Palmas, Judge Huber – It is not an agreement between equals, rather a form of
international organization of a colonial territory, on the basis of autonomy of the natives…
Facts: A suit was instituted before the Permanent Court of International Justice (PCIJ) and thus, suzerainty over the native states becomes the basis of territorial sovereignty as
by Royal Danish Government against the Royal Norwegian Gov’t over the legal status of towards other members of the community of nations.
certain territories in Eastern Greenland.

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• Western Sahara – Agreements with local rulers, whether or not considered as an actual o When the character of the territory is such that no physical act is necessary to its
cession of the territory, were regarded as derivative roots of title, and not original titles effective appropriation (true of maritime delimitations).
obtained by occupation of terra nullius. o Where the 2 disputants are both exercising acts of administration in respect of the
• T/F Cession presupposes actual transfer. FALSE territory concerned and the award merely declares which of the 2 possessors is a
lawful holder.
Cameroon v. Nigeria o Where the loser is to continue in possession with delegated powers of
administration and jurisdiction.
Facts: CAMEROON’s Version: The Treaty of Protection signed on 10 September 1884 o When the successful claimant is already in possession.
between Great Britain and the Kings and Chiefs of Old Calabar (indigenous rulers o (Perhaps) where the award relates only to the detailed fixing of a frontier line.
exercising local rule over Bakassi) established a “protected state.” Cameroon was under
Germany. Germany lost WW1, so it had to renounce its colonial possessions. Cameroon DISPLACEMENT OF TITLE
was then transferred to Great Britain. And upon Cameroon’s independence it succeeded
to the title over Bakassi as established by the Anglo-German Agreement of 11 March A. CONCEPT OF PRESCRIPTION
1913.
i. THE PLACE OF PRESCRIPTION IN THE LAW
NIGERIA’s Version: The sovereignty of Bakassi remained with the Kings and Chiefs of
• Prescription – Refers to the removal of defects in a putative title arising from usurpation of
Old Calabar, notwithstanding the Anglo-German Agreement. And upon Nigeria’s
another’s sovereignty by the acquiescence of the former sovereign.
independence in 1961, it acquired Bakassi from the Kings and Chiefs of Old Calabar. The
Treaty of Protection signed on 10 September 1884 between Great Britain and the Kings • Rests on considerations of good faith and the need to preserve international order and
and Chiefs of Old Calabar only conferred limited rights on Great Britain and it did not stability.
transfer sovereignty to Britain over the territories of the Kings and Chiefs of Old Calabar. • Not really a mode of acquisition: the real source of title is recognition of or acquiescence in
the consequences of unchallenged possession and control.
• Prescription is distinct from outright abandonment or relinquishment of territory.
Issue: What is the legal effect of an 1884 treaty between the UK and the ‘Kings and Chiefs
• Abandonment – Refers to a situation where a state is held to have surrendered its title,
of Old Calabar’, an area in the Niger Delta, and its consequent effect on the UK’s capacity
converting the territory to res nullius, before another state establishes its own title by way of
to deal later with the territory
lawful allocation or effective occupation. No usurpation of sovereignty since there no
contemporaneous competing claims.
Ruling: Nigeria considered the 1884 treaty to have created an international protectorate,
• Relinquishment – The giving up of a claim to territory in face of what is thereby acknowledged
which did not therefore result in the transfer of title to the UK; rather it remained vested in
to be a better claim, or at least a subsisting one.
Old Calabar as a sovereign entity. The Court disagreed, noting that: (a) at the time, the
• Island of Palmas, Judge Huber – There is simply contemporaneously competing state
UK did not regard Old Calabar as a state, a position consistent with its activity in the rest
of the region; (b) the region did not possess a central federal activity: in deciding on title the tribunal will apply the critetion of effective control associated
with ‘effective occupation.’
Highlighted by Brownlie: The Court concluded that ‘under the law at the time, Great
Britain was in a position in 1913 to determine its boundaries with Germany in respect of ii. THE ROLE OF PRIVATE LAW ANALOGIES
Nigeria, including in the southern section”
• Writers have drawn on analogies from private law of both civil and common law traditions.
• From civil law.
• RENUNCIATION OR RELINQUISHMENT o Abandonment or dereliction – In which a title-holder makes a conscious decision
to relinquish his rights with respect to the contested territory, which may result in
• It is possible for states to renounce title over territory in circumstances in which the subject-
its becoming res nullius prior to the assertion of the other state’s claim.
matter does not thereby become terra nullius; this distinguishes it from abandonment.
o Doctrine of Acquisitive Prescription.
• There is no element of reciprocity and no commitment to transfer, as in the case of a treaty
• From common law.
of cession.
o Doctrine of Estoppel – In which a representation made by one state that is relied
• Renunciation may be recognition that another state now has title or an agreement to confer
on by another to its detriment may preclude the former state from acting in a
a power of disposition to be exercised by another state or a group of states.
contrary fashion.
• Series of unilateral acts may constitute evidence of an implicit relinquishment of rights. o Doctrine of Adverse Possession – This is an “equivalent” of acquisitive
• Renunciation is to be distinguished from reversion, that is, recognition by an aggressor that prescription.
territory seized is rightfully under the sovereignty of the victim. Here, there is no title to
renounce. B. REQUIREMENTS OF PRESCRIPTION

i. CONDUCT ON THE PART OF THE USURPING PARTY


E. ADJUDICATION
• Generally neglected, but some jurists accept adjudication by a judicial organ as a mode of • Prerequisites need to be clearly established to establish such a case for the usurpation of
acquisition. title.
• In certain cases, the award is dispositive as between the parties.
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oPossession must be exercised à titre de souverain (in the name of the sovereign) • Some writers suggest that prescriptive title arises even without acquiescence, simply by
– display of state authority and the absence of recognition of sovereignty in another lapse of time and possession not disturbed by measures of forcible self-help.
state. Without adverse possession there can be no prescription. • Probably the case now that prescription cannot create rights out of illegal acts.
o Possession must be public, peaceful and uninterrupted. • Island of Palmas, Minquiers and Ecrehos – Possession upheld by the tribunal is adverse only
o Possession must persist. in a special sense; there is no deliberate usurpation with a sequel of adverse holding, but a
• THE IMPORTANCE OF ACQUIESENCE more or less contemporaneous competition.

ii. THE IMPORTANCE OF ACQUIESENCE D. HISTORICAL CONSOLIDATION OF TITLE: AN EPITAPH


• Refers to an acquisition of title on the basis of its use without challenge over a significant
• Island of Palmas – The continuous and peaceful display of effectivites (acts by a State period of time.
relevant to a claim of title to territory by occupation or prescription) by a State may prevail • Anglo-Norwegian Fisheries – The general toleration of foreign States with regard to the
even over a prior, definitive title put forward by another State. Norwegian practice is an unchallenged fact. The notoriety of the facts, the general toleration
• In the face of competing activity and claims by another, a State may by conduct or admission of the international community, Great Britain’s position in the North Sea, her own interest in
acquiesce in the extension of its competitor’s sovereignty. the question, and her prolonged abstention would in any case warrant Norway’s enforcement
• Express declaration by one state that it considers another to hold title to the territory, of her system against the United Kingdom.
combined with evidence of conduct à titre de souverain in the name of the sovereign by the • De Visscher – The consolidation, which may have practical importance for territories not yet
other. finally organized under a State regime as well as for certain stretches of sea-like bays, is not
• Eastern Greenland – Norway had accepted through a declaration by its Foreign Minister the subject to the conditions specifically required in other modes of acquiring territory.
Danish title to the disputed territory. • The proven long use, which is its foundation, merely represents a complex of interests and
• Pulau Buta Puteh – Court gave great weight to a response given by the Acting Secretary of relations which in themselves have the effect of attaching a territory or an expanse of sea to
Johor. Under certain circumstances, sovereignty over territory might pass as a result of the a given State.
failure of a state which has sovereignty to respond to conduct à titre de souverain of the other • Thus, consolidation differs from prescription and occupation in De Visscher’s doctrine. The
State. elements which he calls consolidation are influential; the essence of the matter is peaceful
• Even without express declaration of relinquishment, the absence of state activity combined holding and acquiescence or toleration by other states.
with an absence of protest that might otherwise be expected in response to the effectivites • Cameroon v. Nigeria – The theory of historical consolidation is highly controversial and
of the opposing party, may be decisive. cannot replace the established modes of acquisition of title under international law.
• Burkina Faso/Mali – When there is a conflict between title and effectivités, preference will be
given to the former. 5. EXTENT OF SOVEREIGNTY: TERRITORIAL DISPUTES
• Clipperton Island – There is no reason to suppose that France has subsequently lost her right
by dereliction, since she never had the animus of abandoning the island, and the fact that (A) THE PRINCIPLE OF CONTIGUITY
she has not exercised her authority there in a positive manner does not imply the forfeiture
of an acquisition already definitively protected. • Definition: a rebuttable presumption that the legal status of territory should follow that of
• Eastern Greenland – It is impossible to read the records of the decisions in cases as to territory to which it is adjacent or proximate; often invoked in support of claims to sovereignty
territorial sovereignty without observing that in many cases the tribunal has been satisfied over territory.
with very little in the way of the actual exercise of sovereign rights, provided that the other • Considerations of contiguity & geographical unity come to the forefront when the disputed
State could not make out a superior claim. territory is uninhabited, barren or uncharted.
• Cameroon v. Nigeria – Cameroon had not abandoned its title to the Bakassi region, despite • In relation to islands contiguity is a relevant concept.
having engaged in only occasional acts of administration in the area due to lack of resources. • Land, Maritime & Frontier Dispute v. Honduras
• Abandonment is not to be presumed because of the need to maintain stability and to avoid o island of Meanguerita was a dependency of the larger island of Meanguera, due
temptations to “squatting.” to its small size, its proximity, & the fact that the claimants to the dispute treated
the 2 as a single unit. The most frequently used principle in this case is called uti
iii. ESTOPPEL
possidetis juris which states that newly formed sovereign states should have the
• If the conditions are satisfied, estoppel suffices to settle the issue. same borders that they had before their independence. This comes into play
• Resting on good faith and the principle of consistency in state relations, estoppel may involve frequently throughout the case because several borders were reassigned or
holding a govt to a declaration in which in fact does not correspond to its real intention, if the claimed by multiple parties over time. The court reinforces the notion that respect
declaration is unequivocal and the state to which it is made has relied on it to its detriment. must be given to the originally established sovereign territory of nations. The
• Temple – The Court held that by its conduct, Thailand had recognized the frontier line Chamber discussed at length the value of topographical features that provide
contended for by Cambodia in the area of the temple, as marked on the map drawn up by readily available boundary lines in a material aspect that conveniently prevent any
French members of a Mixed Delimitation Commission. ambiguity or reasons for dispute.
• Acting State Secretary – The declaration that Johor did not possess sovereignty over Pedro • Eastern Greenland v. Norway
Branca did not give rise to an estoppel. A party relying on an estoppel must show that it has o somewhat localized Danish activity gave title over the whole of Greenland; the
taken distinct acts in reliance on the other party’s statement. permanent court was not swayed by the significance of unity isolated from the
context of effective occupation. Contiguity may be in itself an earnest of the
C. NEGATIVE PRESCRIPTION principle of effectiveness.

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• Conclusion: the principle of contiguity is little more than a technique in the application of the obtained independence in 1960 following decolonization. Later, the Organization of African
normal principles of effective occupation. In the case of islands in particular the notion of Unity, comprised of African Heads of State, was formed. In 1975, the Head of State of Mali
contiguity may be unhelpful because the principle by its very nature is uncertain and made a statement indicating a lack of respect for the existing boundaries between Mali and
contested that even governments of the same state have on different occasions maintained Burkina Faso. Mali and Burkina Faso later submitted to a Chamber of the International
contradictory opinions as to its soundness. Court of Justice the question of the proper demarcation of boundary lines between the two
States.
Land, Maritime, and Frontier Dispute
Issue: Whether the principle of Uti Possidetis applies
Facts: El Salvador and Honduras wants to delimit the frontier line that are not delimited
by the 1980 General treaty of Peace concluded by the two States.
Ruling: The Chamber explains that international law (and therefore the principle of uti
possidetis) applies to the new State as from its accession to independence. Since the two
Issue: Whether El Tigre, Meanguera, and Meanguerita belong to El Salvador or Honduras
Parties have, as noted above, expressly requested the Chamber to resolve their dispute
on the basis, in particular, of the "principle of the intangibility of frontiers inherited from
Ruling: As to Meanguerita, it is a dependency of Meanguera because the chamber ofund
colonization", the Chamber cannot disregard the principle of uti possidetis juris, the
it to be very small, uninhabited and contiguous to Meanguera. El Salvador has claimed
application of which gives rise to this respect for intangibility of frontiers.
Meanguera since 1954 and its presence intensified through the years. Hence, both
Meanguerita and Meanguera go to El Salvador. Meanwhile, El Tigre goes to Honduras
because the latter had occupied the former since 1849. Highlighted by Brownlie: The essence of the principle lies in its primary aim of securing
respect for territorial boundaries at the moment when independence is achieved. Such
Highlighted by Brownlie: In relation to islands contiguity is a relevant concept.Thus, territorial boundaries might be no more than delimitations between different administrative
in Land, Maritime and Frontier Dispute, the Chamber held that the island of Meanguerita divisions or colonies all subject to the same sovereign. In that case, the application of the
was a dependency of the larger island of Meanguera, due to its small size, its proximity, principle of uti possidetis resulted in administrative boundaries being transformed into
and the fact that the claimants to the dispute treated the two as a single unit. international frontiers in the full sense of the term.

(B) THE UTI POSSIDETIS PRINCIPLE


(C) ACCRETION
• Definition: Newly formed sovereign states should have the same borders that their preceding
dependent area had before their independence. The concept provides that states emerging • Concerns the process of increase of territory through new geological formations
from the dissolution of a larger entity inherit as their borders those administrative boundaries o Example: Deposits on a sea cost may result in an extension of sovereignty or
which were in place at the time of independence. emergence of an island within the territorial sea due to volcanic activity.
• Essence of the principles lies in its primary aim of securing respect for territorial boundaries
at the moment when independence is achieved. Such territorial boundaries might be no more (D) HYDRAULIC BOUNDARIES
than delimitations between different administrative divisions or colonies all subject to the (I) BOUNDARY RIVERS
same sovereign. • The principle of delimitation apparently established in the law is that of the thalweg, presumed
• The operation of the principle does not always give satisfactory solutions: to mean the middle of the main navigable channel. However, the term may have another
o The administrative boundaries are frequently ill-defined or difficult to prove. meaning in particular instruments and treaties, viz., the line of deepest soundings.
Furthermore, the colonial boundaries on which the future of contested regions now • The two definitions will often coincide. But conditions prevailing, even within the same river
rely were often not drawn in the first place, leading to the inclusion of opposed system, are very variable and the learning in the books tends to be unhelpful in practice.
groups within the same new state. Expertise is called for, particularly in relation to the determination of the main channel among
o May impede the recognition of new states due to the unwillingness of states to several arms of a river. Unlike purely terrestrial borders, boundary rivers may change their
acknowledge a desire for independence contrary to uti possedetis. course. This is not a true case of accretion.
o In a worst-case scenario, it may result in a failed state. • Sudden, forcible, & significant changers in river courses (avulsion) will not be considered to
• Pre-independence boundaries of former administrative divisions subject to the same have changed a frontier line. The boundary will be fixed along the route of the former river
sovereign remain in being is in accordance with good policy. 3 arguments are used to justify bed, following not the river but the land underneath. Accretion is the gradual & imperceptible
this conclusion: addition of sediments, and it can give rise to an extension of sovereignty of the co-riparian to
o Doctrine renders the division of a state susceptible to only 1 outcome, preventing areas already under effective occupation on the basis of principles of contiguity & certainty.
armed conflict over territory; The gradual nature of the process leads to a presumption of occupation by the riparian state
o A division based on administrative boundaries is as valid as any other approach in & one of acquiescence by other states; thus the boundary will be held to move with the river.
principle, & far simpler in execution; and (II) BOUNDARY LAKES
o Uti possidetis has achieved the status of a general principle or default rule of • The principle of the median line applies, but as usual express agreement or acquiescence
international law. may produce other modes of division.

Burkina Faso/Mali

Facts: Burkina Faso (previously the Republic of Upper Volta) and the Republic of Mali each
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(E) THE POLAR REGIONS: THE SECTOR PRINCIPLE • What is sovereignty?
• The sovereignty of states represents the basic constitutional doctrine of the law of nations,
• Particularly in the case of the Arctic, the question of rights over frozen sea or ‘ice territory’ which governs a community consisting primarily of states having, in principle, a uniform legal
arises, but otherwise normal principles apply to territory situated in polar regions. personality.
• In the making of claims to ice deserts and remote groups of islands, it is hardly surprising • If international law exists, then the dynamics of state sovereignty can be expressed in terms
that governments should seek to establish the limits of territorial sovereignty by means of of law. If states are conceived of as sovereign, then in this respect at least they are equal,
straight lines, and similar systems of delimitation may be found in other regions and their sovereignty is in a major aspect a relation to other states (and to organizations of
• In the polar regions use has been made of lines of longitude converging at the Poles to states) defined by law.
produce a sector of sovereignty. While the ‘sector principle’ does not give title, it may • The corollaries of the sovereignty and equality of states are:
represent a reasonable application of the principles of effective occupation as they are now o (a) a jurisdiction, prima facie exclusive, over a territory and the permanent
understood, and as applied in Eastern Greenland. It remains a rough method of delimitation, population living there;
and has not become a separate rule of law. o (b) a duty of non-intervention in the area of exclusive jurisdiction of other states;
• Confusion of claims has arisen primarily from the indecisive nature of state activity in the and
polar regions. However, three reservations may be made: o (c) the ultimate dependence upon consent of obligations arising whether from
o the ‘sector principle’ has the defects of any doctrine based upon contiguity; customary law or from treaties.
o its application is a little absurd insofar as there is claim to a narrow sliver of o The last of these has certain special applications: in principle the jurisdiction of
sovereignty stretching to the Pole; and, international tribunals depends on the consent of the parties; membership of
o lastly, it cannot apply so as to include areas of the high seas. international organizations is not obligatory; and the powers of the organs of such
organizations to determine their own competence, to take decisions by majority
6. TERRITORIAL SOVEREIGNTY AND PEREMPTORY NORMS vote, and to enforce decisions depend ultimately on the consent of member states.
• The manner in which the law expresses the content of sovereignty varies, and much of the
(A) TRANSFER BY AN AGGRESSOR law could be expressed in terms of the co-existence and conflict of sovereignties.
• States alone can confer nationality for purposes of municipal law, delimit the territorial sea,
• Modern law forbids conquest and regards a treaty of cession imposed by force as a nullity, a and decide on the necessity for action in self-defense. Yet in all these cases the exercise of
logical extension of the prohibition on the use of force. the power is conditioned by international law, and compliance with those conditions is not a
• The territory of a state shall not be the object of acquisition by another state resulting from matter for the acting state alone.
the threat or use of force. No territorial acquisition resulting from the threat or use of force
shall be recognized as legal. 2. SOME USE OF SOVEREIGNTY
• Why does the law forbid conquest?
• Why was conquest previously allowed? (A) THE COMPETENCE OF STATES
• Why is conquest no longer recognized? Art. 2(4) of the UN charter states the prohibition
of use or threat of force in connection with the principle of intertemporal law. • The term ‘sovereignty’ is variously used to describe the legal competence which states have
in general, to refer to a particular function of this competence, or to provide a rationale for a
(B) THE PRINCIPLE OF SELF-DETERMINATION AND TERRITORIAL TRANSFERS particular exercise of this competence.
• In its most common modern usage, however, the term is rather descriptive in character,
• Is there a rule of law inhibiting the transfer of territory if certain minimum conditions of local referring in a ‘catch-all’ sense to the collection of rights held by a state, first in its capacity as
consent are not fulfilled? Dispositions by the principal powers, transfers under procedures the entity entitled to exercise control over its territory and second in its capacity to act on the
prescribed by international organizations, and bilateral cessions in the period since 1919 international plane, representing that territory and its people.
have been expressed to be in accordance with the principle of self-determination. • Sovereignty is not to be equated with any specific substantive right, still less is it a
• The machinery of the plebiscite is sometimes applied, or affected individuals may be given precondition to state-hood. Thus jurisdiction, including legislative competence over national
an option of nationality and/or repatriation. Some opinions support the view that transfers territory, may be referred to by the terms ‘sovereignty’ or ‘sovereign rights’. Sovereignty may
must satisfy the principle. However, there is insufficient practice to warrant the view that a refer to the title to territory or to the rights accruing from the exercise of title.
transfer is invalid simply because there is no sufficient provision for expression of opinion by • The correlative duty of respect for territorial sovereignty, and the privileges in respect of
the inhabitants. At present most claims are made in terms which do not include a condition territorial jurisdiction referred to as sovereign (or state) immunity, are described after the
as to due consultation of the population concerned. same fashion.
• Those jurists who insist on the principle refer to exceptions, in particular the existence of a • In general ‘sovereignty’ characterizes powers and privileges resting on customary law which
collective decision of states representing the international community to impose measures are independent of the particular consent of another state.
on an aggressor, and the principle of respect for pre-independence administrative divisions
following attainment of independence by former colonies (uti possidetis). (B) SOVEREIGNTY AS EQUALITY

• A corollary of their independence is the equality of states, historically expressed by the maxim
CHAPTER 20: SOVEREIGNTY AND EQUALITY OF STATES
par in parem non habet imperium (equals have no sovereignty over each other is a general
principle of international law, forming the basis of state immunity. Because of this principle,
1. THE CONCEPT OF SOVEREIGNTY a sovereign state cannot exercise jurisdiction over another sovereign state.)

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• In international law, the maxim is frequently invoked as a basis for state immunity, at the core the Wimbledon. Allowing the ship to pass cannot be imputed to Germany as a failure to
of which (in its restricted modern application) is the concept of equality between sovereigns. fulfill its duties as a neutral, for Germany's neutrality would have remained intact and
But equality has further implications: it refers to the juridical conceptualization of the division irreproachable.
of power between states. Obviously, the allocation of power and the capacity to project it in
reality are different things, which suggests that while all states are equal, some are more Highlighted by Brownlie: Permanent Court firmly rejected the argument that a treaty
equal than others. provision could not deprive a state of the sovereign right to apply the law of neutrality to
• But nonetheless formal equality remains and has meaning. vessels passing through the Kiel Canal. The Court held that the idea that the treaty
• When, by legislation or executive decree, a state delimits a fishing zone or the territorial sea, restrained Germany’s sovereign right to impose the law of neutrality on the Kiel Canal
the manner and provenance of the exercise of such power is in the first place a matter for was fallacious. The treaty itself was an expression of conduct to which the state consented
the state. But when it is comes to enforcing the limit vis-à-vis other states, the issue is placed to be bound. Rather than removing the right to apply the law of neutrality to the Kiel Canal,
on the international plane. Similarly, the conferral or withdrawal of nationality may lead to a it created an obligation to exercise that right in a certain way, with the capacity to enter
collision of interest between two states as to the right to exercise diplomatic protection. One into an agreement giving rise to an internationally binding obligation being itself an
might conclude that the criterion depends on a distinction between internal competence—no attribute of sovereignty
outside authority can annul or prevent the internally valid act of state power—and
international responsibility for the consequences of the wrongful exercise of that competence.
This distinction certainly has wide application, but it is not absolute in character. Asylum (Colombia v. Peru) - Diplomatic Asylum

3. THE INTERACTION OF STATES WITH INTERNATIONAL LAW Facts: Peru issued an arrest warrant against Haya dela Torre in respect of the crime of
military rebellion which happened in Peru. Three months after the rebellion, Torree fled to
(A) SOVEREIGNTY AND THE APPLICATION OF RULES the Colombian Embassy in Lima, Peru. The Colombian Ambassador confirmed that Torre
was granted diplomatic asylum and requested safe passage for Torre to leave Peru.
(I) THE PERFORMANCE OF OBLIGATIONS ARISING FROM TREATIES However, Peru refused to accept the unilateral qualification and refused to grant safe
passage. The Colombian government claims that it had right to grant asylum under
• One of the central canons of the customary international law of treaties is the rule pacta sunt agreements between the states and the regional custom in the Latin American States.
servanda, it is the notion that states must comply with their obligations in good faith.
Issue: Whether the Colombian government can grant asylum under regional custom
SS Wimbledon (Wimbledon v. Germany)

Facts: There was a war going on between Poland and Russia. S.S. Wimbledon, a Ruling: No. The Party which relies on a custom of this kind must prove that this custom
steamship, was used to deliver munitions and supplies to Poland. When it was about to is established in such a manner that it has become binding on the other Party... (that) it is
pass the Kiel Canal in Germany, it was refused passage because Germany issued in accordance with a (1) constant and uniform usage (2) practiced by the States in
neutrality orders wherein it wished not to support either Russia or Poland. The French question, and that this usage is (3) the expression of a right appertaining to the State
Ambassador at Berlin requested the German government to withdraw the prohibition and granting asylum (Colombia) and (4) a duty incumbent on the territorial State (in this case,
to allow S.S. Wimbledon to pass through the Kiel Canal, in conformity with Article 380 of Peru). Furthermore, very few states had ratified the conventions which Colombia relied
the Treaty of Versailles. However, the German government still refused. They argued that on and there was significant discrepancy in the practice of asylum. Even if Colombia could
Article 380 of the Treaty of Versailles did not have the effect of limiting their sovereignty prove that such a regional custom existed, it would not be binding on Peru, because Peru
over their land. Because of Germany’s refusal to let S.S. Wimbledon to pass through the repudiated it by refraining from ratifying the Montevideo Conventions of 1933 and 1939,
Kiel Canal, there was a delay in the delivery of the shipment (the boat was detained for which were the first to include a rule concerning the qualification of the offence in matters
eleven days and it took two extra days to find another route). The plaintiffs (“British et. al of diplomatic asylum.
governments”) thus filed this case with the Permanent Court of International Justice. They
claim that Germany violated the Treaty of Versailles. They also claimed damages for the Highlighted by Brownlie: The ‘jurisdictional geography’ of the problem may provide
lost time and money in the transport of the goods useful indications: more than one sovereignty may be involved. Thus in Asylum the Court
stressed the fact that diplomatic asylum involves a derogation from sovereignty as
Issue: Whether the state is obligated to allow free passage based on a treaty even if it represented by the normally exclusive jurisdiction of the territorial state.
would violate its right to neutrality in times of war

Ruling: It is clear from Art. 380 of the Treaty that Germany is obligated to allow free (II) INTERPRETATION OF TREATIES
passage to all vessels, without distinction as to the nature of their cargo or their
destination. The only vessels which cannot pass through are those belonging to nations • Can states limit sovereignty by way of treaty?
at war with Germany. In this case, British et. al governments were not at war with • International court has referred to sovereign rights as a basis for restrictive interpretation
Germany. If free access to the Kiel Canal could be modified in the event of German of treaty obligations.
neutrality, then the Treaty should have said so. Its omission should thus be construed as • But under the unitary theory interpretation set out in VCLT Article 31 and customary
an intentional exclusion. Also, the German neutrality orders could not preempt the international law, everything depends on the context, the intention of the parties, and
provisions of the Treaty of Versailles because Article 380 explicitly authorized passage of the relevance of other, countervailing, principles such as that of effectiveness. In certain

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contexts, this application of other canons of interpretation has led to a complete reversal Several members of the UN submitted notes regarding their views.
of the restrictive approach, particularly in circumstances where a dispute concerns a
state and a private party. Issue: Whether the expenditures should be considered expenses of the Organization
• Investor-state arbitration tribunals are particularly forward in this respect, often holding
that international investment agreements be interpreted either neutrally or for the benefit
of the private investor. Ruling: The Court agreed that these expenditures must be tested by their relationship to
the purposes of the United Nations in the sense that if it was made for a purpose which
(III) PRESUMPTION AND BURDENS was not one of the purposes of the United Nations, it could not be considered an "expense
of the Organization.” When the Organization took action which warranted the assertion
that it was appropriate for the fulfilment of one of the purposes of the United Nations set
• Many areas of international law are uncertain or contain principles which do not admit
forth in Article 1 of the Charter, the presumption was that such action was not ultra vires
of easy application to concrete issues.
the Organization. Personal Note: Basically, point here is that if the action fulfills a purpose
• Thus, much could turn on the answer to the question whether there is a presumption in
as stated in the Charter, then the expenditures there are supposed to fall under Art. 17.
favour of sovereignty.
In a previous case, the Court has already declared that obligations of the Organization
• In another form the issue is whether, in case of doubt as to the mode of application of might be incurred by the Secretary-General acting on the authority of the Security Council
rules or in case of an absence of rules, the presumption is that states have legal
or of the General Assembly, and that the General Assembly "has no alternative but to
competence or not. honour these engagements". It was apparent that the UNEF operations were undertaken
• There is no general rule, and in judicial practice issues are approached empirically. to fulfil a prime purpose of the United Nations, that is, to promote and maintain a peaceful
Indeed, a general presumption of either kind would lead to inconvenience or abuse. The settlement of the situation. It necessarily follows that since these resolutions were adopted
context of a problem will determine the incidence of the burdens of proof of a given with the requisite 2/3 majority, then the Members must have concluded that the expenses
issue: whether that produces a burden of proving a restriction on sovereignty will vary. of UNEF were "expenses of the Organization" since otherwise the General Assembly
would have had no authority to decide that they "shall be borne by the United Nations" or
(B) SOVEREIGNTY AND INTERNATIONAL ORGANIZATIONS to apportion them among the Members. For ONUC expenses, These operations did not
involve "preventive or enforcement measures" against any State under Charter VII and
• The institutional aspects of organizations of states result in an actual, as opposed to a formal, therefore did not constitute "action" as that term was used in Article ll. Recalling the
qualification of the principle of sovereign equality. General Assembly resolutions contemplating the apportionment of the expenses in
• In an organization subject to majority or weighted voting, organs may be permitted to take accordance with the scale of assessment for the regular budget, concluded that the
decisions, and even to make binding rules, without the express consent of all member states. General Assembly had twice decided that even though certain expenses were
But on joining the organization each member consented in advance to the institutional "extraordinary" and "essentially different" from those under the "regular budget", they were
aspects, and thus in a formal way the principle that obligations can only arise from the none the less "expenses of the Organization”.
consent of states and the principle of sovereign equality are satisfied.
• On the other hand, international organizations can evolve and may assume roles very
Highlighted by Brownlie: In the case of the UN the organs have interpreted the Charter
different to that initially contemplated.
in accordance with the principles of effectiveness and implied powers at the expense, it
• If an organization encroaches on the domestic jurisdiction of members to a substantial degree
may seem, of Article 2(1) and (7).24 In Certain Expenses, the Court held that in the
the structure may approximate to a federation. Given the modern conception of the
absence of any particular procedure to determine the validity of the acts of the UN’s
relationship between states and international organizations, such a position seems inherently
institutions, each of them must determine its own jurisdiction.
unlikely, and in any event, the consent-based conception of this relationship precludes the
argument that state sovereignty is under threat from some form of overarching ‘world
government’.
• Pending an (unlikely) revolution, ‘world government’ is an essentially decentralized
(C) ARTICLE 2(7) OF THE UN CHARTER: DOMESTIC JURISDICTION
enterprise, something international law provides because states have accepted it: it is the
government we have when we are not having a government.
• Matters within the competence of states under general international law are said to be within
the reserved domain, the domestic jurisdiction, of states.
Certain Expenses
(I) ORIGINAL INTENT
Facts: The General Assembly, by a resolution, requested the ICJ to give an advisory
opinion on this question: (basically sobrang daming expenditures as you’ll see in the ruling
• The advent of international organizations with powers to settle disputes on a political basis
but can be divided into 3 main categories) Do the expenditures authorized in the General
caused some states to favour express reference to the reserved domain in order to reinforce
Assembly Resolutions constitute expenses of the Organization within the meaning of Art.
state sovereignty. Article 15(8) of the League of Nations Covenant provided, in relation to
17, Par. 2 of the UN Charter? First category: Ones which relate to the UN Operations in
disputes submitted to the Council as distinct from arbitration or judicial settlement:
the Congo in pursuance to several Security Council resolutions (ONUC EXPENSES).
Second category: Ones which relate to the expenditures in several General Assembly Article 15 (8) League of Nations Covenant: If the dispute between the parties is claimed by
Resolutions. Third category: Those relating to the operations of the UN Emergency Force one of them, and is found by the Council, to arise out of a matter which by international law
undertaken in pursuance to other General Assembly resolution (UNEF EXPENSES). is solely within the domestic jurisdiction of that party, the Council shall so report, and shall
make no recommendation as to its settlement.

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• In making a political settlement the Council might well touch on the reserved domain, since CHAPTER 21: JURISDICTIONAL COMPETENCE
this contains matters frequently the cause of disputes, and the need to write in the legal limit
of action was apparent.
• During the drafting of the UN Charter similar issues arose, and the result was Article 2(7): 1. OVERVIEW
Article 2(7) United Nations Charter: Nothing contained in the present Charter shall authorize
the United Nations to intervene in matters which are essentially within the domestic • Jurisdiction is an aspect of sovereignty: it refers to a state’s competence under international
jurisdiction of any State or shall require the Members to submit such matters to settlement law to regulate the conduct of natural and juridical persons.
under the present Charter; but this principle shall not prejudice the application of enforcement • The notion of regulation includes the activity of all branches of government: legislative,
measures under Chapter VII. executive, and judiciary.
• Although the state is conceive in the international law as a single unit, nonetheless for
• Certain contrasts with Article 15(8) of the Covenant will be apparent. There is no reference
purposes of analyzing jurisdiction and its limits some distinctions are usually made:
to international law, the reference is to matters ‘essentially’ within the domestic jurisdiction,
and there is no designation of the authority which is to have the power to qualify particular o Prescriptive Jurisdiction – power to make laws, decisions, or rules.
o Enforcement or Adjudicative Jurisdiction – power to take executive or judicial
matters. Article 2(7) of the Charter was intended to be flexible and non-technical. At the same
action in pursuance of or consequent on the making of decisions or rules.
time the restriction was meant to be comprehensive, the use of the formula ‘essentially within’
stemming from the wide implications of the economic and social provisions of the Charter • There is a presumption that jurisdiction (in all its forms) is territorial, and may not be exercised
(Chapter IX). extra-territorially without specific basis in international law. However, the territorial theory has
been refined in light of experience and appreciation of extra-territorial jurisdiction.
(II) THE PRACTICE OF THE POLITICAL ORGANS • Cardinal Principle (emerging) – Genuine connection between the subject-matter of
jurisdiction and the territorial base or reasonable interests of the state in question.
• But these intentions have in practice worked against each other. The flexibility of the • Sufficiency of grounds for jurisdiction is normally considered relative to the rights of other
provision, and the assumption in practice that it does not override other, potentially states.
conflicting, provisions have resulted in the erosion of the domain of domestic jurisdiction,
although the drafters intended its reinforcement. Moreover, the word ‘intervene’ has been 2. PRESCRIPTIVE JURISDICTION OVER CRIMES
approached empirically. Discussion, recommendations in general terms, and even
resolutions addressed to particular states have not been inhibited by the formulation of Article A. GENERAL BASES OF JURISDICTION
2(7).
• Ultimately, the early debates about the meaning of the term ‘to intervene’ in the context of • General principles for determining whether a state may prescribe acts as criminal under
Article 2(7) have lost their importance. Over time, it has been proved that the provision does municipal law.
not serve as an effective restraint on the activities of the UN. This is not due to a narrow • Lotus Case1927): Case concerning the collision in the high seas between French steamer
interpretation of the term ‘intervention’ but to a narrowing of those things which are seen as and a Turkish collier in which the latter sank and Turkish crew members and passengers
solely within the domestic jurisdiction of states. died.
• The question whether a certain matter is or is not solely within the jurisdiction of a State is an o Permanent Court ruling on the question of jurisdiction on general said that “Far
essentially relative question; it depends on the development of international relations. The from laying down a general prohibition to the effect that States may not extend
implications are far-reaching: This means that the concept of ‘domestic jurisdiction’ does not application of their laws and the jurisdiction of their courts to persons, property or
denote specific areas which are clearly defined, irreducible or in any way inherently removed acts outside their territory, International law leaves States in a wide measure of
from the international sphere. It rather circumscribes areas which, taking into account the discretion which is only limited in certain cases by prohibitive rules; as regards
situation at issue, are not even prima facie affected by rules of international law. In order to other cases, every State remains free to adopt the principles which it regards as
remove an area from the sphere of domestic jurisdiction, it is sufficient that this area be best and most suitable.”
regulated by international law only in certain respects. • The ruling in the SS Lotus Case emphasizing on plenary state discretion is contradicted by
• UN organs have taken action on a wide range of topics dealing with the relations of the approach of the Court in Anglo-Norwegian Fisheries Case(1951) and Nottebohm Case
governments to their own people. Resolutions on breaches of human rights, the right of self- (1955).
determination, and democratic governance have been adopted regularly. If the organ • Permanent Court’s statement that “all that can be required of a state is that it should not
concerned felt that the acts complained of were contrary to the purposes and principles of overstep the limits which international law places upon its jurisdiction; within these limits, its
the Charter and also that the issue was ‘endangering international peace and security’, a title to exercise jurisdiction rests in its sovereignty” remains correct.
resolution was passed. security.
Arrest Warrant (Democratic Republic of Congo v. Belgium)
Question
• What is the doctrine of auto-limitation state? Any state may by its consent, express Facts: An investigating judge of Brussel issued an international arrest warrant in absentia
of implied, submit to a restriction of its sovereign rights. There may thus be a curtailment against Mr. Abdulaye Yerodia Ndombasi, Minister of Foreign Affairs of Congo, charging
of what otherwise is a plenary power. In the language of Jellineck, it “is the property of him as perpetrator or co- perpetrator of offenses constituting grave breaches of Geneva
a state-force due to which it has the exclusive capacity of legal determination and self- Conventions of 1949 and of Additional Protocols, and with crimes against humanity.
restriction.” A state then, if it chooses to, may refrain from the exercise of what otherwise Congo instituted proceedings before ICJ, requesting Belgium to annul the arrest warrant.
is illimitable competence. (Reagan v. CIR G.R. L-26379) Congo’s arguments include that this constituted a violation of the principle of sovereignty,
violation of diplomatic immunity of the Minister of Foreign Aggairs, and violation of

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immunity from criminal process under customary international law. • Territorial and nationality principles (as well as the increasing incidence of dual nationality)
create parallel jurisdictions and possible double jeopardy, and many states place limitations
Issue: Whether Mr. Abdulaye Yerodia Ndombasi was immune from criminal prosecution on the nationality principle (for example by confining it to serious offenses).
o But such limitations are not required by international law. The practice of limiting
the use of nationality jurisdiction to serious offenses is largely common law in
Ruling: Yes, because Ndombasi enjoys immunity under customary international law. The origin, with civil law countries applying a more expansive approach.
Court finds that the cited Conventions provide useful guidance on certain aspects of the
• For nationality jurisdiction, it is often asserted that the person over whom the state purports
question of immunities, but that they do not contain any provision specifically defining the
to exercise its prescriptive jurisdiction must have been a national at the time of the offense.
immunities enjoyed by Ministers for Foreign Affairs. After an examination of Minister of
o Otherwise, it is argued, a violation of the principle of nullum crimen sine lege could
Foreign Affairs’ functions, the Court concludes that they are such that, throughout the
occur
duration of his or her office, a Minister for Foreign Affairs when abroad enjoys full immunity
o However, some states provide for nationality jurisdiction over persons who
from criminal jurisdiction and inviolability.
subsequently acquire their nationality as state practice is varied.

Highlighted by Brownlie: Following Arrest Warrant, there are hints that it has been iii. THE PASSIVE PERSONALITY PRINCIPLE
reversed: if a state wishes to project its prescriptive jurisdiction extra-territorially, it must
find a recognized basis in international law for doing so. This shift in focus is, however, • Reverse of the nationality principle.
largely cosmetic, and in general the Permanent Court’s statement that ‘all that can be • According to this principle, aliens may be punished for acts abroad harmful to nationals of
required of a State is that it should not overstep the limits which international law places the forum.
upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its • Cutting Case: Mexican court exercised jurisdiction in respect of publication by a US citizen
sovereignty’ remains correct. in a Texas newspaper of a matter defamatory of a Mexican citizen. The court applied the
passive nationality principle. This led to diplomatic protests from the US, although the
outcome was inconclusive.
i. THE TERRITORIAL PRINCIPLE • Lotus Case: Turkish penal code provided for the punishment of acts abroad by foreigners
against Turkish nationals; in effect it was a comprehensive exercise of passive jurisdiction.
• Courts of the place where the crime is committed may exercise jurisdiction is universally But the court declined to assess the law as such. The question was whether the specific
recognized. factual situation fell within Turkish jurisdiction, and the court held that it did, invoking the
• An application of the essential territoriality of sovereignty, the sum of legal competences protective jurisdiction.
which a state has. • Criticisms on the passive personality principle:
• Practical advantages in case of crime: 1. That it served no wider goal of criminal justice: it did not correspond to a domestic
o Convenience of the forum. conceptualization of jurisdiction, would not close an enforcement gap and lacked
o Presumed involvement of the interests of the state where the crime was committed. any social aim of repression.
• Extensive Application of Territorial Principle: 2. It could expose individuals to a large number of jurisdictions.
o Subjective Territoriality – which creates jurisdiction over crimes commenced within • However, such objections have not prevented the development of something approaching a
the state even if completed or consummated abroad. consensus on the use of passive personality in certain cases, often linked to international
o Objective Territorial Principle (generally accepted and often applied) – jurisdiction terrorism.
is founded when any essential constituent element of a crime is consummated on • Aut dedere aut iudicare provisions in most criminal law treaties authorize the use of passive
the forum state’s territory. personality jurisdiction as between state parties.
§ [Example] Firing of a gun across a border causing death on the territory
of the forum, but the principle can be employed to found jurisdiction in iv. THE PROTECTIVE OR SECURITY PRINCIPLE
cases of conspiracy, violation of antitrust and immigration laws by
activity abroad and in may other fields of policy. • Principle rests on the protection of concrete interests.
o Effect of Combination of the 2 principles: whenever the constituent elements of a • Nearly all states assume jurisdiction over aliens for acts done abroad which affect the internal
crime occur across an interstate boundary both have jurisdiction. or external security or other key interests of the state which are not necessarily confined to
political acts.
ii. THE NATIONALITY PRINCIPLE
• Currency, immigration, and economic offenses are frequently punished.
• UK and US alow significant exceptions to the doctrine of territoriality though without express
• Nationality, as a mark of allegiance and an aspect of sovereignty is also a generally
reliance upon protective principle.
recognized as a basis for jurisdiction over extra-territorial acts.
o UK courts have punished aliens for acts on the high seas concerning illegal
• Application of the principle may be extended by: immigration.
o Reliance on residence. o Joyce v. Director of Public Prosecutions – an alien who left the country in
o Other connections as evidence of allegiance owed by aliens. possession of a British passport owed allegiance and was accordingly guilty of
o Ignoring changes of nationality. treason when he subsequently broadcast propaganda for Germany in wartime.
• [Example] UK legislature has conferred jurisdiction on its courts in respect of, inter alia, • Concept of ‘protection’ may vary widely.
treason, murder, bigamy, soccer hooliganism, child sexual abuse, and breaches of the
Official Secrets Acts wherever committed by British nationals/residents.
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o Eichmann Case - Protective Principle was invoked in relation to Jewish victims of • Art. 218 of UNCLOS - granting port states the right to institute proceedings or impose
the accused, despite the fact that Israel was not a state when the offenses in monetary penalties for illegal discharges that occur outside their territorial sea and EEZ
question occurred. • Art. 23 of Straddling Stocks Agreement – Port state jurisdiction is also used as a response to
• Categories of what may be considered a vital interest for the purposes of protective illegal and unregulated fishing on the high seas. This sprovision is not the equivalent of
jurisdiction are not closed and no criteria exist for determining such interests beyond vague UNCLOS Art. 218 optimized for use in relation to fishing, but it does underwrite the use of
sense of gravity. existing port state jurisdiction in a certain fashion
• Art. 15 of UNESCO Convention on the Protection of Underwater Cultural Heritage – requires
v. THE EFFECTS DOCTRINE states to prohibit the use of their ports in support of any activity directed at underwater cultural
heritage which is not inconformity with the Convention
• Further head of prescriptive jurisdiction. • The practice of states on the relation between the national law of the aircraft and the law of
• Applicable where an extra-territorial offense causes some harmful effect in the prescribing any foreign territory over flown was not very coherent. However, work sponsored by the
state, without actually meeting the criteria of territorial jurisdiction or representing an interest Tokyo Convention which in Art. 3(1) provides that the state of registration of the aircraft is
sufficiently vital to the internal or external security of the state in question to justify invoking competent to exercise jurisdiction over offenses and acts committed on board and further
the protective principle. requires the state to take necessary measures to claim jurisdiction exercised in accordance
• Alcoa Case – Judge Hand stated that it was a ‘settled law’ that any state may impose with national law is not excluded.
liabilities, even upon persons not within its allegiance for conduct outside its borders which • Tokyo Convention prohibits states other than the state of registration interfering with an
has consequences withi its borders which the state reprehends. aircraft in flight, save where an offense committed on board:
o This position was then followed extensively in US antitrust jurisprudence 1. Has effect in the territory of the intercepting state
• The doctrine previously resembled closely the conception of various heads of prescriptive 2. Has been committed by or against a national or permanent resident of such state
jurisdiction, but it has now changed its perspective. It is possible to speak of antitrust 3. Is against the security of the state
jurisdiction, tort jurisdiction, and taxation jurisdiction, with some of these having a broader 4. Consists of a breach of any rules or regulations relating to the flight of aircraft
extra-territorial reach than others. • Aircraft hijacking has prompted multilateral conventions creating duties for states to punish
• This has the potential to muddy the waters, resulting in the uncertain position of the effects the seizure of aircraft in flight and to exercise jurisdiction in specified conditions.
doctrine within international law as either a head of prescription in its own right, or a subject-
driven application of the territorial or protective principles with unusual reach. C. UNIVERSAL JURISDICTION

B. JURISDICTION OVER SHIPS AND AIRCRAFT i. DEFINING UNIVERSAL JURISDICTION

• Relation between the territorial sovereign and the flag state in the matter of jurisdiction over • Universal jurisdiction amounts to the assertion of Criminal jurisdiction by a state in the
private vessels in ports or other internal waters. absence of any other generally recognized head of prescriptive jurisdiction.
• The view that a ship is a floating part of state territory is no longer recognized, but the special • O’Keefe – Universal jurisdiction can be defined as prescriptive jurisdiction over offenses
character of the ‘internal economy’ of ships is still recognized. committed abroad by persons who, at the time of commission, are non-resident aliens, where
• Rule: law of the flag depends on the nationality of the ship and that the flag state has such offenses are not deemed to constitute threats to the fundamental interests of the
regulatory responsibility for and jurisdiction over the ship. prescribing state or in appropriate cases, to give rise to effects within its territory.
• But when a foreign ship enters a port, except as a consequence of distress, temporary • Some states have adopted, with limitations, a principle allowing jurisdiction over acts of non-
allegiance is owed to the territorial sovereign and concurrent jurisdiction arises. nationals where circumstances, including nature of crime, justify repression as a matter on
• In principle, there are no limits provided action is taken with regard only to breached of local international public policy. In this sense, universal jurisdiction is defined by the character of
law and not to breached of rules set by the law of the flag state. the crime concerned rather than by the presence of some kind of nexus to the rpescriing
• UK during the preparatory work of the Hague Codification Conference: State is entitled to state
exercise jurisdiction over a foreign merchant vessel lying in its ports and over persons and • Prosecution of crimes under customary international law is often expressed as an acceptance
goods on board. In criminal matters it is not usual for the authorities to intervene and enforce of the principle of universality, but it is not strictly correct, since what is punished is the breach
the local jurisdiction, unless their assistance is invoked by, or on behalf of the local of international law.
representative of the flag State. In every case it is for the authorities of the state to judge
whether to intervene. ii. THE CONTENT OF UNIVERSAL JURISDICTION
• On this view derogation from the exercise of local criminal jurisdiction is a matter of comity
and discretion, but may be invoked in practices where: • Some commentators have argued for its extension on moral or public policy grounds, and
1. The act in question disturbs the peace and order of the port. that universal jurisdiction accordingly applies to certain crimes under customary international
2. Assistance is requested by the captain or representative of the flag state of the law the commission of which is generally accepted as an attack upon the international order.
ship. • The original crime to which universal jurisdiction attached was that of piracy iure gentium,
3. A non-crew member is involved. followed by slavery. In modern times it extended to so called “core crimes” of customary
• Port state jurisdiction is increasingly recognized as a remedy for the failure of flag states to international law: genocide, crimes against humanity and breached of the Geneva
exercise effective jurisdiction and control of their ships. Conventions of 1949 and Torture within the meaning of the Torture Convention.
• Jurisdiction is no longer used solely to enforce local questions of civil and criminal law, but is • Whether aggression can be considered a crime of universal jurisdiction – a better view states
actively playing a role in the international regulatory sphere. that it is not.

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• Jurisdiction is extended on a case-to-case basis in customary international law, with the • [Example] Art. 4(2) of Convention for the Suppression of Unlawful Seizure of Aircraft (Hague
notion of an attack upon the international order being a necessary but not sufficient condition. Convention) – Each Contracting party shall likewise take such necessary measures as may
be necessary to establish its jurisdiction over the offense in the case where the alleged
Eichmann (Attorney General of the Government of Israel v. Eichmann) offender is present in its territory and it does not extradite him pursuant to Art. 8 to any of the
States mentioned in Par. 1 of this Article.
Facts: Eichmann (one of Hitler’s high ranking generals) was tried before an Israel Court • Ryngaert: The operation of the aut dedere requirement is indeed limited to States Parties,
for war crimes he allegedly committed during the Second World War – more particularly which pool their sovereignty and explicitly authorize each other to exercise jurisdiction over
genocide against he Jewish Race. crimes committed by their nationals or on their territory.
• However, that has not prevented certain states from insisting on the application of sui generis
Issue: Whether the Israel Court have jurisdiction even if the acts were committed bases of jurisdiction to nationals on non-states parties to the treaties in question.
elsewhere • Yunis Case: Lebanese national was prosecuted with respect to hijacking of Royal Jordanian
Airlines Flight from Beirut to Amman. Plane carried US nationals but was registered in
Jordan, flew the Jordanian flag and never landed on American soil or flew over American
Ruling: YES. When a person commits a crime against the law of nations such as piracy
airspace. Court found that it had universal jurisdiction to prosecute with respect to hijacking
(or in this case genocide), he becomes an enemy to all mankind – a hostis humani
and the taking of hostages of the accused. Although jurisdiction was grounded on the fact
generis. He places himself beyond the protection of any state. It is in fact the moral duty
that the Lebanon was a state party to the Hague and Montreal Conventions, Court further
of every state to enforce the natural right to punish such criminals guilty of the most
held that jurisdiction was also furnished by the provisions if the Hostage taking Convention
extreme violations of the laws of nature so detrimental to the welfare of the international
despite the fact that Lebanon and Jordan were not parties to that treaty.
community.
Thus, while as a general rule, criminal jurisdiction is territorial, the jurisdiction
of a state may extend to punishment of offenses against the laws of nations. Genocide 3. CIVIL PRESCRIPTIVE JURISDICTION
has already been recognized as such under various conventions
o Two views as to the law concerning civil jurisdiction:
Highlighted by Brownlie: The abhorrent crimes defined in [the Israeli Law] are not § Exorbitant assertions of civil jurisdiction could lead to international
crimes under Israeli law alone. These crimes, which struck at the whole of mankind and responsibility. As civil jurisdiction is ultimately reinforced by criminal
shocked the conscience of nations, are grave offences against the law of nations itself. sanction through contempt of court, there is in principle no great
Therefore, so far from international law negating or limiting the jurisdiction of countries difference between the problems created by assertion of civil and
with respect to such crimes, international law is, in the absence of International Court, in criminal jurisdiction over aliens.
need of judicial and legislative organs of every country to give effect to its criminal § There is little by way of limitation of a state’s exercise of civil jurisdiction
interdictions and bring criminals to trial. The jurisdiction to try crimes under international in what are effectively private law matters; different states assert
law is universal. jurisdiction on different grounds, but deference to foreign law through
conflicts rules mitigates any exorbitant elements.

iii. UNIVERSAL JURISDICTION IN ABSENTIA? A. THE BASIS OF CIVIL JURISDICTION IN DIFFERENT LEGAL TRADITIONS
o In order to satisfy international law standards in regard to the treatment of aliens a
• Although the notion of universal jurisdiction in absentia is not unknown in academic literature state must in normal circumstances maintain a system of courts empowered to
prior to the Arrest Warrant Case, it is not compelling. The court in that case felt that it could decide civil cases, and in doing so, be prepared to apply private international law
address immunity without deciding upon jurisdiction. in cases involving a foreign element.
• Universal jurisdiction is a manifestation of a state’s jurisdiction to prescribe. o As a general rule, the common law systems will assert jurisdiction over a foreign
• The question whether jurisdiction is exercised in personam or in absentia is a manifestation defendant who can be served with originating process. Though civil lawyers
of a state’s jurisdiction to enforce. complain of the perceived exorbitance of the service rule, common lawyers point
• In the context of Arrest Warrant, the Belgian law on war crimes and the issue of an arrest out that the defendant may challenge the exercise of the jurisdiction on the basis
warrant in support of that law were separate acts. that the appropriate forum is elsewhere.
• To speak of universal jurisdiction in absentia is to conflate prescriptive and enforcement of o Some common law jurisdictions have extended the concept of jurisdiction by
jurisdiction. service further still e.g. ‘minimum [territorial] contact’ in the US.
o In contrast, the civil law approach is predicated on the principle that, where
iv. TREATY BASED QUASI-UNIVERSAL JURISDICTION possible, the defendant ought to be sued in its domicile.
In a further significant difference with the common law, the notion of discretionary
• Arises from sui generis treaty regimes incorporating penal characteristics. refusal of jurisdiction is anathema to the civil law. As a general rule, if properly
• These regimes have for the most part been developed in order to respond to particular seized, a court will unable to decline jurisdiction unless expressly authorized to do
behaviors viewed as undesirable. by the terms of the Brussels 1 Regulation (On Jurisdiction and the Recognition and
Enforcement of Judgments in Civil and Commercial Matters).
• They require state parties to exercise mandatory prescriptive jurisdiction over certain
individuals within their territories, independent of any nexus.
• They are frequently characterized by the obligation of aut dedere aut iudicare, which will
compel a state party to either try the accused or extradite to a state that is willing to do so.

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B. JURISDICTION AND THE CONFLICT OF LAWS Issue: whether deliberate torture perpetrated under color of official authority violates
universally accepted norms of the international law of human rights, regardless of the
o Conflict of laws, also known as private international law, is concerned with issues nationality of the parties.
of the jurisdiction of national courts, the municipal law applicable to disputes with
foreign elements, and the cross-border enforcement of judgments. Ruling: The court ruled that prohibition not only was part of Customary International
• Mills – the adoption of an international systematic perspective on the conflict of laws reveals Law, but was also part of the Universal Declaration of Human Rights. Members of the
an ‘essential confluence’ of public and private international law, sharing as they do similar UN cannot claim ignorance of what human rights they promised the Charter. The
intellectual progenitors. UDHR is an authoritative statement of the international community. It creates an
o Nationality Principle is the defining jurisdictional principle for civil legal systems expectation of adherence. The international consensus surrounding torture has been
o Territoriality Principle pervasive notably in common law systems where the manifested in numerous treaties and is also reflected in modern municipal law.
presence of the defendant within the jurisdiction is sufficient to ground the court’s Torture is prohibited in the constitutions of over 55 nations including the US and
adjudicative power. Paraguay.
§ This perceived overreach is reduced by the use of forum non conveniens
to decline jurisdiction where another forum is better suited to hear the
matter; Highlighted by Brownlie: Apparently enacted for the purpose of providing a
§ In the US, consideration of ‘reasonableness’ may also come into play; recourse in tort for acts of piracy or the violation of safe conduct or of the rights of
§ Brussels I Regulation: Exclusive jurisdiction for certain courts, ambassadors,146 the statute fell dormant for almost two centuries before gaining
regardless of the defendant’s domicile, where the proceedings in modern importance in Filartiga v Peña-Irala, where the Second Circuit Court of
question have as their object rights in rem in immovable property or Appeals held that it was to be read as incorporating current customary international
tenancies in immovable property. law protective of individual rights.

C. THE ALIEN TORT STATUTE AND COGNATE LEGISLATION NOTE: However, read this vis-à-vis the Kiobel case
o The universality principle, as expressed in the Eichmann case, is most oft en associated
with the prosecution of particularly heinous crimes.
o Only a few states assert universal civil jurisdiction, that is, prescriptive jurisdiction absent
any minimal territorial or national nexus to the delict in question. 4. THE SEPARATENESS OF THE GROUNDS OF JURISDICTION
o Example: United States’ Alien Tort Claims Act 1789, now codified as the Alien Tort
Statute (ATS). A. THE RELATIONSHIP BETWEEN THE SEPARATE GROUNDS
o The ATS provides in its relevant part that ‘[t]he district courts shall have o The various principles held to justify jurisdiction over aliens are commonly listed as
original jurisdiction of any civil action by an alien for a tort only, committed in independent and cumulative, although some may be labelled ‘subsidiary’ to some
violation of the law of nations or a treaty of the United States’. others. However, the ‘principles’ are in substance generalizations of a mass of national
o Elements of Actionable Tort: provisions which by and large do not reflect categories of jurisdiction specifically
1. The plaintiff is an alien; recognized by international law.
2. The defendant is responsible for a tort; and o The various principles often interweave in practice.
3. The tort in question violates international law. o Thus, the objective applications of the territorial principle and also the passive
o Not every violation of international law will, however, be considered actionable. personality principle have strong similarities to the protective or security
o Sosa v. Alvarez-Machain – while falling short of articulating a coherent principle.
category, it limited the scope of the statute to ‘norm[s] of an international o Nationality and security may go together, or, in the case of the alien, factors
character accepted by the civilized world’. such as residence may support an ad hoc notion of allegiance.
o In this sense, the ATS draws its legitimacy at least to some extent from the
same well-spring as universal criminal jurisdiction over genocide, war crimes, B. CONSEQUENCES OF EXCESS OF PRESCRIPTIVE JURISDICTION
and crimes against humanity. (I) THE LEGAL POSITION
o If enforcement action is taken in a case of exorbitant jurisdiction with consequent injury,
Filartiga v. Pena-Irala an international wrong will presumably have been committed.
o The consequences of the mere passage of legislation asserting exorbitant jurisdiction
Facts: Pena tortured and killed Joselito, the son of Dr. Joel. When Dolly, daughter of remain an open question. The situation is clouded by the uncertain status of the
Dr. Joel found out that Pena and his partner, Villalaba, is living in the US, she statement in the Lotus that, in the absence of a rule in international law to the contrary,
informed the Immigration and Naturalization Service which, later on, arrested them a state may do whatever it pleases; although the various separate opinions in the Arrest
for staying beyond what is allowed in his visa. Dolly caused Pena to be served with a Warrant case may have signaled the reversal of this position, the reversal itself is
summons and civil complaint at the Brooklyn Navy Yard, where he was being held inchoate, and it remains to be seen whether it represents merely a cosmetic shift in
pending deportation. Dolly’s Complaint contained the fact that Pena had caused emphasis or something more substantive.
Joelito’s death by torture and sought (1) compensatory and punitive damages of
$10m and (2) to enjoin Pena’s deportation to ensure his availability for testimony at
trial. However, Judge Nickerson dismissed the complaint on jurisdictional grounds.

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(II) PRACTICAL CONSEQUENCES (C) RECOGNITION AND ENFORCEMENT ABROAD
o As a practical matter, whilst states may protest the use of exorbitant prescriptive (I) CRIMINAL JURISDICTION
jurisdiction by others, unless the prescribing state attempts to enforce the jurisdiction o In a criminal context, enforcement jurisdiction will ordinarily entail the pursuit and arrest
claimed, it is unlikely that any substantive legal action will be taken. of the accused, detention and trial, and the carrying out of any sentence.
o O’Keefe – although the concepts of jurisdiction to prescribe and jurisdiction to enforce o With respect to extra-territorial enforcement action leading to the capture of the
are logically independent, they are practically intertwined. accused, state consent can be given on ad hoc basis, but in circumstances where
o At the same time, a prescriptive statement—even absent immediate enforcement movement between two states is relatively regular and straightforward, bi- or multilateral
action—is fundamentally a threat, which may compel foreign nationals to alter their agreements may be entered into in order to provide standing orders for enforcement
behaviour. jurisdiction between states.
o This may cause the other state to take its own action in the form of a ‘blocking o Provision is also made by treaty for the enforcement of foreign criminal judgments. Here,
statute’, being a law enacted in one jurisdiction to obstruct the local (extra- there is generally a divide between the civil and common law approaches to the subject,
jurisdictional) application of a law enacted in another jurisdiction. with the latter rejecting in principle the enforcement of the penal law of another state.
o Civil law systems are less averse to the concept. Apart from trial in absentia, an
5. ENFORCEMENT JURISDICTION unsatisfactory procedure, states have to depend on the co-operation of the other states
in order to obtain surrender of suspected criminals or convicted criminals who are, or
(A) THE BASIC PRINCIPLE have fled, abroad. Where this co-operation rests on a procedure of request and consent,
o The governing principle of enforcement jurisdiction is that a state cannot take measures regulated by certain general principles, the form of international judicial assistance is
on the territory of another state by way of enforcement of its laws without the consent called extradition.
of the latter. Persons may not be arrested, a summons may not be served, police or tax o Since the attacks by al-Qaeda on the US in 2001, there has been an increase in
investigations may not be mounted, orders for production of documents may not be ‘informal’ extradition or rendition, though the practice is not new.
executed, on the territory of another state, except under the terms of a treaty or other o If it takes place with the consent of the ‘sending’ state, there is no
consent given transgression of international law standards.
o The unilateral and extra-territorial use of enforcement jurisdiction is impermissible. o If, however, there is no extradition of any kind—informal or otherwise— but
o Lotus - [T]he first and foremost restriction imposed by international law upon the suspect is simply seized by the agents of the receiving state in the
a state is that— failing the exercise of a permissive rule to the contrary—it absence of any legal process, then there is clearly a breach of international
may not exercise its power in any form in the territory of another State. In this law.
sense jurisdiction is certainly territorial; it cannot be exercised by a State o Described generally as ‘extraordinary rendition’, it has been practiced by the
outside its territory except by virtue of a permissive rule derived from US since 2001. Depending on the legal system in question, the attendant
international custom or a convention. illegality may not prevent the trial of the suspect, an application of the maxim
male captus bene detentus (wrongly captured, properly detained).
(B) ENFORCEMENT WITH RESPECT TO EXTRA-TERRITORIAL ACTIVITIES
(II) CIVIL AND ADMINISTRATIVE JURISDICTION
o The principle of territoriality is not infringed just because a state takes action within its
o With respect to civil and administrative jurisdiction, extra-territorial enforcement revolves
own borders with respect to acts done in another state. But the correctness of this
largely around the recognition and enforcement of judgments and orders abroad. This
position has not prevented controversy from arising e.g. the use by US courts of the
is one of the central preoccupations of private international law.
‘effects doctrine’ to promote certain prescriptive objectives in the field of economic
o In general, the field is parochial, with each state developing its own process and criteria
regulation, especially antitrust law.
for recognition and enforcement.
o US courts in, for example, Alcoa and Watchmakers of Switzerland, have
o However, the need to approach the court of the jurisdiction where enforcement is sought
taken the view that whenever activity abroad has consequences or effects
is circumvented—in form if not in substance— when considering certain orders issued
within the US which are contrary to local legislation then the American courts
by common law courts (notably in England but also the US) which act in personam on
may make orders requiring the disposition of patent rights and other property
the conscience of a party properly before the court to restrain its dealings with assets or
of foreign corporations, the reorganization of industry in another country, the
processes outside the jurisdiction.
production of documents, and so on.
o ‘Freezing injunction’ – acts in personam to prevent a defendant from moving,
o The American doctrine appears to be restricted to agreements abroad
hiding or otherwise dissipating its assets so as to render itself judgment-proof.
intended to have material effects within the US and actually having such
The injunction neither creates, transfers nor revokes property rights; it merely
effects. Such orders may be enforced by action within the US against
affects the capacity of the defendant to exercise them freely.
individuals or property present within the territorial jurisdiction, and the policy
§ But what the freezing injunction lacks in extra-territorial form, it
adopted goes beyond the normal application of the objective territorial
makes up for in extra-territorial effect. The scope of the order has
principle.
been expanded considerably: (1) by virtue of its in personam
o The present position is probably this: a state has enforcement jurisdiction abroad only
operation, the injunction can be granted with respect to assets
to the extent necessary to enforce its legislative jurisdiction. This latter rests upon the
which are not within the jurisdiction of the court granting the order;
existing principles of jurisdiction and these, it has been suggested, are close to the
(2) it can be given effect against foreign third parties, normally
principle of substantial connection.
multinational banks with a branch within the jurisdiction granting the
order; (3) it can be granted in aid of foreign proceedings even
where no proceedings are on foot before the court granting the
order.
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o The anti-suit injunction – acts to restrain a party subject to the jurisdiction of 5. Jurisdiction is often concurrent and there is no hierarchy of bases for jurisdiction.
the court from launching or continuing proceedings in a foreign court injurious However, an area of exclusivity may be established by treaty, as in the case of offences
to the defendant in those proceedings. committed on board aircraft in flight.
§ Ordinarily, the claimant in the foreign proceedings must be already
before the court, though the relief may be granted autonomously of
CHAPTER 25: THE CONDITIONS FOR INTERNATIONAL RESPONSIBILITY
any domestic proceedings where the subject-matter of the
proceedings or the relationship between the parties is such as to
give the granting court exclusive jurisdiction. 1. CONFIGURING THE LAW OF RESPONSIBILITY
§ Although the order is usually granted where the claimant in the o International Responsibility – traditionally attributed to states as the major
foreign proceedings has commenced them in a manner which is subjects of international law, but it is a broader question inseparable from legal
somehow objectionable, it may also be granted where the foreign personality in all its forms.
claimant has apparently acted without blame. § As with the law of treaties
o The perceived exorbitance of the common law jurisdictions in respect of these orders is • Historically
often criticized on the basis of ‘comity’. Comity arises from the horizontal arrangement o The issue of responsibility of states was treated first
of state jurisdictions in private international law and the field’s lack of a hierarchical o The potential for international organizations and
system of norms. It plays the role of a somewhat uncertain umpire: as a concept, it is individuals to make claims and to bear responsibility
far from a binding norm, but it is more than mere courtesy exercised between state on the international plane has been developed later
courts. and by analogy
o Morguard v. De Savoye (Canadian Supreme Court) – Comity is the recognition which • Largely Articulated – through the work of the ILC Articles
one nation allows within its territory to the legislative, executive or judicial acts of another 1. ILC Articles on Responsibility of States for
nation, having due regard both to international duty and convenience, and to the rights Internationally Wrongful Acts of 2001 (ARSIWA)
of its own citizens or of other persons who are under the protection of its law. 2. ILC Articles on Diplomatic Protection of 2006
3. ILC Draft Articles on Responsibility of International
6. A GENERAL VIEW OF THE LAW Organizations of 2011
o Focus of the Chapter – State Responsibility and ARSIWA
o The exercise of civil jurisdiction in respect of aliens presents essentially the same o Roberto Ago – all three texts are secondary rules
problems as the exercise of criminal jurisdiction over them, though in practical terms § The framework of rules of attribution, breach, excuses, reparation and
there are differences, both procedurally and in the reactions that can be expected. response to breach (invocation) as distinct from the primary obligation
o The two generally accepted recognized bases for prescriptive jurisdiction of all types whose disregard gives right to responsibility.
are the territorial and nationality principles, but their application is complemented by the o Unlike the Two Vienna Conventions of 1969 and 1986 on the law of the treaties,
operation of other principles especially in certain field. the ILC Articles have not yet been reduced to treaty.
o The use of the passive personality principle in cases of international terrorism
appears to be accepted and over time, opposition to the use of the effects 2. THE BASIS AND CHARACTER OF STATE RESPONSIBILITY
doctrine by the US and EU in the pursuit of certain competition law objectives o General Principle of International Law – A breach of an international obligation
is diminishing. entails the responsibility of the state concerned.
o As a general rule however, it remains true that if a state wishes to avoid o Law of Responsibility – Concerned with the incidence and consequences of
international criticism over its exercise of extra-territorial jurisdiction, it is unlawful acts, and particularly the forms of reparation for loss caused.
better to base the prescriptive elements on territoriality or nationality.
o Extra-territorial acts can lawfully be the object of prescriptive jurisdiction only if certain (A). ORIGINS
general principles are observed: o Modern Period Treaties – laid down particular duties and specified the liabilities
and procedure to be followed in case of breach.
1. There should be a real and not colourable connection between the subject matter o The following contributed towards a concept of responsibility more akin to that of
and the source of the jurisdiction. national law
§ The inconvenience of private reprisals
2. The principle of non-intervention in the territorial jurisdiction of other states should be § The development of rules restricting forcible self-help
observed, notably in an enforcement context. § The work of international tribunals
§ The notions of reparation and restitution
3. Elements of accommodation, mutuality, and proportionality should be duly taken into • The legal concepts in Europe
account. Thus nationals resident abroad should not be constrained to violate the law of • The classical writers – referred to reparation and restitution in
their place of residence. connection with unjust war

4. These basic principles do not apply or do not apply very helpfully to (a) certain cases (B). THE CLASSIFICATION OF INTERNATIONAL WRONGS
of concurrent jurisdiction, and (b) crimes against international law within the ambit of o State Responsibility – not based upon delict in the municipal sense
universal jurisdiction. In these areas special rules have evolved. Special regimes also o International Responsibility – relates both to breaches of treaty and to other
apply to the high seas, continental shelf, EEZ, outer space, and Antarctica. breaches of obligation
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o Judge Huber – Spanish Zone of Morocco – Responsibility is the necessary and discipline.
corollary of a right. All rights of an international character involve international
responsibility. If the obligation in question is not met, responsibility entails the duty As to the second issue, the claim based on an alleged denial of justice must
to make reparation. fail since the available local remedies had not been exhausted. It is indisputable
o Factory at Chorzow (Jurisdiction) – It is a principle of international law that the that the State is not responsive for the fact of a riot, revolt, civil war or
breach of an engagement involves an obligation to make the reparation in an international war, nor for the fact that these events cause damage on its
adequate form territory. It may be more or less possible to prove errors committed by the
o Factory at Chorzow (Indemnity) – Reparation – an indispensable complement Government, but in the absence of specific clauses of a treaty or agreement,
of a failure to apply a convention and there is no necessity for this to be stated in the investigation required for this purpose is not permitted. These events mist
the convention itself. be considered as cost of force majeure. Nevertheless, the fact that the State
o Corfu Channel – Albania was, by reason of its failure to warn of the danger, liable was not responsible for causing the event did not exclude the duty to act with
for the consequences of mine-laying in its territorial waters even though it had not a certain degree of vigilance. The principle of non-intervention was posited on
laid mines. the maintenance of internal peace and social order in the territorial State. Thus,
§ Albania was liable for the explosions that occurred and for the damage if a State was not responsible for the revolutionary acts themselves, it may be
and loss of human life which resulted from them. responsible for what the authorities do or do not do, to avoid, as far as possible,
o Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) the consequences
§ Issue – Whether a violation of the Genocide Convention entailed
particular consequence for the breaching state
§ Held – The obligations in question arising from the terms of the Highlighted by Brownlie: Responsibility is the necessary corollary of a right.
Convention and the responsibilities of States that would arise from All rights of an international character involve international responsibility. If the
breach of such obligation, are obligations and responsibilities under obligation in question is not met, responsibility entails the duty to make
international law. They are not criminal in nature. reparation.
o Key Elements of the Concept of Responsibility
§ The breach of an obligation of the state
§ The conduct, under the circumstances, is attributable to the state 3. ATTRIBUTION TO THE STATE
o US Diplomatic and Consular Staff in Tehran (US v. Iran)
§ The court’s task is to: (A). GENERAL ASPECTS
• Determine how far, legally, the acts in question may be o Every breach of duty by the state must arise by reason of the act or omission of
regarded as imputable to the State one or more organs or agents.
• Consider their compatibility or incompatibility with the § Status of the individual actor is only a factor in establishing attribution.
obligation of the State under treaties in force or under any § There must be a causal connection between the corporate entity of the
other rules of International Law state and the harm done.
o ARSIWA, Article 2 – Two Elements of Internationally Wrongful Act § No need for the state agents to be the direct perpetrators of the unlawful
1. Attribution act.
2. Breach o Corfu Channel – Albania was held responsible for the consequences of mine-
laying in her territorial waters by reason of
§ Albanian authorities’ knowledge
Spanish Zone of Morocco (Great Britain v. Spain)
§ Failure to warn of the presence of the mines
§ (The court did not say this) The mines were laid by Yugoslavia
Facts: Great Britain put forward a series of claims on behalf of British subjects
o A neutral state may be responsible for allowing armed expedition to be fitted out
and protected persons who had suffered losses or injuries in the Spanish Zone
within its jurisdiction which subsequently carry out belligerent operation against
of Morocco between 1913 and 1921. One such claim is on behalf of a British
another state.
protected person for damage caused during a riot. The claimant had notified
o Canada – Diary (21.5 II) – WTO Appellate body – Irrespective of the role of
the local commander of his losses and the British embassy in Madrid had also
private parties, the obligations remain obligations imposed on Canada. The issue
transmitted his claim to the Spanish Government.
is whether Canada, on a national basis, has respected it WTO obligations.

Issue: Whether Spain can be held responsible for damage caused by military (B). STATE ORGANS
operations; and whether the personal claim of a British citizen for damage o ARSIWA, Art. 4 – The conduct of any State organ shall be considered an act of
caused during a riot will prosper that State under international.

Ruling: As to the first issue, although a State is not responsible for acts (I). EXECUTIVE AND ADMINISTRATION
committed by its troops in the course of restoring order or when fighting an o PRINCIPLE – Governmental action or omission by the executive gives rise to
enemy, international jurisdiction may be invoked in a case of manifest abuse of international responsibility.
the exercise of military powers and that a State is bound to exercise special § Example – Failure of the states to provide security to foreigners and
supervision to prevent its troops from committing acts in violation of military law their property.

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o Massey
§ Facts – US recovered $15,000 by reason of the failure of the Mexican
authorities to take adequate measure to punish the killer of a US citizen o PROBLEM – Question of Attribution for the acts of entities not belonging to the
working in Mexico. state or acting under official governmental authority
§ Held – Commissioner Nielsen – Whenever misconduct on the part of § RESPONSE – JURISPRUDENCE – Genocide (Bosnia and
(persons in state service), whatever may be their particular status or rank Herzegovina v. Serbia and Montenegro)
under domestic law, results in the failure of a nation to perform its • Facts – There was a massacre at Srebrenica in July 1995 that
obligation under international law, the nation must bear the responsibility constituted genocide
for the wrongful acts of its servants. • Issue – Whether this conduct was attributable to the
o Unreasonable acts of violence by police officers and a failure to take the Respondent
appropriate steps to punish the culprits will also give rise to responsibility. • Held – The Bosnian Serb militia did not have the status of
§ Distinction between higher and lower officials have no significance
organs, de iure or de facto, at the material time.
o PROBLEM – The governments assumes functions that are economic and social o The Court considered these two aspects
in character. Government acts not by agents of the state but by delegation to para- 1. Whether the acts committed at
statal entities.
Srebrenica were perpetrated by organs
§ RESPONSE OF ARSIWA, Art. 5 – Entities not formally state organs of Respondent – by person or entities
may still engage the responsibility of the State when it is empowered whose conduct is necessarily attributable
by the law of that State to exercise elements of the governmental
to it, because they are in fact the
authority. instruments of its actin
• As long as they are acting in that capacity in the particular 2. If negative, whether the acts in question
instance. were committed by person who, while
not organs of the Respondent, acted
US Anti-Dumping and Countervailing Duties under the direction or control of
Respondent.
Facts: China appeals certain issues of law and legal interpretations developed
in the Panel Report, United States – Definitive Anti-Dumping and Countervailing (II). ARMED FORCES
Duties on Certain Products from China. The Panel was established to consider o Same principles applicable. Higher standard of prudence in their discipline and
a complaint by China with respect to definitive anti-dumping duties and control is required.
countervailing duties imposed by the United States on four products from o Kling – Commissioner Nielsen – Mistake but culpable action – In cases of this
China. The panel decided that a public body for the purposes of the Agreement kind, it is mistaken action, error in judgment or reckless conduct of soldiers for
on Subsidies and Countervailing Measures was any entity controlled by a which a government in a given case has been held responsible.
government – including – a private corporation with more than 50% § Another example – Units of the armed forces shooting down a South
government ownership, irrespective of its functions. Korean commercial aircraft by Soviet Forces in 1983.
§
Issue: What is the proper interpretation for “public body” §
o Behrami
Ruling: The WTO Appellate Body disagrees with the Panel's view that the § Facts – The European Court of Human Rights refused to attribute to
words "a", "or", and "any" within the phrase "a government or any public body" states the conduct of their forces participating in the deployment of
indicate that "government" and "public body" are separate concepts with distinct forces to Kosovo in 199, on the grounds that the deployment had been
meanings. The term "government" as a shorthand for "a government or any authorized by an SC Resolution and the UNSC retained ultimate
public body" may well have been employed as a drafting device. However, authority and control and that effective command of the relevant
speculation that the use of the collective expression was "merely a device to operational matters was retained by NATO.
simplify the drafting" and that, therefore, the collective expression has no § Issue – Whether the conduct of state military forces acting under the
interpretative significance, is not consonant with the principle of effective treaty command and control of a different entity may be attributed to the state
interpretation. It ignores that the structure and the wording of the treaty is of nationality of the military forces – NO.
significant in determining the common intention of the parties. § Held – Hague refuted this reasoning Mustafic and Nuhanovic – two
cases concerning the responsibility of the Dutch state for the omissions
Highlighted by Brownlie: The essence of government is that it enjoys the of the Dutch battalion of the Airborne Brigade (Dutchbat) during the
effective power to regulate, control, or supervise individuals, or otherwise massacre of Srebrenica.
restrain their conduct, through the exercise of lawful authority’; ‘this meaning is • There is a possibility that more than one party has effective
derived, in part, from the functions performed by a government and, in part, control is generally accepted, which means that it cannot be
from the government having the powers and authority to perform those ruled out that the application of this criterion results in the
functions possibility of attribution to more than one party. The court will
only examine if the State exercised effective control over the

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alleged conduct and will not answer the question whether the o ARSIWA, Art. 4 – Acts of a state organ are attributable to a state whatever its
UN also had effective control. character as an organ of the central government or of a territorial unit of the state.
o Al-Jedda o LaGrand (Provisional Measures) – The governor of Arizona was legally
§ Facts – Case concerned the detention of an Iraqi citizen, held for three empowered to take the action necessary to comply with the provisional measure.
years in Basra by UK forces. The international responsibility of a State is engaged by the action of the competent
§ Held – UN Security Council had no effective control nor ultimate organs and authorities acting in that State, whatever they may be.
authority and control over the acts and omissions of troops within the o Australia – Salmon
Multi-National Force and that the applicant’s detention was not § Facts – There was a ban on imports of salmon imposed by Tasmania
attributable to the UN. The internment took place within a detention § Held – WTO Panel – The Tasmanian ban is to be regarded as a
facility in Basrah City, controlled exclusively by British Forces, and the measure taken by Australia, in the sense that it is a measure for which
applicant was therefore within the authority and control of the UK. Australia, under both general international law and relevant WTO
provisions is responsible.
Armed Activities on the Territory of Congo (Congo v. Uganda)
(IV) THE LEGISLATURE
Facts: The Democratic Republic of the Congo (DRC) filed a case against o A vital part of state organization and gives expression to official policies by its
Burundi, Uganda and Rwanda “for acts of armed aggression committed in enactments.
flagrant breach of the United Nations Charter and of the Charter of the o PROBLEM – To determine when the breach of duty entails responsibility.
Organization of African Unity.” One of these incidents is the clash between § EXAMPLE – Case of injury to aliens – Claimant must establish damage
Uganda and Rwanda in the city of Kisangani (Note: The clash here was consequent on the implementation of legislation or the omission to
between Uganda and Rwanda. Congo, which is NOT party to the Kisangani legislate.
clash, is saying that its people suffered human rights violations from the forces o HOWEVER – In the case of treaty obligations, the acts and omissions of the
of Uganda by virtue of such clash). Uganda argues that Congo’s claims relating legislature are creative of responsibility.
to the Kisangani incident between Uganda and Rwanda are inadmissible § EXAMPLE – If a treaty creates a categorical obligation to incorporate
because the latter - Rwanda, a third party not in this case, has not given its certain rules in domestic law, failure to do so entails responsibility
consent. According to Uganda, Rwanda’s legal interests form “the very without proof of actual damage.
subject matter” of the decision which Congo is seeking, and that a decision of
the Court covering these events would infringe the “indispensable third (V) THE JUDICATURE
party” principle. o Relates substantially to the rubric of denial of justice.
o McNair – A state has a right to delegate to its judicial department the application
On the other hand, Congo argues that Rwanda’s absence from these and interpretation of treaties. If, however, the court commits errors in that task or
proceedings is totally irrelevant and such cannot prevent the court from ruling decline to give effect to the treaty or are unable to do so because the necessary
on the question of Uganda’s responsibility. This is so because Congo’s claim is change in, or addition to, the national law has not been made their judgments
for the recognition of Uganda’s sole responsibility by its own use of force (acts involve the State in a breach of treaty.
and omission of Uganda’s armed forces).
US-Shrimp (India, Malaysia, Pakistan, Thailand v. US)
Issue: Whether Uganda was responsible for the acts and omission of its armed Facts: Pursuant to the Endangered Species Act, the US enacted Section 609
forces (UPDF/Ugandan soldiers and officers) on the territory of Congo which imposed a ban on the importation of shrimp by the US to nations without
a certification. With respect to all other countries exporting shrimp to the United
Ruling: By virtue of the military status and function of Ugandan soldiers in States (including the India, Malaysia, Pakistan and Thailand), on 29 December
Congo, their conduct is attributable to Uganda. The contention that the persons 1995, the United States Court of International Trade directed the Department
concerned did not act in the capacity of persons exercising governmental of State to apply the import ban on a world-wide basis not later than 1 May
authority in the particular circumstances, is therefore without merit 1996. On 19 April 1996, the 1996 Guidelines were issued by the Department of
State bringing shrimp harvested in all foreign countries within the scope of
Highlighted by Brownlie: The conduct of any organ of a State must be Section 609, effective 1 May 1996. Thus, all countries that were not among the
regarded as an act of that State. By virtue of the military status and function of fourteen in the wider Caribbean/western Atlantic region had only four months
Ugandan soldiers in the DRC, their conduct is attributable to Uganda. A party to implement the requirement of compulsory use of TEDs.
to an armed conflict shall be responsible for all acts by persons forming part of
its armed forces. Issue: Whether the ban constituted unjustifying discrimination

(III) FEDERAL UNITS, PROVINCES AND OTHER INTERNAL DIVISIONS Ruling: Yes. While the WTO acknowledges that the greatly differing periods for
o A state cannot plead its own law, including the constitution, in answer to an putting into operation the requirement for use of TEDs resulted from decisions
international claim. of the Court of International Trade. Even so, this does not relieve the United
States of the legal consequences of the discriminatory impact of the decisions

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of that Court. § In the case where the standard of conduct required is high – military
leaders, cabinet members, armed forces – the use of dichotomy of
Highlighted by Brownlie: the US bears responsibility for acts of all its personal and personal acts are quite inappropriate.
departments of government, including the judiciary. § Otherwise – depends on the type of activity and consequences in the
particular case.
o Zafiro – US was held responsible for looting by the civilian crew of a merchant
vessel employed as a supply vessel by American naval forces, under the command
LaGrand Avena of a merchant captain who in turn was under the orders of an American naval
officer.
Foreigners in the US had been condemned to capital punishment without regard for their o What matters – Amount of control which ought to have been exercised in the
consular rights under the Vienna Convention. particular circumstance and not the amount of actual control.
o Armed Activities (DRC v. Uganda) – In the case of armed conflict, all the acts of
Facts – The court ordered the stay of the Held – The rights guaranteed under the
a state’s armed forces are attributable to that state regardless of which nstructions
executions. Vienna Convention are treaty rights which the
were given or whether personnel acted ultra vires.
US has undertaken to comply with.
Held – US, by applying the rules of its o Velasquez Rodriguez – Unlawful Conduct may arise from acts of any state
domestic law, violated its international organs, official or public entities.
The legal consequences of a breach have to
obligations. be examined and taken into account in the
(D). MOB VIOLENCE, INSURRECTION, REVOLUTION AND CIVIL WAR
course of review and reconsideration.
o The rules below – When applicable – acts of violence either
§ By persons not acting as agents of the lawful government of a state; or
(C). ULTRA VIRES OR UNAUTHORIZED ACTS § By persons acting on behalf of a rival or candidate government set up
o Acts of public authorities which are ultra vires should not by that token create by insurgents (de facto government)
immunity from legal consequences for the state. o McNair – Five Principles
o Reason – The lack of express authority cannot be decisive as to the responsibility 1. A state on whose territory an insurrection occurs is not responsible for
of the state. loss or damage sustained by a foreigner unless it can be shown that the
o Principle – States may be responsible for the ultra vires acts of their officials Government of that State was negligent in the use of, or in the failure to
committed within their apparent authority or general scope of authority. use, the forces at its disposal for the prevention or suppression of the
o Union Bridge Company insurrection
§ Facts – A British official of the Cape Government Railways appropriated 2. This is a variable test – dependent on the circumstances of the
neutral (American) property during the Second Boer War, mistakenly insurrections
believing it was not neutral. 3. Such a state is not responsible for the damage resulting from military
§ Held – Responsibility was not affected by the official’s mistake or the operations directed by its lawful government unless the damage was
lack of intention on the part of the British authorities to appropriate the wanton or unnecessary, which appears to be substantially the same as
material. The conduct was within the general scope of duty of the official. the position of belligerent States in an international war.
o Claire 4. Such a state is not responsible for loss or damage caused by insurgents
§ Facts – A captain and a major in the Conventionist forces in control of to a foreigner after that foreigner’s state has recognized the belligerency
Mexico had demanded money from Clare under threat of death and had of the insurgents.
then ordered the shooting of their victim when the money was not 5. Such a state can usually defeat a claim in respect of loss or damage
forthcoming. sustained by resident foreigners by showing that they have received the
§ Held – Mexico Responsible. The state also bears international same treatment in the matter of protection or compensations, if any, as
responsibility for all acts committed by its official or its organs which are its own nationals (the plea of diligentia quam in suis)
dilectual according to international – regardless of whether the official or o Rule of Non-Responsibility – Even objective responsibility requires a normal
organ has acted within the limits of his competency or has exceeded capacity to act and a major internal upheaval is tantamount to force majure.
those limits. It is necessary that they should have acted, at least § Cannot apply where the government failed to show due diligence.
apparently, as authorized officials or organs or that in acting, they should § Harvard Research Draft – In as much as negligence on the part of the
have used powers or measures appropriate to their official character. government in suppressing an insurrection against itself is improbable,
o Youmans – Soldiers inflicting personal injuries or committing wanton destruction the claimant should be deemed to have the burden of showing
or looting always act in disobedience of some rules laid down by superior authority. negligence.
There could be no responsibility whatever for such misdeeds if the view were taken § ARSIWA, Art. 10 – The general principle that the conduct of an
that any acts committed by soldiers in contravention of its instructions must always insurrectional or other movement is not attributable to the State on the
be considered as personal acts. assumption that the structures and organization of the movement are
o PROBLEM – Difficult to distinguish personal acts and acts within the scope of and remain independent of those of the state. Exceptional cases may
(apparent) authority occur where the state was in a position to adopt measures of vigilance,
§ In the case of higher organs and officials, the presumption will be that prevention or punishment in respect of the movement’s conduct but
there was an act within the scope of authority. improperly failed to do so.
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o Victorious rebel movements – responsible for unlawful acts or omission by their Issue: Whether Serbia is committed complicity in genocide
forces occurring during the course of the conflict.
o State remains responsible for the unlawful conduct of the previous government. Ruling: NO. The term “complicity” in Article III, paragraph (e) of the Convention
contains enabling and facilitating the commission of genocide and can be
(E). JOINT RESPONSIBILITY parallelized with the rules for aid or assistance in Article 16 of the ILC Articles
o Two Issues – Joint Action for State responsibility, according to which a State is internationally responsible
1. Official Acting in different capacities when it has aided or assisted another State in the commission of an
• Chevreau – The tribunal rejected the part of the claim of the internationally wrongful act, if it has knowledge of the circumstances and the
French against UK related to loss flowing from the negligence act would be internationally wrongful if it was committed by that State. 
The
of the British consul in Persia, acting at that time as an agent Court found that the decision to destroy the Muslim men of Srebrenica was not
for the French Consul.
brought to the attention of the FRY authorities when it was taken, and therefore
2. The dependent state.
the aid supplied by the FRY was not supplied in awareness that it would be
• Where the putative dependent state cannot be regarded as used to commit genocide.
having any degree of international personality because of the
extent of outside control.
• A state may by treaty assume international responsibility for Highlighted by Brownlie: Although complicity is not a notion which exists in
another government. the law of international responsibility, it is similar to a category found among
o Spanish Zone of Morocco – Huber – The protecting state is the one who must the customary rules constituting the law of State responsibility, that of the aid
bear the responsibility of the protected state, at least by way of vicarious liability, or assistance furnished by one State for the commission of a wrongful action
the responsibility of the protecting state is based on the fact that it is that State by another State
alone which represents the protected state in international affairs.
o Certain Phosphate Land in Nauru (Nauru v. Australia) – The possibility of the
existence of a joint and several responsibility of three states responsible for the (G). APPROVAL OR ADOPTION BY A STATE OF WRONGFUL ACTS
administration of the Trust Territory at the material time did not render inadmissible o Responsibility accrues if a state accepts or otherwise adopts the conduct of private
a claim brought against only one of them. persons or entities as its own.
o ARSIWA, Art. 47 00 incorporates this reasoning – the responsibility of each state § Applied in Tehran Hostages.
may be invoked in the case of plurality of responsible states as long as total o ARSIWA, Art. 11 – The state only becomes responsible if and to the extent that
compensation does not exceed the damage suffered by the injured state. the State acknowledges and adopts the conduct in question as its own.
§ Each state is separately responsible and that responsibility is not
reduced by the fact that one or more other states are also responsible 4. BREACH OF AN INTERNATIONAL OBLIGATION
for the same act.
(A). VICARIOUS RESPONSIBILITY
(F). COMPLICITY o Unhappily Oppenheim – drew a distinction between original and vicarious state
o This is endorsed by ARSIWA Art. 14. responsibility.
o A state which aids or assists another State in the commission of an internationally § Original responsibility – flows from acts committed by, or with authorization of, the
wrongful act by the latter is internationally responsible for doing so if government of a State.
a. That State does so with knowledge of the circumstances of the § Vicarious responsibility – flows from unauthorized acts of the agents of the State.
international wrongful act o The legal consequences of the two categories may not be the same; but there is no
b. The act would be internationally wrongful if committed by that state. fundamental difference between the two, and, in any case, the use of ‘vicarious liability’
here is erroneous.
Genocide (Bosnian & Herzegovina v. Serbia & Montenegro)
(B). OBJECTIVE RESPONSIBILITY
Facts: The republics of Bosnia and Herzegovina, Croatia, Macedonia and o Rests on the doctrine of voluntary act: provided that agency and causal connection are
Slovenia declared independence when the Socialist Federal Republic of established, there is a breach of duty by result alone.
Yugoslavia began to break up in the early 1990s. this led Serbia and o Ultra vires v. Culpa. In the conditions of international life, which involve relations
Montenegro to declare themselves the Federal Republic of Yugoslavia (FRY). between complex communities acting through a variety of institutions and agencies, the
A massacre was perpetrated by Serbian forces on 8000 Bosnia Muslim men of public analogy of the ultra vires act is more realistic than a seeking for subjective culpa
fighting age in a small village called Srebrenica in July 1995 during armed in specific natural persons who may or may not ‘represent’ the legal person (state) in
conflicts that arose in 1992-1995 within Bosnia and Herzegovina. A suit was terms of wrongdoing.
filed against the FRY by Bosnia and Herzegovina in 1993 in the International § Example – An officer in charge of a cruiser on the high seas orders the boarding
Court of Justice, claiming violations of the Convention on the Prevention and of a fishing vessel flying the flag of another state. There being no legal justification
Punishment of the Crime of Genocide, on the theory that the FRY was and the act being in excess of authority, a tribunal will not favor pleas that acts
responsible for the actions of Serbian forces. were done in good faith or under a mistake of law.

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o The practice of states and jurisprudence of both arbitral tribunals and the International responsibility if it constitutes a breach of an international obligation of the
Court have followed the theory of objective responsibility as a general principle which State.
may be modified or excluded in certain cases. § Such rule is part of customary international law and is reflected in Art. 4 of the
o Caire (theory of objective responsibility) ILC Articles on State Responsibility.
§ State responsibility for those acts committed by its officials or its organs, and o Although culpa is not a general condition of responsibility, it may play an important role
which they are bound to perform despite absence of faute or fault on their part. in certain contexts.
§ State responsibility for all acts committed by its officials or its organs which are § Example – where the loss complained of results from acts of individuals not
delictual according to international law, regardless of whether the official organ employed by the State, responsibility will depend on an unlawful omission. In
has acted within the limits of his competency or has exceeded those limits. this type of case, questions of knowledge may be relevant in establishing
§ However, in order to justify admission of objective responsibility, it is necessary responsibility for failure to act.
that they should have acted, at least apparently, as authorized officials or organs, § However, tribunals may set standards of ‘due diligence.’ In effect, since
or that, in acting, they should have used powers or measures appropriate to their looking for specific evidence of a lack of proper care on the part of state
official character. organs is often a fruitless task, the issue becomes one of causation.
o Grotian View – culpa provides the basis of state responsibility. o Lighthouses (lack of causal connection)
o Home Missionary Society (Application of the culpa doctrine) § Facts: Arbitration between Greece and France which arose from the eviction
§ No government can be held responsible for the act of rebellious bodies of men of a French firm from their offices in Salonika and the subsequent loss of their
committed in violation of its authority, where it is itself guilty of no breach of good stores in a fire which destroyed the temporary premises.
faith, or of no negligence in suppressing insurrection. § Issue: Whether Greece is liable for damages caused by the fire – NO.
§ However, many of the awards cited in this connection are concerned with the § Held: Even if it is held that Greece is responsible for the consequences of the
standard of conduct required by the law in a particular context (e.g., claims of evacuation, one could not admit a causal relationship between the damage
losses caused by rebellion of private individuals, judiciary, etc.) caused by the fire, on the one part, and that following on the evacuation, on
o Chattin (Culpa) the other, so as to justify holding Greece liable for the disastrous effects of
§ Facts: Chattin had been convicted on a charge of embezzlement and fire. The damage was neither foreseeable nor a normal consequence of
sentenced by the Mexican court to 2 years’ imprisonment. evacuation, nor attributable to any want of care on the part of Greece.
§ Held: Judicial proceedings in Mexico against Chattin was described as ‘highly o When a state engages in a lawful activity, responsibility may be generated by culpa in
insufficient’ and referred, inter alia, to an ‘insufficiency of governmental action the execution of the lawful measures.
recognizable by every unbiased man.’ The various defects in the trial o In re Rizzo (culpa in a lawful activity)
discloses lack of seriousness on the part of the Mexican court. § Facts: After the defeat of Italy, the French government sequesters Italian
§ Culpa, in the sense of culpable negligence, will be relevant when its presence property.
is demanded by a particular rule of law. § Held: The act contrary to international law is not the measure of
o Objective responsibility would seem to come nearer to being a general principle, and sequestration, but an alleged lack of diligence on the part of French State
provides a better basis for maintaining acceptable standards in international relations in the execution of said measure. The existence and extent of culpa may
and for effectively upholding the principle of reparation. affect the extent of damages.
o Corfu Channel (Type of advertence required varies with the legal context)
§ Issue: Whether it has been established by means of indirect evidence that (C). THE PROBLEM OF STATE MOTIVE OR INTENT
Albania has knowledge of mine-laying in her territorial waters independently o Motive and intention are frequently a specific element in the definition of permitted
of any connivance on her part. conduct.
§ Held: The laying of the minefield could not have been accomplished without o Once it is established that conduct is unlawful, the fact that an ultra vires act of an
the knowledge of the Albanian government. Responsibility thus rested upon official is accompanied by malice or an intention to cause harm does not affect the
violation of a particular legal duty – every State’s obligation not to allow responsibility of the State (although it may be relevant to quantum).
knowingly its territory to be used for acts contrary to the rights of other States. o The principle of objective responsibility dictates the irrelevance of intention to harm as
§ The Court was not concerned with culpa as such, and it fell to the dissentients a condition of responsibility. Yet it does not lead to the conclusion that intention plays
to affirm the doctrine of culpa. no role.
§ Dissent by Judge Badawi: espoused the doctrine of fault which was in fact § Example – Existence of a deliberate intent to injure may have an effect on
based on the notion of unlawful, voluntary act. remoteness of damage as well as helping to establish the breach of duty.
§ Dissent by Judge Azevedo: relations of objective responsibility and the
culpa principle are very close: the effect of the judgment was to place Albania (D). THE INDIVIDUALITY OF ISSUES
under a duty to take reasonable care to discover hazardous activities of third o Legal issues, particular in disputes between states, have an individuality which resists
parties. a facile application of general rules. Much depends on the assignment of burden of
o Genocide (Exclusion of the culpa doctrine) proof, operation of law of evidence, acquiescence and estoppel, terms of compromis,
§ Held: The International Court excluded the culpa doctrine, reaffirming the and the content of relevant substantive rules or treaty provisions.
well-established rule, one of the cornerstones of the law of State o Corfu Channel – approach adopted by majority fails to correspond neatly with either
responsibility, that the conduct of any State organ is to be considered an act the culpa doctrine or test of objective responsibility.
of the State under international law, and therefore gives rise to State § Intention is a question-begging category. Taking all circumstances into account,
the Court held that the passage of the cruisers and destroyers through a part of
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the North Corfu Channel constituting Albanian territorial waters was an innocent to pay compensation for damage caused by its space object on the surface
passage. of the Earth or to aircraft in flight. Art. III provides for liability for fault in case
§ As to the laying of the mines, the Court looked for evidence of knowledge on the of damage caused by a space object outside the surface of the earth.
part of Albania. The case illustrates the interaction of principles of proof and
responsibility. (F). ABUSE OF RIGHTS
§ It cannot be concluded that mere control exercised by the State over its territorial o Article 1912 of the Mexican Civil Code: ‘If in the exercise of a right damage is caused
waters amounts to knowledge of the State of any unlawful act perpetrated therein. to another, there is an obligation to indemnify the injured party if it is shown that the right
This fact, by itself and apart from other circumstances, neither involves prima facie was exercised only to cause injury, without any benefit to the holder of the right.’
responsibility nor shifts the burden of proof. o This doctrine has had only limited support from international tribunals.
§ On the other hand, the fact of exclusive territorial control has a bearing upon the § Certain German Interests in Polish Upper Silesia – after the Peace Treaty
methods of proof available to establish knowledge of that State as to such events. came into force and until the transfer of sovereignty over Upper Silesia, the
By reason of this exclusive control, the victim State is often unable to furnish direct right to dispose of state property in the territory remained with Germany.
proof of facts giving rise to responsibility. Such a State should be allowed a more Alienation would constitute a breach of her obligations if there was a ‘misuse’
liberal recourse to inferences of fact and circumstantial evidence. of this right. But, in said case, German policy in alienating land amounted to
§ The Court must examine therefore whether it has been established by means of no more than normal administration of public property.
indirect evidence that Albania has knowledge of mine-laying in her territorial § Free Zones of Upper Savoy and the District of Gex – French fiscal
waters. The proof may be drawn from inferences of fact, provided they leave no legislation applied in the free zones (which were French territory). But, a
room for reasonable doubt. reservation must be made as regards the case of abuse of a right, an abuse
which cannot be presumed by the Court.
(E). LIABILITY FOR LAWFUL ACTS o It is not unreasonable to regard the principle of abuse of rights as a general principle of
o It may happen that a rule provides for compensation for the consequences of acts which law. However, its application is a matter of delicacy.
are not unlawful in the sense of being prohibited. § Lauterpacht – the doctrine is full of potentialities and places a considerable
§ UNCLOS ART. 110 provides for the boarding of foreign merchant ships by power, not devoid of legislative character, in the hands of a judicial tribunal.
warships where there is reasonable ground for suspecting piracy or certain There is no legal right, however well-established, which could not be refused
other activities. recognition on the ground that it has been abused. Such doctrine is therefore
§ UNCLOS ART. 110(3) provides that if suspicions prove to be unfounded, and an instrument which must be wielded with studied restraint.
provided that theship board has not committed ay act justifying them, it shall o Abuse of right may help explain the genesis of a rule of law
be compensated for any loss or damage that may have been sustained. § Example – The principle that no state has a right to use or permit the use of
o International Environmental Law – liability for acts not prohibited by international law its territory in such a manner as to cause injury by fumes to the territory of
has acquired great relevance in IEL, as lawful economic activity may produce pollution another. Often it represents a plea for legislation or modification of rules to
and other externalities that transcend the borders of a single state. suit special circumstances.
o However, there is little authority supporting the category as such, apart from the express § In general, the question is whether the exercise of a state power or
stipulations such as Art. 110(3). privilege is dependent on the presence of certain objectives. The
o Trail Smelter (liability despite legality) presumption in case of acts prima facie lawful is that motive is irrelevant, but
§ Facts: A smelter in Canada was producing pollution affecting US. the law may otherwise provide.
§ Held: Canada was responsible under international law for the damage, regardless § When the criteria of good faith, reasonableness, normal administration, and
of the legality of the activity itself. Under the principles of international law, as well so on are provided by an existing legal rule, ‘abuse of rights’ adds nothing.
as US law, no State has the right to use or permit the use of its territory in such a Similarly, in case of international obligations, responsibility for excess of
manner as to cause injury by fumes in or to the territory of another or the properties authority, détournement de pouvoir, exits independently of ay general
or persons therein, when the case is of serious consequence and the injury is principle of abuse of rights.
established by clear and convincing evidence. § While the doctrine is useful in the progressive development of law as a
o Draft Principles on the Allocation of Loss in the Case of Transboundary Harm general principle, it is not part of positive international law. It is doubtful
Arising out of Hazardous Activities (2006) if it could be safely recognized as an ambulatory doctrine since it would
§ Principle 4(1): States must ensure that prompt and adequate compensation encourage doctrines as to relativity of rights which would result in instability.
is available for victims of transboundary damage.
§ While it is doubtful whether courts will impose responsibility for such 5. CIRCUMSTANCES PRECLUDING WRONGFULNESS
transboundary damage in the absence of an express obligation, specific o These are ‘excuses’, ‘defences’, ‘exceptions’, that is, justifications available to states
regimes have advanced in establishing different means of legal redress in the which exclude responsibility when it would otherwise be engaged.
case of environmental harm. o The ILC included in ARSIWA types of circumstances precluding wrongfulness:
o Duty of Due Diligence § ART. 20 (CONSENT)
§ The fact that a activity is itself not prohibited international law does not exclude § ART. 21 (SELF-DEFENCE)
damage caused by poor judgment or poor management in carrying the activity § ART. 22 (COUNTER-MEASURES)
cannot entail responsibility. § ART. 23 (FORCE MAJEURE)
§ Example – 1972 Convention on International Liability for Damage Caused by § ART. 24 (DISTRESS)
Space Objects. Art. II provides that a launching State shall be absolutely liable § ART. 25 (NECESSITY)
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o Criticism – conventional and not entirely logical. The very presence of this section has § Cargill, Inc. v. Mexico
been criticized as being outside the scope of the Articles, since some of the Held: Countermeasures may not preclude the wrongfulness of an act in
circumstances (consent and self-defence) seem more akin to ‘primary’ rules, which breach of obligations owed to third States and would not necessarily have
define the content of obligations, than to ‘secondary’ ones. any such effect with regard to nationals of the offending State rather than to
o Implication of a separate category for ‘defences’ – legal burden of proof on the the offending State itself.
proponents of the defences. Some adjudicating organs, such as WTO Appellate Body,
have instituted complex procedural rules.
CHAPTER 26: CONSEQUENCES OF AN INTERNATIONALLY WRONGFUL ACT
o EC-Tariff Preferences (complaining party bears the burden)
Held: In cases where one provision permits, in certain circumstances, behaviour that
would otherwise be inconsistent with an obligation in another provision, and one of the 1. INTRODUCTION
two provisions refers to the other provision, the Appellate Body has found that the o In the event of an internationally wrongful act by a state or other subject of international
complaining party bears the burden of establishing that a challenged measure is law, other states or subjects may be entitled to respond through the following instances:
inconsistent with the provision permitting particular behaviour only where one § Invoking the responsibility of the wrongdoer.
of the provisions suggests that the obligation is not applicable to the said § Seeking cessation and/or reparation – dealt with in Part II of the ILC’s 2001
measure. Otherwise, the permissive provision has been characterized as an exception, ARSIWA; obligations which arise by operation of law on the commission of an
or defence, and the onus of invoking it and proving the consistency of the measure with internationally wrongful act.
its requirements has been placed on the responding party. However, this distinction may § Taking countermeasures (if no other remedy is available) – dealt with in Part III of
not always be evident or readily applicable. the ILC’s 2001 ARSIWA; ultimate remedy which an injured state may take after
o Compromis – In international law, burden of proof is not simply dependent o a claimant- efforts to obtain cessation and reparation have failed. They are responsive not
respondent relation as assumed in systems of municipal law. When cases are submitted just to the breach as such but to the responsible state’s failure to fulfill its
to courts through a compromis, neither of the parties are considered respondent and secondary obligations.
often both make affirmative claims. o Not all states are entitled to respond to all breaches.
o In general, the rule is actori incumbit. He who asserts a proposition must prove it. § Ex. In bilateral relations, only the parties to a bilateral treaty are presumed to have
o Other defences accepted by tribunals: rights, including standing to object.
§ Voluntary assumption of risk o Not all legal relations are bilateral and that holds also for responsibility relations. This
§ Contributory fault too is the subject-matter of Part III on invocation.
§ Force majeure – will apply to acts of war and, under certain conditions, to
harm caused by insurrection and civil war 2. CESSATION, REPARATION, INVOCATION
§ Necessity – it has been doubted whether necessity exists as an omnibus
category. While necessity has been argued before a number of tribunals in a Terminology adopted from the ILC Articles of 2001, with some additions
diversity of situations, its recognition as a possibility is usually followed a • Breach of an international obligation – denotes an unlawful act or omission.
denial of its applicability. • Damage – denotes loss, damnum, usually a financial quantification of physical or
• LG&E Energy Corp. v. Argentina (necessity as a defence) economic injury or damage or of other consequences such as breach.
Held: Necessity should be only strictly exceptional and should be • Cessation – refers to the basic obligation of compliance with international law, which in
applied exclusively when faced with extraordinary circumstances. principle remains due in spite of any breaches. Cessation is required, not as a means
• Law of Armed Conflict – military necessity may be pleaded, and of reparation but as an independent obligation, whenever the obligation in question
the right of angary allows requisition of ships belonging to aliens continues to exist.
lying within the jurisdiction in time of war or other public danger. • What is Reparation? refers to all measures which may be expected from the
• Use of force in self-defence, collective self-defence, and responsible state, over and above cessation: it includes restitution, compensation, and
defence of third states satisfaction.
• Propriety of economic reprisals and plea of economic • What is Restitution? refers to restitution in kind, a withdrawal of the wrongful measure
necessity – still a matter of controversy or the return of persons or assets seized illegally. While restitution and cessation may
• Armed reprisal – excluded by the law of the UN Charter. sometimes overlap – for example in the case of release of an individual detained
o Increase in the number of multilateral treaties and emergence of diversity of treaty unlawfully – they remain conceptually distinct.
regimes • What is Compensation? used to describe reparation in the narrow sense of the
§ Specialized courts may consider themselves unable to examine an argument payment of money in the measure of the wrong done. The award of compensation
based on a rule outside their domain of competence. sometimes described as ‘moral’ or ‘political’ reparation, terms connected with concepts
§ Mexico – Soft Drinks (application of general countermeasures before a of ‘moral’ and ‘political’ injury, creates confusion.
specialized tribunal) • Injury – arises from a breach of a legal duty and in such cases the only special feature
Facts: Mexico claimed its WTO-inconsistent measures were in fact is the absence of a neat method of quantifying loss.
countermeasures necessary to secure compliance by US with its NAFTA • Satisfaction – refers to means of redressing a wrong other than by restitution or
obligations. compensation. It may take a variety of forms, including an apology, trial and punishment
Held: WTO Appellate body rejected Mexico and affirmed the impossibility for of the individuals responsible, taking steps to prevent a recurrence of the breach, etc.
WTO adjudicative organs to assess whether the relevant international
agreement has been violated. Certain basic propositions about international responsibility (and about states as the primary
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subjects of responsibility): which demanded the release of the two agents, and New Zealand, which claimed
• First: international responsibility is undifferentiated: just as custom and treaty are compensation for the incident. New Zealand also complained that France was threatening
alternative (and even complementary) ways of generating obligation, so there is no to disrupt New Zealand trade with the European Communities unless the two agents were
difference in principle between responsibility arising, so to speak, ex contractu or ex released. The Secretary-General's ruling provided that Major Mafart and Captain Prieur
delicto (the two French agents) were to be released into French custody but were to spend the
• Secondly: the regime of responsibility is undifferentiated also in the sense that it applies next three years in Hao, an isolated French military base in the Pacific. However, the
to the whole array of obligations under international law. International law fulfils the French agents were repatriated without the consent of New Zealand and never returned
function both of a public law system regulating shared resources (such as the oceans to Hao.
or the atmosphere) and a private law system covering bilateral (e.g. diplomatic) relations
• Thirdly: and as a corollary, the function of reparation is, as far as possible, the Issue: Whether France may be ordered to return the agents
restoration of relations reflected in the status quo ante.
o In Factory at Chorzow (Merits): The essential principle contained in the actual
Ruling: No. New Zealand's request for an order that France return the two agents to Hao
notion of an illegal act…is that reparation must, as far as possible, wipe out
had to be rejected. The remedy which New Zealand sought was essentially an order for
all the consequences of the illegal act and re-establish the situation which
the cessation of wrongful conduct. Such an order was no longer appropriate now that
would, in all probability, have existed if that act had not been committed.
France's obligations had come to an end.
Restitution in kind, or, if this is not possible, payment of a sum corresponding
to the value which a restitution in kind would bear; the award, if need be, of
damages for loss sustained which would not be covered by restitution in kind The Parties were agreed that the concept of damage in the law of State responsibility
or payment in place of it—such are the principles which should serve to extended to non-material damage. In the present case, France's violation of its obligations
determine the amount of compensation due for an act contrary to international under the First Agreement had caused non-material damage of a moral, political and legal
law. nature. Monetary compensation was not, in principle, excluded in respect of nonmaterial
• In standard cases, a state protects its own legal interests in seeking reparation for damage and the Tribunal had the power to make an award of monetary compensation.
damage material or otherwise—suffered by itself or its citizens. In M/V Saiga (no. 2): It This power would not, however, be exercised in the present case, since New Zealand had
is a well-established rule of international law that a State which suffers damage as a not sought an award of monetary compensation. A declaration by an international tribunal
result of an internationally wrongful act by another State is entitled to obtain reparation that a respondent State had committed a violation of its 'international obligations towards
for the damage suffered from the State which committed the wrongful act and that a claimant State was a widely accepted form of satisfaction in respect of such a violation.
‘reparation must, as far as possible, wipe out all the consequences of the illegal act and Accordingly, the condemnation of the French Republic for its breaches of its treaty
reestablish the situation which would, in all probability, have existed if that act had not obligations to New Zealand, made public by the decision of the Tribunal, constituted in
been committed the circumstances appropriate satisfaction for the legal and moral damage caused to New
• In Mavrommatis, the rule is: ‘[b]y taking up the case of one of its subjects and by Zealand.
resorting to diplomatic action or international judicial proceedings on his behalf, a State
is in reality asserting its own rights—its right to ensure, in the person of its subjects, Highlighted by Brownlie: New Zealand demanded the return to custody of two
respect for the rules of international law’. individuals released from detention by the French government in violation of a previous
• But, there are also cases where states seek to vindicate collective or innominate settlement. The tribunal understood that this was a case of cessation, and not of
interests, for example, in the field of human rights or the environment. A different rule, restitution, and went on to find that cessation could not be granted on the implausible
expressed by the International Court in its famous dictum in Barcelona Traction, applies ground that the unfulfilled obligation to detain had expired in the meantime.
to these cases: ‘[i]n view of the importance of the rights involved, all States can be held
to have a legal interest in their protection’.
b. COMPENSATION, DAMAGES
3. THE FORMS OF REPARATION
a. RESTITUTION IN KIND AND RESTITUTIO IN INTEGRUM • Pecuniary compensation is usually an appropriate and often the only remedy for injury
• Tribunals may give ‘legal restitution’, in the form of a declaration that an offending act of the caused by an unlawful act.
executive, legislature or judicature is unlawful and without international effect. Such action • Under ARSIWA Article 36 whenever restitution is not possible compensation becomes the
can be classified either as a genuine application of the principle of restitutio in integrum or as standard consequence for injury, covering ‘any financially assessable damage including loss
an aspect of satisfaction. of profits.
• Customary law or treaty may create obligations to which is annexed a power to demand • When it comes to quantifying damages, international tribunals face the same problems as
specific restitution. other tribunals as regards indirect damage and deal with the issues in much the same way.
• ARSIWA Article 35 includes a proviso whereby restitution is only due if it ‘does not involve a ARSIWA pragmatically avoids the issue, leaving specific determinations to the particularities
burden out of proportion to the benefit deriving from restitution instead of compensation’. of each case. This is consistent with the practice, for, even if tribunals are often obscure in
this respect, there is a close connection between ‘remoteness’ and ‘measure of damages’,
Rainbow Warrior (New Zealand v. France) on the one hand, and substantive rules on the other.
• Outside of the few cases of objective liability, it may be that the rule is simply that if harm is
Facts: A team of French agents sabotaged and sank the Rainbow Warrior, a vessel caused by wrongful or negligent conduct, whether or not in the course of lawful activity, then
belonging to Greenpeace International, while it lay in harbour in New Zealand. Two French compensation is payable. The scale of compensation in cases of lawful activity may be less
agents were subsequently arrested in New Zealand. A dispute arose between France, ambitious than that applicable to activity unlawful at birth, such as unprovoked attacks or
53 E.B.C.AKOEH NOTES | ATENEO LAW
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unlawful expropriations the facts, no compensation ought to be paid in respect of the loss of the ship or the cargo’.
However the sinking having been unlawful, the Commissioners recommended that the United
Gabčíkovo-Nagymaros Project (Hungary v. Slovakia) States ought formally to acknowledge its illegality, and to apologize to His Majesty’s
Canadian Government therefor; and, further, that as a material amend in respect of the wrong
Facts: Hungary and Czechoslovakia (Slovakia as its successor) entered into a treaty the United States should pay the sum of $25,000 to His Majesty’s Canadian Government
concerning the construction and operation of the Gabcilcovo-Nagymaros System of Locks • In Rainbow Warrior, the Secretary-General ruled that 'Besides ordering compensation, the
which provides for the construction of a system of locks by the parties as a joint investment Secretary-General ruled ‘that the Prime Minister of France should convey to the Prime
to attain the broad utilization of the natural resources of the Danube river. As a result of Minister of New Zealand a formal and unqualified apology for the attack, contrary to
intense criticism which the Project had generated in Hungary decided to abandon the international law, on the Rainbow Warrior by French service agents’. The Secretary-General
works at Nagymaros and to maintain the status quo. Czechoslovakia also started further ruled that these agents ‘should be transferred to a French military facility on an
investigating alternative solutions. One of them, an alternative solution subsequently isolated island outside of Europe for a period of three years.
known as "Variant C". Work on Variant C began in November 1991. Discussions
continued between the two parties but to no avail, and, on 19 May 1992, the Hungarian (B). Declaratory Judgments
Government transmitted to the Czechoslovak Government a Note Verbale terminating the
Treat. • In some cases a declaration by a court as to the illegality of the act of the defendant state
constitutes a measure of satisfaction. However, international tribunals may give a declaratory
Issue: Whether Hungary and Slovakia are entitled to compensation judgment in cases where this is the appropriate and constructive method of dealing with a
dispute and the object is not primarily to give ‘satisfaction’ for a wrong received.
Ruling: Yes. The Court has concluded that both Parties committed internationally
wrongful acts, and it has noted that those acts gave rise to the damage sustained by the Examples
Parties. For Hungary it abandoned the project, while Slovakia put into operation The applicant states in South West Africa were seeking a
unilaterally the provisional solutions (Variant C). Consequently, Hungary and Slovakia are • declaration that certain legislation affecting the territory was contrary to the obligations of
both under an obligation to pay compensation and are both entitled to obtain South Africa under the Mandate.
compensation. Given the fact, that there have been intersecting wrongs by both Parties, • In the US Diplomatic and Consular Staff in Tehran, the Court’s judgment included several
the issue of compensation could satisfactorily be resolved in the framework of an overall declaratory prescriptions concerning the termination of the unlawful detention of the persons
settlement if each of the Parties were to renounce or cancel all financial claims and concerned.
counter-claims. • In Nicaragua the judgment contained an injunctive declaration ‘that the United States is under
a duty immediately to cease and refrain from all such acts as may constitute breaches of the
Highlighted by Brownlie: the Court reaffirmed the well-established rule of international foregoing legal obligations’.
law that an injured State is entitled to obtain compensation from the State which has • In Corfu Channel, the International Court declared that the minesweeping operation by the
committed an internationally wrongful act for the damage caused by it Royal Navy in Albania’s territorial waters was a violation of sovereignty, and then stated:
‘[t]his declaration is in accordance with the request made by Albania through her Counsel,
and is in itself appropriate satisfaction’.
Possibility of Punitive or Penal damages in International Law o In spite of the terminology, this is not an instance of satisfaction in the usual
• Fitzmaurice expressed the view that any breach of treaty entails the payment of ‘some meaning of the word: the declaration is that of a court and not a party, and is
damages…irrespective of whether the breach has caused any actual material damage or alternative to compensation.
pecuniary loss’ • In Rainbow Warrior, the tribunal merely declare[d] that the condemnation of the French
Republic for its breaches of its treaty obligations to New Zealand, made public by the decision
c. SATISFACTION of the Tribunal, constitutes in the circumstances appropriate satisfaction for the legal and
moral damage caused to New Zealand.
(A). The role of satisfaction • In Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), three findings of violations
were considered to ‘constitute appropriate satisfaction’ to Bosnia and Herzegovina, since ‘the
• Satisfaction may be defined as any measure which the responsible state is bound to take case [was] not one in which an order for payment of compensation, or…a direction to provide
under customary law or under an agreement by the parties to a dispute, apart from restitution assurances and guarantees of non-repetition, would be appropriate.
or compensation.
• If there is a distinction between [satisfaction] and a claim for compensation, it would seem to d. INTEREST
be in the intention behind the demand. If it is predominantly that of seeking a token of regret
and acknowledgement of wrongdoing, then it is a matter of satisfaction. • Whenever compensation for a violation is due, the question arises whether interest should
• Examples: Satisfaction may take many forms, which may be cumulative: apologies or other be paid, at what rate, and from which date.
acknowledgement of wrongdoing by means of a payment of an indemnity or a (somewhat • Rates: Rates vary widely: sometimes a rate is agreed upon by contract or treaty; at other
outmoded) salute to the flag; the trial and punishment of the individuals concerned, or the times tribunals will apply private international law rules and select a national rate; other
taking of measures to prevent a recurrence of the harm. options include applying general principles of international law or simply principles of fairness
• In I’m Alone case: the Canadian government complained of the sinking on the high seas of and reasonableness.
a liquor-smuggling vessel of Canadian registration by a US coastguard vessel. [I]n view of • Time: As for the date from which interest starts running, tribunals are not consistent either: it
may be the date when the obligation became due and owing, the date of the violation or the
54 E.B.C.AKOEH NOTES | ATENEO LAW
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date damages are awarded. • Primary Question: Who can invoke the responsibility of a state for a breach of international
law?
e. SERIOUS BREACHES OF PREEMPTORY NORMS: ARISWA ART. 40 AND 41. • Two views: Non-injured States vis-à-vis Injured States only
• INJURED STATES ONLY VIEW
• Although international rules may cover any topic, not all rules have the same salience. The o VATTEL – The only states justified in going to war against a violator were those
debate on a hierarchy of norms is vast, but few today would question the notion of obligations who have suffered an injury.
1
erga omnes . § ONLY EXCEPTION: Only those nations that ‘openly despise justice’,
• The International Court has noted that obligations relating to the prevention and punishment trampling the rights of others whenever possible.
of genocide, requiring respect for the right to self-determination, as well as relevant § “To form and support an unjust pretension is only doing an injury to the
obligations determined by international humanitarian law, constitute obligations of this kind. party whose interests are affected by that pretension; but to despise
• Likewise, peremptory norms have been a component of the international legal system since justice in general, is doing an injury to all nations.”
the 1969 Vienna Convention on the Law of Treaties. o DOMINANT VIEW AMONG POSITIVIST INTERNATIONAL LAWYERS
• The existence of this superior normative rank entails the question of whether violations of 1. Only states may invoke the responsibility of other states, and;
these rules, and especially ‘gross’ violations of particularly important rules, warrant a different 2. Only when specially affected by the breach.
regime of responsibility than that which corresponds to other internationally wrongful acts. § The state or one of its nationals invoking responsibility must have
o Answered YES in the 1976 version of the Draft Articles on State Responsibility suffered material or moral injury related to the wrongful act.
adopted by the ILC following the proposals of Special Rapporteur Roberto Ago. § Anzilotti in 1906 – The law of nations does not award rights to
o Its Article 19(2) provided that ‘the breach of an obligation so essential for the individuals. State’s obligation does not exist vis-à-vis individuals, but
protection of fundamental interests of the international community’ should be rather it exist vis-à-vis another State. Only States hold the right to
considered to constitute ‘an international crime’. demand that they treat the relevant individuals as desired.
o Ago further state that: ‘the responsibility flowing from the breach of those [erga § Violation of a rule requires some sort of injury, a disturbance of the
omnes] obligations is entailed not only with regard to the State that has been the interest it protects. Hence, only the injures state is entitled to invoke the
direct victim of the breach…it is also entailed with regard to all other members of responsibility of the wrongdoer.
the international community’. § Reparation for Injuries 1949 – For breaches of obligations owed to
• That has been retained in ARISWA Art. 48. individual states, only the party to whom an international oblidation is
• On closer examination, ARSIWA Articles 40 and 41 provide not so much a regime of due can bring a claim in respect of its breach.
aggravated consequences as one of additional consequences. • NON-INJURED STATES VIEW
• ARSIWA Article 41 provides three such consequences. o GROTIUS – Asserted a right of sovereigns to punish violations of that law, even if
o First, all states are to co-operate through lawful means to bring an end to the they have not been especially affected. “Kings, and those who possess equal rights
violation. to those kings, have the right of demanding punishments not only on account of
o Second, all states must refrain from recognizing as lawful the situation created injuries committed against themselves or their subjects, but also on account of
thereby. injuries which do not directly affect them but excessively violate the law of nature
o Third, no state may aid or assist the wrongdoer in maintaining the unlawful or of nation in regard to any persons whatsoever.”
situation. No punishment of the state responsible for the grave breaches is o LOCUS STANDI OF INDIVIDUAL STATES
envisaged by the Articles. § Individual states can ground a claim in a broad concept of legal interest

2
Other consequences remain de lege ferenda , and have seen only sparse practice. or in special conditions in respect of legal interests of other entities.
• Re: the award of punitive damages – In the face of grave breaches in the fields of human o ACIO POPULARIS OR “ACTION OF THE PEOPLE”
rights and armed conflict, courts and tribunals have refused to award penal damages. The § The right of a resident in any member of a community to take legal action
Inter-American Court has held that ‘although some domestic courts…award damages in in vindication of a public interest.
amounts meant to deter or to serve as an example, this principle is not applicable in § South West Africa cases – “States may have a legal interest in
international law at this time’ vindicating a principle of international law even though it suffered no
• The consequences that flow from particularly grave violations are thus not qualitatively material prejudice or ask only for token damages, but such rights or
different from those that flow from a breach of any customary or conventional rule. The interests, in order to exist, must be clearly vested in those who claim
distinctive regime of responsibility that exists for grave violations does not affect reparation, them, by some text or instrument or rule of law.”
but finds its main effects in the possibilities open to non-injured states of demanding o ERGA OMNES OBLIGATIONS OR “TOWARDS ALL OR TOWARDS
cessation and responding to illegality. EVERYONE”
§ Essential distinction between obligations of a state towards the
4. INVOCATION OF RESPONSIBILITY international community as a whole and those arising vis-à-vis another
State in the field of diplomatic protection.
(A) EVOLUTION OF THE LAW § All States can be held to have a legal interest in the protection of the
former; they are obligations Erga Omnes.

1 2
Opposable to or valid against ‘all the world’, i.e. all other legal persons, irrespective of specific Relating to the law as it should be if it were to accord with good policy (cf de lege lata, concerning
consent on the Part of those thus affected. the law as already laid down).
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§ Requests for declaratory judgments have been made in cases brought
A State is entitled as an injured State to invoke the responsibility of another State if the
by states that were not specially injured.
obligation breached is owed to:
§ Barcelona Traction 1970 – Erga Omnes obligations include the
a. that State individually; or
outlawing of acts of aggression and genocide, principles and rules of
b. a group of States including that State, or the international community as a whole,
basic human rights, protection from slavery and racial discrimination.
and the breach of the obligation:
§ East Timor 1995 – The Court recognized the Erga Omnes nature of the
i. specially affects that State; or
obligation to respect self-determination.
ii. is of such a character as radically to change the position of all the other
§ Assuming that the hurdles of jurisdiction, admissibility and propriety are
States to which the obligation is owed with respect to the further
satisfied, there is no inherent limitation of the concept of legal interest to
performance of the obligation.
material interests.
§ Thus, states acting in collective self-defense or a war of sanction against
an aggressor would seem to have a claim for costs and losses. • REPARATION CLAIMS MADE/REQUESTED BY INJURED STATES
o ENVIRONMENTAL LAW – Whaling in the Antarctic 2010 (Australia v. Japan) : o ‘Injured State’ – refers both to states to which the obligation is owed individually
Australia’s application against Japan for whaling activities in the Antarctic Ocean § Examples:
presents a clear case of a state filing an application without being either injured or • Violations of the law of diplomatic relations or a commercial
specially affected. Remedies sought by Australia demand specific orders for treaty
cessation and assurances of non-repetition. • Breach of an Interdependent type – violation of an obligation
by any state radically changes the position of all the other
Barcelona Traction (Begium v. Spain) Evolution of the Law states to which the obligation is owed with respect to the
further performance of the obligation
Facts: A dispute concerning wrongful treatment of an investment made in o Claimant state may demand such for injury done to itself or to its nationals.
Spain by a company incorporated in Canada. Belgium claimed standing to o So long as the state invoking responsibility can be identified as specifically injured.
exercise diplomatic protection of its nationals, who comprised a vast majority of o Problem then is only of valuation of the injury.
the shareholders of the Canadian company, and demanded reparation for the o Injured States is entitled to resort to all means of redress contemplated in the
damage. articles.
1. Demand reparation of the injury (Restitution; Compensation; Satisfaction)
Issue: Whether Belgium has the jus standi to exdrcise diplomatic protection of 2. Cessation of the conduct
shareholders in a Canadian company. 3. Countermeasures

Ruling: No. When a State admits into its territory foreign investments or foreign
ARSIWA, Article 48 – Invocation of responsibility by a State other than an injured State
nationals, whether natural or juristic persons, it is bound to extend to them the
1. Any State other than an injured State is entitled to invoke the responsibility of another State
protection of the law and assumes obligations concerning the treatment to be
in accordance with paragraph 2 if:
afforded them. These obligations, however, are neither absolute nor
a. The obligation breached is owed to a group of States including that State, and is
unqualified. In particular, an essential distinction should be drawn between the
established for the protection of a collective interest of the group; or
obligations of a State towards the international community as a whole, and
b. The obligation breached is owed to the international community as a whole.
those arising vis-à-vis another State in the field of diplomatic protection. By their
very nature the former are the concern of all States. In view of the importance
2. Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible
of the rights involved, all States can be held to have a legal interest in their
State:
protection; they are obligations erga omnes.
a. Cessation of the internationally wrongful act, and assurances and guarantees of
non-repetition in accordance with article 30; and
Highlighted by Brownlie: erga omnes obligations derive ‘in contemporary
b. Performance of the obligation of reparation in accordance with the preceding
international law, from the outlawing of acts of aggression, and of genocide, as
articles, in the interest of the injured State or of the beneficiaries of the obligation
also from the principles and rules concerning the basic rights of the human
breached.
person, including protection from slavery and racial discrimination. Simma
refers to the Barcelona Traction judgment as ‘a great leap forward’:118 it was
3. The requirements for the invocation of responsibility by an injured State under articles 43,
certainly a leap, but since it evaded the (then-controversial) issue of peremptory
44 and 45 apply to an invocation of responsibility by a State entitled to do so under paragraph
norms, it might equally be described as a great leap sideways.
1.

(B) ARSIWA ARTICLES 42 AND 48 (ARTICLES ON RESPONSIBILITY OF STATES FOR INTERNATIONALLY • REPARATION CLAIMS MADE/REQUESTED BY NON-INJURED STATES
WRONGFUL ACTS) o Responsibility may only be invoked by:
§ A State to which the obligation is owed and;
§ Which has some sort of interest in its fulfillment
ARSIWA, Article 42 – Invocation of responsibility by an injured State
• Protects a collective interest of the group
• It is an Erga Omnes obligation
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o What may be demanded from the violator by a non-injured state: Article 48 (2).
b. the dispute is pending before a court or tribunal which has the authority to make
decisions binding on the parties.
(C) COUNTERMEASURES
• Countermeasures – “The possibility for a state to resort to ‘private justice’ when it demands 4. Paragraph 3 does not apply if the responsible State fails to implement the dispute settlement
for cessation of an illegal conduct and/or adequate reparation are not met by the wrongdoer.” procedures in good faith.
• Wronged state may respond by taking measures which would in principle violate its duties to
the other state, but which are regarded as lawful due to their character as countermeasures. • Requirements before resorting to countermeasures:
• In the absence of compulsory jurisdiction, sovereigns could take justice into their own hands. 1. Injured State must call upon the wrongdoing state to cease the wrongful conduct.
• GROTIUS – “A state which does not receive reparation for injury done to itself or its nationals 2. If it is continuing, it must call for reparation of any injury
may justly seize goods of the wrongdoing state and its nationals to recover the loss.” 3. Formally notify the responsible State of the decision to take countermeasures and
• GROTIUS and VATTEL – Accepted reprisals as an ‘enforcement of right’ and the ‘right of the need to offer to negotiate (ARSIWA, Article 52(1))
nations to do themselves justice’. 4. Must not be taken while a dispute is pending before an international adjudicative
• Naulilaa Arbitration 1928 – A reprisal is an act of self-help of the injured State, which responds organ.
to an act contrary to the law of nations committed by the wrongdoing State. Its effect is to 5. Must be proportional to the wrongful conduct.
suspend momentarily between the two States the observation of this or that rule of the law o Naulilaa Arbitration 1928 – Evident disproportion between the killing of two
of nations. German officials in the Portuguese fort of Naulilaa and the subsequent attack
and destruction of six other forts by German forces.
• With the growing restrictions on the use of force, ‘reprisals’ was replaced by two different
o Gabcikovo-Nagymaros 1997 – Unilateral assumption of control over a large
concepts: Self-defense (ARSIWA, Article 21) and Countermeasures (ARSIWA, Article 22)
percentage of the waters of the Danube was not commensurate with the injury
suffered.
ARSIWA, Article 21 – Self-defence
The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of
ARSIWA, Article 49 – Object and limits of countermeasures
self defence taken in conformity with the Charter of the United Nations.
1. An injured State may only take countermeasures against a State which is responsible for an
• Authorizing the use of force applies only to an incoming armed attack. internationally wrongful act in order to induce that State to comply with its obligations under
• Nicaragua 1986 – While an armed attack would give rise to an entitlement to collective self- part two.
defence, a use of force of a lesser gravity could not justify counter-measures taken by a third
State, the United States, and particularly could not justify intervention involving the use of 2. Countermeasures are limited to the non-performance for the time being of international
force. obligations of the State taking the measures towards the responsible State.

3. Countermeasures shall, as far as possible, be taken in such a way as to permit the


ARSIWA, Article 22 – Countermeasures in respect of an internationally wrongful act
resumption of performance of the obligations in question.
The wrongfulness of an act of a State not in conformity with an international obligation towards
another State is precluded if and to the extent that the act constitutes a countermeasure taken • Only a state injured by the violation may resort to countermeasures against the wrongdoer.
against the latter State in accordance with chapter II of part three.
• Countermeasures do not admit of the use of force even in response to a ‘use of force of a ARSIWA, Article 54 – Measures taken by States other than an injured State
lesser gravity. This chapter does not prejudice the right of any State, entitled under article 48, paragraph 1,
• Air Service Agreement 1978 – If a situation arises which, n one State’s view, results in the to invoke the responsibility of another State, to take lawful measures against that State to
violation of an international obligation by another State, the first State is entitled, within the ensure cessation of the breach and reparation in the interest of the injured State or of the
limits set by the general rules of international law pertaining to the use of armed force, to beneficiaries of the obligation breached.
affirm its rights through countermeasures. • Regulates the response of non-injured States.
• Limits their legitimate reaction to lawful measures to ensure cessation of the breach and
ARSIWA, Article 52 – Conditions relating to resort to countermeasures reparation.
1. Before taking countermeasures, an injured State shall: • Retorsion – lawful unfriendly measures. Examples include suspending aid and expelling an
a. Call upon the responsible State, in accordance with article 43, to fulfil its obligations ambassador.
under part two; • Retorsion, being lawful, is available to any state at any time to express disapproval towards
b. Notify the responsible State of any decision to take countermeasures and offer to the conduct, whether or not unlawful, of another state.
negotiate with that State.
SERIOUS BREACHES OF PREEMPTORY NORMS
2. Notwithstanding paragraph 1 (b), the injured State may take such urgent countermeasures • Question as to whether or not serious breaches of preemptory norms entail a right to take
as are necessary to preserve its rights. countermeasures in the collective interest.
3. Countermeasures may not be taken, and if already taken must be suspended without undue • The ILC left the issue open.
delay if: • The law on the matter is uncertain and that there is no clearly recognized entitlement of non-
a. the internationally wrongful act has ceased; and injured states to take countermeasures in the collective interest.

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• ALLAND – The choice was between the subjectivisim of a decentralized response in defence
of general interests and the absence of any consequences for the most serious wrongful
acts.
• A helpful was to protect the collective interest is by entrusting the protection of collective
interests to individual states, acting based on their own understanding of international legality.
• SIMMA – The development from bilateralism to community interests will become visible. The
surrender of these concepts to the mercy of individual auto-determination and auto-
enforcement.

58 E.B.C.AKOEH NOTES | ATENEO LAW