PUBLIC INTERNATIONAL LAW

ATTY. RASHID V. PANDI, JD

USC Law | 2018
 FOUNDATION AND STRUCTURE OF INTERNATIONAL LAW
Brief History

1648 Peace of Westphalia

§  sovereign states are the primary actors in the
international system

§  sovereign states enjoy equal legal status

§  sovereign states enjoy equal protection from outside

intervention
 FOUNDATION AND STRUCTURE OF INTERNATIONAL LAW
Structures of International Law

There are two structures of international law:

①  International Law of Co-existence; and

§  also known as general international law
§  horizontal; governs the relationship of states
§  concerns the content of international obligations

②  International Law of Cooperation

§  concerns the form
§  matters that are not inherently of interest to the State
§  matters which became an international concern
through the adoption of a treaty
§  promotion of “societal goals”
 FOUNDATION AND STRUCTURE OF INTERNATIONAL LAW
Basis of International Law

State Sovereignty vs International Legal Obligations

①  The existence of a plurality of sovereign states

provides the theoretical justifications for the binding
character of international law.
②  I n t e r n a t i o n a l o b l i g a t i o n s a re t h e l o g i c a l
consequence of state sovereignty.

Reciprocity
Reputation
 FOUNDATION AND STRUCTURE OF INTERNATIONAL LAW
International Law and Municipal Law

§  The scope of international law is determined by the

inadequacy of national law.

§  The application of international law in national law is

governed by the constitutional principles of each state
and thus varies substantially.

§  Most states will apply customary international law

domestically.

§  Treaty-based obligations require incorporation.

§  A state cannot justify a breach of its international legal

obligations with the claim that it would breach its national
laws if it were to comply. (Article 27, Vienna Convention
on the Law of Treaties)
 FOUNDATION AND STRUCTURE OF INTERNATIONAL LAW
The Question of Enforcement

§  Enforcement of international law remains a

challenge, but it is not totally absent.
ü  resort to the UN Security Council
ü  self-help measures

§  Non-legal incentives often move states

toward compliance with their international
legal obligations.
 FOUNDATION AND STRUCTURE OF INTERNATIONAL LAW
The Alleged Inadequacy of International Law

§  There is an undeniable tension between the existing

state-centric system and the wider notions of
‘justice’.

§  The current configuration of the world is not

motivated by a specific desire to create a just and
equitable world or to facilitate the realization of
wider ‘community’ goals.

§  International law is derived from a desire to find an

organizing principle that could uphold international
order and stability in world affairs.
 SOURCES OF INTERNATIONAL LAW
Article 38 of the ICJ Statute

1.  The Court, whose function is to decide in accordance with

international law such disputes as are submitted to it, shall apply:
a)  international conventions, whether general or particular,
establishing rules expressly recognized by the contesting
states;
b)  international custom, as evidence of a general practice
accepted as law;
c)  the general principles of law recognized by civilized nations;
d)  subject to the provisions of Article 59, judicial decisions and
the teachings of the most highly qualified publicists of the
various nations, as subsidiary means for the determination of
the law.

2.  This provision shall not prejudice the power of the court to decide a
case ex aequo et bono, if the parties agree thereto.
 SOURCES OF INTERNATIONAL LAW
Formal Source v Material Source

RULE OF INTERNATIONAL LAW:

States must not proliferate nuclear weapons.

SOURCE 1:
2018 Treaty on the Prohibition on the Proliferation of Nuclear
Weapons

SOURCE 2:
①  Public declarations of heads of governments and statements of
various states in the UN General Assembly;
②  Abandonment of certain states of their nuclear proliferation
programs (Brazil, South Africa and Argentina);
③  Establishment of nuclear-free zones in various regions of the world;
and
④  UN General Assembly Resolutions
SOURCES OF INTERNATIONAL LAW
Contract Treaties v Law-Making Treaties

TREATY 1:
Visiting Forces Agreement

TREATY 2:
Convention on the Rights of a Child

TREATY 3:
The United Nations Charter
 SOURCES OF INTERNATIONAL LAW
Custom

THE WAY THINGS HAVE ALWAYS BEEN DONE

BECOMES THE WAY THAT THINGS MUST BE
DONE.
 SOURCES OF INTERNATIONAL LAW
Custom | Twin Elements

CUSTOMARY INTERNATIONAL LAW (“CIL”) exists when

a particular way of behaving is:

①  Followed as a general practice among states (state

practice); and

②  Accepted by those states as legally binding (opinio

juris sive necessitatis)
 SOURCES OF INTERNATIONAL LAW
Custom | General Attributes

PRINCIPLES ON CUSTOMARY INTERNATIONAL LAW:

§  The binding nature of customary international law
is implied.

§  Customary international law has the ability to

adapt to changing circumstances.

§  As a general rule, customary international law

binds all states.

§  Customary legal norms need not be universal in

nature.
 SOURCES OF INTERNATIONAL LAW
Custom | The Element of State Practice

STATE PRACTICE REQUIRES

CONSISTENT REPETITION OF A PARTICULAR
BEHAVIOR.
 SOURCES OF INTERNATIONAL LAW
Custom | Three Elements of State Practice
State practice can be divided into three elements:

①  CONSISTENCY of practice;
•  reasonably uniform
•  does not require complete consistency
•  ‘settled practice’
②  DURATION of practice; and
•  the passage of only a short period of time is not necessarily,
in itself, a bar to the formation of a new rule
•  instant custom
③  GENERALITY of practice
•  practice should include the majority of states
•  practice by “states whose interests are specially affected”
 SOURCES OF INTERNATIONAL LAW
Custom | Three Elements of State Practice

Earlier this year, a group of Chinese vessels were caught engaging in Muro Ami
fishing in some parts of the Great Barrier Reef in Australia. The Chinese crew
manning the vessels were apprehended and criminal cases were filed against
them before Australian courts.

Australia argued that the Chinese crew violated the rule prohibiting Muro Ami
fishing. This rule is recognized by at least 25 states, including Australia,
Philippines, Indonesia, Maldives, Japan, Iceland, states in Central America and
southern Africa.

China argued that there is no customary rule prohibiting Muro Ami, as the rule is
recognized only by a handful of states, and does not include such states as
Russia, the states in the Middle East and Central Europe and Central Africa.

Ho would you rule on the matter?

 SOURCES OF INTERNATIONAL LAW
Custom | The Element of Opinio Juris

STATE PRACTICE, HOWEVER GENERAL AND

REPRESENTATIVE, ONLY CREATES A LEGALLY BINDING
CUSTOMARY RULE WHEN IT IS ACCEPTED AS LAW.
 SOURCES OF INTERNATIONAL LAW
Custom | The Element of Opinio Juris

①  The existence of sufficient general and

representative state practice is usually
sufficient to create a binding custom.

②  Evidence of opinio juris is usually looked for

if there is reason to believe that a particular
behavior stems from non-legal motivations.
 SOURCES OF INTERNATIONAL LAW
Custom | The Element of Opinio Juris

Non-legal Motivations
①  LOTUS CASE
•  not based on a conscious decision on
the part of states that they were under
a duty to abstain from prosecutions

②  ASYLUM CASE
•  considerations of political expediency,
good-neighbor relations
 SOURCES OF INTERNATIONAL LAW
Custom | Case Study

Below are some statistics on the practice of executing people who commit crimes
when they are under the age of 18 years (juveniles):
•  In 1990, there were 9 countries that permitted the execution of juveniles.
•  Since 2008, only Iran, Saudi Arabia, Sudan, and Yemen have executed persons who
committed crimes when under the age of 18.
•  The Convention on the Rights of the Child (“CRC”) forbids capital punishment for
juveniles (Article 37(a)). The treaty entered into force in 1990 and has been signed
by all countries and ratified by all except Somalia and the United States.
•  Some countries have deposited reservations to the CRC, such as a number of
Islamic countries who frequently add a generic reservation stating that they do not
agree to anything that violates the principles of Islam although they do not
specifically mention Article 37(a).
•  In the US, death penalty for juveniles was declared unconstitutional.
•  Currently throughout the world there are about 140 people sentenced to death for
crimes committed when they were under 18.
•  Iran executes about 2/3 of the juvenile offenders executed each year.

Does customary international law prohibit the execution of people who commit the
crimes when they were under 18?
 SOURCES OF INTERNATIONAL LAW
Article 38 of the ICJ Statute

1.  The Court, whose function is to decide in accordance with

international law such disputes as are submitted to it, shall apply:
a)  international conventions, whether general or particular,
establishing rules expressly recognized by the contesting
states;
b)  international custom, as evidence of a general practice
accepted as law;
c)  the general principles of law recognized by civilized nations;
d)  subject to the provisions of Article 59, judicial decisions and
the teachings of the most highly qualified publicists of the
various nations, as subsidiary means for the determination
of the law.

2.  This provision shall not prejudice the power of the court to decide
a case ex aequo et bono, if the parties agree thereto.
 SOURCES OF INTERNATIONAL LAW
General Principles of Law

General principles of international law would

prevent the Court being unable to decide a
dispute due to a shortage of applicable law—
so-called non liquet.

General principles were thus primarily intended

as ‘gap fillers’ that only needed to be
consulted when a dispute could not be
resolved on the basis of a treaty or customary
international law.
 SOURCES OF INTERNATIONAL LAW
General Principles of Law

①  equity
•  Diversion of Water from the Meuse
•  North Sea Continental Shelf Cases
•  Maritime Delimitation in the Black Sea
②  good faith
•  Nuclear Tests Cases
③  pacta sunt servanda
④  elementary considerations of humanity
•  Nicaragua
•  Nuclear Weapons Advisory Opinion
 SOURCES OF INTERNATIONAL LAW
General Principles of Law

⑤  not to allow knowingly one’s territory to be

used for acts contrary to the rights of other
states
•  Corfu Channel Case
⑥  no-harm principle
•  Trail Smelter Case
⑦  res judicata
•  Bosnian Genocide
⑧  circumstantial evidence
•  Corfu Channel Case
 SOURCES OF INTERNATIONAL LAW
General Principles of Law

The State of Agnostica brings a claim against the State of

Reverentia, asserting that Reverentia engaged in genocide
against certain groups of citizens in Agnostica.

Reverentia denied the allegations and challenged Agnostica

to prove its claims. Agnostica argued that the burden of
proof lies with Reverentia to demonstrate that genocide
did not happen.

Which party would you expect to bear the burden of proof

in establishing the alleged fact of genocide drawing on
what you understand to be general principles of proof
before a court?
 SOURCES OF INTERNATIONAL LAW
General Principles of Law

“As the moving Party, the Netherlands asks that the

Belgian action with respect to the operation of the
Neerhaeren Lock be declared contrary to the Treaty of
1863, and that Belgium be ordered to discontinue that
action.

Yet, in its operation of the Bosscheveld Lock, the

Netherlands itself is now engaged in taking precisely similar
action, similar in fact and similar in law.

This seems to call for an application of the principle of

equity stated above.” (River Meuse)
 SOURCES OF INTERNATIONAL LAW
Article 38 of the ICJ Statute

1.  The Court, whose function is to decide in accordance with

international law such disputes as are submitted to it, shall apply:
a)  international conventions, whether general or particular,
establishing rules expressly recognized by the contesting
states;
b)  international custom, as evidence of a general practice
accepted as law;
c)  the general principles of law recognized by civilized nations;
d)  subject to the provisions of Article 59, judicial decisions and
the teachings of the most highly qualified publicists of the
various nations, as subsidiary means for the determination
of the law.

2.  This provision shall not prejudice the power of the court to decide
a case ex aequo et bono, if the parties agree thereto.
 SOURCES OF INTERNATIONAL LAW
The Interplay

Rahmat River demarcates the border between Atania to the north and
Rahad to the south. By a treaty concluded between the two states in 1858,
Atania was given sovereign rights over Rahmat River, but Rahad was given
perpetual navigational rights on the river. Various disputes have arisen over
navigational rights. Recently, Atania has forbidden all fishing from the
banks of the river from the territory of Rahad.

Rahad protests that, at least since 1540, riparian dwellers have consistently
engaged in subsistence fishing from the banks of the river from the Atanian
side. Atania never objected to this practice until 6 months ago. Atania
replies that the Treaty of 1858 does not mention fishing rights and that the
treaty should be read as a complete statement of the rights of both states
with respect to the river. Rahad and Atania agreed to have the dispute
settled by the ICJ.

How should the ICJ rule?

 SOURCES OF INTERNATIONAL LAW
Unilateral Statements
On 17 March 2005, during the 61st Session of the United Nations Commission on Human Rights,
the Minister of Justice of Rukaruku, Minister Mbappe, issued the following statement:

“Rukaruku is one of the countries that has ratified the greatest number of international human
rights instruments. In 2004 alone, our Government ratified ten of them, including those
concerning the rights of women, the prevention and repression of corruption, the prohibition of
weapons of mass destruction, and the environment. The few instruments not yet ratified will
shortly be ratified and past reservations not yet withdrawn will shortly be withdrawn.”

Subsequently, Anduchenca filed a claim against Rukaruku for alleged violation of the Genocide
Convention. Rukaruku argued, however, that it has made a reservation to Article IX of the
Genocide Convention, which says: 

“Disputes between the Contracting Parties relating to the interpretation, application or

fulfillment of the present Convention, including those relating to the responsibility of a State for
genocide or for any of the other acts enumerated in article III, shall be submitted to the
International Court of Justice at the request of any of the parties to the dispute.”  

Anduchenca argued, on the other hand, that such reservation was effectively withdrawn by
virtue of Minister Mbappe’s statement.  Does the ICJ have jurisdiction to hear the claim of
Anduchenca?
The Law of Treaties
 THE LAW OF TREATIES
Treaty as a Concept under International Law

The ASEAN-Status of Humanitarian Overseas

Forces Agreement (“SHOFA”) is an agreement
between ASEAN Member States concerning
the entry of ASEAN troops for humanitarian
purposes. The SHOFA is the first of its kind in
Southeast Asia and is to be implemented in for
the first time in January 2019.

T h e P h i l i p p i n e P re s i d e n t s i g n e d t h e
agreement.
 THE LAW OF TREATIES
Introduction

The President of the Philippines signs an

agreement with the President of Kuwait
involving reciprocity in the treatment of each
country's nationals residing in the other’s
territory.
However, he does not submit the agreement
to the Senate for concurrence.
 THE LAW OF TREATIES
Authority to Conclude A Treaty

Full Powers
v  refers to a document that authorizes a
state representative to negotiate and
conclude a treaty on behalf of a state

By virtue of their functions, heads of state,

heads of government and ministers for
foreign affairs may perform all acts that
relate to the conclusion of a treaty on behalf
of a state without presenting full powers.
 THE LAW OF TREATIES
Authority to Conclude A Treaty

ART. 46, VCLT

Consent Expressed in Violation of National Laws
•  violation was manifest
•  violation concerned a national rule of
fundamental importance

ART. 8, VCLT
Disavowal of Act
•  express (by subsequently endorsing the act)
•  implied (by invoking the provisions of the
treaty)
 THE LAW OF TREATIES
Consent to be Bound

ART. 11, VCLT

Consent may be expressed by:
•  a signature
•  an exchange of instruments that constitute a
treaty
•  ratification
•  acceptance
•  approval
•  accession
•  any other means if so agreed
 THE LAW OF TREATIES
Consent to be Bound

ART. 15, VCLT

Consent by accession is possible in the following
circumstances:

a)  if the treaty provides for it;

b)  if it is otherwise established that the
negotiating parties were agreed that it should
be possible; or
c)  if all the parties have subsequently agreed
that a state may express its consent by such
means
 THE LAW OF TREATIES
Consent to be Bound

①  Signature v Ratification
②  Purpose of Ratification

ART. 14, VCLT

Ratification is required if:
a)  it is specified in the treaty itself;
b)  it is otherwise established that the negotiating parties
agreed that it was needed;
c)  the representative who signed the treaty did so
subject to ratification; or
d)  it appeared from the full powers of the representative
or it was expressed during the negotiation that that
was the intention of the state
 THE LAW OF TREATIES
Entry Into Force

①  Most modern treaties have a provision

specifying how and when a treaty enters into
force, usually upon the ratification of a
specified number of states.

②  If a treaty does not specify when entry into

force occurs, then it will occur “as soon as
consent to be bound by the treaty has been
established for all the negotiating
states.” [Art. 24 (2), VCLT]
 THE LAW OF TREATIES
Observance and Application of Treaties

ART. 26, VCLT (pacta sunt servanda)

Every treaty in force is binding upon the parties
to it and must be performed by them in good
faith.

ART. 27, VCLT

Internal law cannot be raised as a justification for
the failure to keep a treaty.

ART. 46, VCLT

Consent Expressed in Violation of National Laws
 THE LAW OF TREATIES
Validity of Treaties

Grounds for Invalidity. There are several grounds

upon which a treaty may be found invalid:
①  Error
②  Fraud and Corruption
③  Coercion
④  Conflict with a peremptory norm

Grounds for Termination or Suspension. The

following may be invoked as grounds to
terminate or suspend the operation of a treaty:
①  Material Breach
②  Supervening Impossibility of Performance
③  Rebus Sic Stantibus
 THE LAW OF TREATIES
Validity of Treaties

Error
a)  the error must relate to a fact or situation which was assumed
by the State to exist at the time when the treaty was
concluded;
b)  the error must have formed an essential basis for a party’s
consent to be bound by the treaty;
c)  the claiming party must not have contributed by its own
conduct to the error or must not have had notice of the error.

It is an established rule of law that the plea of error

cannot be allowed as an element vitiating consent if the
party advancing it contributed by its own conduct to
the error, or if it could have avoided it, or if the
circumstances were such as to put the party on notice
of a possible error.
The Temple of Preah Vihear (Cambodia v Thailand)
 THE LAW OF TREATIES
Validity of Treaties

Coercion
Art. 51 of the VCLT declares that if a treaty has been
“procured by the coercion of its representative through
acts or threats directed against him [it] shall be without
any legal effect.”
 THE LAW OF TREATIES
Reservations

ART. 2(1)(d) of the VCLT defines reservation as

a unilateral statement, however phrased or named,

made by a state, when signing, ratifying, accepting,
approving or acceding to a treaty, whereby it purports
to exclude or modify the legal effect of certain
provisions of the treaty in their application to that state.
Compare with derogation and interpretative declaration

What is the unanimity rule in relation to reservations?

Prior to the Genocide Advisory Opinion, the rule on reservations had
been that states were not permitted to make reservations to treaties
unless all of the other parties to the treaty accepted the reservation.
This illustrates the unanimity rule.
 THE LAW OF TREATIES
Reservations

ART. 19, VCLT

Reservations are excluded in the following
circumstances:
①  If the treaty expressly stipulates that reservations
are not permitted.
②  If the treaty provides that only certain provisions
to the treaty can be made.
③  If it violates the object and purpose of the treaty.
•  if the reservation “affects an essential element of
the treaty that is necessary to its general tenour, in
such a way that the reservation impairs the raison
d’être of the treaty”
 THE LAW OF TREATIES
Reservations

The State of Alpha and the State of Beta enter into a treaty
containing eight numbered articles. Both states complete
their internal ratification procedures and mutually exchange
ratification notification. Alpha adds the following reservation:

“The State of Alpha does not agree to article number eight

and hereby notifies the State of Beta of its reservation to
article eight.”

Beta’s ratification did not include any reservation to the

treaty.

What effect will Alpha’s reservation have on the treaty?

 THE LAW OF TREATIES
Termination and Suspension

Material Breach [ART. 60 (3) (a) and (b)]

Material breach refers to:
①  a repudiation of the treaty not sanction by the
VCLT; or
②  the violation of a provision essential to the
accomplishment of the object or purpose of the
treaty
See Namibia (South West Africa ) case, Advisory
Opinion, 1971 ICJ 16 (June 21)
 THE LAW OF TREATIES
Termination and Suspension

Supervening Impossibility of Performance (ART. 61)

This ground may be invoked when “an object
indispensable for the execution of the treaty” has
permanently disappeared or been destroyed.

①  submergence of an island;
②  drying up of a river;
③  destruction of a dam or hydroelectric installation
indispensable for the execution of a treaty

What if temporary only?

 THE LAW OF TREATIES
Termination and Suspension

Rebus Sic Stantibus (ART. 62)

This ground may be invoked when:
①  there is an objective change of circumstance;
②  the change was unforeseeable;
③  the existence of the circumstance constituted an essential
basis of the consent of the parties;
•  the change must relate to a fact existing at the time the
obligations were assumed and which proved to be a
decisive factor prompting the party to assume such
obligations.
④  the effect of the change is radically to transform the extent
of the obligations still to be performed.
•  the change must have increased the burden of the
obligations to be executed rendering the performance of
something essentially different from that originally
undertaken
 THE LAW OF TREATIES
Treaty Interpretation

ART. 31, VCLT

A treaty must be interpreted in good faith in
accordance with the ordinary meaning to be given to
its terms in their context and in the light of its object
and purpose.

Under Article 32, recourse may be had to

supplementary means of interpretation such as the
preparatory work and the circumstances in which the
treaty was concluded.
 THE LAW OF TREATIES
Treaty Interpretation

①  TEXTUALIST APPROACH
q  In Kasikili/Sedudu Island, the ICJ employed the
“dictionary approach” to find the ordinary meaning of an
important term in a treaty.

②  TELEOLOGICAL APPROACH
q  In Whaling, the ICJ underscored that treaty terms are not
to be determined in the abstract, but in light of its
context, object and purpose. Apart from the preamble,
reference is made to the treaty’s historical, political and
social factors.

| Approaches in Treaty Interpretation

 THE LAW OF TREATIES
Treaty Interpretation

③  EVOLUTIONARY APPROACH

q  Any evidence of a treaty’s past intent should be viewed

against the contemporary socio-legal context under which it
is to be implemented.

q  An evolutionary treaty interpretation is appropriate when a

treaty uses generic terms as in Navigational or when it
involves a regime inherently adapted to scientific and legal
developments, as in the Namibia Advisory Opinion.

| Approaches in Treaty Interpretation

 THE LAW OF TREATIES
Treaty Interpretation

④  INTERPRETATION BY SUBSEQUENT PRACTICE OF STATES

q  Subsequent practice constitutes objective evidence of
the understanding of the parties as to the meaning of
the treaty.

q  In Temple of Preah Vihear, subsequent practice can

gleaned from silence in circumstances calling for some
reaction, thus allowing the inference that the acts
confirm an interpretation of the meaning of the Treaty.

⑤  SYSTEMIC INTEGRATION

| Approaches in Treaty Interpretation

 THE LAW OF TREATIES
Treaty Interpretation

Article 1 of the Treaty of 1955:

There shall be firm and enduring peace and sincere
friendship between the United States and Iran.
It follows that Article 1 must be regarded as fixing an
objective, in the light of which the other Treaty
provisions are to be interpreted and applied.
The objective of peace and friendship proclaimed in
Article I of the Treaty of 1955 is such as to throw light
on the interpretation of the other Treaty provisions,
and in particular of Articles IV and X.
Article I is thus not without legal significance for such
an interpretation, but cannot, taken in isolation, be a
basis for the jurisdiction of the Court.
OIL PLATFORMS CASE
 THE LAW OF TREATIES
Treaty Interpretation

The object and purpose of the Treaty of 1955 was not to

regulate peaceful and friendly relations between the two States
in a general sense. Rather, by incorporating into the body of the
Treaty the form of words used in Article 1, the two States
intended to stress that peace and friendship constituted the
precondition for a harmonious development of their commercial,
financial and consular relations and that such a development
would in turn reinforce that peace and that friendship.

The practice followed by the Parties in

regard to the application of the Treaty
does not lead to any different conclusions.

OIL PLATFORMS CASE

 THE LAW OF TREATIES
Treaty Interpretation

Article IV (1) of the Treaty of 1955

Each High Contracting Party shall at all times accord fair
and equitable treatment to nationals and companies of
the other High Contracting Party, and to their property
and enterprises ; shall refrain from applying unreasonable
or discriminatory measures that would impair their legally
acquired rights and interests; and shall assure that their
lawful contractual rights are afforded effective means of
enforcement, in conformity with the applicable laws.

This provision does not lay down any norms

applicable to this particular case. This Article
cannot therefore form the basis of the Court's
jurisdiction.
OIL PLATFORMS CASE
 THE LAW OF TREATIES
Treaty Interpretation

Article X (1) of the Treaty of 1955

Between the territories of the two High Contracting
Parties there shall be freedom of commerce and
navigation.
There is nothing to indicate that the parties to the
Treaty intended to use the word “commerce” in
any sense different from that which it generally
bears. The word "commerce" is not restricted in
ordinary usage to the mere act of purchase and
sale; it has connotations that extend beyond mere
purchase and sale to include "the whole of the
transactions, arrangements, etc., therein involved”.

OIL PLATFORMS CASE

 THE LAW OF TREATIES
Treaty Interpretation

The Court concludes that it would be a natural

interpretation of the word "commerce" in Article X (1)
of the Treaty of 1955 that it includes commercial
activities in general, not merely the immediate act of
purchase and sale, but also the ancillary activities
integrally related to commerce.

In any event, Article X (1) of the Treaty of 1955 does

not strictly speak of protecting "commerce”, but
“freedom of commerce". Any act which would impede
that "freedom" is thereby prohibited.

OIL PLATFORMS CASE

 THE LAW OF TREATIES
Treaty Interpretation

Article 1 has been drafted in terms so general that by itself it

is not capable of generating legal rights and obligations. This
is not to say, however, that it cannot be invoked for the
purpose of construing other provisions of the Treaty.

The Court cannot lose sight of the fact that Article 1 states in
general terms that there shall be firm and enduring peace and
sincere friendship between the Parties. The spirit and intent
set out in this Article animate and give meaning to the entire
Treaty and must, in case of doubt, incline the Court to the
construction which seems more in consonance with its overall
objective of achieving friendly relations over the entire range
of activities covered by the Treaty.

OIL PLATFORMS CASE

 THE LAW OF TREATIES
Treaty Interpretation

ART. 22 of the Covenant of the League of Nations

(1)  To those colonies and territories which as a consequence of the late war
have ceased to be under the sovereignty of the States which formerly
governed them and which are inhabited by peoples not yet able to
stand by themselves under the strenuous conditions of the modern
world, there should be applied the principle that the well-being and
development of such peoples form a sacred trust of civilisation and that
securities for the performance of this trust should be embodied in this
Covenant.

(2)  The best method of giving practical effect to this principle is that the
tutelage of such peoples should be entrusted to advanced nations who
by reason of their resources, their experience or their geographical
position can best undertake this responsibility, and who are willing to
accept it, and that this tutelage should be exercised by them as
Mandatories on behalf of the League.

NAMIBIA ADVISORY OPINION

 THE LAW OF TREATIES
Treaty Interpretation

The subsequent development of international law in regard to

non-self-governing territories, as enshrined in the Charter of
the United Nations, made the principle of self-determination
applicable to all of them:
①  The concept of the sacred trust was confirmed and
expanded to all “territories whose peoples have not yet
attained a full measure of self-government”, clearly
embracing territories under a colonial régime.
②  Declaration on the Granting of Independence to Colonial
Countries and Peoples
③  Account of the political history of mandated territories in
general (only two out of fifteen, excluding Namibia, remain
under United Nations tutelage).

NAMIBIA ADVISORY OPINION

 THE LAW OF TREATIES
Treaty Interpretation
Mindful as it is of the primary necessity of interpreting
an instrument in accordance with the intentions of the
parties at the time of its conclusion, the Court is bound
to take into account the fact that the concepts
embodied in Article 22 of the Covenant—"the
strenuous conditions of the modern world" and "the
well-being and development" of the peoples
concerned—were not static, but were by definition
evolutionary, as also, therefore, was the concept of the
"sacred trust".
An international instrument has to be interpreted and
applied within the framework of the entire legal
system prevailing at the time of the interpretation.

NAMIBIA ADVISORY OPINION

 THE LAW OF TREATIES
Treaty Interpretation
Article VIII (1) of the ICRW
“Notwithstanding anything contained in this Convention any
Contracting Government may grant to any of its nationals a
special permit authorizing that national to kill, take and treat
whales for purposes of scientific research subject to such
restrictions as to number and subject to such other conditions
as the Contracting Government thinks fit, and the killing,
taking, and treating of whales in accordance with the
provisions of this Article shall be exempt from the operation
of this Convention.”
The Court notes that Article VIII is an integral part of the
Convention. It therefore has to be interpreted in light of the
object and purpose of the Convention and taking into account
other provisions of the Convention, including the Schedule.

WHALING IN THE ANTARCTIC

 THE LAW OF TREATIES
Treaty Interpretation

Taking into account the Preamble and other relevant

provisions of the Convention referred to above, the Court
observes that neither a restrictive nor an expansive
interpretation of Article VIII is justified.

Taken as a whole, the Court considers that JARPA II involves

activities that can broadly be characterized as scientific
research (see paragraph 127 above), but that the evidence
does not establish that the programme’s design and
implementation are reasonable in relation to achieving its
stated objectives. The Court concludes that the special
permits granted by Japan for the killing, taking and treating of
whales in connection with JARPA II are not “for purposes of
scientific research” pursuant to Article VIII, paragraph 1, of the
Convention.

WHALING IN THE ANTARCTIC

 THE LAW OF TREATIES
Treaty Interpretation

Neither the circumstance that Nicaragua is not a party to

the Vienna Convention on the Law of Treaties nor the
fact that the treaty which is to be interpreted here
considerably pre-dates the drafting of the said
Convention has the effect of preventing the Court from
referring to the principles of interpretation set forth in
Articles 31 and 32 of the Vienna Convention on the Law
of Treaties.

NAVIGATIONAL AND RELATED RIGHTS

 THE LAW OF TREATIES
Treaty Interpretation

“for the purposes of” vs “with articles of”

The main reason for this is that ascribing the meaning

“with goods” or “with articles” to the phrase “con
objetos” results in rendering meaningless the entire
sentence in which the phrase appears.

①  “Cañas-Martinez” Peace Treaty

②  1858 Treaty of Limits

NAVIGATIONAL AND RELATED RIGHTS

 THE LAW OF TREATIES
Treaty Interpretation

Nicaragua contends that it is important to give the

words used in the Treaty the meaning they had at the
time the Treaty was concluded, not their current
meaning, which can be quite different, because this is
the only way to remain true to the intent of the
drafters of the Treaty; and determining that intent is
the main task in the work of interpretation.

NAVIGATIONAL AND RELATED RIGHTS

 THE LAW OF TREATIES
Treaty Interpretation

Where the parties have used generic terms in a treaty, the

parties necessarily having been aware that the meaning of
the terms was likely to evolve over time, and where the
treaty has been entered into for a very long period or is “of
continuing duration”, the parties must be presumed, as a
general rule, to have intended those terms to have an
evolving meaning.

①  First, “comercio” is a generic term, referring to a class of

activity.

②  Second, the 1858 Treaty was entered into for an unlimited

duration; from the outset it was intended to create a legal
régime characterized by its perpetuity.
NAVIGATIONAL AND RELATED RIGHTS
 ACTORS IN THE INTERNATIONAL LEGAL SYSTEM
Acquisition of New Territory

Title to territory can be acquired through diverse

means:
①  state succession;
②  occupation in the event of terra nullius;
③  third party decision;
④  arbitration;
⑤  international agreements;
⑥  the principle of uti possidetis juris; and
⑦  effectivités
•  understood as public actions carried out with
sovereign intent by a state on a certain
territory, sometimes in the absence of any
other formal title.
 ACTORS IN THE INTERNATIONAL LEGAL SYSTEM
Acquisition of New Territory

EFFECTIVITÉS
“a claim to sovereignty based not upon some
particular act or title such as a treaty of accession but
merely upon continued display of authority, involves
two elements each of which must be shown to exist:
the intention and will to act as sovereign, and some
actual exercise or display of such authority”
 ACTORS IN THE INTERNATIONAL LEGAL SYSTEM
Acquisition of New Territory
International boundary agreements interact in a
number of ways with other titles to territory.
q  The Court established in Cameroon v. Nigeria the
prevalence of international agreements over the principle
of uti possidetis juris in the sense that colonial law cannot
change a boundary determined by the former.

q  International boundary agreements always prevail over

effectivités.

q  When an international agreement not to set a boundary in

a specific area, the boundary is determined by the Court
on the basis of effectivités.
ACTORS IN THE INTERNATIONAL LEGAL SYSTEM
State Succession

State succession concerns the “the

replacement of one state by another in
the responsibility for the international
relations of territory”.
①  Vienna Convention on Succession of States in
Respect to Treaties

②  Vienna Convention on Succession of States in

Respect of State Property, Archives and Debts
ACTORS IN THE INTERNATIONAL LEGAL SYSTEM
State Succession

Determine if the entity should be

considered as a continuation of a pre-
existing state or as a completely new and
separate entity.

THE ‘CLEAN SLATE’ APPROACH

•  The emerging state is not bound by
the treaties and agreements that
were concluded by its predecessor.1
 ACTORS IN THE INTERNATIONAL LEGAL SYSTEM
State Succession

EXCEPTIONS TO THE ‘CLEAN STATE’ APPROACH

①  Territorial Treaties
•  In Gabcikovo, the ICJ decided that the 1977
treaty was territorial in nature so that it
“created rights and obligations ‘attaching to’
the parts of the Danube to which it relates.”
As such, the treaty was transmittable to
Slovakia which was bound by it from the day
it came into existence.

②  Boundary Treaties
ACTORS IN THE INTERNATIONAL LEGAL SYSTEM
State Succession

UTI POSSIDETIS JURIS

•  Geographical boundaries created by
treaties remain in force regardless of
whether or not the boundaries coincide
with ethnic, tribal, religious or political
affiliations.

•  A boundary agreed in a treaty

“achieves permanence which the treaty
itself does not necessarily enjoy.”
ACTORS IN THE INTERNATIONAL LEGAL SYSTEM
State Succession

THE CLEAN SLATE APPROACH AND HUMAN

RIGHTS COMMITMENTS
•  The protection under the ICCPR
continues “notwithstanding change in
government of the State party,
including dismemberment in more than
one State or State succession.” (ICCPR,
General Comment No. 26 on Continuity of
Obligations)
ACTORS IN THE INTERNATIONAL LEGAL SYSTEM
Extinction

Extinction:
①  Disintegration/Splitting
②  Merger

absence of effective government

annexation
ACTORS IN THE INTERNATIONAL LEGAL SYSTEM
International Organizations

An international organization is defined as

an organization established by a treaty or
other instrument governed by international
law and possessing its own international
legal personality.
•  ILC 2011 Draft Articles on the Responsibility
of International Organizations
 ACTORS IN THE INTERNATIONAL LEGAL SYSTEM
International Organizations

q  International organizations have rights and

obligations accorded to them by states.
①  power to conclude necessary agreements
governed by international law
②  immunity from the exercise of jurisdiction by
national courts
③  capacity to protect its rights by bringing claims for
injury to its personnel

q  The extent of an organization’s rights and

obligations depends on “its purposes and
functions as specified or implied in its constituent
documents and developed in practice.”
 ACTORS IN THE INTERNATIONAL LEGAL SYSTEM
Individuals

q  It is primarily in human rights law that

international law bestows RIGHTS on individuals.
①  international economic law / foreign investments
protection
②  laws of armed conflict

q States have also imposed OBLIGATIONS under

international law on individuals.
Crimes against international law are created by men,
not by abstract entities, and only by punishing
individuals who commit such crimes can the
provisions of international law be enforced.
Ø  Judgment of the Nuremberg International Military
Tribunal
 ACTORS IN THE INTERNATIONAL LEGAL SYSTEM
Groups of Individuals

①  Indigenous Groups
②  Insurgent Groups
③  National Liberation Movements

A group must possess sufficient organizational capacity

in order to be a party to an armed conflict.

In order to constitute an armed conflict, fighting between

armed groups must exceed the intensity of mere “internal
disturbances and tensions, such as riots, isolated and
sporadic attacks of violence or other acts of a similar
nature.”
 ACTORS IN THE INTERNATIONAL LEGAL SYSTEM
Private Corporations

①  Corporate Social Responsibility

②  HRC 2011 Guiding Principles on Business and
Human Rights

In some circumstances, a contractual

relationship between a state and a
corporation will be governed by
international law.
 ACTORS IN THE INTERNATIONAL LEGAL SYSTEM
Private Corporations

The International Fund for Rare Diseases was set up by treaty

among eight nations. Its headquarters are in Italy which is also
a member State. Its function is to raise money for rare
diseases and to finance research and development projects.

Three years into its operation and following the global

financial crisis the Fund is not only unable to continue with its
mandate but it owes considerable amounts of money in
respect of projects it has commissioned. Its member States
are unwilling to finance these commitments but do not
disband the Fund.

What is the nature of the Fund and who is liable for its debts?
JURISDICTION
Introduction

PRESCRIPTIVE JURISDICTION
•  criminalization of robbery

ENFORCING JURISDICTION
•  apprehension of the robber

ADJUDICATIVE JURISDICTION
•  subsequent punishment of the convicted robber
 JURISDICTION
Jurisdiction to Prescribe

International law permits a state to exercise its

PRESCRIPTIVE JURISDICTION with respect to:

①  conduct that, wholly or in substantial part, takes place

within its territory;

②  the status of persons, or interests in things, present

within its territory;

③  conduct outside its territory that has or is intended to

have substantial effect within its territory.
 JURISDICTION
Territoriality Principle

TERRITORIALITY PRINCIPLE
•  This principle holds that a state has jurisdiction
over all acts—whether criminal or not—committed
on its territory and over everyone located on the
territory of that state.

A.  OBJECTIVE TERRITORIALITY (where completed)

B.  SUBJECTIVE TERRITORIALITY (where commenced)

 JURISDICTION
Territoriality Principle

What about a state’s attempt to regulate conduct of

persons or entities outside its territory where the
conduct has an economic effect within the state’s
territory? THE EFFECTS DOCTRINE

THE ALCOA CASE (US vs Aluminum Co. of America)

•  the US circuit court held that the fixing prices and
setting quotas for the production and sale of
aluminum was prohibited by the Sherman Act, even
though the agreements to limit production were
made in Switzerland by a Swiss corporation where
the agreements “were intended to affect imports
[into the U.S.] and did effect them.
 JURISDICTION
Territoriality Principle

HARTFORD FIRE INSURANCE COMPANY

•  The Sherman Act is applicable to foreign conduct
meant to produce and in fact produce some substantial
effect in the United States.

•  The court considered the express purpose to affect U.S.

commerce and the substantial nature of the effect
produced.

•  Protective principle may cover not just criminal cases,

but even non-criminal cases such as torts.
 JURISDICTION
Illustrative Case
State A passes the following criminal law:
Any citizen of State A who travels abroad and engages in sexual
relations with a person under the age of 16 years shall be guilty of a
felony and may be sentenced to up to 15 years in jail and/or a fine
of up to $100,000. It shall be no defense to this crime that the
person under the age of 16 consented to the sexual relationship or
that such relationships are not illegal in the territory where the acts
were committed.

Mr. X, a citizen of State A, travelled to State T and engaged in

sexual intercourse with a 15-year old girl in a brothel licensed by
State T. Mr. X paid $100 to visit the brothel and his acts were not
illegal State T. When Mr. X returned to State A, he was arrested
and tried under the law quoted above. He was convicted and
sentenced to 5 years in jail. Was the conviction valid under
international law?
 JURISDICTION
Nationality Principle

ACTIVE PERSONALITY PRINCIPLE

•  States may extend their laws to their own nationals
regardless of where they are located.

SOME PRINCIPLES ON NATIONALITY:

q  For individuals with dual nationality, both states of nationality
may assert jurisdiction on the basis of nationality.

q  States are generally free to decide who they consider to be

their nationals.
①  Maritime Safety Committee Advisory Opinion
②  Nationality Decrees Issued in Tunis and Morocco

q The exercise of rights associated with nationality may be

challenged by other states.
 JURISDICTION
Nationality Principle

NATIONALITY DECREES ADVISORY OPINION

q  The question whether a certain matter is or is not solely
within the jurisdiction of a State is an essentially relative
question; it depends upon the development of
international relations.

q  Thus, in the present state of international law,

questions of nationality are, in the opinion of the Court,
in principle within this reserved domain.

q  The right of a State to use its discretion is nevertheless

restricted by obligations which it may have undertaken
towards other States.
 JURISDICTION
Nationality Principle

CONSTITUTION OF THE MARITIME SAFETY COMMITTEE

ADVISORY OPINION
q  The Court considered the meaning of the words “the
largest ship-owning nations”.

q  The largest ship-owning nations were to be elected on

the strength of their tonnage. The only question was in
what sense Article 28 (a) contemplated that ships
should be owned by or belong to them.

q  Liberia and Panama had contended that the sole test
was registered tonnage but certain other States had
submitted that the proper interpretation of the Article
required that ships should belong to nationals of the
State whose flag they flew.
 JURISDICTION
Nationality Principle

NOTTEBOHM & THE EFFECTIVE NATIONALITY THEORY

q  On the international plane, the grant of nationality is entitled
to recognition by other States only if it represents a genuine
connection between the individual and the State granting its
nationality.

q  It is the bond of nationality between a State and an individual

which alone conferred upon the State the right to put forward
an international claim on his behalf.

q  Mr. Nottebohm’s nationality, however, was not based on any

genuine prior link with Liechtenstein and the sole object of his
naturalization was to enable him to acquire the status of a
neutral national in time of war.
 JURISDICTION
Illustrative Case
A Lebanese citizen named Mr. Y, together with four associates,
hijacked a Jordanian-registered civilian airplane at the airport in
Beirut, Lebanon. The pilot was forced to take off as Y threatened him
with a gun. All of the crew and passengers were tied up. The
hijackers wanted publicity for a political cause they believe in. Y
explained to the passengers that he wanted the plane to fly to
Tunisia where he would address a meeting of the Arab League to
inform the delegates about the need to remove all Palestinians in
Lebanon. The plane tried to land at a number of airports, but could
not get a clearance. Eventually, the plane returned to Beirut where
the passengers disembarked, severely shaken by their 34-hour
ordeal, but physically unharmed. On the plane were 145 passengers
from 21 countries, including 2 US citizens.

Assume that Y turned up in France. The US requested his extradition

and he was duly extradited to the US. Does the US have an
acceptable basis for the assertion of criminal jurisdiction over Y?
 JURISDICTION
Passive Personality Principle

PASSIVE PERSONALITY PRINCIPLE

•  A state may assert jurisdiction on the basis of
the nationality of the victim over certain
offenses regardless of where the offense occurs
of the nationality of the perpetrator.

①  the question of foreseeability

②  ought to be limited to serious offenses
③  a state’s particularly strong interest in the
come needs to be established
④  a subsidiary means of jurisdiction
 JURISDICTION
Illustrative Case
Adam, a citizen of State A, a Cain, a citizen of State C, worked
together to bomb the foreign embassy of State G located in
State H. The bombing was successful in the sense that the entire
embassy complex was blown up; 23 embassy employees were
killed (all citizens of State G) and 34 civilians of State H, who
were in the vicinity of the embassy, were injured. Eventually, the
agents of State H captured Adam and Cain in State H. State H
agreed to extradite Adam and Cain to State G under a duly
ratified extradition treaty. State G put Adam and Cain on trial
for conspiracy to murder State G’s embassy staff and for
destroying State G’s embassy buildings and property. They were
convicted and sentenced to life in prison.

Do the trials and convictions of Adam and Cain violate

international law?
 JURISDICTION
Protective Principle

THE PROTECTIVE PRINCIPLE

•  This principle permits a state to exercise jurisdiction
over “certain conduct outside its territory by persons
not its nationals that is directed against the security of
the State or against a limited class of other state
interests.”

q  requires genuine threat to vital state interest

q  pertains to serious offenses that could not be condoned
by anyone
q  secondary boycott laws vs blocking laws
 JURISDICTION
Universal Jurisdiction

PRINCIPLE OF UNIVERSALITY
•  International law recognizes that certain offenses
are so serious and/or disruptive to international
society that any state may claim jurisdiction over
them no matter where they have been committed
or by whom.

q  No direct link is necessary.

q  Universal jurisdiction was created to fulfill a
jurisdictional vacuum.
q  Applied in delicta juris gentium.
q  Two forms: (a) universal jurisdiction in absentia and (b)
aut dedere aut judicare.
 JURISDICTION
Jurisdiction to Enforce

THE LOTUS PRINCIPLE

•  The “first and foremost restriction imposed by
by international law upon a state is that—failing
the existence of a permissive rule to the contrary
—it may not exercise its power in any form in
the territory of another State.

RENDITION
•  Rendition means to deliver an individual from one
state to another.
3 Methods of Rendition:
①  Extradition
②  Deportation
③  Abduction
 JURISDICTION
Jurisdiction to Enforce

EXTRADITION

•  unilateral
•  need for a treaty
•  destination of the deportee

DEPORTATION
 JURISDICTION
Extradition
EXTRADITION
•  Extradition is “the surrender by one nation to
another of an individual accused or convicted of
an offense outside of its own territory, and within
the territorial jurisdiction of the other, which,
being competent to try and to punish him,
demands the surrender.”
Conditions:
①  It must be pursuant to a treaty;
②  The person to be extradited had been charged or
convicted of extraditable offense; and
③  The extraditable offense is either (a) listed or (2) covered
by “Double or Dual Criminality Principle/Clause”
 JURISDICTION
Extradition

BASIC PRINCIPLES IN EXTRADITION

q  The obligation to extradite is treaty-based
q  Pacta sunt servanda applies
q  Dual purposes:
①  Prosecution
②  Execution

q  Could not cover “political offenses”

q  “Rule of Specialty” must be followed
q  Ex post facto law prohibition does not apply.
 JURISDICTION
Extradition

DOUBLE/DUAL CRIMINALITY PRINCIPLE

•  Under the double criminality rule, the extraditable
offense must be criminal under the laws of both the
requesting and the requested states.

•  This simply means that the requested state comes

under no obligation to surrender the person if its laws
do not regard the conduct covered by the request for
extradition as criminal.

RULE OF SPECIALTY
Under this rule, the requesting state is not permitted to
prosecute the extradited individual for offenses that is
not covered by the request.
 JURISDICTION
Extradition

MUÑOZ: THE THIRD BLOW

The HKSAR defines the crime of accepting an advantage
as an agent under Section 9 (1) (a) of the Prevention of
Bribery Ordinance (POBO), Cap. 201, 39 to wit:

Section 9. Corrupt transactions with agents. —

1)  Any agent who, without lawful authority or reasonable
excuse, solicits or accepts any advantage as an
inducement to or reward for or otherwise on account of
his —

(a) doing or forbearing to do, or having done or

forborne to do, any act in relation to his
principal's affairs or business; or
 JURISDICTION
Extradition

MUÑOZ: THE THIRD BLOW

A careful reading shows that the foreign law subject-
matter of this controversy deals with bribery in both
public and private sectors. However, it is also quite
evident that the particular provision of the POBO
allegedly violated by Muñoz, i.e., Section 9 (1) (a), deals
with private sector bribery — this, despite the
interpretation under Section 2 of the POBO that an
“agent includes a public servant and any person
employed by or acting for another..”
 JURISDICTION
Extradition

MUÑOZ: THE THIRD BLOW

Conformably with the principle of specialty embodied in
Article 17 of the RP-HK Agreement, Muñoz should be
proceeded against only for the seven counts of
conspiracy to defraud. As such, the HKSAR shall
hereafter arrange for Muñoz's surrender within the
period provided under Article 15 of the RP-HK
Agreement. (Government of Hongkong Special
Administrative Region v. Muñoz, G.R. No. 207342, 16
August 2016])
 JURISDICTION
Extradition

MUÑOZ: THE THIRD BLOW

Considering that the transactions were entered into by
and in behalf of the Central Bank of the Philippines, an
instrumentality of the Philippine Government, Muñoz
should be charged for the offenses not as a regular
agent or one representing a private entity but as a
public servant or employee of the Philippine
Government. Yet, because the offense of accepting an
advantage as an agent charged against him in the
HKSAR is one that deals with private sector bribery, the
conditions for the application of the double criminality
rule are obviously not met.
 JURISDICTION
Extradition
THE POLITICAL EXCEPTION DOCTRINE
•  Extradition could not cover “political offenses”.

THE ATTENTAT CLAUSE & ITS ORIGIN

A French manufacturer names Jules Jacquin, domiciled in Belgium,
and a foreman of his factory named Célestin Jacquin, who was also
a Frenchman, tried to cause an explosion on a railway line with the
intention of murdering Emperor Napoleon III. France requested the
extradition of the two criminals, but the Belgian Court of Appeal
had to refuse the surrender on account of the Belgian extradition
law interdicting the surrender of political criminals.

•  To provide for such cases in the future, Belgium enacted in

1856 a law amending her extradition law, and stipulating
that murder of the head of a foreign government, or of a
member of his family, should not be considered a political
crime.
 JURISDICTION
Limitations to the Rule on Extradition

Human rights law bars extradition in the following

instances:
①  When there is a risk that the individual may be
subjected to inhuman or degrading treatment in
the receiving country or in a third state to which
the individual may be subsequently transferred;
cf: PRINCIPLE OF NON-REFOULEMENT

①  When there is a risk of the death penalty being

imposed;

②  When there is a risk of a trial that constitutts a

“flagrant denial of justice”.
 JURISDICTION
Abduction of Criminals in Foreign Territory

MALA CAPTUS, BENE DETENTUS

•  A state can try an individual even if the state
believes that the defendant was brought into the
state through measures that violated international
law.

q  A state must only abstain from prosecution if the

defendant is tried for an offence different from that
for which he was extradited.

q  A state must only refuse jurisdiction if another state

has protested about the abduction of an individual
and requested that the person be returned.
 JURISDICTION
Abduction of Criminals in Foreign Territory

THE ALVAREZ-MACHAIN CASE

•  The US Supreme Court did not find that the
kidnapping and subsequent transport to the
United States of a Mexican citizen in Mexico was a
bar to prosecuting him for participating in the
murder of a US official and a local pilot in Mexico.

THE EICHMANN CASE

•  Israeli agents apprehended Eichmann in Argentina
in 1960 and subsequently transferred him to Israel.