Intro to International Law

What is a rule?
●​ Something that is followed
●​ Created to prevent others from completely doing what they want that may harm
others
●​ There is a notion that rules create constraints
○​ These constraints are legally called bindings
●​ Rules are there to give a frame of predictable behaviors

What is International Law?

●​ The main subject is the state and its interactions with other states
●​ It is not concerned with power relations, as this is not what the law sees
○​ This is the fundamental difference between international law and private
international law
○​ The law sees that states are all equal, as there is formal equality among
individuals

What are rights and obligations?

●​ Right: a specific good that is entrusted/entitled to you
●​ Obligation: a behavior that you have to maintain
○​ Entails doing (and not doing) something e.g. you don't use military force
unless…

Simple Legal Theory

●​ Every time someone has a right, they have a partnered obligation
●​ Supermarkets are an example of a bundle of rights and obligations

Naturalist School (Ius Naturalis)

●​ We make rules because it is human; it is in our nature
○​ Rules reflected the common sense of the area
●​ Rules exist because it is convenient for states to exist
●​ Vitoria, Grotius (XVI century)
●​ Intl. Law has the same principles as natural law
●​ John Locke: states are creating rules with one another
Positivist School
●​ Kind of epistemology that studies social phenomena as they manifest
●​ Law is what states decide is law
●​ The law is a practical matter, and it has to account for power

Characteristics of International Law

●​ The law was created in the interest of power
●​ States are all equal
○​ No state is hierarchically superior to another state
●​ Made by independent states
●​ Rules are created and consented upon by states with no authoritative
enforcement
○​ International law has no established authority that enforces the law it
produces

Critiques
●​ Hobbes: It's the law of the state of nature
●​ Pufendorf: No rules, just suggestions
●​ Morgenthau/Kissinger: No influence on state behavior

Answers to critiques
●​ The system is not primitive but sophisticated
●​ Individuals don't follow state rules despite enforcement systems
●​ Intl. Law exists because states accept it as law in the first place
○​ States accept that international law norms have a BINDING force, which is
why they become rules

Rules Binding through Consent and Reciprocity

●​ Consent: expect something in return
○​ When a state consents, they expect a behavior from others
●​ Reciprocity: states that illegally breach their obligations must expect other
states to do the same
○​ "I do my part, you do the same."
●​ Rules make interactions predictable and is the core essence of why rules are
important
●​ Retorsion: lawful reaction (e.g. suspending trade relations)
○​ Lawful because it is discipline
●​ Reprisal: unlawful act made legal (e.g. expropriation)
○​ Trying to create or prevent a regime change
Consent Denotes Sovereignty
●​ States that exhibit consent can be assumed to be sovereign
●​ Sovereignty: states are free to undertake international obligations (LOTUS Case
- PCIJ 1927)
○​ I Consequence: if a state is independent, its consent to undertake
obligations is assumed (e.g. entering into a treaty)
○​ II Consequence: states can willingly give up their sovereign prerogatives
(E.U.)
○​ No extradition because Turkey is sovereign
●​ Kelsen: International obligations are created only with consent

Pacta Sunt Servanda

●​ You must observe the rules
●​ If states consent to undertake international law obligations, the rule is binding
even if they do not want to comply in the second moment

Other Theories on International Law

●​ McDougal: Intl. Law is an expression of the US hegemonic will
●​ Slaughter: Intl. Law is an expression of the liberal order
●​ Frank: legitimacy and fairness
●​ Feminist theories
●​ Islamic theories
●​ Marxist theories (out of fashion now)
 History of International Law

Polities of all kinds entered into agreement much earlier than Roman law
●​ The tendency to come into agreement has a sociological and anthropological
correlation
●​ Agreements happened but were not structured in terms of law and were not
theorized as part of a broader corpus of law
●​ At the time, polities were very fragmented, and the overarching idea of the law
was that there were universal powers of the law

Antiquities (up to 476 C.E.): treaties, alliances, extraditions, tributes, etc.

European Middle Ages (476-1492): presence of universal powers, Church and HRE,
transnational systems of rules

Peace of Westphalia (1648): states are sovereign and independent from universal
powers

Cuius Regio Eius Religio: whoever rules the land decides what religion to believe in
●​ In the context of the European Middle Ages, religion was everything
●​ It lent the ruler the power to influence all of their subjects (religiously
manipulating the people through threating)
●​ This causes the state to become sovereign (Peace of Augusta, 1555)
○​ Peace is not followed, leads to the 30 Year War
○​ Leading to the Peace of Westphalia

Concert of Nations (19th Century): A restricted club of European nations

●​ These modern European states that created and legitimized their sovereignty
through these processes were also capable of being organized polities
●​ Established to maintain peace in Europe
●​ After colonization and expansion, they would solve issues together in forms that
follow legal principles
○​ There is an attempt to create a universal law when they start colonizing,
but the state comes in, and the international law becomes the law that
states abide by.
○​ A way to manage relationships between states

Capitulation System: European empires imposing unequal treaties on non-colonized

extra-European states - gunboat diplomacy as a means to settle disputes
 ●​ Create a treaty after colonization

Western Hemisphere: poorly designed U.S. plan to oust European powers from the
Americas and tutelage to [Link]. States. (1902 failure to prevent “gunboating” in
Venezuela)

After WW1:
●​ Wilson's 14 points, Treaty of Versailles;
●​ League of Nations: offering mutual guarantees of political independence and
territorial integrity to Great and Small nations alike
○​ Attempted to introduce rules to prevent wars
○​ Mixed legitimacy led to the League of Nations failing

How did the League of Nations fail?

●​ Didn't prevent the Italian invasion of Abyssinia and Japanese invasion of
Manchuria
●​ Principle of nonintervention made Franco win the Spanish Civil War

After WW2:
●​ UN Charter (1948)
○​ Banned the use of force
○​ UN Monopoly of Use of Force - Security Council
○​ If you want to conquer something, you CANNOT anymore because you
can't use force

Decolonization
●​ Principle of Self-Determination
●​ If you want to conquer something, you CANNOT anymore because you can't use
force

Basic Principles of Modern International Law

●​ No use of Force
○​ All disputes must be peacefully settled; use of force must be for
self-defense
●​ Peaceful settlement of disputes (International Court of Justice and other
tribunals)
●​ Sovereign equality of states (including global south)
●​ Nonintervention
●​ Right of Self-Determination
●​ Good faith
 ●​ Sovereign equality of States

1990's Golden Age of International Law

●​ Collapse of the USSR - Ex-Soviet states use international law to gain
independence
●​ International tribunals were formed
●​ The ICC was made

21st Century: The Return of Politics

●​ The US' Invasion of Afghanistan and Iraq (odds with the UN Charter)
●​ Paralysis of World Trade Order
●​ US retreat from ICC
●​ War in Ukraine
●​ Maritime disputes
●​ Investment law: conflicts of interests
 Sources of International Law

Article 38 ICJ Statute: Sources of the Intl. Law

●​ Conventions (treaties)
○​ Memorandums, addenda, agreements
○​ Disciplines the court with what can be persecuted, investigated, etc.
○​ Ex. Rome Statute, Mutual Defense Treaty, Regional Comprehensive
Economic Partnership
●​ Custom as evidence of general practice accepted as law
○​ The fiber of international law
○​ What states do in practice to the law
●​ General principles of Law accepted by Civilized Nations
●​ Judicial decisions of the teachings of publicists as a subsidiary means
○​ An aid to the law
○​ "Teaching of publicists" is the tradition of asking the experts

What are Treaties?

●​ Have many names: conventions, protocols, charters, statutes, etc.
●​ Similar to contracts in form (claimed by Orakelashvili)
○​ We can simplify anything into "contract": any voluntary act that establishes
rights and obligations
○​ Contracts are not bilateral or mutual, while treaties can be
●​ Their content can be general or specific, not necessarily law-making
●​ The maids of all work in international law
○​ Fundamental instruments designed to perform specific functions in
international law

What are Customs?

●​ The evidence of a general practice/behavior that states accept as law
●​ It is evidence that shows states' tacit consent of a set of norms to become rules
○​ Tacit means through actions, not just explicit
○​ Public International Law works by tacit consent (a means of lawmaking)
●​ Custom applies either to all states (General Custom), or it can be limited to
certain groups of states in specific areas of the world (Special/Local/Regional
Custom - Asylum Case)
●​ It is necessarily constituted by two elements:
○​ practice - objective element
○​ opinio iuris (sive necessitatis) - subjective element
 ●​ For a customary rule to emerge, BOTH practice and opinio iuris have to be
present
○​ Nicaragua Case: general practice AND accepted by law
●​ Customary rules of international law are generally applicable to all states
UNLESS:
○​ Persistent Objector: a state has challenged the emergence of a
customary rule since the beginning (Anglo-Norwegian Fisheries Case)
○​ Conversely, a state that voluntarily lets a custom emerge to challenge it
afterwards is not exempt from observing the customary rule
○​ This is to avoid the problem of the Free Rider

Warnings for Violations of Customs

1.​ Warning 1
1.​ If states do not possess the ability to know about the emergence of new
state practice, there is no emerging custom
2.​ If states do not know about the emergence of practice but do not think that
it constitutes law, there is no emerging custom
3.​ Practice also refers to omissions (abstaining from performing a certain act
or adopting a certain behavior)
2.​ Warning 2
1.​ If states know about the emergence of practice but do not think that it
constitutes law, there is no emerging custom
3.​ Warning 3
1.​ Practice also refers to omissions (abstaining from performing a certain
act or adopting a certain behavior)

Custom: How to detect practice

●​ States' declarations and behavior (declarations and enforcement)
●​ Positive acts and omissions: Positive acts are actions performed by states.
Conversely, if states refrain from performing such act saying that it is against a
customary rule, it is evidence of the existence of said rule
●​ Generality: a certain practice is followed by a broad number of states whose
interests are affected by the rule even if not the universality of states
●​ Legality on threat or use of nuclear weapons: if the majority has lawmaking
intent, but carries no interest, it isn't relevant
●​ Ex. Relevance of maritime customs of coastal states vs. landlocked states
●​ Repetition: practice must be performed consistently and be uniform, (Asylum
case: it can't emerge if behaviors are contradictory) BUT, it doesn't have to be
rigorous, rather generally uniform with differences case-by-case (Nicaragua
 case). Some minor inconsistencies in practice do not prevent the emergence of
custom (Fisheries case)
●​ Instant customary law: If practice is extensive and uniform since the emergence
of the rule, this may reduce the time for it to become customary
●​ WARNING: State actions within the domestic (internal) legal sphere of
States are IRRELEVANT for the emergence of custom

Custom: how to detect opinio iuris

●​ Opinio iuris: manifests itself as consent to be bound by a rule
●​ States must act declaring to be fulfilling an obligation
●​ Equally, states must treat breaches of rules as illegal
●​ Opinio iuris is detected by states' acts and states' reactions to other states'
behavior
●​ Nuclear Weapons case: even though in 50 years no states used nukes, the
practice of nuclear deterrence halts the creation of practice. Therefore, even if
there is a prevalence of opinio iuris, practice halts the creation of custom

Custom: multilateral evidence

●​ Treaty provisions may enshrine customary international law on how to enter and
manage treaties
●​ Treaty practice, repeated over time, may become custom (example: fair and
equitable treatment in investment law)
●​ Treaties and Conventions may contain customary rules. If states didn't enter into
these treaties/conventions, custom is still applicable (Nicaragua Case:
jurisdiction based on customary rule enshrined in UN Charter)
●​ UN General Assembly resolutions
○​ UN Assembly is NOT a lawmaking body: resolutions sometimes state
existing customary rules
○​ At best, UN votes are evidence of emerging opinio iuris
●​ BIT: Bilateral Investment Treaty
○​ Accord treatment to their reciprocal investors in their reciprocal territories
●​ UN does not create international law directly but has contributed to the
enshrining of the custom
○​ It can be used as the evidence of an emerging opinio iuris

The source is the basis of the treaty and the custom is how to enter the treaty.
General Principles of Law
●​ Where treaties and custom provide no guidance
●​ Use criterions such as “Justice”, “Good Faith” etc, proper to natural law
●​ WARNING: Tribunals can but they are not obliged to use these principles to
decide when facing gaps in the law

Judicial decisions
●​ Are always subsidiary means when the other sources do not provide guidance
○​ Subsidiary: can sometimes produce specific rules when a treaty is
unclear
●​ We always separate continental judicial systems to common law judicial systems
○​ Common law: big portions of the law are created through judicial
decisions and judges are bound to what was decided from previous cases
○​ Ex. Hong Kong, Canada, etc.
●​ Binding only between the Parties of the case and with respect to the
case-specific issue
●​ NO stare decisis: judicial decisions are not binding for future cases
●​ NO hierarchy: among tribunals (ICJ)
○​ Compared to domestic legal systems in court with 3 levels of jurisdiction
■​ Local tribunal, Court of Appeals, Supreme Court etc.

Teachings of Publicists
●​ They can’t produce rules of international law
●​ They provide evidence and clarifications on the rules
●​ Soft Law: it is not law, just suggestions. They are usually guidelines and
opinions of nonbinding nature.

Hierarchy of Sources
●​ Treaties: res inter alios acta - they produce obligations only to parties that
consent to it. Among those parties, treaty provisions prevail over custom (lex
specialis derogat legi generali)
○​ Lex specialis: special law that is useful in a specific instance
○​ Derogat legi generali: as treaties can derogate other laws, it shows that it
is more powerful
●​ Customs: they contain general provisions.
○​ Therefore, if a custom emerges after a treaty, the provisions of the treaty
still prevail (Lex posterior generalis non derogat legi priori speciali) -
usual safeguards in treaties
●​ States can derogate multilateral treaties provisions with subsequent bilateral
treaties depending on their nature
 ○​ Ex. The GATT allows the states to go lower and lower on their tariffs on
commodities because the spirit of the agreement is to encourage trade
○​ Derogation is aligned with the spirit of the GATT
●​ Some treaty obligations are indivisible and cannot be derogated (human rights,
etc.)
○​ Demilitarization and human rights cannot be divided, no double standards
●​ TREATY = SPECIFIC = LEX SPECIALIS
●​ CUSTOM = GENERAL = LEX GENERALIS

Ius Cogens
●​ A set of prohibitions and obligations that are considered so important by the
international community as a whole that it prevails over everything else
●​ Fundamental set of rules of public policy or order of the system that can’t be
ruled out, not even by treaties
●​ Cogens means preemptory
○​ A treaty that is signed that is in violation of Ius Cogens is completely void
●​ Art. 53 of the Vienna Convention on the Law of Treaties: a treaty is void if it
conflicts with Ius Cogens
○​ Void: never legalized (like annulment)
○​ Terminate: legalized before but not anymore (like divorce)
○​ VCLT: draft of conventions that is not enforced
●​ The meaning of Ius Cogens is contentious - there is discord ever since the
VCLT to today
●​ Generally, it is a set of rules, derived from customs that the international
community as a whole recognizes as binding
○​ No use of force, prohibition of genocide, no racial discrimination,
prohibition of slavery, etc.
●​ Rules protecting universal principles, not regulating interstate affairs

How is Ius Cogens enforceable?

●​ Barcelona Traction Case (1930-ish): the court affirmed in an obiter dictum that
there are obligations erga omnes.
○​ All states are obliged to refrain from certain behaviors and are responsible
to protect the enforceability of certain Int. Law rules.
○​ Canadian company opens a subsidiary in Barcelona which is financed by
a Belgian investors called Barcelona Traction which failed due to the
Spanish war
○​ Canada didn’t care so Belgium brought Spain to the ICJ to reimburse the
investors
 ○​ ICJ says that Canada should be the one to show up as Belgium did not
have the direct link to the money
○​ ICJ used ob iter dictum: if it was about basic human rights, then Belgium
would have had the right to show up
●​ The ILC affirms that customary rules of International Law cease to exist if in
contrast with Ius Cogens
○​ But is that the case? There is dissent among scholars and commentators
●​ From the Barcelona Traction Case, we see that all states are obliged to refrain
from certain behaviors and are responsibel to protect the enforceability of certain
Intl. Law rules
 Municipal vs. International Law

Theories
●​ Municipal Law = Domestic law of each state
●​ Dualist Theories: international law and municipal law are two separate systems
●​ Monist Theories (Kelsen, 1930s): International and domestic law are part of a
sole system with a specific rule of International law as a source of domestic law
○​ The domestic legal system of each state is an expression of a common
body of rules generated in international system

The rule according to whcih all states exist as independent from one another and
sovereign (Grundnorm)
●​ Grundnorm: the original law

Fitzmaurice: there is no controversy as Municipal and International law don’t belong to

the same field
●​ How things work domestically have nothing to do with interstate affairs
●​ Not entirely true, but they do interact with each other

International Law to Municipal Law

Free zones case: France vs. Switzerland
●​ PRINCIPLE: PCIJ says that states cannot use the argument by saying “there is a
gap/abiguity in my domestic law” as a justification breaching international
law/rules
●​ Domestic law is just a face, a body of evidence that exhibits whether a state is
abiding by international law or not

Article 42 ICSID Conventions

●​ PRINCIPLE: IL complements and corrects domestic law when it comes to
investor protection
○​ If domestic provisions are not comparable with the Bilateral Investment
Treaty (BIT), then the BIT prevails because it complements/corrects
domestic law
○​ Corrective in case the law of the state party is in violation of the BIT
○​ Evidence of predominance of international law above domestic law
●​ ICSID is an arbitral court constituted with the World Bank
○​ A body that settles disputes between a state’s investor and a host state
(not between states)
 ○​ Concerned with BITs, FTAs
○​ Sometimes BIT and FTA conflate in a similar framework

La Grand Brothers Case

●​ Reinstates dualist conceptualization of International Law

Facts of the Case

●​ La Grand brothers (German-Americans) are charged with murder in Arizona
(death penalty)
●​ One brother is charged with murder, executed
●​ Other brother is charged with murder and is in the process of being sentenced to
death
●​ Germany realizes that one of its citizens is on death row in the US
●​ Germany realizes the prosecutor of Arizona failed to inform La Grand about their
right to consular assistance by Germany
○​ Right to consular assistance: Foreign embassy has the right to call the
origin country for assistance when prosecuted in another country
(provided that both are part of the Vienna Convention on Consular
Relations)
●​ State of Arizona did not have a specific legislation for officials to have a duty to
inform the prosecuted about their right to consular assistance
○​ US says that they cannot federally oblige a state prosecutor to do so as it
is state jurisdiction and not federal jurisdiction
○​ ICJ says that this is not enough and the US must inform the La Grand
brother of their right

Consequence of the case: in international law, domestic law counts as mere fact.
Municipal Law to International Law
Democratic States
●​ PRINCIPLE: states are free to perform their international obligations in any
modality they prefer within their municipal legal systems
●​ Democratic states: usually treaties are adopted through a legislative process
called “ratification”
●​ Ratification: makes the treaty provisions effective in both international
and municipal law
●​ Signing and ratification are different

Custom
●​ Customs are automatic incorporation in domestic law of a state
○​ Convenient as customs change in nature
○​ UK: International Customs are directly part of British common law

How do the PH and Japan incorporate international law (treaties and customs) in their
domestic legal systems?
●​ The senate has to approve treaties by majority
●​ The constitution has a Military Base Clause

Philippines: US Military Bases

●​ PH Constitution (1987): specific provision for sui generis treaties that allow
military access/bases/troops/facilities
●​ Requirements: supermajority of the Senate (usual for treaties) PLUS the treaty
must be “recognized as such by the other contracting state”
●​ 1998 Visiting Forces Agreement: Supreme Court treated it as an agreement
under the 1987 Constitutional provision (other VFAs are only “executive
agreements”)
●​ Philippine President - treated the VFA as regular treaty
●​ Supreme Court - treated VFA as treaty under “Military Base Clause”
○​ BUT for the US, the VFA is a mere executive agreement
○​ THEREFORE, Bayan v. Zamora: The Supreme Court said that “executive
agreements” can be considered as treaties under the Vienna Convention
on the Law of Treaties
EDCA (Enhanced Defense Cooperation Agreement): Is it a treaty?
●​ Saguisag Case: claimant adds that the part of EDCA identifying “agreed
locations” for US troops to conduct activities under VFA is tantamount to Military
Bases
○​ Therefore, EDCA should fall into the Military Bases Clause of the 1987
Constitution
●​ BUT, PH Supreme Court rules that EDCA is a “mere executive agreement” as it
implements an already existing treaty, the VFA. The requirements of the Military
Bases Clause DO NOT apply as the military access isn’t allowed under EDCA
but under the VFA
 Creation and Recognition of States

Definition of State in Intl. Law

●​ State: entity that functions through an organized public authority and it is not
under another state’s authority
●​ This is the INTERNATIONAL LEGAL definition, not International Relations

Montevideo Convention on Rights and Duties of States

●​ Requirements for Statehood listed in the convention
○​ Permanent population
○​ Defined territory
○​ Government
○​ Capacity to enter relationship with other states

Relevance of Statehood
●​ UN: only states can be effective members of the UN
●​ BUT, in other areas of international law, other entities may also be considered
○​ E.g. WTO recognizes custom areas and territories

Territory
●​ A geographical area separated by borders
●​ A state exercises sovereignty over the area
●​ States have exclusive authority over territory
●​ To understand what sovereignty means:
○​ The legitimate use of state power means it must be allowed by
international law.
■​ Invading another country is state power but it is not legitimate
○​ The concept of exclusivity
Island of Palmas Case
●​ Sovereignty over territory
●​ The Montevideo Convention states that a state must have this sovereignty
○​ It’s hard to prove sovereignty as you need to prove that you have
uncontested and legal provision/powers over a territory
■​ Not like Russia that exercises state power over Ukraine as this is
illegal
■​ Legal: allowed by customary or treaty law
●​ Island of Palmas is an island in Southern Mindanao
○​ After the American-Spanish war and the Treaty of Paris, a map was
issued of the Philippines that showed the islands that were under the
possession of the Spanish
○​ After the Americans started patrolling the islands, the Netherlands called
them out as they claimed sovereignty over this as the Dutch claimed
Indonesia at the time
●​ Case was brought to the ICJ in 1924
○​ The court finds that the US has jurisdiction over the Philippines as the
Treaty of Paris provided legitimate power over the country
●​ The dispute was that Spain and the Netherlands entered into a treaty in the 18th
century on the boundary of the island and this island was given to Spain
○​ As the Spanish were not there, the Dutch used the island banking on the
fact that they would not interfere
●​ Court argues that the US rightfully had jurisdiction over the Philippines but not
the island, as the island was used illegally by the Dutch but UNCONTESTED by
the Spanish
●​ CONSEQUENCE: a factual loss of territory is NOT equivalent to loss of
sovereignty over it
○​ No need of exact border delimitation, as long as the territory shows an
identifiable core
○​ Some treaties include protectorates and other entities in the definition of
territory

Population
●​ No fixed requirements for the existence of population in terms of numbers
●​ Not correspondent to number of citizens, as long as the population observes the
rules of that state
●​ The population requirement doesn’t change even if the dominant ethnic group is
replaced
Government

Do failed states exist in international law?

●​ No, if for whatsoever reason the government loses control over territory or
portions of it, it doesn’t imply state failure

Does a change in government affect a state’s international obligations?

●​ No, it doesn’t
●​ Tinoco case: “coups” or the constitutional illegitimacy of governments do not
affect international law

Independence vs. Dependency

●​ Independence: is when FORMALLY the state acts international obligations
being allowed or directed by other states
●​ Right to exercise state functions in a portion of the glob to the exclusion of other
states
●​ Implies full powers
●​ Dependence: there is a hierarchical relationship between entities. In that case,
one of the two is not a state
●​ Modern Independence: it is acquired when the constitutional link with the
controlling/superior entity is severed
●​ Alienation of independence: sovereignty can be freely given up tot another
state (e.g. East Germany to West Germany)

Austro-German Custom Unions Case

●​ Legal restrictions to sovereignty agreed by a state do not cause a loss of
independence (states are free to determine their policies in this regard)
○​ Ex. European Union (all are established through treaties)

How does a state obtain independence?

●​ The severance of the constitutional link to the controlling or superior entity

Protectorate
●​ Entity with freedoms in its internal affairs but the management of external
relations/international affairs is upon the protector state (e.g. Hong Kong under
the UK)
●​ NOT A STATE
Federal State
●​ Internal states do have freedoms in their internal affairs
●​ IT IS A STATE
f
How do states come to be?
●​ Agreed or voluntary secession (e.g. South Sudan)
●​ Dissolution of a State (e.g. USSR, Yugoslavia, Czechoslovakia)
●​ Merger of States

Old rules
●​ Monarchical Legitimacy
●​ Effectiveness

On Secession
●​ General customary rule on secession: secession is legal ONLY if allowed by the
territorial state

Consequences
Case
●​ Big state (Serbia) is genocidal toward small state (Kosovo), and small state
declares independence (citing Ius Cogens)
○​ Kosovo: contains minorities (muslim)
○​ Serbians try to ethically cleanse (genocide)

ICJ Advisory opinion on the unilateral declaration of independence of Kosovo

●​ Unilateral declarations of independence are not legal nor illegal for international
law
●​ They produce only domestic effects, not international
●​ In the case of Kosovo, it doesn’t produce statehood because there is no consent
by Serbia
●​ It implies that the state can still validly crush insurgents

2 Takeaways:
●​ CONSENT of the mother state is strong and established in international law
●​ Caters to our debate on nature of Ius Cogens
Public order limitations on state creation
●​ Attempts to secession must be legal
○​ Ex. Manchukuo was illegal because it was created through extorsion
●​ South Rhodesia was illegal because it was created on racial basis
○​ Whole purpose of state was to segregate the blacks (Apartheid state)
●​ Northern Cyprus (Loizidou case ECtHR): illegal because the result of an invasion
○​ Cyprus is a member of the European Union
○​ Faces Turkey in the North, Syria in the East
○​ Turkey occupied a small part of the island
○​ Verdict: The ECtHR ruled that Turkey's prevention of access to property
in northern Cyprus breached Article 1 of Protocol No. 1 of the European
Convention on Human Rights.
○​ Effective Control: The Court determined that Turkey exercised "effective
overall control" in northern Cyprus via its military presence, making it
responsible for the policies and actions of the TRNC.
○​ Significance: The judgment reaffirmed that property deeds issued prior to
1974 remained valid, despite the division of the island.
○​ Compensation & Compliance: Following long-term refusal, Turkey paid
over €1 million in compensation to Loizidou in 2003.
○​ Outcome: The case officially concluded in 2022 when the Council of
Europe closed its supervision, although the Cypriot government noted that
restitution of property had not occurred.
●​ States created illegally or against Ius Cogens are void entities

States under Occupation

●​ States under illegal foreign occupation do still exist

States under Power Transition

●​ People of a state are immediately entitled to self-determination (UN Res. 1514),
but power transition from foreign rule to statehood is not equivalent to statehood
●​ Self-determination is a right, but it is not equivalent to statehood
Key Aspects of the Chagos Case:
●​ Forced Displacement: Between 1967 and 1973, the UK government removed
the indigenous Chagossian population to Mauritius and the Seychelles to
facilitate the construction of a military base on Diego Garcia.
●​ Sovereignty Dispute: Mauritius has long claimed the islands, arguing their
separation from Mauritius was illegal under international law regarding
decolonization.
●​ International Court of Justice (ICJ) 2019 Ruling: The ICJ advised that the
UK’s administration of the territory was unlawful and that the UK must return the
archipelago to Mauritius as soon as possible.
●​ Legal Challenges: The Chagossians pursued various legal remedies in UK
courts and the European Court of Human Rights, facing setbacks until the
international legal rulings changed the political landscape.
●​ 2024-2025 Settlement: The UK government announced in October 2024, and
signed in May 2025, an agreement to transfer sovereignty to Mauritius, while
retaining the rights to operate the military base on Diego Garcia for at least 99
years

Case of Palestine
●​ UK partition – title to statehood
○​ Right of self-determination
●​ UK partition is Palestine’s title for statehood and not the presence of a
Government in Palestine territories
●​ Palestine has:
○​ The right of self-determination
○​ In the process of acquiring independence
●​ Palestine lacks voluntary secession according to international law
○​ Voluntary secession: withdrawal from a larger polity (in this case, Gaza)
●​ Case is an object of domestic contention between Palestinian authorities and
Israel
○​ Palestinean authority never recognized the UK partition

Territorial Sovereignty
●​ Acquisition of a title over territory involves the acquisition of Sovereignty
○​ Legal exercise of powers in modern IL requires you to have a title to
sovereignty
■​ Titles are not equal to a document that declares ownership
■​ Title is anything that can be proven legal that grants you
sovereignty over a territory
●​ Ex. sales contract, hereditary division made by the state
 ●​ Some judicial decisions refer to sovereignty as ownership
○​ Sovereignty is a private and exclusive matter, which is different from
maritime zones
○​ When talking about sovereignty and territory, it means everything which is
land
■​ No state has full sovereignty over the sea
●​ Sovereignty is exclusive apart from few exceptions

Territorial Relations not conferring sovereignty

●​ Debellatio/Annihilation and Conquest: they do not constitute a title to sovereign
rule under modern international law
●​ Sovereignty = unconditional ownership
●​ Supremacy = if exerted over a territory with no title → obligation to return that
territory
●​ Physical control = equivalent to illegal occupation

Principles Regulating the Determination of Territorial Sovereignty

●​ Territorial acquisition methods convey territorial titles to states, and operate
according to principles
●​ Immemorial Possession: a state is exempted to display effective authority over
a territory as its possession is immemorial (Pedra Branca case)
●​ Uti Possidetis: continuity of pre-established boundaries confer territory to
entities that emerge after a territorial dissolution
○​ Prevents terra nullius
○​ Prevails over effective control – colonial borders become boundaries of
newly decolonized states (Burkina Faso v. Mali)

Claims of Territorial Unity and Contiguity

●​ Contiguity: proving title to part of a territorial feature titles to sovereignty over
the entire feature (problem of natural resources)
●​ Usually it is not enough to prove sovereignty, used only in case of small features
like small islands
Cession and Treaty Titles
●​ Cessions: transfer of territory from one state to another (by treaty)
●​ Nemo dat quod non habel: Island of Palmas Case
○​ “No one gives what it doesn’t have”
○​ Spain was not sovereign on the island therefore it had no right to cede it
●​ Necessitates a definitive proof
●​ Must be entirely consensual: consensus can’t be violently extorted by conquest
or coercion

Occupation
●​ Only happens when a state acquires terra nullius (no man’s land)
○​ Requires stable and real possessions (not enough to throw a rock)
○​ Effectively: displaying of effective administrative control over a state with
the acquiescence of the other state
○​ Subordinate to a title: a weak title
●​ Antarctica: regulated by a treaty for Antarctica that makes it not sbject ot any
claim of state sovereignty
○​ Scientific base for any scientific matter/discovery
○​ Also inhabitable
●​ The Arctic: composed of purely maritime zones, does not count as territory due
to its purely maritime nature → therefore cannot be occupied
○​ Territory is defined as a geographical area (land, surface) separated by
borders

Prescription
●​ Similar to an occupation, but the territory belonged to another state
○​ Therefore, acquiescence of the other state is necessary
○​ In essence, it constitutes a consensual transfer of title
○​ Island of Palmas: the Dutch occupied the island for 150 years, and the
Spanish acquired it
 The Law of the Sea
UNCLOS
●​ Success at the 4th attempt
●​ Result of the Conference at Montego Bay in 1982
●​ Entered into force on November 16, 1994
○​ Reached the necessary number of signings for ratification
○​ There is a provision where, after a certain number of signings, it enters
into force
●​ Not all states are members, but it enshrines many customary rules of
International Law (but requires stricter evidence)
○​ Most European states ratified UNCLOS right away
○​ China ratified UNCLOS in 1996, which showed that a state can ratify a
treaty after the actual treaty was drafted
○​ The US did not ratify it, as their position is that they conform as much as
possible, apart from certain specific provisions that they do not agree with
concerning the continental shelf (like the bottom of the sea) and other
details

The Nature of Rules and Regimes under UNCLOS

●​ Is UNCLOS a “Constitution of the Oceans?”
●​ PH v. China: any possible claim should be assessed in relation to UNCLOS
○​ It is not a stable opinion
●​ Others: no, UNCLOS can be derogated from by bilateral agreements
○​ UNCLOS is explicit when rules are non-negotiable
○​ This means that the law of the sea and UNCLOS are unstable to this day
●​ When UNCLOS wants rules to be exclusive, it expressly states so

Preferential and historic rights

●​ Some concepts, like “preferential fishing right” and “fisheries zones,” emerged as
law and are not part of UNCLOS
●​ PH v. China: rights at variance with UNCLOS created before it can survive only if
UNCLOS allows for their creation
○​ States cannot claim full sovereignty over maritime bodies of water
○​ There is no such thing as historic titles, but there are historic rights
●​ No, historic rights can emerge through reciprocal consensus
●​ Historic rights can derogate from UNCLOS, as long as they’re not in violation of it
●​ Article 10 of UNCLOS, by affirming that “historic bays” exist and can derogate the
rules on bays, implicitly acknowledges the existence of historic rights
What are historic rights?
●​ Historic titles: claim of full sovereignty over a maritime area
●​ Other restricted rights, such as fishing and resource control
●​ There is consensus that historic rights/titles are acquired only through other
states’ acquiescence (prescription)
●​ There are only historic rights, no titles
○​ What if historic rights go against UNCLOS?
They can coexist with UNCLOS when they do not go against the
provisions of the UN

What is a Coastal state?

●​ Coastal state: a valid title to land is a prerequisite for titles to the Sea
●​ Land dominates the sea: no maritime entitlement is generated from the land
○​ You measure it from where your full sovereignty stops (which is the coast)

Coasts
●​ Possession of a coastline is a prerequisite for setting maritime rights
●​ There are several methods and controversies on the definition of a coastline
●​ If there is a dispute, the coastline at the time of the dispute must be taken into
consideration, and no future changes

Territorial Sea
●​ Belt of water immediately surrounding a state’s landmass, or in case of
archipelagoes, its internal waters
●​ Extends up to 12 nautical miles
○​ In this 12 nautical miles,
●​ Usually measured from a line of low-tide called baseline
●​ The coasts; State
●​ Sovereignty over the territorial sea includes the following rights:
○​ The coastal State’s ships have the exclusive right to transport goods and
passengers from one part of the coastal State to another (Cabotage)
○​ The coastal state may enact regulations concerning navigation, health,
customs duties, and immigration, which foreign ships must obey
○​ The coastal State has certain powers of arrest over merchant ships
exercising a right of innocent passage, and over persons on board such
ships
The right of innocent passage
●​ Foreign ships have a right of innocent passage through the territorial sea
●​ INCLUDING WARSHIPS with no authorization
●​ Non-innocent passage may include pirate ships, etc.
●​ Exceptions:
○​ Law on the territorial sea and hte contiguous zone adopted by China in
1992 requires permission for warships to enter the twelve-mile territorial
sea

The contiguous zone

●​ Article 33(2) UNCLOS provides that “the contiguous zone may not extend
beyond 24 nautical miles from the baselines from which the breadth of the
territorial sea is measured”
●​ Indicates the possibility of states to exercise limited rights in areas of the high
seas adjacent to the territorial seas
●​ Example, law enforcement over certain offenses such as custom, fiscal,
immigration, and health

The continental shelf

●​ Art. 76 UNCLOS: seabed and subsoil of the submarine areas
●​ The Abyss: Seas are shallow, while Oceans go deep down into the abyss
○​ The continental shelf extends from the baseline to the abyss
○​ If the abyss is too far (200 nautical miles), it doesn’t cover
●​ Beyond the territorial sea through its natural prolongation of its land territory
●​ To the abyss

Islands
●​ Art. 121 UNCLOS (and custom)
○​ Naturally formed area of land, surrounded by water which is above water
at high tide
●​ Islands are firm land and do not generate maritime rights
●​ Low tide elevations are not firm land and do not generate maritime rights
●​ Rocks which cannot sustain human habitation or economic life of their own shall
have no exclusive economic zone or continental shelf
 Philippines vs. China

Background of the case

●​ 2012 Scarborough Shoal standoff between China and the PH
●​ Several dangerous encounters between the Chinese coast guard and the
Philippine coast guard
●​ After the 2012 incident, the Philippines had to withdraw from Scarborough Shoal
and decided to file a case in the Hague

The Tribunal
●​ One option for the settlement of disputes according to article 287 UNCLOS
○​ The parties can gather an arbitral tribunal and the function would be
established under Annex VII to UNCLOS
●​ Permanent Court of Arbitration to UNCLOS would serve as Registry

Commencement of Arbitration
●​ The Philippines notified of its position in 2013
○​ Shortly after the standoff
●​ China did not participate to the arbitration
●​ China made public in other public statements the reason for no participation

What did the Philippines demand from the court?

●​ Declaring that China has no right on the 9-Dash Line
○​ PH wants the court to pronounce itself over this
●​ That Spratly islands and Scarborough Shoal do not generate an Exclusive
Economic Zone
●​ Declaring committed violations on UNCLOS such as:
○​ Interfering with PH sovereign rights in its EEZ
○​ Failing to protect marine environment by supporting Chinese fishing
endangered species
○​ Harming marine environment by building artificial islands
●​ Finding that China aggravated the existing dispute

We need to understand that this case does not talk about:

●​ Sovereignty and the court is not talking about who is sovereign over the Seas
●​ The settlement of maritime zones
China’s position
●​ China claims that Tribunal has no jurisdiction because:
a.​ Subject-matter is territorial sovereignty and tribunal has no jurisdiction
b.​ PH and China agreed to bilateral negotiations as per DoC 2022
c.​ What submitted by PH will imply maritime delimitation

The arbitration and limitations on its jurisdiction

●​ Article 287 (3) of UNCLOS: VII Amendment arbitration is the default DSM if
parties did not agree on a preferred DSM
●​ 2006 China declaration on limits on jurisdiction
●​ Limits on Arbitral Tribunal’s jurisdiction
○​ Issues of maritime delimitation or sovereignty
○​ Issues involving historic bays or titles
○​ Questions concerning military or law enforcement activities

The proceedings in absence of a Party

●​ Article 9 VII Amendment to UNCLOS
○​ If one of the parties do not appear before the tribunal or fails to defend its
case, the other party may request the tribunal to continue
○​ Provided that, before making the award, the tribunal must satisfy itself
that:
■​ It has jurisdiction
■​ The claim is well-funded in fact and law

The Tribunal’s jurisdiction v. China claims

●​ Takes China’s position paper of Dec. 7, 2014 as reference
○​ A common practice among tribunals
●​ On the issue of sovereignty:
○​ Sovereignty: over islands, Spratlys, Scarborough Shoal
○​ The tribunal acknowledges the existence of a dispute regarding
sovereignty between the parties, but claims that PH questions would not
make it implicitly decide on matters of sovereignty
●​ On the issue of the DOC and bilateral negotiations
○​ The tribunal claims that the DOC of 2002 is, by agreement of all parties, a
non-binding document, therefore having no value
○​ Other treaties (Treaty of Amity and cooperation, Convention on Marine
biodiversity) and exchanges of notes do not prevent the PH to adhere to
the Tribunal
○​ Thus, no duty under article 282 UNCLOS
 ○​ The requirement of article 283 UNCLOS on exchange of views is satisfied
by multiple note exchanges between the parties
●​ On the issue of maritime delimitations:
○​ Maritime delimitations: borders and limitations like the EEZ
○​ The tribunal claims that a dispute concerning the status of maritime
features is not necessarily corresponding to a dispute on the delimitation
of maritime zones
○​ Therefore, the dispute in question does not necessarily involve maritime
boundaries delimitations
●​ On the issue of historic titles and historic maritime rights:
○​ The tribunal claims that:
i.​ The claims submitted by PH concern the Convention
ii.​ A dispute concerning the relationship between historic rights and
the Convention is a dispute regarding the Convention, thus having
jurisdiction
iii.​ China’s claims are not based exclusively on historic titles, but a
multitude of historic rights and their relationship with the Convention
iv.​ The dispute is limited to historic rights and not titles, therefore point
(ii.) is applicable

The Issue of the 9-Dash Line

●​ For the tribunal, it is framed as China’s claim on the resources within the area,
not China’s sovereignty over that portion of the sea (historic rights and not titles)
●​ In fact, it would imply that China is mostly claiming a portion of the High Seas
●​ Even admitting the existence of some forms of historic rights by China, PH “very
astutely” argues that by entering UNCLOS:
○​ China recognized that other states have maritime entitlements (PH EEZ)
○​ China has given up any claim at least on those entitlements
○​ China’s virtual historic rights are incompatible with the entitlements set by
UNCLOS

Is the 9-Dash Line a cluster of historic rights?

●​ No, using an island and/or the waters nearby does not constitute a historic right
per se
●​ China claim of historical navigation and fishing in the South China sea is not a
legal basis for claiming historic rights as these activities are a mere exercise of
freedoms in the high seas permitted by international law
○​ It doesn’t matter that China has been doing this for centuries in this area
Are extensive fishing and navigation activities in the 9DL a legal basis for historic
rights?
●​ No, as there is no evidence of China (until recently) prohibiting other states from
conducting these activities and other states acquiescing to it
●​ The court finds no evidence of the above

The Scarborough Shoal Issue

●​ Scarborough shoal is a high tide elevation (a rock)
●​ The Court did not decide on the sovereignty over Scarborough Shoal → lack of
jurisdiction
●​ Scarborough shoal is a traditional fishing ground for both PH and China (but also
Vietnam)
○​ Those fishing rights are the objects of the dispute
○​ That’s why they don’t have to talk about sovereignty
●​ The Court ruled on the legitimacy of Chinese actions in preventing PH
fishermen’s boats to fish around the shoal
●​ The issue revolves around the obligation to respect fishing grounds
●​ Traditional or Artisanal fishing is an activity protected by Internatioanl Law
○​ Artisanal fishing: understood in opposition to industrial fishing, is carried
using small boats and simple but effective tools and not large-scale
techniques and big vessels
○​ According to the Abyei Arbitration, traditional fishing rights (conducted for
generations) are unaffected by rules on maritime entitlements
●​ Both Filipino and Chinese are entitled to conduct traditional or artisanal fishing
around the shoal
●​ By blocking and impeding such activities by Filipino fishermen, China has
violated PH artisanal fishing rights around Scarborough Shoal

The Low-Tide and High-Tide features issue

●​ FOCUS: Mischief Reef and Second Thomas (Ayungin) Shoal are LOW TIDE
features
●​ Both these features fall in the Philippine EEZ and DO NOT generate maritime
entitlements, territorial sea, and the like
●​ They fall in the Philippine EEZ therefore there is no issue of maritime delimitation
●​ Installations on Mischief Reef, even if non military, are illegal without PH
Authorization
●​ Anything China is doing to block Philippine activities is ILLEGAL because it is
violating Philippines rights in their EEZ, just acting within its sovereign rights
 ●​ Position of the Philippines remains the same: "You should conduct your activities
at sea with respect to international law, UNCLOS, and Philippine sovereign rights
in the EEZ"
○​ We can make our outposts and resupply them (BRP Sierra Madre) and
block you, you can't (according to the UNCLOS you signed with us)
○​ Your 9DL does not have legal rights according to the court (i.e. illegitimate)

The Maritime Environment Issue

●​ Art. 192 and 194 of UNCLOS: Obligation to preserve and protect he marine
environment, endangered species and fragile ecosystems
●​ The court found China violating these articles due to:
○​ Artificial installations
○​ Land reclamation
○​ Failing to stop large-scale fishing harming endangered species like turtles,
etc.
●​ Destroying coral reefs and other ecosystems
●​ UNCLOS: Obligation to protection of common goods => the environment
●​ Art. 192 and 194 dissects this obligation
●​ Court finds China violating articles due to:
○​ Artificial installations: Damage to corals, marine life, ecosystems
○​ Land reclamation: Dredging of seabed damages corals
○​ Failing to stop large-scale fishing

Fishing Moratorium Issue

●​ In 2012, China issued a moratorium on fishing to replenish fish stocks in a great
portion of SCS within the 9DL
●​ A portion of this area falls over the PH EEZ
●​ Chinese vessels preventing PH fishermen over Scarborough Shoal acted on the
ground of the moratorium
●​ Chinese prevented Filipino fishermen from fishing in SS because (according to
them): they realized in 2012 that there were no peace talks in SCS regarding
overfishing
●​ Fishing Moratorium: prohibition to private enterprises from fishing in an area
●​ We (Philippines) have power to determine who fishes in our EEZ (i.e. SS)
●​ Moratorium on fishing is issued to large-scale fishing, not artisanal fishing
○​ Artisanal fishing has no capacity to exhaust these resources in the sea
●​ Court finds: China has no power to exercise this moratorium over the Philippines
EEZ (i.e. the moratorium is illegitimate)
○​ Violates EEZ
○​ Violates right of Filipino fishermen to fish near SS
●​ According to Article 94 of UNCLOS, China has failed to ensure non-dangerous
maneuvering of their big fishing vessels against PH fishermen’s boats
●​ China maneuvered dangerously (blocking and almost colliding) against PH
Fishermen's boats
○​ Think: Giant China boat v. Small Filipino fisherman's boat
●​ Art. 94 → maneuvering in the sea should be done in a safe manner
 Jurisdiction

Meaning of Jurisdiction
●​ Entitlement of a State to exercise authority over persons and things
●​ Legislative: prescriptive, powers to legislate
●​ Judicial: adjudicative, power of state courts to hear cases
●​ Enforcement: powers of physical interference
●​ Montesquieu: Set the foundation for the three branches of government

How do we decide when the state has jurisdiction?

Principle of territoriality
●​ Island of Palmas Case: states can exercise their authority within their territorial
borders
○​ States have exclusive jurisdiction in their territory
○​ States cannot exercise authority outside their territorial and maritime
zones
●​ Exception of territoriality: maritime entitlements
●​ Performance of unauthorized state acts abroad