Nov.

10, 2014

References:

- Main source – Malanczuk

- Magallona – Q&A type
- Other sources – Damrosch; Shaw (copies of both are available at the library)
- ICJ and PCIJ cases – downloadable at UN website
- Other cases (arbitration or by other int’l tribunals) – our own Lexis Nexis

Public International Law (or simply “International Law”)

- Traditional definitions:
o The body of rules and principles of action which are binding upon civilized states in their
relations with one another
o That branch of public law which regulates the relation of states and other entities which
have been granted international personality
- Modern definition (from Sec. 101 Restatement (Third) by the American Law Institute of Foreign
Relations Law of the US):
o Rules and principles of general application dealing with the conduct of states and of
international organizations and with their relations inter se, as well as with some of their
relations with persons, whether natural or juridical.
 Individuals may be subject to international law (have both rights and duties)
*Note the change in definitions over time as to include more actors in IL (from states alone, and
then to include int’l orgs and persons)
- Jessup: Prefers the term “transnational law” than “PIL”. Refers to transnational law as that
which regulates actions or events that transcend national frontiers

Nov. 12, 2014

Private vs Public IL

- Private IL (Conflict of Laws) – there is no international law; no separate legal system

- Public IL – there is a difft legal system which regulates the conduct of states
- Egs:
o X, citizen of State A and ambassador to State B. X’s official documents were seized by
police of State B and was tortured in the latter. Is State B liable? – a Public IL concern
o The same ambassador X has bank deposits and condominium units in State B. X died in
State C. What law shall govern the distribution of the estate? – a Private IL concern

History

- Hugo Grotius - father of Public International Law

 - Treaty of Westphalia – ended the 30 years of war; emergence of modern state
- Westphalian concept of sovereignty – monopoly of power
- Jeremy Bentham – first used the term “inter-national law”
- ‘Lieber’ code – the first document that governs conduct of war
- Role of the International Law Commission (ILC) – codified the international law; outputs include
the UNCLOS, Vienna Convention, etc
- Conception of Hans Kelsen - ?

Nov. 15, 2014

Is PIL a “law”?

- Arguments against – No supreme authority (central legislative, judicial, and

enforcement/execution offices)
- Arguments in favor – They are nevertheless obeyed/followed
- How is PIL enforced?
o Self-help measures
 Retorsion – lighter, as really legal
 Reprisal – heavier, as really illegal but rendered legal by a prior invalid act

Sources of PIL

o Formal – the process through which the PIL was created by which it becomes legally
binding e.g. the international agreement
o Material – e.g. the specific provision in the treaty

Lex lata – law as it is now

Lex ferenda – law as it should be

The sources of PIL are more of lex referenda than lex lata.

Nicaragua vs USA

- Principle: Where a customary international law is codified in a treaty or convention, it does NOT
cease to exist but can in fact co-exist with the treaty/convention
- Principles of international law discusses:
o Non-intervention
o Use of force

Memorize these (content and citation)

- Sec. 101 on Third Restatement, US – definition of PIL

- Sec. 102 …
- Art. 38 (1) of Statute of the International Court of Justice - sources of international law
Art. 2 par. 4 of UN Charter – prohibition on use of force

Art. 51 of UN Charter – exceptions to prohibitions on use of force

Art. 34 of ICJ Statute – compulsory jurisdiction of ICJ

Next meeting: Other sources of PIL until Lotus case

Nov. 17, 2014

Sources of PIL

Per Art. 38 (1) of the Statute of the ICJ:

o International conventions
o International customs
o General principles of international law of highly civilized nations
o Judicial decisions and teachings of the most highly qualified publicists of the various
nations, as secondary sources

Per Section 102 & 103, Restatement (Third), American Law Institute of the Foreign Relations Law of the
US:

(a) in the form of customary law;

(b) by international agreement; or
(c) by derivation from general principles common to the major legal systems of the world (even
if not in an int’l agreement or not achieved a status as a customary IL).

- (a) and (b) are primary sources. (c) is a secondary source.

- There is no hierarchy among the primary sources.
- International conventions (which are essentially/substantially treaties) and international
customs are of equal authority. However, in case of conflict:
o General rule: Treaties supersede customs
o Exception: The custom is a jus cogens (peremptory norm) in which case the custom
prevails and the treaty is regarded as a violation of the jus cogen.

International conventions

- Are basically TREATIES

Requirements of Treaty (under the Vienna Convention)

1) Entered into by states – does not mean others (e.g. int’l organizations) cannot enter, but the
Vienna Convention just provides for states
2) In writing
3) Governed by international law
Contract treaty vs. law-making treaties

Contract treaty – the performance of an obligation of one party is dependent upon the
performance of the others

Check effect: There are contracts between/among states that are governed by their
domestic laws. Are these considered treaties given that the latter are governed by
international law? What type of contract is regarded as a treaty? How connected to
internationalized business contracts?

Law-making treaty – performance of an obligation of one party is not dependent upon the
performance of the others

Both are sources of international law because both involve obligations. A contract treaty
contains the law which is binding on the parties.

The idea of a treaty is that it is international law as between/among the parties.

International customs

- 2 elements:
1) Objective (general practice)
2) Subjective (opinion juris) – if there is observance but on the basis of convenience,
political expediency, etc., not a custom.
- Generally, only states make customary international law
- Customary IL evolves
- A new practice which is in conflict with an existing international custom may be:
o The existing int’l custom is not a jus cogens:
 Regarded as a violation – the existing int’l custom prevails
 If widely accepted as a practice (general and consistent) and the element of
opinion juris is present, it will replace the existing int’l custom and will now
become the new int’l custom
o The existing int’l custom is a jus cogens
 The new practice is regarded as a violation – the jus cogens prevails (it is
peremptory norm which is final, not subject to modification)
 Exception: If the new practice has the same character of a jus cogens

Highest form of customary IL – jus cogens

The relevance of jus cogens is not so much on it being a source of customary IL (even if it is always
discussed in this light, actually). The term appears in the Vienna Conventions only as a limitation to the
validity of treaties (this is its relevance). i.e. if the treaty conflicts with a jus cogens, it is invalid.

A treaty which runs counter to customary international law

- Treaty is still binding, except if the customary IL is a jus cogens

 - The effect of such treaty is that it is determined as a violation, and if will become general and
consistent then will become the new customary IL

The Paquete Habana case

Importance: checking evidence of relevant state practice (note: not only state practice but relevant state
practice)

Evidences of relevant state practice

- In general: Legislations, executive declarations, court decisions

- In the Paquete Habana case:
o 1403 and 1406 – order of Henry IV of England protecting fishermen of foreign states
o 1521 - treaty between Emperor Charles
o Dutch..
o Several other treaties…

Nicaragua vs US – study again (determine the opinio juris)

Next meeting: Until Jus Cogens (before Philippine practice)

November 19, 2014

Nicaragua vs US

- Customary international law norms involved:

o Principle of non-intervention
o Prohibition against violation of sovereignty of another state
o Prohibition against use of force
- Key principles:
o CIL must be determined by the general practice of the states and not just by the states
party to the dispute before the ICL. Opinio juris may be deduced from the attitude of
parties concerned and that of states to certain General Assembly Resolutions.
o Prohibition on non-use of force is jus cogens.
o Principle of non-intervention is customary intl law and therefore not affected by treaty
stipulation.
o CIL can exist alongside treaties.
- Non-practice of states
o If during the formation of the CIL – does not affect the formation of the CIL; state not
practicing is considered persistent objector/dissenter (i.e. CIL is formed but the
objecting state is not bound)
o If CIL is already established
 The non-practice is not yet established, etc. - Considered as a violation/breach
  The non-practice is already established, etc – Overrides the CIL and becomes the
new CIL
- Proof of opinio juris (on non-intervention and non-use of force)
o Gen Assembly resolution 2625 (XXV)
o Resolution of the Sixth Intl Conference of American Stets Concerning Ag6ression 18 Fb
1928
o Montevideo Convention o the Rights and Duties of States 26 Dec. 1933

*These are considered opinio juris as made by the member-states of the UN.

Next meeting: Until Phil. Practice

Nov. 22, 2014

Absent. Studying Taxation. :D

Nov. 24, 2014

Legality of the Threat or Use of Nuclear Weapons case

Key principles:
- General Assembly Resolutions may show the formation of opinio juris. Even if they are not
legally binding, they may sometimes have normative value
- A State is barred to do an act only when it is so prohibited under a treaty or customary
international law. Restriction to state’s sovereignty is not presumed (see Lotus case)

Take note of the ICJ voting on the specific issues. (Discuss the ruling in each of the specific issues
in answering the question “What is the law on the legality of the threat or use of nuclear
weapons?”)
o If that was only “on circumstance of self-defense” and not “extreme circumstance of self
defense”, seems the Judges would have unanimously voted that use of the nuclear
weapon is illegal

Restriction to state’s sovereignty is not presumed:

Leading cases:

o Legality of the threat or use of nuclear weapons case

o Lotus case

The Lotus Case (France vs. Turkey)

 - ICJ did not really say that it is Turkey, and not France, which has jurisdiction. What is said is that
since what France argued that it is only the flag state which has jurisdiction is not a CIL (since
there is no grant of exclusive jurisdiction to the flag state), then there is no basis in CIL to divest
Turkey of jurisdiction
- Key principles:
o Restrictions upon the independence or sovereignty of states cannot be presumed
o Jurisdiction is territorial but intl law does not prohibit a state from exercising juris in its
own territory over a case relating to acts which have taken place abroad
o No definite rule of CIL regarding collision cases in the high seas (note: there are some
rules now on collision cases…)

General Principles of Law

- Recognized by civilized (now “peace-loving”) nations

- Also a Primary Source of PIL (along with International Conventions and International Customs)
o Does this now render CIL useless as can be a primary source even without opinio juris? –
NO. Aimed at providing solutions to controversies where treaty law or CIL provides no
guidance.
- Is it more proper to call it “Gen. Principles of International Law”?
o See Akehurst pg. 48
- NOT domestic laws
- Correct analysis: May have originated as domestic law but have transplanted into international
law (see Akehurst)
- ICJ applies the general principles of law AS INTERNATIONAL LAW and not as domestic law. So,
ICJ does not get a domestic GPL and apply it in an intl case.
o So, do not say, e.g. “Equity is a domestic law”. Say “Equity is not a domestic law but it
can be found both in intl law and domestic law. As to ICJ, it applies equity as int law.”

Next meeting: Barcelona Traction then proceed to Treaties (but will not finish Treaties)

Nov. 26, 2014

Barcelona Traction case – There is no convention or CIL applicable, thus ICJ used the General Principles
of Law. The latter pertains to the right of the corporation (not the stockholders) to institute suit from
acts causing it injury.

South-west Africa Case – Actio popularis (the action to obtain remedy by a person or a group in the
name of the general public without being, or directly representing, the victim) is not recognized as a
general principle of law. In international law, it refers to the action taken by a State in the name of the
international community even if it is not directly the victim.

The River Meuse Case – The Statute expressly directs the application of “general principles of law
recognized by civilized nations” and principles of equity have an established place in the legal system.
The gen. principle of law applied is that of equity which is one who comes to court must come with clean
hands.

Judicial Decisions and Publicists

- Subsidiary means only

- More of a “material” than a “legal” source
- Art. 59 of the Statute – basis that there is no stare decisis in ICJ decisions

Possible Sources of PIL

- Only POSSIBLE, not confirmed as sources

- On Equity:
o On equity as “ax aequo et bono” (possible source of PIL) – there are existing rules but
the parties agree not to apply them, but base their decisions instead on what is right or
good
o On equity as a General Principle of Law (source of PIL, actually one of the main sources
along with Treaties and CIL) - there is no treaty nor CIL

Custom vs Usage/Comity

- Usage/comity – practice that States generally follow without believing themselves legally bound
to do (no opinion juris)
o E.g. Alternat – the practice of state-signatories wherein their respective copies of the
treaty show first their countries as signatories

Guidelines in determining which source of PIL prevails over the other:

1) Jus cogens norm always prevail

2) Later law abrogates previous law
3) General law does not abrogate prior special law
4) Special law abrogates general law, regardless of time
5) Mutual rejection by the parties of a treaty usually due to the emergence of new norm
6) If there is clear conflict, treaties prevail over custom and custom prevails over general principles
and the subsidiary sources

Philippine Practice

GAPIL (per Constitution) – not Jus Cogens; the ordinary

- Treaties and international laws, when codified as laws in the Phil, are treated as STATUTES.
Thus, can be repealed by a subsequent statute.

Next meeting: Dec. 1 (Monday) – start with Treaties

Dec. 3, 2014
PHILIPPINE PRACTICE

Doctrine of state immunity may be applied in 2 ways:

1) Litigant files a case against the state – in the domain of domestic law
o Basis: Positivist theory (cannot sue the source of the right to sue), sociological theory,
Consti provision on immunity of state fromsuit
2) Litigant files case in Phil in Phil court impleading a foreign state – in the domain of PIL
o Basis: Par in Parem, Non Habiet Imperium. All states are sovereign equals and cannot
assert jurisdiction over one another.
o International law should be applied (on state immunity principles) and not domestic law

Jus imperii vs Jus gestionis – on acts performed in governmental or proprietary capacity (check US vs
Guinto case which one is govtal and which is proprietary)

How to determine whether contract is in a governmental or proprietary capacity

1) Purpose test
o Disregards nature and looks into purpose, e.g. If lease but purpose is for national
defense such as for naval forces, then it is governmental.
2) Nature test
o Where duties and obligations can be performed by private entity or individual,
regardless of purpose of contract, then it is proprietary (e.g. lease). If can only be
performed by the govt, regardless of purpose of contract, then it is governmental.
o Followed by US

- In Phil, SC tends to be flexible and adopts either of the 2 tests in difft situations.

ICSID (International Center for Settlement of Investment Disputes)

- Phil is a party
- An intl agreement between States allowing foreign investors to directly initiate a suit for
arbitration or conciliation involving disputes against states.
- States have therefore waived their immunity from suit in the cases covered by the ICSID

*The trend is towards increase in intl organizations whereby parties already give prior consent to be
sued under an intl tribunal, usually through arbitration. Thus, the concept of state immunity is fading…
and the world is getting smaller..and smaller.

Next meeting: Wednesday na!!!

 December 10, 2014

Authentication of the text – the process of stating that the text is the correct one

Jan. 27, 1980 – entry into force of the Vienna convention on law of treaties

Adoption of text – extent of implied authority of the head of diplomatic mission, etc.

Head of state, head of government and prime minister - have implied authority to represent state, no
need for full powers

Full powers – the document stating that the representative has the authority to represent the state

Note the 3 instances when reservation is not allowed – 1) when the treaty prohibits reservation 2) when
the reservation is contrary to the object or purpose of the treaty 3) contains statement that reservation
is not allowed

Entry into force – the coming into effect of a treaty

On change of circumstances (Art. 62 of Vienna Convention) – cannot be applied if the treaty was entered
into prior to the entry into force of the Convention. There is a prohibition against retroactivity.

The Vienna Convention entered into force on Jan. 27, 1980. Thus its provisions do not apply to treaties
entered into prior to that date. However, the rules embodied in the Convention may apply.

The Vienna Convention defines a treaty and enumerates the elements of a treaty. These elements are
not determinative of the binding effect of the treaty but only for purposes of determining applicability of
the Convention. Such, an agreement can be a “treaty” but not one as defined under the Convention.

See Art. 3 of the Vienna Convention on those not covered by the Convention.

The Vienna Convention is not only a codification of customary intl law on treaties but is also a
progressive development of international law.

- Codification of customary intl laws:

o Art. 62
o Material breach
o Reservation
- Progressive development:
o Adoption of text

Accession – non-drafting parties

Australia enters into agreement with Phil to lease Phil patrimonial property for US Naval forces

o Not a “treaty” under VCLT, i.e. latter does not govern

o Also not a “treaty” in the general sense as intention is to be governed by municipal law
Difference between “Treaty Law” and “Law of Treaties”

- Treaty Law – the specific provisions governing a particular subject e.g. the treaty law on
genocide
- Law of Treaties – the set of rules (on adoption, ratification, etc) governing treaties in general e.g.
VLCT. VCLT in itself is also a treaty.

Formation of treaties:

- Proposal to draft
- Negotiation and drafting of terms
- Adoption and authentication
- Signature
- ……

Art. 6 of VCLT – States have inherent capacity to enter into treaties (this is CIL)

December 15, 2014

Absent

December 17, 2014

Authority to act in respect to treaties (negotiation):

1) Express
o As found in the Full Powers document
2) Implied
o Implied from the position of the official
 Heads of state, head of government and Ministers of Foreign Affairs (in Phil,
called the “Secretary”, in other jurisdictions often “Officer of External Affairs”) -
full authority, i.e. all acts in the treaty-making process
 Heads of missions and Representatives to conferences (anyone can be
appointed) – implied authority is limited to adoption of text of treaty
3) Apparent – Art. 7 par. D of VLCT
o In these cases, states can presume that the person is authorized

Adopting text of treaty:

1) Unanimous
2) 2/3 of those present and voting, unless by the same 2/3 vote they will agree on a different
voting number (usually higher)
What is the significance of negotiation?
o The preparatory works (can be used to interpret treaties)
 What is the legal significance of “adoption of text of a treaty”?
o After adoption of the text, the treaty will be prepared in final form, at which point it is
usually authenticated
 Purpose of authentication: To ensure that what has been adopted remains the
same
o The text of the treaty as adopted governs the subsequent stages, e.g. signature (so
adoption of text is not signature. Seems signature is authentication.)

Reservation can only be made after adoption of text. The text of the treaty governs.

Ratification – occurs only when instruments of ratification are exchanged, or deposited with
depositary who is usually the Secretary of the UN

Is the consenting State now bound by the terms or substantive provisions of the treaty?

o Not yet, since not yet entered into force. But, obliged to refrain from acts which would
defeat the object and purpose of the treaty (applies after signature but before
ratification when ratification is required – and – after ratification but before entry into)
force).
 Breach of these obligations will constitute an internationally wrongful act
 If manifests during these periods that will not want to be bound, then will not
incur international obligation.

Entry into force

- General rule:
o When all states expressed consent
o Or, as stipulated in treaty
o If not stipulated in treaty, upon exchange of instruments of ratification
- As to third parties who accede:
o Text of treaty
o If not, upon accession

Reservation, Understanding and Declaration (RUD) – can be performed during the ___ stage

- Distinguish one from the other

o Understanding and Declaration – provision is not considered as N/A but merely specifies
under what context the provision is to be applied e.g. in a treaty requiring legislation,
the understanding is that it is federal legislation
o Reservation – the provision is not applied

When is reservation allowed? Not allowed?

- States have inherent right to enter into a treaty. Corollary to this inherent right is the inherent
right not to be bound, i.e reservation
 - Not allowed:
o When treaty does not allow reservation e.g Rome Convention (?)
o Treaty allows reservation only of certain subjects as provided in the treaty
o Reservation is incompatible with object and purpose of treaty (codified CIL)
 Who determines compatibility or incompatibility? – Authors are divided as to
whether objector or reserving state is the one to prove

Reservations to the Genocide Convention – An objector may treat the reserving party as not a party to
the Convention only with respect to the provision reserved!

Treaty not registered with UN Secretariat – valid but cannot invoke it before UN organs (not that it is not
binding)

- So, can still be enforced but not before UN organs

 Jan. 5, 2015

Distinguish “signatory” from “party” to treaty in the ffg areas:

- Meaning
o Signatory – Signed the treaty but has not yet expressed consent to be bound, e.g. by
ratification, exchange of instruments, etc
o Party – Has already expressed consent to be bound
- Legal obligations
o Signatory – Obliged to refrain from acts which would defeat the object and purpose of
the treaty until it has made its intention clear not to become a party after signing (Art.
18 VCLT)
o Party – Obliged to refrain from acts which would defeat the object and purpose of the
treaty until the treaty comes into force (Art. 18 VCLT)
 When already in force – Observe the substantive provisions of the treaty
- Withdrawal from treaty
o Signatory – Not compelled to become a party to the treaty so can withdraw anytime
without any procedure
 Art. 18 of VCLT – xxx until it has made its intention clear not to become a party
after signing
o Party – Cannot unilaterally withdraw as now governed by pacta sunt servanda principle;
unless in accordance with the provisions of the treaty or the VLCT on withdrawal (e.g.
on latter – at least 12-month notice, fundamental change of circumstances, material
breach, etc.)
 How to withdraw? 1) Accdg to provisions of the treaty (look at this first) 2) Law
of Treaties (CIL + VCLT)
- Effects before treaty enters into force
o Signatory – Obliged to refrain from acts which would defeat the object and purpose of
the treaty (Art. 18 VCLT)
o Party – Obliged to refrain from acts which would defeat the object and purpose of the
treaty (Art. 18 VCLT) (Seems violation consists of an internationally wrongful act)

When treaty enters into force:

- Pacta sunt servanda

- Art. 27 of VCLT – A party cannot invoke provision of its domestic law to evade compliance
o So a subsequent law cannot be used as ground for terminating a prior treaty
o The ruling in Ichong vs Hernandez (Phil case) where a domestic law was upheld as
against a treaty for the reason that the law was passed as an exercise of the police
power (protection of retail trade), and treaty cannot render ineffective the police power
– APPLICABLE ONLY AT DOMESTIC LEVEL
- Art 28 of VCLT – Treaties do not prima facie operate retrospectively, unless a difft intention
appears
 - Arts. 34-35 – A treaty cannot prejudice third states without their consent
o How is consent given? May not be written
o How about if treaty grants instead benefits to third parties? –
o Art 2(6) of UN – if the provisions are customary in character (seems are applicable to
third states)
- Art. 30 – Rules on successive treaties with same subject matter

Interpretation of Treaties

Basic Rules (Art. 31 of VLCT)

1) Text of the treaty (ordinary meaning + context)

2) Intent of parties
3) Object and purpose of treaty

Means of Interpretation

Reasons for resorting to means of interpretation:

o To apply Art. 31
o If applying Art. 31 results to absurdity, …
1) Preparatory works (travaux preparatoires)
2) Circumstances of conclusion (contemporaneity) – circumstances at time of conclusion; when
treaty was concluded years ago

Municipal Law and Competence to Conclude Treaties

- Art 46 VCLT
o “Manifest”
o “Fundamental importance”

 If a new amendment to the e.g. Consti – not manifest; not of fundamental imp
 If there already for a long time – manifest; of fundamental imp

*The above seems logical to counter the argument that States have no
obligation to know the procedure of ratification of other states

There is no intl law requirement as to ratification. It is resolved domestically. In Phil, can be with (treaty)
or without (exec agreement) Senate approval.

Invalid or Defective Treaties

- Art46 of VCLT- Head of State or Govt disregards constitutional req for ratification - Defective
 - Art8 of VCLT – Unauthorized representative - Not invalid but ineffective until ratified by the
state
- Art47 of VCLT – Ultra vires -
- Art48 of VCLT – Error – Elements a) Fact or situation assumed to exist at time of conclusion of
treaty b) Formed essential basis of consent, and c) State has not contributed to the error
o See case Cambodia vs Thailand (the “temple” case)
- Art49 – Fraud
- Art50 – Corruption of representative
- Art51 – Coercion of representative
- Art52 – Coercion of State by threat or use of force
o What is the threshold of coercion?
- Art53 – Contravenes jus cogens

Termination of Treaties

- General rule: Pacta sunt servanda

Thus: The party terminating has the obligation to prove that the grounds exist; the other
parties are not obliged to prove that the grounds do not exist
- Grounds for termination, denunciation, withdrawal or suspension:
o Application of the treaty – Art42
o Application of VCLT – Art42
o Consent of all parties – e.g. Desuetude (Art54)
o Discharge through material breach - Art60
 The material breach must be a provision in the treaty, not an undesirable act of
one state against another not based on the treaty provisions. (India vs Pakistan)
o Impossibility of performance - Art61
o Rebus Sic Stantibus – Art62
 Factors:
1) Fundamental – affects the obligations in the treaty
2) Resulted in the radical transformation of the extent of the obligation stil to
be performed

Radical transformation – increased the burden of the obligation to the

extent of rendering the performance something difft from that originally
undertaken

3) Circumstances that changed must refer to those that determined the parties
to accept the treaty
4) Unforeseen by the parties
5) Basis of consent

 Impossibility of performance – obligation cannot anymore be performed

  Rebus sic stantibus – obligation can still be performed but will be
burdensome
o Emergence of new jus cogens – Art64
o Outbreak of war

Next meeting:

- Cases on Treaties
o Gabcivoko-Nagymaros
o Phil practice
- Intl Law and Muncipal Law (recits)
- States and governments (for the week)

Jan. 7, 2015

Doctrines of state of necessity and Rebus Sic Stantibus

o Both are grounds for noncompliance of an obligation

o State of necessity exonerates a state from non-performance of obligation but Rebus Sic
Stantibus is a ground for termination of the treaty

Doctrine of state of necessity – not in the VCLT, it is a generic concept

Art42 of VCLT states that the grounds for terminating the treaty is limited to those enumerated therein
(grounds are exclusive)

Procedure for invalidation, termination or suspension of treaties:

- Exclusive grounds: Under VCLT only (Art. 42)

- General rule: Should affect the whole treaty (Art 44)
- Subject to loss of right (Art45)
- General rule: Cannot invoke international law (Art46)
- Must notify in writing the other party of its claim and the proposed measure (Art65 (1) )
- If no objection within a general period of 3 months, the concerned State may carry out the
measure proposed through a duly signed instrument (Art 67)
- If there is an objection, the concerned State must first avail of pacific or peaceful means of
dispute settlement under Art. 33 of the UN Charter

Next meeting: Topics D and E

Jan. 10, 2015

Absent. Studying for Taxation I class.

 Jan. 12, 2015

Island of Palmas case

 It is not enough that there is a territory. There must be exercise of sovereignty

within that territory. How to exercise sovereignty? There must be
administration.
 Discovery is not a mode/basis for valid title over territory. 2 reqs for discovery:
 Subject is tera nullius (?) i.e. stateless
 Effective occupation
 However, discovery is still significant as gives the discoverer an inchoate right
over the property (although not title). Intl law gives the discoverer a period of
time to comply with 2nd req of effective occupation

o Under PIL, what are the implications of the disputed border for Singapuria’s statehood?
o How would PIL’s “right to self-determination” apply here?

In what scenarios does PIL deal with/talk about “statehood”?

- Secession by part of a territory (e.g. the case of Kosovo)

- Break-up of large state into several states (e.g. USSR, former Yugoslavia, and Czechoslovakia in
1990s)
- Foreign control is excercised..
- Merger or union of states
- Claims by constituent units or a union or federation to the attributes of statehood (separatist
claims of Quebec)
- Territorial or non-territorial communities which have special intl status (e.g. Palestine’s “non-
member observer state” of UN status in 2012)

Difference bet. “government” and “state”

- “Republic of the Philippines” – the government

- “Philippines” – the state

Elements of State:

1) Permanent population
o No required number, but there is threshold, i.e. permanent, so there is a way of
perpetuating population (Vatican City has about less than 500 citizens and about 800
residents)
o How to maintain population? – Migration, etc
2) Defined territory
 o Territorial sovereignty
o Requirement: Sufficient consistency, NOT accurate definition (North Sea Continental
Shelf case)
o Extent of and jurisdiction over territory:
 Modes of acquiring territory
 Law of the Sea
 Airspace
 Criminal Jurisdiction and Extradition
o Meaning of territorial sovereignty: “Right to exercise in a territory, to the exclusion of
any other state, the functions of a State…” (Island of Las Palmas case)
o How large must territory be? – No req. The Holy See has 0.44 sq km
o What if territory is purportedly annexed by another state? – Kuwait was occupied and
annexed by Iraq in 1990
o Must territory be contiguous? - No
3) Govt
o Effective control test – this is the test (sovereignty), not legitimacy since can have de
jure and de facto govts; mere existence of govt not sufficient
 Determining effective control
 Able to make commands/orders
 Able to implement them
 Able to compel governed to comply with them (e.g. how effective are
the courts)
o Kinds of control: internal and external
o The case of Palestine (State of Palestine as declared in 1988 by PLO)
o However, in case of temporary deprivation of effective control, the state does not cease
to exist (e.g. Rwanda, Somalia, Congo)
4) Capacity to enter into relations with other States – to be discussed next meeting (until States
and Govts)

Jan. 28, 2015

Lessons from the Midterm exam:

- If customary intl law – do not just state that it is CIL accdg to the ICJ in this case, etc etc etc.
Establish that there exist the elements of state practice and opinio juris.

- Only a party can breach a treaty. If question is whether there was breach, and the State has not
yet expressed consent to be bound, there is NO breach.

- A Nonsurrender Agreement is not contrary to the object and purpose of the Rome Statue due to
the complementarity rule in the Rome Statute. Domestic court can prosecute international
 criminals and reference to the International Criminal Court is done when there is consent, State
refuses to prosecute domestically, etc.

Jan. 31, 2015

Absent. Studying for Taxation :P

Topics discussed:

Difference of secession between Quebec and Kosovo

Recognition of State vs Recognition of Government

Effective Control Test

Doctrine of State Continuity

Sui Generis States

Feb. 2, 2015 (February naaahhhh!!! <3 <3 <3 ) HAPPY VALENTINES MHAI!

Entities with special status (sui generis status) FOR RESEARCH

- Vatican City and Holy See

o Issue: Territory and population
- Palestine
o Issue: Control over territory
- Taiwan
o Issue: Something to do with China.
- HongKong and Macau
o Issue: While HK can make decisions on ..but when the People’s Republic of China
(communists in mainland China) makes the decision, HK cannot say otherwise,

Uti Possidetis Juris

- General rule of IL which states that the boundaries of colonial territories ought to become intl
boundaries when those territories attained independence unless altered by agreement
- Developed in South America in connection with the independence of states from Spain and
Portugal
- Also adopted in the Organization of African Unity in 1964 which states that - all member states
commit themselves to respect the borders existing on the achievement of natl independence
People’s Right to Self-Determination

- A CIL, jus cogens norm (as a right) and erga omnes norm (as a duty)
- Legal basis: Art1(2) and Art55 of UN Charther, Art2 of GA Resolution entitled “Declaration on the
Granting of Independence”, ICCPR, ICESCR, 1970 Declaration on Friendly Relations of the GA,
1960 Declaration on Colonized Territories (?), Art1(4) of Protocol 1 of the 1949 Geneva
Convention

Secession and statehood

- Principle of legality: For the annexation to be valid, the secession must be valid.
- IL contains no prohibition of declarations of independence arising from secession. There is also
no authorization.

Recognition of states

- Constitutive vs declaratory
- Co-optation – research

Kadic vs Karadzic

- Torture requires state action element. The other crimes here do not. But US Court still held
Karadzic liable for torture along with the other crimes, based on the same reason.

Feb. 4, 2015

Tinoco claims –

Co Kim Cham – 3 types of de facto govt:

1) government that gets possession and control of, or usurps, by force or by the voice of the
majority, the rightful legal governments and maintains itself against the will of the latter (called
“revolutionary govt”) e.g the govt of Cory Aquino after the EDSA revolution
2) is established and maintained by military forces who invade and occupy a territory of the enemy
in the course of war, and which is denominated a government of paramount force (called “govt
of paramount force” or “government by occupation”)
3) established as an independent government by the inhabitants of a country who rise in
insurrection against the parent state of such e.g. govt of Emilio Aguinaldo

Consequences of recognition of STATE (even if not really an element of statehood per declaratory
theory):

- Full diplomatic relations, except in the case of de facto recognition

 o If you wish to recognize a new State, be ready to have diplomatic relations. If you are
not ready for such, then do not recognize
o If only de facto recognition – recognition is only for the interest of the recognizing state,
and not really full recognition of the other as a State

- Right to sue in courts of recognizing state

- Entitlement to property of State within recognizing state
- Recognition being retroactive, validates past acts of recognized govt

Underhill vs Hernandez –

- Even if the act complained of happened before US’ recognition of the govt, such recognition had
retroactive effect
- Act of state doctrine – compels the state to refuse to pass judgment on validity of acts of other
govt

Recog of State vs Govt

- Of State – State recognized as a whole, there is no specific inquiry into the govt of that State;
recog of the govt requires separate recog (State may be recognized de jure but the govt therein
only recognized de facto)
- Of Govt – Whether de jure or de facto, results in the recognition of the State

Recog of govt (no duty to recog govt, only discretionary as to the Executive; recog is a political question)

- Traditional – 1) effectiveness and control 2) stability and permanence 3) popular support (has
the support of inhabitants even if established extra-constitutionally and not democratically) 4)
ability and willingness to fulfill intl obligations
o These are the factors state considers before decides to recognize, but still no duty to
recog even if all are present so can still refuse to recog
- Tobar or Wilson doctrine – precludes recog of any govt established by revolutionary means until
constitutional reorg by free election of representatives
- Stimson doctrine – no recog of a govt established thru external aggression (adopted by League
of Nations)
- Estrada doctrine – if govt was established through political upheaval, a state may not issue a
declaration giving recog to such govt, but may merely accept whatever govt is in effective
control without raising the issue of recog. Dealing or not dealing with the govt is not a judgment
on the legitimacy of the said govt

Recognition of belligerency

- Distinguish belligerent from insurgent and from riot

o Riot – informal, no organization
 o Insurgency – armed group more or less organized but lacks civil govt or possession of
territory
o Belligerent – organized, with civil govt and possession of territory; “war” may only be
had against belligerents

- Elements of belligerency:
o Occupation of substantial portion of territory
o Organized civil govt supported by majority of inhabitants in territory
o Conflict bet legitimate govt and belligerent is serious and outcome is uncertain
o Belligerents willing and able to observe laws of war and other intl obligation

To discuss next meeting:

 If state recognized belligerents –

 If does not recognize –
 If state captures belligerents – what are the rights and duties
 If belligerents capture persons – what are the rights and duties

Feb. 9, 2015

From Kuang’s notes (was absent)

Insurgents vs Belligerents:

Insurgents:

o Not governed by laws of war

o Governed by municipal law

Belligerents:

o Governed by laws of war

o Recognized as such by international law
o Considered to have committed international crimes

Effects of recognition (of insurgents only or including belligerents?):

Before recognition – Subject to municipal laws; act imputable to the State

After recognition – Act not imputable to the State

State succession vs Government succession

State succession – change in legal personality of State; sovereignty, e.g. Spain, Americal,
Japanese (?)
 Gov’t succession – change in the government, e.g. unicameral to bicameral, EDSA revolution

Clean Slate Doctrine (tabula rasa)

- Have effects to treaty and international obligations except boundaries

Effect of State succession

1) Transfer of allegiance
2) Political laws automatically abrogated except if the new sovereign is affirmed
3) Public property (?)
4) Treaties not binding except local rights affecting territory

Treaty of Paris – US did not assume responsibility

Effects of Govt succession

1) All rights are inherited except obligatory
2) If change by peaceful means (Constitutional), new govt inherits all obligations
3) If change is by violent means, new govt has the option to reject or not political and personal
(do not benefit the people) obligations but not those arising out of regular administration of
govt

Non-state Actors
1) IO – agreements by States
2) Individuals – objects of intl law; rights not duties; intl criminal responsibility
3) NGOs

3 Kinds of Jurisdiction
1) Prescribe law – legislative – laws applicable to persons or authority (?)
2) Adjudicate – judicial – subject a person to courts
3) Enforce – executive – govt resources

Criminal jurisdiction
Theories
1) Territoriality – objective vs subjective
2) Nationality – active vs passive
a. Active – attaches to the person of the offender
b. Passive – looks at the victim
3) Protective
4) Universality
 Feb. 11, 2015

Nottebohm case
- Nottebohm IS a citizen of Guatemala. Nationality is determined by domestic law. ICJ did not say
that the grant of nationality by Liechtenstein to Nottebohm is irregular. However, since the right
that Liechtenstein seeks to enforce (diplomatic protection) requires the application of
international law, the international law requirement of nationality, i.e. “effective nationality”
must be satisfied. Since this was not satisfied in this case, Liechtenstein cannot exercise
diplomatic protection.

International crimes recognized under universality principle

- Lex lata – war crimes and piracy
- Lex ferenda – all others
- CIL (instant CIL; but not yet lex lata) - terrorism

US vs Columba-Colella
- See hardcopy
- Passive nationality – also not applicable as covers only a limited category of crimes, i.e. only
those that are jus cogens; even death is not covered

Protective principle – state can legislate crimes it considers to be a threat to its security, integrity or
economic interests e.g. espionage, counterfeiting, terrorism (still not definitely settled)

US vs Bowman – see hardcopy

US vs Galue – the smuggling of marijuana interferes with the conduct of its governmental function, i.e.
govt’s combat against narcotics; Since interferes with governmental function, protective principle
applies

Eichmann case
- principles applied 1) protective 2) passive nationality 3) universality (Seems that the annexation
of Jerusalem by Israel is recognized so that the Jews are now nationals of Israel)
- See hardcopy

Case of Pinochet – read as also applicable to topic of “Jurisdiction”

- There is State-sponsored torture against Spaniards ordered by Pinochet
- Issue: WON Spanish courts have jurisdiction over Pinochet for acts committed in Chile
- Ruling:
o Active nationality principle – N/A; Pinochet is citizen of Chile
o Protective – N/A; no imminent threat to Spain’s national security from Chile
o Territorial – N/A; committed in Chile
o Universality – Applicable ; as torture (prohibition against torture is erga omnes)
 o Passive nationality – Applicable; victims are Spaniards
 This was the principle upheld as more persuasive (compared to universality)

Extradition – extraditee will go to requesting state

Deportation – depends on what state will accept him (?)

Pre-finals – Feb. 21 7:30 am

Feb. 18, 2015

Forms of Rendition (a form of Jurisdiction)

- Extradition
- Deportation
- Abduction (constitutes intervention/interference of affairs of another state)

EXTRADITION

- vs. Deportation
o Deportation is unilateral (initiated only by deporting state), does not need treaty,
destination of deportee is irrelevant
- Conditions:
1) Treaty
2) Person to be extradited has been charged or convicted of extraditable offense
a. Thus cannot be charged for “future prosecution”
b. Extradition can be for the purpose of prosecution, meaning there is already
prosecution but foreign state has to acquire jurisdiction (part of due process)
3) Extraditable offense is either
(1) listed or
(2) covered by “Double or Dual Criminality Principle/Clause” – even if not listed as
extraditable offense, but punished by penal laws of both countries; however the treaty has
to provide for such double or dual criminality clause

- Basic principles
o No treaty, no “obligation” to extradite
o Pacta sunt servanda applies
o Dual purpose: 1) prosecution 2) execution
o Could not cover “political offenses” because of the right to asylum, which is also a
matter of customary international law ;
 cf: Attentat Clause – A clause in the extradition treaty that mere killing of head
of state does not by itself constitute a political offense; thus may be subject to
extradition
o Rule of Specialty must be followed
  The extraditee will only be charged/prosecuted for the crime for which he was
requested to be extradited
o Ex post facto law prohibition does not apply – because extradition is not a criminal
proceeding; the extradition treaty applies even to crimes committed prior to effectivity
of the treaty
- Legality of abduction of criminals in foreign territory
o 3 modes of rendition: extradition, deportation and abduction
o Abduction of criminals in territory of another is an intervention and thus violates
customary law and UN charter
o It can only be justified if done invoking self-defense
o The illegal apprehension will not necessarily affect the juris of apprehending state (male
captus, bene detentus) unless the defendant was secured through torture, brutality or
similar outrageous conduct
 male captus, bene detentus – “wrongfully captured, validly detained”
o Justifications for male captus, bene detentus
 Cannot escape justice just because arrested against his will
 Extraditee is still afforded due process, i.e. still has opportunity to defend
himself etc
 Arrest is executive, not judicial. So jurisdiction of the court should not be
affected by the conduct of the executive.
o US vs Machain
 Absence of prohibition in the extradition against abductions means it is allowed;
the US-Mexican authorities were aware of US’ practice of abduction but did not
provide prohibition in the treaty
o US vs Toscanino (exception to the male captus, bene detentus)
 Toscanino was abducted in Uruguay by US agent, taken to Brail and brutally
tortured and interrogated for 17 days
 Notwithstandin the Ker-Frisbie doctrine, the allegations (brutally tortured and
interrogated for 17 days) were so shocking to the conscience that due process
required that the district court divest itself of juris. There is govt’s deliberate,
unnecessary and unreasonable invasion of accused’s consti rights
o US ex rel Lujan vs Gengler
 Extraditee was blindfolded here
 Govt-sponsored abduction, in and of itself, did not constitute conduct
sufficiently “shocking” to violate due process and therefore did not trigger the
Toscanino exception to Ker-Frisbie. Rather, the Toscanino exception required
more – such as kidnapping combined with torture at hands of agents of govt.
 So blindfolding is not outrageous conduct. There has to be physical
violence.
*So, the rule is male captus, bene detentus. Exception: torture, outrageous conduct, etc.
*Gen. rule – Ker-Frisbie doctrine; Exception: Toscanino doctrine
IMMUNITY FROM JURISDICTION

- Sovereign or state immunity

o Doctrine of qualified immunity (immunity in acts “jus imperii”, not “jure gestionis”)
o Act of State doctrine (judicial deference)
- Immunity of sovereign is only on public acts (“jus imperii”) and not private acts (“jure gestionis”)
o Jus imperii – e.g. lease of bldgs for use of military officers
o Jus gestionis – e.g. bidding for operation of barbershop
 For the above 2, either the nature or purpose tests are used
- Jones vs Min. of Interior of Saudi Arabia
o Immunity doctrine applies even in civil proceedings
- Saudi Arabia vs Nelson
o Facts: American employee of Saudi govt hospital brought action against Kingdom of
Saudi Arabia, the hospital and the hospital’s purchasing agent in US, based on injuries
arising from his alleged detention and torture by Saudi govt and the failure of the
hospital to warn him of the risk of being tortured in his attempt to report on-the-job
hazard. (He was tortured by a police officer)
o Ruling: The conduct was not commercial as the powers allegedly abused were those of
police and penal officers, which are powers that no private person has, and are not
commercial in nature and that the nature of the conduct of the suit is torture, and that
is not something for which people engage in trade or commerce. Thus, Saudia Arabia
CAN invoke state immunity.
 The term “torture” is a conduct of law enforcers. It is a technical term.
 The “nature” test was used, not the “purpose” test
- Argentine Republic vs Amerada Hess
o Facts: xxx
o Ruling: The “commercial” character of a transaction is to be determined with reference
to nature of course of conduct rather than its purpose.
- Head of State and Diplomatic Immunity
o Head of State has absolute or complete immunity during incumbency (not during term,
but during tenure i.e. actual incumbency) – purpose: to not disrupt performance of
functions (functional immunity)
o If not anymore incumbent (even if still within term)
 If act is related to function – immunity continues
 If otherwise – no more immunity
o If the foreign state prosecuting him does not recognize him as the head of state, cannot
invoke immunity
 US vs Noriega
 Facts: Noriega was abducted to the US and brought to trial for his
involvement in cocaine trafficking
  Ruling: The US executive branch did not recognize Noriega as head of
state of Panama, so he did not receive head of state immunity. US had
recognized Delvalle, and later Endara, as legitimate heads of Panama.
o Pinochet case
 The House of lord of UK ruled that “the absolute prohibition of torture, a jus
cogens norm, overrides immunity afforded to a former Head of State in criminal
proceedings. The commission of a crime against humanity and jus cogens
cannot be done in an official capacity on behalf of a state.
 State in criminal proceedings – in civil proceedings, there is no intl law
yet which bars applicability of immunity doctrine
 Pinochet’s argument: I ordered the torture in my official capacity as
head of state, thus immune – Untenable!
o Domestic jurisdiction over head of state vs Jurisdiction of Intl Criminal Court for
international crimes
 Latter is governed by pacta sunt servanda; juris of ICC should not be an issue as
to the parties; not a case of juris of one state with respect to another as all
states have already agreed to set up ICC and its juris
o Inviolability of premises of foreign diplomatic mission – Art22 of Vienna Convention on
Diplomatic Relations (VCDR)
 If Manila police received reports of possible bombing of US embassy, can they
insist to enter?
 Only one way: with consent of the mission. Since sovereignty of
diplomatic mission is absolute in intl law. No amount of national
security reason, whatever, can be invoked against it.
o Legal Status of Embassies and Consulates
 Basic rule: Inviolability of premises
 VCR Art 22
o 1) Duty of the receiving State to refrain from entering the
premises without the consent of the head of mission (negative-
not to enter)
o 2) Duty of the receiving State to protect the premises against
any intrusion, damage, disturbance, etc (positive – to protect)

States can waive their inviolability – waiver must be express

 Theories behind inviolability of embassies and consulates: “extraterritoriality”,
“representational” and “functional necessity”. Modern intl law favors the
functional necessity.
 Art22 of VCDR:
 Sets out the negative (not to enter) and positive (to protect) obligations
of the receiving state, including immunity from searches, xxx.
  Inviolability extends (a) even in cases of armed conflict – Art45 (b) to
archives and documents of the mission – Art24 (c) and to the
ambassador’s residence, papers and correspondence – Art30
 Is this inviolability absolute?
o Art27 of VSDR – Noninterference with Mission’s official communication
 Prohibited: internal examination, opening or detaining of bags
 Allowed: sniffer dogs and external examination of bags
 A reasonable suspicion that the bag contains illegal articles will also allow the
authorities to have the bag opened in the presence of a representative of the
sending state. The bag, however, must bear visible external marks of its
character and contain only diplomatic documents or official articles
o Diplomatic immunity – Art 29 VCDR
 The rationale for diplomatic immunity has changed
 Now, trend is functional necessity
o Scope of diplomatic personal inviolability
 Private residence (whether owned or not, hotel room or apartment)
 Papers and correspondence
 Property (unless otherwise provided in Sec1, Art31)
 Art. 31
 As witness
 Processes
 Art 37
 Members of family
 Admin and technical staff and their members of family in criminal juris
 Civil and admin juris over the foregoing persons and to members of service staff
when acts are intra vires
 Does NOT cover juris of sending state (Art 31)
- 2 categories of diplomatic immunity
o Immunity ratione personae
 Attaches to the person while still a diplomat
 Irrelevant for former diplomats
o Immunity ratione materiae
 For former official, focus is in the act
- Personal and functional immunity of diplomatic official (diplomats)
o Criminal juris – total immunity
o Civin juris – immune except in 3 cases. Immunity extends to arrests and detentions. See
DR of Congo vs. Belgium
- For consuls, immunity only with regard to official acts (crim and civil)
- ! Read the Phil cases!
- D (Intl and Mun Law) to H (Immunity); 7:30am: Sat: Moot Court
 3/4/2015

(for previous meetings – obtain notes from Concon)

Youmans claim
o Mexico was held liable because troop acted as an organized military unit under a
commanding officer

When State becomes liable for acts of private individuals:

1) Encouraging individuals to attack foreigners
2) … (see slide captured)

(See slides captured)

Circumstances precluding wrongfulness:

1) Noncompliance with rules concerning nationality of claims (Nottebohm and Barcelona
Traction cases)
2) Failure to exhaust local remedies (Interhandel case)
Interhandel case – Switzerland was not recognized by US before, so former went to ICJ.
Then US recognized personality of Switzerland and remanded case to District Court, so ICJ
dismissed case and mandated that local remedies in the US have to exhausted first.
3) Waiver by the State (“Calvo Clause”)
4) Unreasonable delay and improper behavior of injured alien
5) Consent of injured State
6) Lawful exercise of self-defense under UN Charter and in conformity with Intl Human Rights
Law and Intl Humanitarian Law
7) Lawful countermeasure (Gabcikovo-Nagymaros case on the 3 conditions for
countermeasure)
8) Force majeure
9) Distress (art34)
10) Necessity (art25)

Acquisition of Territory
1) Cession
 Island of Palmas case: Defects in the title of ceding state results to the title of
the transferee state being vitiated by the same (nobody can give what one does
not have)
2) Occupation
 A territory is “terra nullius” either because it really did not belong to any State
or may have been abandoned by previous sovereign. There is “abandonment” if
there is failure to exercise authority with intent to abandon
  There can be inhabitants but the community does not constitute a State
Discovery is not sufficient to acquire title to terra nullius territory as merely
creates inchoate title … (see slide capture)
3) Prescription
 As distinguished from occupation, presupposes acquisition of territory
belonging to another state. Requires “effective control” and “intention to act as
sovereign”
4) Conquest (see slide captured)

The Law of the Sea

- Governed by 1982 UNCLOS III (UNCLOS I-1958; UNCLOS II-1960)
- Basic Zones: 1) International Waters 2) Territorial Sea 3) Contiguous Zone 4) EEZ 5) High Seas
- Baseline (Low-water mark method vs Straight-baseline method)

Baseline
Baseline – Duty to delineate lies with State, but has to comply with standards set by Law of the Sea.
No international body that draws baseline.

Low-water mark method – for non-archipelagic State

Straight baseline method – archipelagic State

Rules:
o Must connect only the outermost points of the outermost islands including dry reefs
o Drawing of straight lines must not depart significantly from natural
contour/configuration of the archipelago
o Drawing of straight lines must comply with the 1:9 land to water ratio
National waters – until territorial sea only. Beyond that, international waters already.
“Jurisdiction” – use the term only until the contiguous zone. Beyond that, use “sovereign rights”.
EEZ – the waters and those contained therein
Continental shelf – the soil, etc. lying in the EEZ and further

3/9/2015

Archipelagic waters vs internal waters

- Article 1 of 1987 Consti does not provide for “archipelagic waters” but only for “internal
waters”. However, the Consti provision is not binding to other States so therefore the
Philippines has archipelagic waters in accordance with UNCLOS.
What are the instances when a ship is in distress? See UNCLOS.
When is passage considered innocent? See UNCLOS.
Foreign ship that comes out from the port and passes to the territorial sea vs foreign ship which passes
the territorial sea but does not dock?
Difference between the English Rule and French Rule in criminal jurisdiction
PROBLEM:
X, an American, was in possession of marijuana, while on board M/V Francis, a vessel registered in
France and while the vessel was in British internal waters. When accosted by Y, a Filipino captain of the
vessel, X killed Y in the upper deck of the vessel.

A) Which court/s has/have jurisdiction over the crime/s committed on board M/V Francis?
On possession of marijuana:
o France – being the flag state
o Britain – if involves the trafficking of marijuana (selling), has concurrent jurisdiction; if
only for his own use, does not concern the maintenance of peace within Britain thus it
will most of the time by courtesy leave the matter to France
o America – active nationality principle

On the killing of Y:
o Concurrent jurisdiction of France and Britain:
 France – the nationality of the ship (flag state) exercises jurisdiction for crimes
committed on board the ship
 Britain –the coastal state automatically subjects to its jurisdiction merchant
ships within its internal waters (such jurisdiction pertains to criminal, civil, and
all other matters); the crime of killing of Y disturbs the peace and good order of
Britain thus cannot say that Britain will leave the matter to France as a matter of
courtesy
o Could also be America – under the active nationality principle
o Philippines – no jurisdiction; passive nationality principle which was used in the Lotus
Case as having concurrent jurisdiction was later on rejected by ______ which held that
only the flag state and nationality of the offender (active nationality) have jurisdiction.
Although Lotus case pertains to crimes committed in the high seas, can be applied to this
case.

B) Would your answer be the same if M/V Francis were in the territorial sea of UK?

---
Notes:
1) Passage is defined as navigation through the territorial sea for the purpose of crossing that
sea without entering internal waters or of proceeding to or from that sea without entering
internal waters or of proceeding to or from internal waters. It may include temporary
stoppages, but only if they are incidental to ordinary navigation or necessitated by distress
or force majeure.
2) Right of innocent passage in the territorial waters is already a CIL as pertains to merchant
ships, but not for warships. States are divided as to whether warships exercise the right of
innocent passage.

3) The coastal state could adopt laws and regulations concerning innocent passage with regard
to: (a) the safety of navigation and the regulation of maritime traffic; (b) the protection of
navigational aids and facilities and other facilities or installations; (c) the protection of
cables and pipelines; (d) the conservation of the living resources of the sea; (e) the
prevention of infringement of the fisheries laws and regulations of the coastal state; (f) the
preservation of the environment of the coastal state and the prevention, reduction and
control of pollution thereof; (g) scientific research and hydrographic surveys; (h) the
prevention of infringement of the customs, fiscal, immigration or sanitary laws and
regulations of the coastal state.

4) Passage is not innocent when it is 'prejudicial to the peace, good order or security of the
coastal state'. Examples of prejudicial passage - threat or use of force; weapons practice;
spying; propaganda; breach of customs, fiscal, immigration or sanitary regulations; willful
and serious pollution; fishing; research or survey activities and interference with coastal
communications or other facilities. In addition, a wide-ranging clause includes 'any activity
not having a direct bearing on passage'.

5) The view that the right of innocent passage also applies to war ships (it is not yet a CIL)
means that if not engaged in the activities cited above constituting non-innocent passage,
then passage of warship is innocent. So, does not necessitate prior notification or
authorization.

6) Where foreign ships are in passage through the territorial sea, the coastal state may only
exercise its criminal jurisdiction as regards the arrest of any person or the investigation of
any matter connected with a crime committed on board ship in these situations:
(a) if the consequences of the crime extend to the coastal state; or
(b) if the crime is of a kind likely to disturb the peace of the country or the good order of
the territorial sea; or
(c) if the assistance of the local authorities has been requested by the master of the ship
or by a diplomatic agent or consular officer of the country of the flag state; or
(d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or
pyschotropic substances

7) However, if the ship is passing through the territorial sea having left the internal waters of
the coastal state, then the coastal state may act in any manner prescribed by its laws as
regards arrest or investigation on board ship and is not restricted by the terms in no. 6
above. But the authorities of the coastal state cannot act where the crime was committed
 before the ship entered the territorial sea, providing the ship is not entering or has not
entered internal waters. (CCB: seems pertains only to merchant ships)

8) Coastal state should not stop or divert a foreign ship passing through its territorial sea for
the purpose of exercising civil jurisdiction in relation to a person on board ship, nor levy
execution against or arrest the ship, unless obligations are involved which were assumed by
the ship itself in the course of, or for the purpose of, its voyage through waters of the coastal
state, or unless the ship is passing through the territorial sea on its way from internal
waters.

9) The above rule does not prejudice the right of a state to levy execution against or to arrest,
for the purpose of any civil proceedings, a foreign ship lying in the territorial sea or passing
through the territorial sea after leaving internal waters.
---

If just passes through the territorial waters without proceeding to or from internal waters (only
has criminal jurisdiction):
Possession of marijuana:
France – has jurisdiction, being the flag state
Britain – has jurisdiction if X engaged in the trafficking of marijuana; if only for
his own use, no jurisdiction
America -

Killing of Y:
France – has jurisdiction, being the flag state
Britain – no jurisdiction
America –
Philippines –

If passes through the territorial waters and proceeding to or from internal waters (has criminal,
civil, and etc jurisdiction): seems rules are the same as that in internal waters
France –
Britain –
America -
Philippines -

C) Will your answer/s be the same if the case involved a Naval ship of France?

In the internal waters of Britain (applying to both crimes):

France – has jurisdiction as the status of a warship is that of a direct arm of the
sovereign of the flag state/an extension of the territory of the flag state
 Britain – authorization of the flag state France or of the captain is necessary prior to
acquiring jurisdiction due to the same reason above cited
America
Philippines

In the territorial sea of UK (applying to both crimes)

France - has jurisdiction as warship is considered an extended territory of the flag
state/immune from jurisdiction
Britain – no jurisdiction as warship is immune from jurisdiction/considered a floating
territory of the flag state; can only require the ship to leave the territorial sea
immediately (go float somewhere else you territory! ;D )
America
Philippines

March 11, 2015

Submarines – cannot be privately-owned; so necessarily is owned by the State

EEZ
- We can pass laws regarding: 1) protection and conservation of natural resources; and 2) its
utilization
- If there is violation of the above, can arrest but not imprison but turn over to the jurisdiction of
the flag state
- Must be claimed/proclaimed (like contiguous zone); continental shelf is not required to be
claimed/proclaimed

Continental shelf
3 rules:
- 200 nautical miles
- 350 nautical miles
- 100 nautical miles from the 2,500-meter isobath

Next meeting:
For SIL – Contiguous zone to down
For SPIL - Jurisdiction