Uanan, Claudine S. SPECIAL ISSUES IN Atty. Daniel S.

Lising
INTERNATIONAL LAW

I. General Principles
a. Is International Law, law?
i. It is said that what is called IL is not law because it is commonly
disregarded. (Enforcement of IL; no assured procedure of identifying
violation; no law binding sovereign states; no international legislative,
executive, and judiciary.)
These objections are based on an exaggerated notion of sovereignty as
embodying an individualist regime. This, however, is not the reality. The
reality is that States are bound by many rules not promulgated by
themselves.
In the ultimate analysis, although the final enforcer is power, fundamentally,
there is a general respect for law because of the possible consequences of
defiance either to oneself of to the larger community.
b. International Law and Municipal Law
INTERNATIONAL LAW MUNICIPAL LAW
Law of coordination (Consent) Law of subordination (issued by political
superior)

It regulates relations of states and other It regulates relations of individuals among

international Persons themselves or with their own states

It is derived principally from treaties, It consists mainly of statutory enactments,

international customs, and general principles executive orders and judicial pronouncements
of law
Redressed through local administrative and
Resolved through state-to-state transactions judicial processes

Collective responsibility because it attaches Individual responsibility

directly to the State and not to its nationals

II. SOURCES OF INTERNATIONAL LAW

a. Primary Sources
i. International Conventions
ii. International Custom
iii. General Principles of Law
I. International Conventions (Treaty Law)
 A treaty, of whatever kind, is a direct source of obligation fir the parties.
The binding force of a treaty comes from the consent of the parties, not
from the subject matter or form of the treaty. (KACZOROWSKA)
UNITED NATIONS CHARTER
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Article 1
The Purposes of the United Nations are:
1. To maintain international peace and security, and to that
end: to take effective collective measures for the prevention
and removal of threats to the peace, and for the suppression
of acts of aggression or other breaches of the peace, and to
bring about by peaceful means, and in conformity with the
principles of justice and international law, adjustment or
settlement of international disputes or situations which
might lead to a breach of the peace;
2. To develop friendly relations among nations based on
respect for the principle of equal rights and self-
determination of peoples, and to take other appropriate
measures to strengthen universal peace;
3. To achieve international co-operation in solving
international problems of an economic, social, cultural, or
humanitarian character, and in promoting and encouraging
respect for human rights and for fundamental freedoms for
all without distinction as to race, sex, language, or religion;
and
4. To be a centre for harmonizing the actions of nations in the
attainment of these common ends.
Article 2
The Organization and its Members, in pursuit of the
Purposes stated in Article 1, shall act in accordance with the
following Principles.
1. The Organization is based on the principle of the sovereign
equality of all its Members.
2. All Members, in order to ensure to all of them the rights
and benefits resulting from membership, shall fulfill in
good faith the obligations assumed by them in accordance
with the present Charter.
3. All Members shall settle their international disputes by
peaceful means in such a manner that international peace
and security, and justice, are not endangered.
4. All Members shall refrain in their international relations
from the threat or use of force against the territorial
integrity or political independence of any state, or in any
other manner inconsistent with the Purposes of the United
Nations.
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INTERNATIONAL LAW

5. All Members shall give the United Nations every assistance

in any action it takes in accordance with the present
Charter, and shall refrain from giving assistance to any
state against which the United Nations is taking preventive
or enforcement action.
6. The Organization shall ensure that states which are not
Members of the United Nations act in accordance with
these Principles so far as may be necessary for the
maintenance of international peace and security.
7. Nothing contained in the present Charter shall authorize the
United Nations to intervene in matters which are essentially
within the domestic jurisdiction of any state or shall require
the Members to submit such matters to settlement under the
present Charter; but this principle shall not prejudice the
application of enforcement measures under Chapter Vll.
VIENNA CONVENTION ON LAW OF TREATIES
Article 2
Use of terms
1. For the purposes of the present Convention:
(a) “treaty” means an international agreement concluded
between States in written form and governed by international law,
whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation;
(b) “ratification”, “acceptance”, “approval” and
“accession” mean in each case the international act so named
whereby a State establishes on the international plane its consent to
be bound by a treaty;
(c) “full powers” means a document emanating from the
competent authority of a State designating a person or persons to
represent the State for negotiating, adopting or authenticating the
text of a treaty, for expressing the consent of the State to be bound
by a treaty, or for accomplishing any other act with respect to a
treaty;
(d) “reservation” means a unilateral statement, however
phrased or named, made by a State, when signing, ratifying,
accepting, approving or acceding to a treaty, whereby it purports to
exclude or to modify the legal effect of certain provisions of the
treaty in their application to that State;
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INTERNATIONAL LAW

(e) “negotiating State” means a State which took part in the

drawing up and adoption of the text of the treaty;
(f) “contracting State” means a State which has consented
to be bound by the treaty, whether or not the treaty has entered into
force;
(g) “party” means a State which has consented to be bound
by the treaty and for which the treaty is in force;
(h) “third State” means a State not a party to the treaty;
(i) “international organization” means an intergovernmental
organization.
2. The provisions of paragraph 1 regarding the use of terms
in the present Convention are without prejudice to the use of those
terms or to the meanings which may be given to them in the
internal law of any State.
II. International Customs (Customary Law)
 Rules derived from the consistent conduct of States acting out of the belief
that the law required them to act that way.
 ELEMENTS:
1. State practice- there must be evidence of substantial uniformity of
practice by a substantial number of States
2. Opinio juris sive necessitates- practice is obligatory by the
existence of a rule requiring it; the States concerned must therefore
feel that they are conforming to what amounts to a legal obligation
(North Sea Continental Shelf Case)
3. Regional Custom- practice among states within a particular area of
the world which can be sufficiently well established and accepted
as law that is binding among the states of that region but not
elsewhere.
4. Special of Local Custom- long continued practice between two
states accepted by them as regulating their relations that form the
basis of mutual rights and obligations.
5. Instant Custom (Diritto Spontaneo)- binding rule established by
spontaneous activity of a great number of states and need not be
observed for a considerable period.
6. Persistent Objector Rule- when a State persistently objects to a rule
of customary IL during the formative stage of that rule, it will not
be bound by it.
CASES:
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1. The Schooner Exchange v. McFaddon (11 U.S. 116) (1812)

FACTS:

On 24 August, 1811, John McFaddon & William Greetham, of the State of Maryland, filed their libel in the
District Court of the United States for the District of Pennsylvania against the Schooner Exchange, setting forth
that they were her sole owners, on 27 October, 1809, when she sailed from Baltimore, bound to St. Sebastians,
in Spain. That while lawfully and peaceably pursuing her voyage, she was on 30 December, 1810, violently and
forcibly taken by certain persons, acting under the decrees and orders of Napoleon, Emperor of the French, out
of the custody of the libellants, and of their captain and agent, and was disposed of by those persons, or some of
them, in violation of the rights of the libellants and of the law of nations in that behalf. That she had been
brought into the port of Philadelphia, and was then in the jurisdiction of that court, in possession of a certain
Dennis M. Begon, her reputed captain or master. That no sentence or decree of condemnation had been
pronounced against her by any court of competent jurisdiction, but that the property of the libellants in her
remained unchanged and in full force. They therefore prayed the usual process of the court to attach the vessel,
and that she might be restored to them.

On 20 September, Mr. Dallas, the Attorney of the United States for the District of Pennsylvania, appeared and
(at the instance of the executive department of the government of the United States, as it is understood), filed a
suggestion to the following effect:

"Protecting that he does not know and does not admit the truth of the allegations contained in the libel, he
suggests and gives the court to understand and be informed,

"That inasmuch as there exists between the United States of America and Napoleon, Emperor of France and
King of Italy, &c., a state of peace and amity, the public vessels of his said Imperial and Royal Majesty,
conforming to the law of nations and laws of the said United States, may freely enter the ports and harbors of
the said United States and at pleasure depart therefrom without seizure, arrest, detention or molestation. That a
certain public vessel described and known as the Balaou, or Vessel No. 5, belonging to his said Imperial and
Royal Majesty and actually employed in his service, under the command of the Sieur Begon upon a voyage
from Europe to the Indies having encountered great stress of weather upon the high seas, was compelled to
enter the port of Philadelphia for refreshment and repairs about 22 July, 1811. That having entered the said port
from necessity and not voluntarily, having procured the requisite refreshments and repairs, and having
conformed in all things to the law of nations and the laws of the United States, was about to depart from the said
port of Philadelphia and to resume her voyage in the service of his said Imperial and Royal Majesty when on 24
August, 1811, she was seized, arrested, and detained in pursuant of the process of attachment issued upon the
prayer of the libellants. That the said public vessel had not at any time, been violently and forcibly taken or
captured from the libellants, their captain and agent on the high seas, as prize of war or otherwise, but that if the
said public vessel, belonging to his said Imperial and Royal Majesty as aforesaid, ever was a vessel navigating
under the flag of the United States and possessed by the libellants, citizens thereof, as in their libel is alleged
(which nevertheless the said Attorney does not admit), the property of the libellants in the said vessel was
seized and divested, and the same became vested in His Imperial and Royal Majesty within a port of his empire
or of a country occupied by his arms, out of the jurisdiction of the United States and of any particular state of
the United States, according to the decrees and laws of France in such case provided. And the said attorney
submitting whether, in consideration of the premises, the court will take cognizance of the cause, respectfully
prays that the court will be pleased to order and decree that the process of attachment heretofore issued be
quashed, that the libel be dismissed with costs, and that the said public vessel, her tackle, &c., belonging to his
said Imperial and Royal Majesty be released, &c. And the said attorney brings here into court the original
commission of the said Sieur Begon. . . ."

On 27 September, 1811, the libellants filed their answer to the suggestion of the district attorney, to which they
except because it does not appear to be made for or on behalf or at the instance of the United States or any other
body politic or person.
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INTERNATIONAL LAW

They aver that the schooner is not a public vessel, belonging to His Imperial and Royal Majesty, but is the
private property of the libellants. They deny that she was compelled by stress of weather to enter the port of
Philadelphia or that she came otherwise than voluntarily, and that the property of the libellants in the vessel
never was divested, or vested in His Imperial and Royal Majesty within a port of his empire or of a country
occupied by his arms.

The district attorney produced the affidavits of the Sieur Begon and the French consul verifying the commission
of the captain and stating the fact that the public vessels of the Emperor of France never carry with them any
other document or evidence that they belong to him than his flag, the commission, and the possession of his
officers.

On 4 October, 1811, the district judge dismissed the libel with costs upon the ground that a public armed vessel
of a foreign sovereign in amity with our government is not subject to the ordinary judicial tribunals of the
country so far as regards the question of title by which such sovereign claims to hold the vessel.

From this sentence, the libellants appealed to the circuit court, where it was reversed on 28 October, 1811.

From this sentence of reversal, the district attorney, appealed to this Court.

ISSUE:

Whether an American citizen can assert in an American court a title to an armed national vessel found within
the waters of the United States.

RULING:

A public vessel of war of a foreign sovereign at peace with the United States, coming into our ports and
demeaning herself in a friendly manner, is exempt from the jurisdiction of the country.

The jurisdiction of a nation within its own territory, is exclusive and absolute. It is susceptible of no limitation
not imposed by itself. Any restriction deriving validity from an external source would imply a diminution of its
sovereignty to the extent of that restriction, and an investment of that sovereignty to the same extent in that
power which could impose such restriction.

All exceptions to the full and complete power of a nation within its own territories must be traced up to the
consent of the nation itself.

A nation would justly be considered as violating its faith, although not expressly plighted, which should
suddenly and without previous notice exercise its territorial powers in a manner not consonant to the usages and
received obligations of the civilized world.

The full and absolute territorial jurisdiction being alike the attribute of every sovereignty and being incapable of
conferring extraterritorial power, does not contemplate foreign sovereigns, nor their sovereign rights as its
objects. One sovereign can be supposed to enter a foreign territory only under an express license or in the
confidence that the immunities belonging to his independent, sovereign station, though not expressly stipulated,
are reserved by implication and will be extended to him.

A sovereign entering a foreign territory with the knowledge and license of its sovereign, that license, though
containing no stipulation exempting his person from arrest, is universally understood to imply such stipulation.

A foreign minister is considered as in the place of the sovereign he represents, and therefore not in point of law
within the jurisdiction of the sovereign at whose court he resides.

Where a sovereign allows the troops of a foreign prince to pass through his dominions, he waives his
jurisdiction over the army to which the right of passage has been granted without any express declaration to that
effect.
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If there be no prohibition the ports of a friendly nation are considered as open to the public ships of all powers
with whom it is at peace, and they are supposed to enter such ports and to remain in them under the protection
of the government of the place.

If there be no treaty applicable to the case, and the sovereign permits his ports to remain open to the public ships
of foreign friendly powers, they virtually enter by his assent. If they enter by an assent thus necessarily implied,
their case cannot be distinguished from that of vessels entering by express assent.

The implied license under which a public armed ship enters a friendly port ought to be construed as containing
an exemption from the jurisdiction of the sovereign whose territory she enters.

This being a cause in which the sovereign right claimed by Napoleon, the reigning emperor of the French, and
the political relations between the United States and France were involved, it was, upon the suggestion of the
Attorney General, ordered to a hearing in preference to other causes which stood before it on the docket.

2. The Case of the S.S. Lotus (France v. Turkey) (PCIJ, 1927)

FACTS:

A collision occurred on the high seas between a French vessel – Lotus – and a Turkish vessel – Boz-Kourt. The
Boz-Kourt sank and killed eight Turkish nationals on board the Turkish vessel. The 10 survivors of the Boz-
Kourt (including its captain) were taken to Turkey on board the Lotus. In Turkey, the officer on watch of the
Lotus (Demons), and the captain of the Turkish ship were charged with manslaughter. Demons, a French
national, was sentenced to 80 days of imprisonment and a fine. The French government protested, demanding
the release of Demons or the transfer of his case to the French Courts. Turkey and France agreed to refer this
dispute on the jurisdiction to the Permanent Court of International Justice (PCIJ).

ISSUE:

Did Turkey violate international law when Turkish courts exercised jurisdiction over a crime committed by a
French national, outside Turkey? If yes, should Turkey pay compensation to France?

RULING:

Turkey, by instituting criminal proceedings against Demons, did not violate international law.

Relevant Findings of the Court:

Establishing Jurisdiction: Does Turkey need to support its assertion of jurisdiction using an existing rule of
international law or is the mere absence of a prohibition preventing the exercise of jurisdiction enough?

The first principle of the Lotus Case:

A State cannot exercise its jurisdiction outside its territory unless an international treaty or customary
law permits it to do so. This is what we called the first principle of the Lotus Case. The Court held that:

“Now the first and foremost restriction imposed by international law upon a State is that – failing
the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory
of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its
territory except by virtue of a permissive rule derived from international custom or from a convention.”
(para 45)

The second principle of the Lotus Case:

Within its territory, a State may exercise its jurisdiction, in any matter, even if there is no specific rule of
international law permitting it to do so. In these instances, States have a wide measure of discretion, which is
only limited by the prohibitive rules of international law.The Court held that:
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“It does not, however, follow that international law prohibits a State from exercising jurisdiction
in its own territory, in respect of any case which relates to acts which have taken place abroad, and in
which it cannot rely on some permissive rule of international law. Such a view would only be tenable if
international law contained a general prohibition to States to extend the application of their laws and the
jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this
general prohibition, it allowed States to do so in certain specific cases. But this is certainly not the case
under international law as it stands at present. Far from laying down a general prohibition to the effect that
States may not extend the application of their laws and the jurisdiction of their courts to persons, property
and acts outside their territory, it leaves them in this respect a wide measure of discretion, which is only
limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the
principles which it regards as best and most suitable. This discretion left to States by international law
explains the great variety of rules which they have been able to adopt without objections or complaints on
the part of other States …In these circumstances all that can be required of a State is that it should not
overstep the limits which international law places upon its jurisdiction; within these limits, its title to
exercise jurisdiction rests in its sovereignty.” (paras 46 and 47)

This applied to civil and criminal cases. If the existence of a specific rule was a pre-requisite to exercise
jurisdiction, the Court argued, then “it would…in many cases result in paralysing the action of the courts,
owing to the impossibility of citing a universally accepted rule on which to support the exercise of their
[States’] jurisdiction” (para 48).

The Court based this finding on the sovereign will of States. It held that:

“International law governs relations between independent States. The rules of law binding upon
States therefor emanate from their own free will as expressed in conventions or by usages generally
accepted as expressing principles of law and established in order to regulate the relations between these co-
existing independent communities or with a view to the achievement of common aims. Restrictions upon
the independence of States cannot therefore be presumed”

Criminal Jurisdiction: Territorial Jurisdiction

France alleged that the flag State of a vessel has exclusive jurisdiction over offences committed on board the
ship in high seas. The Court disagreed. It held that France, as the flag State, did not enjoy exclusive territorial
jurisdiction in the high seas in respect of a collision with a vessel carrying the flag of another State (paras 71 –
84). The Court held that Turkey and France both have jurisdiction in respect of the whole incident: in other
words, there was concurrent jurisdiction.

The Court held that a ship in the high seas is assimilated to the territory of the flag State. This State may
exercise its jurisdiction over the ship, in the same way as it exercises its jurisdiction over its land, to the
exclusion of all other States. In this case, the Court equated the Turkish vessel to Turkish territory. The Court
held that the “… offence produced its effects on the Turkish vessel and consequently in a place assimilated to
Turkish territory in which the application of Turkish criminal law cannot be challenged, even in regard to
offences committed there by foreigners.” The Court concluded that Turkey had jurisdiction over this case. It
further said:

“If, therefore, a guilty act committed on the high seas produces its effects on a vessel flying
another flag or in foreign territory, the same principles must be applied as if the territories of two different
States were concerned, and the conclusion must therefore be drawn that there is no rule of international law
prohibiting the State to which the ship on which the effects of the offence have taken place belongs, from
regarding the offence as having been committed in its territory and prosecuting, accordingly, the
delinquent.”

The Lotus Case is also significant in that the Court said that a State would have territorial jurisdiction, even if
the crime was committed outside its territory, so long as a constitutive element of the crime was committed in
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that State. Today, we call this subjective territorial jurisdiction. In order for subjective territorial jurisdiction to
be established, one must prove that the element of the crime and the actual crime are entirely inseparable: in
other words, if the constituent element was absent – the crime would not have happened. The Court said:

“The offence for which Lieutenant Demons appears to have been prosecuted was an act – of
negligence or imprudence – having its origin on board the Lotus, whilst its effects made themselves felt on
board the Boz-Kourt. These two elements are, legally, entirely inseparable, so much so that their separation
renders the offence non-existent… It is only natural that each should be able to exercise jurisdiction and to
do so in respect of the incident as a whole. It is therefore a case of concurrent jurisdiction.”

Customary International Law

The Lotus case gave an important dictum on creating customary international law. France had alleged that
jurisdictional questions on collision cases are rarely heard in criminal cases, because States tend to prosecute
only before the flag State. France argued that this absence of prosecutions points to a positive rule in customary
law on collisions.The Court disagreed and held that, this:

“…would merely show that States had often, in practice, abstained from instituting criminal
proceedings, and not that they recognized themselves as being obliged to do so; for only if such abstention were
based on their being conscious of having a duty to abstain would it be possible to speak of an international
custom. The alleged fact does not allow one to infer that States have been conscious of having such a duty; on
the other hand, as will presently be seen, there are other circumstances calculated to show that the contrary is
true.”

In other words, opinio juris is reflected not only in acts of States (Nicaragua Case), but also in omissions when those
omissions are made following a belief that the said State is obligated by law to refrain from acting in a particular
way.

3. Asylum Case (Colombia v. Peru) (ICJ, 1950)

FACTS

Peru issued an arrest warrant against Victor Raul Haya de la Torre “in respect of the crime of military rebellion”
which took place on October 3, 1949, in Peru. 3 months after the rebellion, Torre fled to the Colombian Embassy in
Lima, Peru. The Colombian Ambassador confirmed that Torre was granted diplomatic asylum in accordance with
Article 2(2) of the Havana Convention on Asylum of 1928 and requested safe passage for Torre to leave Peru.
Subsequently, the Ambassador also stated Colombia had qualified Torre as a political refugee in accordance with
Article 2 Montevideo Convention on Political Asylum of 1933 (note the term refugee is not the same as the Refugee
Convention of 1951). Peru refused to accept the unilateral qualification and refused to grant safe passage.

ISSUES:

(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence for the purpose of
asylum under treaty law and international law?

(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe passage?

(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928 (hereinafter called the Havana
Convention) when it granted asylum and is the continued maintenance of asylum a violation of the treaty?

DECISION:

Relevant Findings of the Court:

(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence for the purpose of
asylum under treaty law and international law?

A. The court stated that in the normal course of granting diplomatic asylum a diplomatic representative has the
competence to make a provisional qualification of the offence (for example, as a political offence) and the
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territorial State has the right to give consent to this qualification. In the Torre’s case, Colombia has asserted, as
the State granting asylum, that it is competent to qualify the nature of the offence in a unilateral and definitive
manner that is binding on Peru. The court had to decide if such a decision was binding on Peru either because of
treaty law (in particular the Havana Convention of 1928 and the Montevideo Convention of 1933), other
principles of international law or by way of regional or local custom.
B. The court held that there was no expressed or implied right of unilateral and definitive qualification of the State
that grants asylum under the Havana Convention or relevant principles of international law (p. 12, 13). The
Montevideo Convention of 1933, which accepts the right of unilateral qualification, and on which Colombia
relied to justify its unilateral qualification, was not ratified by Peru. The Convention, per say, was not binding on
Peru and considering the low numbers of ratifications the provisions of the latter Convention cannot be said to
reflect customary international law (p. 15).
C. Colombia also argued that regional or local customs support the qualification. The court held that the burden of
proof on the existence of an alleged customary law rests with the party making the allegation:

“The Party which relies on a custom of this kind must prove that this custom is established in such a manner that
it has become binding on the other Party… (that) it is in accordance with a (1) constant and uniform usage (2)
practiced by the States in question, and that this usage is (3) the expression of a right appertaining to the State
granting asylum (Colombia) and (4) a duty incumbent on the territorial State (in this case, Peru). This follows from
Article 38 of the Statute of the Court, which refers to international custom “as evidence of a general practice
accepted as law(text in brackets added).”

D. The court held that Colombia did not establish the existence of a regional custom because it failed to prove
consistent and uniform usage of the alleged custom by relevant States. The fluctuations and contradictions in
State practice did not allow for the uniform usage (see also Mendelson, 1948 and see also Nicaragua case, p. 98,
the legal impact of fluctuations of State practice). The court also reiterated that the fact that a particular State
practice was followed because of political expediency and not because of a belief that the said practice is binding
on the State by way of a legal obligation (opinio juris) is detrimental to the formation of a customary law (see
North Sea Continental Shelf Cases and Lotus Case for more on opinio juris):

“[T]he Colombian Government has referred to a large number of particular cases in which diplomatic asylum
was in fact granted and respected. But it has not shown that the alleged rule of unilateral and definitive qualification
was invoked or … that it was, apart from conventional stipulations, exercised by the States granting asylum as a right
appertaining to them and respected by the territorial States as a duty incumbent on them and not merely for reasons
of political expediency. The facts brought to the knowledge of the Court disclose so much uncertainty and
contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum and in the official views
expressed on various occasions, there has been so much inconsistency in the rapid succession of conventions on
asylum, ratified by some States and rejected by others, and the practice has been so much influenced by
considerations of political expediency in the various cases, that it is not possible to discern in all this any constant
and uniform usage, mutually accepted as law, with regard to the alleged rule of unilateral and definitive qualification
of the offence.”

E. The court held that even if Colombia could prove that such a regional custom existed, it would not be binding on
Peru, because Peru “far from having by its attitude adhered to it, has, on the contrary, repudiated it by
refraining from ratifying the Montevideo Conventions of 1933 and 1939, which were the first to include a rule
concerning the qualification of the offence [as “political” in nature] in matters of diplomatic asylum.” (See in
this regard, the lesson on persistent objectors. Similarly in the North Sea Continental Shelf Cases the court held
‘in any event the . . . rule would appear to be inapplicable as against Norway in as much as she had always
opposed any attempt to apply it to the Norwegian coast’.)
F. The court concluded that Colombia, as the State granting asylum, is not competent to qualify the offence by a
unilateral and definitive decision, binding on Peru.

(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe passage?

G. The court held that there was no legal obligation on Peru to grant safe passage either because of the Havana
Convention or customary law. In the case of the Havana Convention, a plain reading of Article 2 results in an
obligation on the territorial state (Peru) to grant safe passage only after it requests the asylum granting State
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(Colombia) to send the person granted asylum outside its national territory (Peru). In this case the Peruvian
government had not asked that Torre leave Peru. On the contrary, it contested the legality of asylum granted to
him and refused to grant safe conduct.
H. The court looked at the possibility of a customary law emerging from State practice where diplomatic agents
have requested and been granted safe passage for asylum seekers, before the territorial State could request for his
departure. Once more, the court held that these practices were a result of a need for expediency and other practice
considerations over an existence of a belief that the act amounts to a legal obligation (see paragraph 4 above).

“There exists undoubtedly a practice whereby the diplomatic representative who grants asylum immediately
requests a safe conduct without awaiting a request from the territorial state for the departure of the refugee…but this
practice does not and cannot mean that the State, to whom such a request for safe-conduct has been addressed, is legally
bound to accede to it.”

(3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention when it granted asylum and is the continued
maintenance of asylum a violation of the treaty?

I. Article 1 of the Havana Convention states that “It is not permissible for States to grant asylum… to persons
accused or condemned for common crimes… (such persons) shall be surrendered upon request of the local
government.” In other words, the person-seeking asylum must not be accused of a common crime (for example,
murder would constitute a common crime, while a political offence would not).The accusations that are relevant
are those made before the granting of asylum. Torre’s accusation related to a military rebellion, which the court
concluded was not a common crime and as such the granting of asylum complied with Article 1 of the
Convention.

Article 2 (2) of the Havana Convention states that “Asylum granted to political offenders in legations, warships,
military camps or military aircraft, shall be respected to the extent in which allowed, as a right or through
humanitarian toleration, by the usages, the conventions or the laws of the country in which granted and in accordance
with the following provisions: First: Asylum may not be granted except in urgent cases and for the period of time
strictly indispensable for the person who has sought asylum to ensure in some other way his safety.”

An essential pre-requisite for the granting of asylum is the urgency or, in other words, the presence of “an imminent
or persistence of a danger for the person of the refugee”. The court held that the facts of the case, including the 3
months that passed between the rebellion and the time when asylum was sought, did not establish the urgency criteria
in this case (pp. 20 -23). The court held:

“In principle, it is inconceivable that the Havana Convention could have intended the term “urgent cases” to include
the danger of regular prosecution to which the citizens of any country lay themselves open by attacking the
institutions of that country… In principle, asylum cannot be opposed to the operation of justice.”

In other words, Torre was accused of a crime but he could not be tried in a court because Colombia granted him
asylum. The court held that “protection from the operation of regular legal proceedings” was not justified under
diplomatic asylum.

The court held:

“In the case of diplomatic asylum the refugee is within the territory of the State. A decision to grant diplomatic
asylum involves a derogation from the sovereignty of that State. It withdraws the offender from the jurisdiction of the
territorial State and constitutes an intervention in matters which are exclusively within the competence of that State.
Such a derogation from territorial sovereignty cannot be recognised unless its legal basis is established in each
particular case.”

As a result, exceptions to this rule are strictly regulated under international law.

An exception to this rule (asylum should not be granted to those facing regular prosecutions) can occur only if, in the
guise of justice, arbitrary action is substituted for the rule of law. Such would be the case if the administration of
justice were corrupted by measures clearly prompted by political aims. Asylum protects the political offender against
any measures of a manifestly extra-legal character which a Government might take or attempt to take against its
political opponents… On the other hand, the safety which arises out of asylum cannot be construed as a protection
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against the regular application of the laws and against the jurisdiction of legally constituted tribunals. Protection
thus understood would authorize the diplomatic agent to obstruct the application of the laws of the country whereas it
is his duty to respect them… Such a conception, moreover, would come into conflict with one of the most firmly
established traditions of Latin-America, namely, non-intervention [for example, by Colombia into the internal affairs
of another State like Peru]….

Asylum may be granted on “humanitarian grounds to protect political prisoners against the violent and disorderly
action of irresponsible sections of the population.” (for example during a mob attack where the territorial State is
unable to protect the offender). Torre was not in such a situation at the time when he sought refuge in the Colombian
Embassy at Lima.

The court concluded that the grant of asylum and reasons for its prolongation were not in conformity with Article 2(2)
of the Havana Convention (p. 25).

“The grant of asylum is not an instantaneous act which terminates with the admission, at a given moment of a
refugee to an embassy or a legation. Any grant of asylum results in, and in consequence, logically implies, a state of
protection, the asylum is granted as long as the continued presence of the refugee in the embassy prolongs this
protection.”

4. Right of Passage over Indian Territory (Portugal v. India) (ICJ, 1960)

FACTS:

Portugal held several small enclaves of territory within India; one on the coast but the others inland. Portugal
claimed they had a right of passage to its inland territories over Indian land which they alleged India had
interfered with.

ISSUE:

Does Portugal have a right to free passage over Indian territory to access its enclaves?

RULING:

A right of passage for non-military civilians exists as a rule of regional customary international law between
India and Portugal.

India argued before the Court that practice between only two states was not sufficient to form a local custom.
The Court rejected this reasoning, finding no reason why a century and a quarter of practice based on mutual
rights and obligations was insufficient for local custom to arise. This local practice, thus, prevailed over any
general rules.

Local customary law can exist as long as the elements in the North Sea Continental Shelf case are made out.

5. North Sea Continental Shelf Cases (Germany v. Denmark, Germany v. Netherlands) (ICJ, 1969)

FACTS:

Netherlands and Denmark had drawn partial boundary lines based on the equidistance principle (A-B and
C-D). An agreement on further prolongation of the boundary proved difficult because Denmark and
Netherlands wanted this prolongation to take place based on the equidistance principle (B-E and D-E) where as
Germany was of the view that, together, these two boundaries would produce an inequitable result for her.
Germany stated that due to its concave coastline, such a line would result in her loosing out on her share of the
continental shelf based on proportionality to the length of its North Sea coastline. The Court had to decide the
principles and rules of international law applicable to this delimitation. In doing so, the Court had to decide if
the principles espoused by the parties were binding on the parties either through treaty law or customary
international law.
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ISSUE:

Is Germany under a legal obligation to accept the equidistance-special circumstances principle, contained
in Article 6 of the Geneva Convention on the Continental Shelf of 1958, either as a customary international law
rule or on the basis of the Geneva Convention?

RULING:

The use of the equidistance method had not crystallised into customary law and the method was not obligatory
for the delimitation of the areas in the North Sea related to the present proceedings.

Relevant Findings of the Court:

1. Nature of the treaty obligation: Is the 1958 Geneva Convention, and in particular Article 6, binding on
Germany?

1. Article 6 of the Geneva Convention stated that unless the parties had already agreed on a method for
delimitation or unless special circumstances exist, the equidistance method would apply. Germany had signed,
but not ratified, the Geneva Convention, while Netherlands and Denmark were parties to the Convention. The
latter two States argued that while Germany is not a party to the Convention (not having ratified it), she was still
bound by Article 6 of the Convention because:

“…(1) by conduct, by public statements and proclamations, and in other ways, the Republic has unilaterally
assumed the obligations of the Convention; or has manifested its acceptance of the conventional regime; or has
recognized it as being generally applicable to the delimitation of continental shelf areas..(2) the Federal
Republic had held itself out as so assuming, accepting or recognizing, in such a manner as to cause other
States, and in particular Denmark and the Netherlands, to rely on the attitude thus taken up” (the latter is
called the principle of estoppel).

2. The Court rejected the first argument. It said that only a ‘very definite very consistent course of conduct on
the part of a State would allow the Court to presume that the State had somehow become bound by a treaty (by
a means other than in the formal manner: i.e. ratification) when the State was ‘at all times fully able and entitled
to…’ accept the treaty commitments in a formal manner. The Court held that Germany had not unilaterally
assumed obligations under the Convention. The court also took notice of the fact that even if Germany ratified
the treaty, she had the option of entering into a reservation on Article 6, following which that particular article
would no longer be applicable to Germany (in other words, even if one were to assume that Germany had
intended to become a party to the Convention, it does not presuppose that it would have also undertaken those
obligations contained in Article 6).

3. Note: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came into force in 1980,
discusses in more detail treaty obligations of third States (those States who are not parties to the treaty). It
clearly stipulates that obligations arise for third States from a provision of a treaty only if (1) the actual parties
to the treaty intended the provision to create obligations for third States; and (2) third State expressly accept
those obligations in writing (Article 35 of the VCLT). The VCLT was not in force when the Court deliberated
on this case. However, as seen above, the Court’s position is consistent the VCLT. (See the relevant provisions
of the Vienna Convention on the Law of Treaties).

4. The Court held that the existence of a situation of estoppel would have allowed Article 6 to become binding
on Germany – but held that Germany’s action did not support an argument for estoppel. The Court also held
that the mere fact that Germany may not have specifically objected to the equidistance principle as contained in
Article 6, is not sufficient to state that the principle is now binding upon it.

5. In conclusion, the Court held that Germany had not acted in any manner so as to incur obligations contained
in Article 6 of the Geneva Convention. The equidistance–special circumstances rule was not binding on
Germany by way of treaty law.
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2. Nature of the customary international law obligation: Is Germany bound by the provisions of Article 6 of the
Geneva Convention in so far as they reflect customary international law?

6. Netherlands and Denmark argued that Article 6 also reflected ‘the accepted rule of general international law
on the subject of continental shelf delimitation’ and that it existed independently of the Convention. Therefore,
they argued, Germany is bound by the subject matter of Article 6 by way of customary international law.

7. To decide if the equidistance principle bound Germany by way of customary international law, the Court
examined (1) the status of the principle contained in Article 6 as it stood when the Convention was being drawn
up; and (2) its status after the Convention came into force.

(a) What was the customary law status of Article 6 at the time of drafting the Convention?

8. The Court held that the principle of equidistance, as contained in Article 6 did not form a part of existing or
emerging customary international law at the time of drafting the Convention. The Court supported this finding
based on (1) the hesitation expressed by the drafters of the Convention, the International Law Commission, on
the inclusion of Article 6 into the Convention and (2) the fact that reservations to Article 6 was permissible
under the Convention. The Court held:

“… Article 6 is one of those in respect of which, under the reservations article of the Convention (Article 12)
reservations may be made by any State on signing, ratifying or acceding, – for speaking generally, it is a
characteristic of purely conventional rules and obligations that, in regard to them, some faculty of making
unilateral reservations may, within certain limits, be admitted; whereas this cannot be so in the case of general
or customary law rules and obligations which, by their very nature, must have equal force for all members of
the international community, and cannot therefore be the subject of any right of unilateral exclusion
exercisable at will by any one of them in its own favor…. The normal inference would therefore be that any
articles that do not figure among those excluded from the faculty of reservation under Article 12, were not
regarded as declaratory of previously existing or emergent rules of law …” (see para 65 for a counter
argument and the Court’s careful differentiation)

(b) Did the provisions in Article 6 on the equidistance principle attain the customary law status after the
Convention came into force?

9. The Court then examined whether the rule contained in Article 6 had become customary international law
after the Convention entered into force – either due the Convention itself (i.e., if enough States had ratified the
Convention in a manner so as to fulfil the criteria specified below), or because of subsequent State practice (i.e.
even if an adequate number of States had not ratified the Convention, one could find sufficient State practice to
meet the criteria below). The Court held that Article 6 of the Convention had not attained a customary law
status. (Compare the 1958 Geneva Convention with the four Geneva Conventions on 1949 relating to
international humanitarian law in terms of the latter’s authority as a pronouncement of customary international
law).

10. For a customary rule to emerge the Court held that it needed: (1) very widespread and representative
participation in the Convention, including States whose interests were specially affected (in this case, they were
coastal States) (i.e. generality); and (2) virtually uniform practice (i.e. consistent and uniform usage) undertaken
in a manner that demonstrates (3) a general recognition of the rule of law or legal obligation (i.e. opinio juries).
In the North Sea Continental Shelf cases the court held that the passage of a considerable period of time was
unnecessary (i.e. duration) for the formation of a customary law.

Widespread and representative participation

11. The Court held that the first criteria was not met. The number of ratifications and accessions to the
Convention (39 States) were not adequately representative or widespread.
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Duration

12. The Court held that the duration taken for a customary law rule to emerge is not as important as widespread
and representative participation, uniform usage, and the existence of an opinio juris. It held that:

“Although the passage of only a short period of time (in this case, 3 – 5 years) is not necessarily, or of itself, a
bar to the formation of a new rule of customary international law on the basis of what was originally a purely
conventional rule, an indispensable requirement would be that within the period in question, short though it
might be, State practice, including that of States whose interests are specially affected, should have been both
extensive and virtually uniform in the sense of the provision invoked and should moreover have occurred in
such a way as to show a general recognition that a rule of law or legal obligation is involved.”

Opinio juris

13. Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus case), in so far as those
acts or omissions were done following a belief that the said State is obligated by law to act or refrain from
acting in a particular way. (For more on opinio juris click here).

14. The Court examined 15 cases where States had delimited their boundaries using the equidistance method,
after the Convention came into force (paras. 75 -77). The Court concluded that even if there were some State
practice in favour of the equidistance principle, the Court could not deduct the necessary opinio juris from this
State practice. The North Sea Continental Shelf Cases confirmed that both State practice (the objective element)
and opinio juris (the subjective element) are essential pre-requisites for the formation of a customary law rule.
This is consistent with Article 38 (1) (b) of the Statute of the ICJ. The Court explained the concept of opinio
juris and the difference between customs (i.e. habits) and customary law:

“Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in
such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of
law requiring it. The need for such a belief, i.e, the existence of a subjective element, is implicit in the very
notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to
what amounts to a legal obligation. The frequency, or even habitual character of the acts is not in itself enough.
There are many international acts, e.g., in the field of ceremonial and protocol, which are performed almost
invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by
any sense of legal duty.” (Para 77).

15. The Court concluded that the equidistance principle was not binding on Germany by way of treaty or
customary international law. In the case of the latter, the principle had not attained a customary international
law status at the time of the entry into force of the Geneva Convention or thereafter. As such, the Court held
that the use of the equidistance method is not obligatory for the delimitation of the areas concerned in the
present proceedings.

6. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA)

On 9 April 1984, Nicaragua filed an Application instituting proceedings against the United States of America
concerning a dispute relating to responsibility for military and paramilitary activities in and against Nicaragua.
One of the measures required the United States to immediately cease and refrain from any action restricting
access to Nicaraguan ports, and, in particular, the laying of mines. On 18 January 1985, the United States
announced that it intended not to participate in any further proceedings relating to this case.

In its Judgment of 27 June 1986, the Court rejected the justification of collective self-defence advanced by the
United States and stated that it had violated the obligations imposed by customary international law not to
intervene in the affairs of another State. The Court also found that the United States had violated certain
obligations arising from a bilateral Treaty of Friendship, Commerce and Navigation of 1956 and that it must
make reparation for all injury caused. The amount of that reparation was to be fixed in subsequent proceedings.
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In March 1988, the United States maintained its refusal to take part in the case. In September 1991, Nicaragua
informed the Court that it did not wish to continue the proceedings. The case was removed from the Court’s
List.

III. General Principles of Law

 There are concepts common to major national legal systems. Allowing
international judges to rely on concepts common to the major national
legal systems.
CASES:
1. Diversion of Water from the Meuse (Netherlands v. Belgium) (PCIJ, 1937)

FACTS:

The construction of certain canals by Belgium (D) did not go down well with the Netherlands (P) because the
construction could alter the water level of the Meuse River in violation of an earlier agreement. Belgium (D)
counterclaimed on the grounds of the construction of a lock by Netherlands (P) at an earlier date. The claims of
both countries were rejected by the Court.

ISSUE:

Do principles of equity form a part of international law?

RULING:

Concurrence. (Hudson, J) Yes. The principles of equity form a part of international law. Under Article 38 and
independently of that statute, this Court has some freedom to consider principles of equity. The maxim “He who
seeks equity must do equity” is derived from Anglo-American law.

The Court also referred to Roman law. In Roman law, a similar principle made the obligations of a vendor and a
vendee concurrent. Neither could compel the other to perform unless he had done, or tendered his own.

2. Corfu Channel Case (U.K. v. Albania) (ICJ, 1949)

Facts. The explosion of mines in the Albanian (P) waters resulted in the death of a British naval personnel. It
was on this basis that the United Kingdom (D) claimed that Albania (P) was internationally responsible for
damages.

Issue. Are international obligations in time of peace created through elementary consideration?

Held. Yes. International obligations in peace time are created through elementary consideration. Every state has
an obligation not to knowingly allow its territory to be used for acts contrary to the rights of other states.

3. Nuclear Tests Cases (Australia v. France; New Zealand v. France) (ICJ, 1974)

FACTS:

On 9 May 1973, Australia and New Zealand each instituted proceedings against France concerning tests of
nuclear weapons which France proposed to carry out in the atmosphere in the South Pacific region. France
stated that it considered the Court manifestly to lack jurisdiction and refrained from appearing at the public
hearings or filing any pleadings. By two Orders of 22 June 1973, the Court, at the request of Australia and New
Zealand, indicated provisional measures to the effect, inter alia , that pending judgment France should avoid
nuclear tests causing radioactive fall-out on Australian or New Zealand territory. By two Judgments delivered
on 20 December 1974, the Court found that the Applications of Australia and New Zealand no longer had any
object and that it was therefore not called upon to give any decision thereon. In so doing the Court based itself
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on the conclusion that the objective of Australia and New Zealand had been achieved inasmuch as France, in
various public statements, had announced its intention of carrying out no further atmospheric nuclear tests on
the completion of the 1974 series.

RULING:

In its judgment in the case concerning Nuclear Tests (Australia v. France), the Court, by 9 votes to ti, has found
that the claim of Australia no longer had any object and that the Court was therefore not called upon to give a
decision thereon. In the reasoning of its Judgment, the Court adduces inter alia the following considerations:
Even before turning to questions of jurisdiction and admissibility, the Court has first to consider the essentially
preliminary question as to whether a dispute exists and to analyses the claim submitted to it (paras. 22-24 of
Judgment); the proceedings instituted before the Court on 9 May 11973 concerned the atmospheric nuclear tests
conducted by France in the South Pacific (para. 16 of Judgment); the original and ultimate objective of
Australia is to obtain a termination of those tests (pams. 32-41 of Judgment); France, by various public
statements made in 1974, has announced its intention, following the completion of the 1974 series of
atmospheric tests, to cease the conduct of such tests (paras. 32-41 of Judgment); the Cow finds that the
objective of Australia has in effect been accomplished. inasmuch as France has undertaken the obligation to
hold no further nuclear tests in the atmosphere in, the South Pacific (paras. 47-52 of Judgment); the dispute
having thus disappeared, the claim no longer has any object and there is nothing on which to give judgment
(paras. 55--59 of Judgment). Upon the delivery of the Judgment, the Order of 22 June 1973 indicating interim
measures of protection ceases to be operative and the measures in question lapse.

4. Temple of Preah Vihear (Cambodia v. Thailand) (ICJ, 1962)

FACTS:

Cambodia complained that Thailand had occupied a piece of its territory surrounding the ruins of the Temple of
Preah Vihear, a place of pilgrimage and worship for Cambodians, and asked the Court to declare that territorial
sovereignty over the Temple belonged to it and that Thailand was under an obligation to withdraw the armed
detachment stationed there since 1954. Thailand filed preliminary objections to the Court’s jurisdiction, which
were rejected in a Judgment given on 26 May 1961. In its Judgment on the merits, rendered on 15 June 1962,
the Court noted that a Franco-Siamese Treaty of 1904 provided that, in the area under consideration, the frontier
was to follow the watershed line, and that a map based on the work of a Mixed Delimitation Commission
showed the Temple on the Cambodian side of the boundary. Thailand asserted various arguments aimed at
showing that the map had no binding character. One of its contentions was that the map had never been
accepted by Thailand or, alternatively, that if Thailand had accepted it, it had done so only because of a
mistaken belief that the frontier indicated corresponded to the watershed line. The Court found that Thailand
had indeed accepted the map and concluded that the Temple was situated on Cambodian territory. It also held
that Thailand was under an obligation to withdraw any military or police force stationed there and to restore to
Cambodia any objects removed from the ruins since 1954.

RULING:

Proceedings in the case concerning the Temple of Preah Vihear, between Cambodia and Thailand, were
instituted on 6 October 1959 by an Application of the Government of Cambodia; the Government of Thailand
halving raised two preliminary objections, the Court, by its Judgment of 26 May 1961, found that it had
jurisdiction.

The Temple of Preah Vihear is an ancient sanctuary and shrine situated on the borders of Thailand and
Cambodia. Although now partially in ruins, this Temple has considerable artistic and archaeological interest,
and is still used as a place of pilgrimage. It stands on a promontory of the same name, belonging to the eastern
sector of the Dangrek range of mountains which, in a general way, constitutes the boundary between the two
countries in this region Cambodia to the south and Thailand to the north. Considerable portions of this range
consist of a high cliff-like escarpment rising abruptly above the Cambodian plain. This is the situation at Preah
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Vihear itself, where the main Temple buildings stand in the apex of a triangular piece of high ground jutting out
into the plain. From the edge of the escarpment, the general inclination of the ground in the northerly directions
is downwards to the Nam Moun river, which is in Thailand. It will be apparent from the description just given
that a frontier line which ran along the edge of the escarpment, or which at any rate ran to the south and east of
the Temple area, would leave this area in Thailand; whereas a line running to the north, or to the north and west,
would place it in Cambodia.

b. Secondary Sources
i. Judicial Decisions
 The decision of ICJ and the decision of other courts and arbitral tribunals
may be used as persuasive authority
CASES:
1. Jesse Lewis (The David J. Adams) Claim (United States v. Great Britain)

FACTS:

Under the Treaty of London of 1818, the United States (plaintiff) gave up the right of its citizens to fish in
Canadian waters. An exception to this rule permitted American fishermen to enter Canadian bays and harbors
“for the purpose of shelter and of repairing damages therein, or purchasing wood, and of obtaining water, and
for no other purpose whatever.” In 1886, The David J. Adams, an American fishing boat, entered Canadian
waters to purchase fresh bait and was seized by Canadian authorities for allegedly violating the Treaty of 1818
and other Canadian legislation. A Canadian court condemned the ship for violating the treaty and legislation.
The United States, on behalf of the ship’s owner, sought damages from Great Britain (defendant) on the ground
that the seizure and condemnation of the ship were wrongful because they were based on an erroneous
interpretation of the Treaty of 1818. The case was submitted to the Arbitral Tribunal. The British government
argued that the Arbitral Tribunal was not competent to re-examine the Canadian court’s interpretation of the
application of the Treaty.

RELEVANT RULINGS OF THE COURT:

TERRITORIAL WATERS. FISHING, JURISDICTION.—BINDING FORCE OF: 1. MUNICIPAL LAW

DESIGNED TO IMPLEMENT TREATY; 2. INTERPRETATION OF LAW AND TREATY BY
MUNICIPAL COURTS.—IMMUNITY OF JURISDICTION : FUNDAMENTAL PRINCIPLE OF
JURIDICAL EQUALITY OF STATES.—DENIAL OF JUSTICE.—EXHAUSTION OF LOCAL REMEDIES.
By treaty LTnited States, renouncing fishing rights in Canadian territorial waters, secured access of American
fishermen to Canadian bays and harbours for several purposes but not for procuring bait (art. 1, Treaty of
London, concluded with Great Britain on October 20, 1818). British law designed to implement treaty is
binding on any person within British jurisdiction so far as consistent with treaty. The same applies to
interpretation and application of the said law by municipal Courts. On the ground of juridical equality of States,
however, such interpretation, so far as it implies interpretation of treaty, does not bind Linked States. This
Tribunal, moreover, has not to deal with the way in which municipal law has been applied by municipal Courts,
except in case of denial of justice, which may not be invoked unless local remedies exhausted. In this case,
owner of vessel renounced right to appeal. Duty of this Tribunal is to interpret treaty from international point of
view. INTERPRETATION OF TREATY: TERMS. INTENTION, NEGOTIATIONS.—FAILURE TO
ENFORCE MUNICIPAL LAW, ACKNOWLEDGMENT OF RIGHT, MODUS \IVE\~DI. PUBLIC
WARNING OF FORTHCOMING ENI-ORCEMENT, GOOD FAITH. Meaning of treaty, determined
according to clear wording; no sufficient evidence of contrary intention of High Contracting Parties ; report of
American Plenipotentiaries cited. British Act of 1819. implementing treaty, rarely enforced. Acknowledgment
by United States in 1877 that American fishermen enjoyed access to Canadian ports for purchasing bait only by
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sufferance. Tolerance continued under Treaty of Washington (1877-1885) and modus vivendi (ending January
1, 1886). On March 5, 1886. before beginning of fishing campaign 1886, public warning of forthcoming
enforcement by Canadian Government, reproducing text of 1818 Treaty. Master of David J. Adams not bona
fide. EXTRAJUDICIAL ACTION.—ACTio AY HUM Tribunal suggests that Great Britain consider allowance,
as an act of grace, of adequate compensation, though proceedings which resulted in confiscation of David J.
Adams constituted actio in rem against vessel and not against owner.

The fundamental principle of the juridical equality of States is opposed to placing one State under the
jurisdiction of another State. It is opposed to the subjection of one State to an interpretation of a Treaty asserted
by another State. There is no reason why one more than the other should impose such an unilateral
interpretation of a contract which is essentially bilateral. The fact that this interpretation is given by the
legislative or judicial or any other authority of one of the parties does not make that interpretation binding upon
the other party. Far from contesting that principle, the British Government did not fail to recognize it (United
States memorial, p. 119). For that reason the mere fact that a British court, whatever be the respect and high
authority it carries, interpreted the treaty in such a way as to declare the David J. Adams had contravened it,
cannot be accepted by this Tribunal as a conclusive interpretation binding upon the United States Government.
Such a decision is conclusive from the national British point of view; it is not from the national United States
point of view. On the other hand, the way in which the Canadian Acts, enacted to enforce the Treaty, had been
applied by the Canadian courts, and penalties have been imposed, is a municipal question, and this Tribunal has
no jurisdiction to deal with them. The only exception would be the case of a denial of justice. But a denial of
justice may not be invoked, unless the claimant has exhausted the legal remedies to obtain justice. As has been
shown, the claimant in this case renounced his right to appeal against the decision concerning his vessel. Then
the duty of this international Tribunal is to determine, from the international point of view, how the provisions
of the treaty are to be interpreted and applied to the facts, and consequently whether the loss resulting from the
forfeiture of the vessel gives rise to an indemnity (oral argument, p. 157).

In this Tribunal’s opinion, a stipulation which says that fisherman “shall be admitted" for certain enumerated
purposes and "for no other purpose whatever" seems to be perfectly clear and to mean that for the specified
purposes the fishermen shall be admitted and for any other purposes they had no right to be admitted, and it is
difficult to contend that by such plain words the right to entrance for purchasing bait is not denied. No sufficient
evidence of contrary intention of the High Contracting Parties is produced to contradict such a clear wording.

No sufficient evidence of contrary intention of the High Contracting Parties is produced to contradict such clear
wording.

ii. Teachings of the Most Highly Qualified Publicists of the Various Nations
 Where there is no treaty and no controlling executive or legislative act or
judicial decision, resort must be had to the customs and usages of civilized
nations, and as evidence of these, to the works of jurists and commentators
(The Paquete Habana Case, 175 US 677 [1900])
 Highly Qualified Publicists are writers whose main value depends on the
extent to which their books and articles are cited as works of scholarship.
ERGA OMNES JUS COGENS EX AEQUO ET BONO
OBLIGATIONS
“towards all” Peremptory norms “from equity and conscience”
Obligation under general IL A norm accepted and A decision made herein
that a state owes in any given recognized by the means that the court decided
case to the international international community of the case not on legal
community, in view of its States as a whole from which considerations but solely on
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common values and its no derogation is permitted what is fair and reasonable in
concern for compliance, so and which can be modifies the circumstances of the case.
that a breach of that only by a subsequent norm of The ICJ may decide a case ex
obligation enables all states to general international law. aequo et bono where the
take action; parties agree thereto.

An obligation under
multilateral treaty that a state
party to the treaty owes in
any given case to all the other
State parties to the same
treaty, in view of their
common values and concern
for compliance, so that a
breach of that obligation
enables all these States to
take action
All states to which the Consequences deriving from
obligation is owed are a breach of erga omnes
entitled to claim from the obligations along with further
responsible State in consequences specific in Art
particular: cessation of the 53 of the Vienna Convention
internationally wrongful act on Law of Treaties (a treaty is
and performance of the void if, at the time of its
obligation of reparation in the conclusion, it conflicts with a
interest of the State, entity or peremptory norm of general
individual which is IL)
specifically affected by the
breach. Restitution should be
effected unless materially
impossible.

III . SUBJECTS OF INTERNATIONAL LAW

a. States
Montevideo Convention
Article 1
The state as a person of international law should possess the following
qualifications:
a. a permanent population;
b. a defined territory;
c. government; and
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d. capacity to enter into relations with the other states.

b. UN General Assembly Resolution 2626, “The Declaration on Principles of

International Law concerning Friendly Relations and Co-operation among States”
(1970)
 fundamental purposes of the United Nations
 peoples of the United Nations are determined to practise tolerance and live together in
peace with one another as good neighbours,
 he importance of maintaining and strengthening international peace founded upon
freedom, equality, justice and respect for fundamental human rights and of developing
friendly relations among nations irrespective of their political, economic and social
systems or the levels of their development,
 the promotion of the rule of law among nations,
 hat the faithful observance of the principles of international law concerning friendly
relations and co-operation among States and the fulfilment in good faith of the
obligations assumed by States, in accordance with the Charter, is of the greatest
importance for the maintenance of international peace and security and for the
implementation of the other purposes of the United Nations,
 the great political, economic and social changes and scientific progress which have taken
place in the world since the adoption of the Charter give increased importance to these
principles and to the need for their more effective application in the conduct of States
wherever carried on,
 the established principle that outer space, including the Moon and other celestial bodies,
is not subject to national appropriation by claim of sovereignty, by means of use or
occupation, or by any other means, and mindful of the fact that consideration is being
given in the United Nations to the question of establishing other appropriate provisions
similarly inspired,
 that the strict observance by States of the obligation not to intervene in the affairs of any
other State is an essential condition to ensure that nations live together in peace with one
another, since the practice of any form of intervention not only violates the spirit and
letter of the Charter, but also leads to the creation of situations which threaten
international peace and security,
 Recalling the duty of States to refrain in their international relations from military,
political, economic or any other form of coercion aimed against the political
independence or territorial integrity of any State,
 Considering it essential that all States shall refrain in their international relations from the
threat or use of force against the territorial integrity or political independence of any
State, or in any other manner inconsistent with the purposes of the United Nations,
 Considering it equally essential that all States shall settle their international disputes by
peaceful means in accordance with the Charter,
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 Reaffirming, in accordance with the Charter, the basic importance of sovereign equality
and stressing that the purposes of the United Nations can be implemented only if States
enjoy sovereign equality and comply fully with the requirements of this principle in their
international relations,
 Convinced that the subjection of peoples to alien subjugation, domination and
exploitation constitutes a major obstacle to the .promotion of international peace and
security,
 Convinced that the principle of equal rights and self-determination of peoples constitutes
a significant contribution to contemporary international law, and that its effective
application is of paramount importance for the promotion of friendly relations among
States, based on respect for the principle of sovereign equality,
 Convinced in consequence that any attempt aimed at the partial or total disruption of the
national unity and territorial integrity of a State or country or at its political independence
is incompatible with the purposes and principles of the Charter, Considering the
provisions of the Charter as a whole and taking into account the role of relevant
resolutions adopted by the competent organs of the United Nations relating to the content
of the principles,
 Considering that the progressive development and codification of the following
principles:
a) The principle that States shall refrain in their international relations from the
threat or use of force against the territorial integrity or political independence of
any State, or In any other manner inconsistent with the purposes of the United
Nations,
(b) The principle that States shall settle their international disputes by peaceful
means in such a manner that international peace and security and justice are not
endangered,
(c) The duty not to intervene in matters within the domestic jurisdiction of any
State, in accordance with the Charier,
(d) The duty of State to co-operate with one another in accordance with the
Charter,
(e) The principle of equal rights and self-determination of peoples,
(f) The principle of sovereign equality of States,
(g) The principle that States shall fulfil in good faith the obligations assumed by
them in accordance with the Charter, so as to secure their more effective
application within the international community, would promote the realization of
the purposes of the United Nations,
Having considered the principles of international law relating to friendly relations and co-
operation among States,
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1. Solemnly proclaims the following principles:

The principle that States shall re[rain In their International relations from the
threat or use of force against the territorial integrity or political independence of any
State, or in any other manner inconsistent with the purposes of the United Nations
Every State has the duty to refrain in its international relations from the threat or use of
force against the territorial integrity or political independence of any State, or in any other
manner inconsistent with the purposes of the United Nations. Such a threat or use of force
constitutes a violation of international law and the Charter of the United Nations and shall never
be employed as a means of settling international issues.
A war of aggression constitutes a crime against the peace, for which there is
responsibility under international law. In accordance with the purposes and principles of the
United Nations, States have the duty to refrain from propaganda for wars of aggression.
Every State has the duty to refrain from the threat or use of force to violate the existing
international boundaries of another State or as a means of solving international disputes,
including territorial disputes and problems concerning frontiers of States.
Every State likewise has the duty to refrain from the threat or use of force to violate
international lines of demarcation, such as armistice lines, established by or pursuant to an
international agreement to which it is a party or which it is otherwise bound to respect. Nothing
in the foregoing shall be construed as prejudicing the positions of the parties concerned with
regard to the status and effects of such lines under their special regimes or as affecting their
temporary character.
States have a duty to refrain from acts of reprisal involving the use of force.
Every State has the duty to refrain from any forcible action which deprives peoples
referred to in the elaboration of the principle of equal rights and self-determination of their right
to self-determination and freedom and independence.
Every State has the duty to refrain from organizing or encouraging the organization of
irregular forces or armed bands, including mercenaries, for incursion into the territory of another
State.
Every State has the duty to refrain from organizing, instigating, assisting or participating
in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within
its territory directed towards the commission of such acts, when the acts referred to in the present
paragraph involve a threat or use of force.
The territory of a State shall not be the object of military occupation resulting from the
use of force in contravention of the provisions of the Charter, The territory of a State shall not be
the object of acquisition by another State resulting from the threat or use of force. No territorial
acquisition faulting from the threat or use of force shall be recognized am legal. Nothing in the
foregoing shall be construed as affecting:
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(a) Provisions of the Charter or any international agreement prior to the Charter regime
and valid under international law; or
(b) The powers of the Security Council under the Charter.
All States shall pursue in good faith negotiations for the early conclusion of a universal
treaty on general and complete disarmament under effective international control and strive to
adopt appropriate measures to reduce international tensions and strengthen confidence among
States.
All States shall comply in good faith with their obligations under the generally
recognized principles and rules of international law with respect to the maintenance of
international peace and security, and shall endeavour to make the United Nations security system
based on the Charter more effective.
Nothing in the foregoing paragraphs shall be construed as enlarging or diminishing in any
way the scope of the provisions of the Charter concerning cases in which the use of force is
lawful.
The principle that States shall settle their international disputes by peaceful
means in such a manner that international peace and security and justice are not
endangered
Every State shall settle its international disputes with other States by peaceful means in
such a manner that international peace and security and justice are not endangered.
States shall accordingly seek early and just settlement of their international disputes by
negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional
agencies or arrangements or other peaceful means of their choice. In seeking such a settlement
the parties shall agree upon such peaceful means as may be appropriate to the circumstances and
nature of the dispute.
The parties to a dispute have the duty, in the event of failure to reach a solution by any
one of the above peaceful meant, to continue to seek a settlement of the dispute by other peaceful
means agreed upon by them.
States parties to an international dispute, as well as other States, shall refrain from any
action which may aggravate the situation so as to endanger the maintenance of international
peace and security, and shall act in accordance with the purposes and principles of the United
Nations.
International disputes shall be settled on the basis of the sovereign equality of States and
in accordance with the principle of free choice of means. Recourse to, or acceptance of,
settlement procedure freely agreed to by States with regard to existing or future disputes to
which they are parties shall not be regarded as incompatible with sovereign equality.
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Nothing in the foregoing paragraphs prejudices or derogates from the applicable

provisions of the Charter, in particular those relating to the pacific settlement of international
disputes.
The principle concerning the duty not to intervene in matters within the domestic
jurisdiction of any State, in accordance with the Charter
No State or group of States has the right to intervene directly or indirectly, for any reason
whatever, in the internal or external affairs of any other State. Consequently, armed intervention
and all other forms of interference or attempted threats against the personality of the State or
against its political, economic and cultural elements, are in violation of international law.
No State may use or encourage the use of economic, political or any other type of
measures to coerce another State in order to obtain from it the subordination of the exercise of its
sovereign rights and to secure from It advantages of any kind, Also, no State shall organize,
assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards
the violent overthrow of the regime of another State, or interfere in civil strife in another State.
The use of force to deprive peoples of their national identity constitutes a violation of
their inalienable fights and of the principle of non-intervention.
Every State has an inalienable right to choose its political, economic, social and cultural
systems, without interference in any form by another State.
Nothing in the foregoing paragraphs shall be construed as affecting the relevant
provisions of the Charter relating to the maintenance of international peace and security.
The duty of States to co-operate with one another in accordance with the Charter
States have the duty to co-operate with one another, irrespective of the differences in
their political, economic and social systems, in the various spheres of international relations, in
order to maintain international peace and security and to promote international economic
stability and progress, the general welfare of nations and international co-operation free from
discrimination based on such differences.
To this end:
(a) States shall co-operate with other States in the maintenance of international peace and
security;
b) States shah co-operate in the promotion of universal respect for, and observance of,
human rights and fundamental freedoms for all, and in the elimination of all forms of
racial discrimination and all forms of religious intolerance;
(c) States shall conduct" their international relations in the economic, social, cultural,
technical and trade fields in accordance with the principles of sovereign equality and non-
intervention;
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(d) States Members of the United Nations have the duty to take joint and separate action
in co-operation with the United Nations in accordance with the relevant provisions of the
Charter.
States should co-operate in the economic, social and cultural fields as well as in the field
of science and technology and for the promotion of international cultural and educational
progress. States should co-operate in the promotion of economic growth throughout the world,
especially that of the developing countries.
The principle of equal rights and self-determination of peoples
By virtue of the principle of equal rights and self-determination of peoples enshrined in
the Charter of the United Nations, all peoples have the right freely to determine, without external
interference, their political status and to pursue their economic, social and cultural development,
and every State has the duty to respect this right in accordance with the provisions of the Charter.
Every State has the duty to promote, through joint and separate action, realization of the
principle of equal rights and self-determination of peoples, in accordance with the provisions of
the Charter, and to render assistance to the United Nations in carrying out the responsibilities
entrusted to it by the Charter regarding the implementation of the principle, in order:
(a) To promote friendly relations and co-operation among States; and
(b) To bring a speedy end to colonialism, having due regard to the freely
expressed will of the peoples concerned; and bearing in mind that subjection of
peoples to alien subjugation, domination and exploitation constitutes a violation
of the principle, as well as a denial of fundamental human rights, and is contrary
to the Charter.
Every State has the duty to promote through joint and separate action universal respect
for and observance of human rights and fundamental freedoms in accordance with the Charter.
The establishment of a sovereign and independent State, the free association or
integration with an independent State or the emergence into any other political status freely
determined by a people constitute modes of implementing the right of self-determination by that
people.
Every State has the duty to refrain from any forcible action which deprives peoples
referred to above in the elaboration of the present principle of their right to self-determination
and freedom and independence. In their actions against, and resistance to, such forcible action in
pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and to
receive support in accordance with the purposes and principles of the Charter.
The territory of a colony or other Non-Self-Governing Territory has, under the Charter, a
status separate and distinct from the territory of the State administering it; and such separate and
distinct status under the Charter shall exist until the people of the colony or Non-Self-Governing
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Territory have exercised their right of self-determination in accordance with the Charter, and
particularly its purposes and principles.
Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any
action which would dismember or impair, totally or in part, the territorial integrity or political
unity of sovereign and independent States conducting themselves in compliance with the
principle of equal rights and self-determination of peoples as described above and thus possessed
of a government representing the whole people belonging to the territory without distinction as to
race, creed or colour.
Every State shall refrain from any action aimed at the partial or total disruption of the
national unity and territorial integrity of any other State or country.
The principle of sovereign equality of States

All States enjoy sovereign equality. They have equal rights and duties and are equal members of
the international community, notwithstanding differences of an economic, social, political or
other nature.
In particular, sovereign equality includes the following elements:
(a) States are juridically equal;
(b) Each State enjoys the rights inherent in full sovereignty;
(c) Each State has the duty to respect the personality of other States;
(d) The territorial integrity and political independence of the State are inviolable;
(e) Each State has the right freely to choose and develop its political, social, economic
and cultural systems;
(f) Each State has the duty to comply fully and in good faith with its international
obligations and to llve in peace with other States.
The principle that States shall fulfil in good faith the obligations assumed by them in
accordance with the Charter
Every State has the duty to fulfil in good faith the obligations assumed by it in
accordance with the Charter of the United Nations.
Every State has the duty to fulfil in good faith its obligations under the generally
recognized principle and rules of international law.
Every State has the duty to fulfil in good faith its obligations under international
agreement valid under the generally recognized principles and rules of international law.
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Where obligations arising under international agreements are in conflict with the obligations
of Members of the United Nations under the Charter of the United Nations, the obligations under
the Charter shall prevail.
c. European Commission, “Declaration on the Guidelines on the Recognition of New
States in Eastern Europe and in the Soviet Union” (1991).
In compliance with the European Council’s request, Ministers have assessed
developments in Eastern Europe and the Soviet Union with a view to elaborating an approach
regarding relations with new states.
In this connection they have adopted the following guidelines on the formal recognition
of new states in Eastern Europe and in the Soviet Union:
The Community and its Member States confirm their attachment to the principles of the
Helsinki Final Act and the Charter of Paris, in particular the principle of self-determination. They
affirm their readiness to recognize, subject to the normal standards of international practice and
the political realities in each case, those new States which, following the historic changes in the
region, have constituted themselves on a democratic basis, have accepted the appropriate
international obligations and have committed themselves in good faith to a peaceful process and
to negotiations.
Therefore, they adopt a common position on the process of recognition of these new
States, which requires:
 respect for the provisions of the Charter of the United Nations and the commitments
subscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with
regard to the rule of law, democracy and human rights
 guarantees for the rights of ethnic and national groups and minorities in accordance with
the commitments subscribed to in the framework of the CSCE
 respect for the inviolability of all frontiers which can only be changed by peaceful means
and by common agreement
 acceptance of all relevant commitments with regard to disarmament and nuclear non-
proliferation as well as to security and regional stability
 commitment to settle by agreement, including where appropriate by recourse to
arbitration, all questions concerning State succession and regional disputes.
The Community and its Member States will not recognize entities which are the result of
aggression. They would take account of the effects of recognition on neighbouring States.
The commitment to these principles opens the way to recognition by the Community and its
Member States and to the establishment of diplomatic relations. It could be laid down in
agreements.
d. Vienna Convention on Succession of States in respect of Treaties
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ART. 3. Cases of Succession of States covered by the present Convention. The present
Convention applies only to the effects of a succession of States occurring in conformity with
international law and, in particular, with the principles of international law embodied in the
Charter of the United Nations.
ART. 4. Temporal Application of the Present Convention.
1. Without prejudice to the application of any of Che rules set forth in Che present
Convention to which the effects of a succession of States would be subject under
international law independently of the Convention, the Convention applies only in respect
of a succession of States which has occurred after the entry into force of the Convention
except as may be otherwise agreed.
2. A successor State may, at the time of expressing its consent to be bound by the present
Convention or at any cine thereafter, make a declaration that it will apply the provisions
of the Convention in respect on its own succession of states which has occurred before
the entry into force of the Convention in relation to any other contracting State or State
Party co the Convention which makes a declaration accepting the declaration or the
successor State. Upon the entry into force of the Convention as between the States
making the declarations or upon the making of the declaration of acceptance, whichever
occurs later, the provisions of the Convention shall apply to the effects of the succession
of States as from the date of that succession of States.
3. A successor State may at the time of signing or for expressing its consent to be bound by
the present Convention make a declaration that in will apply the provisions of the
Convention provisionally in respect of its own succession of States which has occurred
before the entry into force of the Convention in respect to any other signatory or
contracting State which makes a declaration accepting the declaration of the successor
State; upon the making of Che declaration of acceptance, those provisions shall apply
provisionally co the effects of the succession of States as between Chose two States as
from Che date of that succession of States.
4. Any declaration made in accordance with paragraph 2 or 3 snail be contained is a written
notification communicated Co the depositary, who shall inform the Parties and the States
entitled to become Parties to the present Convention of Che communication Co him of
chat notification and of its terms
ART. 5. Succession in Respect of Other Matters. Nothing in the present Convention shall be
considered as prejudging in any respect any question relating to the effects of a succession of
States in respect of matters other than those provided for in the present Convention.
ART. 6. Rights and Obligations of Natural or Juridical Persons. Nothing in the present
Convention shall be considered as prejudging in any respect any question relating to the
rights and obligations of natural or juridical persons.
ART. 8. State Property. For the purposes of the articles in the present Part, "State property of
the predecessor State” means property rights and interests which, at the dace of the
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succession of States, were, according to the internal law of the predecessor State owned by
that State.
ART. 9. Effects of Passing of State Property. The passing of State property of the
predecessor Scats entails the extinction of the rights of that State and the arising of the rights
of the successor State to Che State property which passes to Che successor State, subject to
the provisions of the articles in the present Part.
ART. 14. Transfer of part of the territory of a State.
1. When part of a territory of a State is transferred by that State to another State is to be
settled by agreement between them.
2. In the absence of such agreement:
(a) immovable state property of the predecessor state situated in the territory in which
the succession of States relates shall pass to the successor state;
(b) movable State property of the predecessor state connected with the activity of the
predecessor state in respect of the territory to which the succession of state relates shall pass
to the successor states.
e. UN Convention on Law of the Sea
Governing Principles:
1. Principle of Freedom- aims to ensure the freedom of various uses of the oceans;
2. Principle of Sovereignty- seeks to safeguard the interest of coastal States;
3. Principle of Common Heritage of Mankind- seeks to promote the common interest of all
people in present and future generations.
A. Baselines
A baseline is the line from which the outer limits of marine spaces under the national
jurisdiction of the coastal State are measured. It is also the line distinguishing internal waters
from the territorial sea.
Types of baselines:
Normal Baseline (Art. 9, UNCLOS)
Straight Baseline
Closing Lines Across River Mouths and Bays (Rivers, Bays [Art. 9])
Criteria for Drawing Baselines (Art. 7, UNCLOS)
1. It must not depart to any appreciable extent from the general direction of the
coast;
2. Certain sea areas lying within these lines are sufficiently closely linked to the land
domain to be subject to the regime of international waters;
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3. Certain economic interest peculiar to a region, the reality and important of which
are clearly evidenced by long use, should be taken into considerations.
B. ARCHIPELAGIC STATES
An archipelagic state is a State constituted wholly by one or more archipelagos and may
include other islands (Art. 46, UNCLOS)
Archipelago is a group of islands, including parts of islands interconnecting waters and other
natural features which are so closely interrelated that such islands, waters and other natural
features form an intrinsic geographical, economic and political entity, or which historically
have been regarded as such.
Kinds of Archipelago:
Coastal
Outlying or Mid-Ocean
Condition for Drawing Archipelagic Baselines:
1. Must include main island, and the ratio of the area of the water to the area of the
land, including atolls, is between 1 to 1 and 9 to 1;
2. The length of baselines shall not exceed 100 nautical miles, however, up to 3% of
the total number of baselines enclosing any archipelago may exceed that length,
up to maximum length of 125 nm;
3. The baselines shall not depart to any appreciable extent from the general
configuration of the archipelago;
4. Shall not be drawn to and from low-tide elevations, unless lighthouses or similar
installations which are permanently above sea level have been built on them or
where a low-tide elevation is situated wholly or partly at a distance not exceeding
the breadth if the territorial sea from the nearest island;
5. The system of baselines shall not be applied in such a manner as to cut off from
the high seas of the EEZ the territorial sea of another State;
6. Shall be shown on charts of a scales adequate for ascertaining their position.
Alternatively, lists of geographical coordinates of points, specifying the geodetic
datum, may be submitted. The state shall give due publicity to such charts of list
of geographical coordinates and shall deposit a copy of each such chart or list
with the UN Secretary- General. (Art. 47, UNCLOS)
Archipelagic Waters
The waters enclosed by the archipelagic baselines drawn in accordance with Art. 47
regardless of their depth of distance from the coast. An archipelagic State exercises
territorial sovereignty over its archipelagic waters. (Art. 49. UNCLOS)
Obligations of an Archipelagic State under the UNCLOS
1. Respect the traditional fishing rights of third States;
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2. Respect existing marine cables;

3. If a part of the archipelagic waters lie between two parts of an immediately
adjacent neighboring state, existing rights and all other legitimate interests which
the neighboring state has traditionally exercised in such waters an alright
stipulated by agreement between the archipelagic state and the neighboring state
shall continue and be respected; and
4. Provide the right of innocent passage and that of archipelagic sea lanes passage.
Archipelagic Sea Lanes Passages
The exercise in accordance with a UNLOS III of the rights of navigation and overflight
in the normal mode solely for the purpose of continuous, expeditious and unobstructed
transit between one part of the high seas or an exclusive economic zone and another part
of the high seas or an exclusive economic zone (UNLCOS III, Art. 53)
C . INTERNAL WATERS
Those waters which lie landward of the baseline from which the territorial sea is
measured. It includes:
a. Waters enclosed by straight baselines
b. Estuaries
c. Landward waters from the closing line of base
d. Parts of the sea along the coast down to the low- water mark; and
e. Ports and harbors
Every coastal state enjoys full sovereignty over its internal waters.
Doctrines Regarding Boundary Rivers
1. Thalweg Doctrine- in the absence of an agreement between the riparian states the
boundary lying is laid on the middle of the main navigable channel; and
2. Middle of the Bridge Doctrine- where there is a bridge over the boundary river,
the boundary line is the middle of or center of the bridge.
D . TERRITORIAL SEA
A Marines face under the territorial sovereignty over the coastal state up to a limit
not exceeding 12 nautical miles measured from base lines. It comprises the seabed and its
subsoil, the adjacent waters and its airspace.
Right of Innocent Passage
It is the right of foreign merchant ships (as distinct from warships) to pass
unhindered through the territorial sea of a coast.
Elements of Innocent Passage
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a.Passage- traversing the territorial sea without entering internal waters, are
proceeding to a from internal waters, continuous and expeditious; stopping
or anchoring may only take place insofar as they are incidental to ordinary
navigation or are rendered necessary by force majeure or distress for the
purpose of rendering assistance to persons, ships or aircraft in danger or
distress; and
b. Innocence- not prejudicial to the peace would order or security or
the coastal state. (Arts. 18-19, UNCLOS III)
E . EXCLUSIVE ECONOMIC ZONES
The exclusive economic zone or EEZ is an area beyond and adjacent to the
territorial sea not extending beyond 200 nautical miles from the baseline of the territorial
sea. (Art. 55 and 57)
The coastal state must claim the zone in order to establish an EEZ.
Rights and Jurisdiction and Duties of the Coastal State in the EEZ
In the EEZ, the coastal state has:
a.Sovereign rights for the purpose of exploring exploiting conserving and
managing the natural resources, whether living or nonliving, of the waters
super adjacent to the seabed, and of the sea bridge in its subsoil, and with
regard to other activities exploitation and exploration of the zone, such as
the production of energy from the water, currents and winds;
b. Jurisdiction has provided in the relevant UNCLOS III with regard
to:
1. The establishment and use of artificial islands, installations and
structures;
2. Marine scientific research;
3. the protection and preservation of the marine and environment.
c.Other rights and duties provided for (Art. 56)
The sovereign rights in the exclusive economic zone are essentially exclusive in
the sense that no one may undertake these activities or make a team exclusive economic
zone without the express consent of the coastal state.
F . CONTINENTAL SHELF
The continental shelf of a state compromises the seabed and subsoil of the submarine
areas that extend beyond its territorial seed throughout the natural problem vision of its land
territory to the outer edge of the continental margin distance of 200 nautical miles from the
baselines from which the breath of the territorial sea is measured where the outer edge of
continental marine does not extend up to that distance(ART. 76)
Continental Margin
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The continental margin comprises the submerged presentation of the landmass of

coastal States and consists of the seat belt in some sort of the shelf the slope and the
rights it does not include the deep ocean floor with its Oceanic ridges or the subsoil
thereof.
Rights of a Coastal State
The coastal state exercises over the continental shelf sovereign rights for the
purpose of exploring and exploiting its natural resources the natural resources referred to
consists of the mineral another nonliving resources from the seabed and of the subsoil
together with living organisms belonging to sedimentary species.
Extended Continental Shelf
This refers to a continental shelf that goes beyond the 200 nautical mile limit the
cost to state shall make payments and contributions in kind in respect of the exploitation
of the nonliving resources for the continental shelf beyond 200 nautical miles from the
baseline for which the breadth of the territorial sea is measured.
High Seas
The high seas are all parts of the sea that are not within an exclusive economic
zone, the territorial sea, internal waters or archipelagic waters. No state may subject any
part of the high seas to its sovereignty. All states, including land-locked states, enjoys
weather read up on the high seas of which six are listed in the in this convention. they are
not absolute, but must be exercised with due regard for the interests of other states in
their exercise of the same freedoms.
The Area
The term ‘area’ was chosen to describe the seabed and ocean floor, and its subsoil
that is not part of the continental shelf of any state. In simple terms, the area is the deep
seabed. It is important because parts of it are rich in mineral nodules, manganese in
particular. The area and the resources are declared by the UNLCOS III to be the common
heritage of mankind they are therefore not subject to any claims to or exercise of
sovereignty or sovereign rights although the that does not affect the status of the waters
that lie over the area all rights in its mineral resources are vested in mankind as a whole,
on whose behalf the international seabed authority acts you authority organizes and
controls the exploitation of the mineral resources in the Area.
G . INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA (ITLOS)
The international tribunal for the Law of the Sea was created by the UNCLOS. It has 21
judges elected by the member states with a system in place to ensure an equitable geographic
balance.
Persons Who Have Access to the Tribunal
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1. States Parties to the UNCLOS III;

2. Entities other than states parties in any case:
i. Expressly provided for in Part XI of the UNCLOS III, or
ii. Submitted person want to any agreement conferring jurisdiction on the
tribunal which is accepted by all parties to that case.
Jurisdiction
The jurisdiction of the tribunal comprises of all disputes in applications
submitted to it in accordance with the UNCLOS and all matters specifically
provided for in any other agreement which confers jurisdiction on the tribunal
(Art. 21)
A. Statehood, Recognition, and Succession
CASES
1. Tinoco Claims Arbitration

Overview:
Great Britain (P) claimed that the former government of Costa Rica (D), the Tinoco regime,
had granted oil concessions to a British company that had to be honored by the present
regime. The Tinoco regime had seized power in Costa Rica by coup. Great Britain (P) and
the United States never recognized the Tinoco regime. When the Tinoco regime fell, the
restored government nullified all Tinoco contracts, including an oil concession to a British
company. Great Britain (P) claimed that the Tinoco government was the only government
in existence at the time the contract was signed and its acts could not be repudiated. Costa
Rica (D) claimed that Great Britain (P) was estopped from enforcing the contract by its
nonrecognition of the Tinoco regime. The matter was sent for arbitration.

Issue:
Does nonrecognition of a new government by other governments destroy the de facto status
of the government?

Rule:
-A government that establishes itself and maintains a peaceful de facto administration need
not to conform to previous constitution and nonrecognition of the govt. by other govt.’s
does not destroy the de facto status of the govt.

Analysis:
The arbitrator found there was no estoppel. The evidence of nonrecognition did not
outweigh the evidence of the de facto status of the Tinoco regime. Unrecognized
governments thus may have the power to form valid contracts.

Outcome:
No. A government that establishes itself and maintains a peaceful de facto administration
need not conform to a previous constitution and nonrecognition of the government by other
governments does not destroy the de facto status of the government. Great Britain's (P)
nonrecognition of the Tinoco regime did not dispute the de facto existence of that regime.
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There was no estoppel since the successor government had not been led by British
nonrecognition to change its position.

2. Western Sahara (Advisory Opinion) (ICJ, 1975)

On October 16, 1975, the International Court of Justice delivered an Advisory

Opinion on the Western Sahara. The Opinion dealt with legal issues which had arisen
from the international controversy surrounding the proposed Spanish decolonization of
the phosphate-rich territory. Both Morocco and Mauritania sought to incorporate the
Western Sahara without a referendum of the territory's population. East state pressed its
claim in the United Nations, and on December 13, 1974, the General Assembly requested
an advisory opinion from the Court on two questions:

I. Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of
colonization by Spain a territory belonging to no one (terra nullius)? If the
answer to the first question is in the negative

II. What were the legal ties between this territory a nd the Kingdom of
Morocco and the Mauritanian entity?
In its Opinion, the Court first found that it was competent to comply with
the General Assembly's request for an advisory opinion. Furthermore, the
Court held that it was proper to so comply despite the fact that one of the
parties to the controversy, Spain, had not consented to the court
proceedings. The Court then addressed the questions posed by the
General Assembly and held that the Western Sahara was not a terra
nullius at the time of its colonization by Spain and that, although there
were legal ties at the time of colonization between the Western Sahara
and both Morocco and Mauritania, these ties were insufficient to justify
decolonization of the territory by any means other than a popular
referendum. In the Western Sahara case, the Court has not only settled
two narrow legal questions, but has established more permissive rules for
granting advisory opinions, affirmed the principle of self-determination,
and assumed a more active role in the United Nations. This Comment
analyzes the legal issues raised by the Western Sahara case and critically
examines the broad legal implications of the majority and minority opinions.

3. Frontier Dispute (Burkina Faso v. Mali) (ICJ, 1986)

A question pertaining to a border dispute was tabled before the International Court of
Justice by Burkina Faso and Mali.

Synopsis of Rule of Law. An obligation exists to respect pre-existing international

frontiers in the event of a state succession.

Issue. Does an obligation exist to respect pre-existing international frontiers in the event of
a state succession?

Held. Yes. An obligation exists to respect pre-existing international frontiers in the event of
a state succession, whether or not the rule is the rule is expressed in the form of uti
possidetis. The fact that the principle did not exist when the states declared such
independence in 1960 does not foreclose its present application.
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Discussion. Yes. An obligation exists to respect pre-existing international frontiers in the

event of a state succession, whether or not the rule is the rule is expressed in the form of uti
possidetis. The fact that the principle did not exist when the states declared such
independence in 1960 does not foreclose its present application.

4. National Petrochemical Co. of Iran v. M/T Stolt Sheaf (860 F. 2d 551) (1988)

Brief Fact Summary. A suit which was brought by an Iranian corporation (P) in a U.S.
federal court was dismissed by the district court on the premise that the United States had
never extended recognition to the Islamic Republic of Iran. The Iranian corporation was
the plaintiff in the case.

Synopsis of Rule of Law. If a foreign government has not been formally recognized by
the United States, such foreign government is not necessarily barred from access to U.S.
courts.

Facts. A suit which was brought by an Iranian corporation (P) in a U.S. federal court was
dismissed by the district court on the premise that the United States had never extended
recognition to the Islamic Republic of Iran. The Iranian corporation was the plaintiff in
the case. The case was entered into by the United States government as amicus curiae by
arguing that the Iranian corporation (P) ought to be granted access.

Issue. If a foreign government has not been formally recognized by the United States,
will such foreign government be barred from access to U.S. courts?

Held. No. A suit which was brought by an Iranian corporation (P) in a U.S. federal court
was dismissed by the district court on the premise that the United States had never
extended recognition to the Islamic Republic of Iran. In a situation where formal
recognition have been withheld by the U.S. government, recognition can still occur and
this is done at times where recognition can be misinterpreted as approval. In this case, the
relation between the two countries has not been smooth. Hence, the Executive Branch,
which has the power to deal with foreign nations outside formal recognition, has broad
discretion involving matters of foreign relations.

Discussion. The point as one clearly hoped for is not illustrated by this case. But the
thrust is that the intervention of the U.S. as amicus and its arguments in favor of allowing
the case to proceed in the U.S. court system were exercises of the power of the executive
branch over matters of foreign relations to which the court deferred.

B. Territorial Sovereignty
CASES
1. Island of Palmas Arbitration (United States v. Netherlands) (PCA, 1928)

The island of Palma is also called the Miangas, about 2 miles long and 3/4 of a mile wide,
with a population of 750 and the title strategic or economic value is situated about 48 miles
southeast of Mindanao in the Philippines which was at that time a territory of the United
States and about 51 miles from the nearest island in The Netherlands Indies. It was admitted
that the sand island is within the boundaries of the territory ceded by Spain to the United
States under the Treaty of Paris of 1898.

On January 21, 1906, Leonard Wood, then governor of the Philippines visited the
island and was surprised to see the Dutch flag flying over Palmas. A dispute that arose
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between the United States and then another dance until 1925 when both governments
agreed to submit the question to a one- man arbitrator. (Max Huber)

Deciding that the island legally belonged to the Netherlands the arbitrator ruled:

The Netherlands found other claim to sovereignty essentially on the title of

peaceful and continuous display of state with authority over the island. Since this title
within international law prevail over a title of acquisition of sovereignty not followed by
actual display of state or 80 it is necessary to assert in the first place whether the
contention of the of the Netherlands is sufficiently established by evidence, and if so, for
what period of time.

In the opinion of the arbitrator the Netherlands had succeeded in establishing the
following facts:

a. the Island Palmas is identical with an island designated by this or a

similar name which has formed at least 1700, successively a part of two
of the native states of the Island of Sangi;
b. These native states were from 1677 onwards connected with the East
Indian company and thereby with another dance by contracts of
suzerainty which conferred upon the suzerain such powers as would
justify his considering the vassal state as a part of his territory;
c. ask characteristics of state authority exercised either by the vassal state
or by the suzerain power here guard precisely to the Island of Palma's
have been established as occuring at different epochs between 1700 and
1898 as well as in the period between 1898 and 1906.

Since the moment when the Spaniards in withdrawing from the model
cars in 1666 made express reservations as to the maintenance of their sovereign
rights up to the contestation made by United States in 1906, no contestation or
other action whatever or protest against the exercise of territorial rights by the
Netherlands over the Talautse Isles and their dependencies has been recorded.
The peaceful character of the display of the Netherlands sovereignty for the
entire period to which the evidence concerning acts of display related 1700 to
1906 must be admitted.

There is Moreover no evidence which would establish any act of

display of sovereignty over the island by Spain or another power such as might
counterbalance or annihilate the manifestations of Netherland's sovereignty. As
to Third powers, the evidence submitted to the tribunal does not disclose any
trace of such action, at least from the middle of the 17th century onwards. These
circumstances together with the absence of any evidence of a conflict between
Spanish and Netherlands’ authorities during more than two centuries as regards
from Palmas, are an indirect proof of the exclusive display of Netherlands
sovereignty.

2. Clipperton Island Arbitration (France v. Mexico) (26 AJIL 390) (1932)

FACTS:

Clipperton Island is a small uninhabited island located in the eastern part of the
Pacific Ocean some 1,200km Southeast of Mexico. It was named after John Clipperton, an
English pirate who is said to have passed the island. The island was first discovered by 2
French. The first scientific expidition took place in 1725 under Frenchman M. Bocage, who
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lived on the island for several months. In 1858, A French Naval Officer claimed
sovereignty on it. This fact was notified to the French Consulate who in turn informed the
Government of Hawaii. Other claimants include the United States and Mexico. Very little
was done by France in relation to the island until in 1897 when a French warship visited the
island. It was followed a month later by a Mexican warship landing there and forcing the
three inhabitants to raise the Mexican flag and asserting its claims to sovereignty. A colony
was thereafter established, and a series of military governors was posted. France insisted on
its ownership over the island.

ISSUE

1) WON the island should be awarded to France

2) WON France had fulfilled the twin requirements of territorial occupation: (a)
intention and will to exercise sovereignty (animus occupandi) and (b) the actual
taking of possession of the territory.

HELD:

1) YES. At the time of the French Proclamation in 1858, the island had the status of
territorium nullius, and therefore, susceptible of an effective occupation.

2) YES. Regarding the first condition, the arbitrator attributed to the French Proclamation
of 1858 her intention to consider the island as her territory. The second requirement
consisted of the actual, and not the nominal, taking of possession. The degree of authority
to be exercised in order to constitute actual possession depended upon the nature of the
territory. In this case, the island was awarded to France on the ground that it was
legitimately acquired by it in 1858, and the symbolic proclamation was treated as an act
of possession.

It is beyond doubt that by immemorial usage having the force of law, besides the
animus occupandi, the actual, and not the nominal, taking of possession is a necessary
condition of occupation. This taking of possession consists in the act, or series of acts, by
which the occupying state reduces to its possession the territory in question and takes
steps to exercise exclusive authority there. Strictly speaking, and in ordinary cases, that
only takes place when the state establishes in the territory itself an organization capable
of making its laws respected. But this step is, properly speaking, but a means of
procedure to the taking of possession, and, therefore, is not identical with the latter. There
may also be cases where it is unnecessary to have recourse to this method. Thus, if a
territory, by virtue of the fact that it was completely uninhabited, is, from the first
moment when the occupying state makes its appearance there, at the absolute and
undisputed disposition of that state, from that moment the taking of possession.

3. Legal Status of Eastern Greenland (Denmark v. Norway) (PCIJ, 1933)

Effective control however is relative had made depend on the nature of the case whether
the territory is inhabited or not and how fierce the occupants are. Where there are two or more
payment straight territory effective control is also relative to the strength of claims. The Permanent
Court of Justice decided in favor of Denmark said:

Before proceeding to consider in detail the evidence submitted to the court it may be
well to state that a claim to sovereignty based not a part in some particular after title such as a
treaty or cession but nearly upon continued display of authority involves two elements each of
which must be shown to exist the intention and will to act as sovereign, and some actual exercise
or display of such authority.
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Another circumstance which must be taken into account by any tribunal which has to
adjudicate upon a claim to sovereignty over a particular territory is the extent to which the
sovereignty is also claimed by one power. In most of the cases involving claims to territorial
sovereignty which have come before an international tribunal, there have been two competing
claims to the sovereignty, and the tribunal has had to decide which of the two is the stronger. One
of the peculiar features of the present case is that up to 1931, there was no claim by any power
other than Denmark to the sovereignty over Greenland. Indeed up until 1921, no power disputed
the Danish claim to sovereignty.

It is impossible to read the records of decision in cases as to territorial sovereignty

without observing that in many cases the tribunal has been satisfied with very little in the way of
the actual exercise of sovereign rights provided that the other state could not make out a superior
claim. This is particularly true in the case of claims to sovereignty over areas in thinly populated
or unsettled countries.

4. Minquiers and Ecrehos (France v. United Kingdom) (ICJ, 1953)

Facts

The United Kingdom and France reached an agreement to submit to the International Court
of Justice (ICJ) the question of who owned the islands of Minquiers and Ecrehos. France
claimed that the islands were British territory only until France drove England out of
Normandy in 1204. Great Britain claimed that though it was driven out of Normandy,
France did not also conquer the islands. Both countries relied on a series of medieval
treaties the countries signed after 1204. The United Kingdom presented evidence that the
island of Ecrehos was included in a land inventory undertaken by its King in 1309. The
United Kingdom also presented evidence of criminal proceedings held on the British island
of Jersey in the 19th century for crimes committed on the Ecrehos. Local records for the
Ecrehos from the 19th century, such as property, census, and licensing records also
appeared in Jersey’s archives.

C. Individuals, Nationality, and Statelessness

CASES:
1. Nottebohm (Liechtenstein v. Guatemala) (ICJ, 1955)

Nottebohm, a German national by birth, became a resident of Guatemala,

where he established business and acquired assets he made occasional trips to visit his
relatives in Germany and other countries.

After the outbreak of World War Two in 1939, he applied for

naturalization as a citizen of the Liechtenstein. Under Liechtenstein law, he would
lose his former nationality although this effect could be waived, he had to prove
that he lived in the principality at least three years, which requirement could also
be dispensed with by way of exception, and he had to pay certain fees. His
naturalization was forthwith approved.

After Guatemala entered World War Two against Germany, Notebohm,

who was taken into custody and removed to the United States as a dangerous
enemy. Meanwhile, Guatemala proceeded against his properties as an enemy
alien.
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Liechtenstein found this action asking the court to declare the act of
Guatemala in arresting, detaining and expelling Nottebohm and seizing his
property as a breach of international law.

The international Court of Justice ruled that the bunch of nationality must
reflect a genuine connection between the individual and the state. In ruling
against the contention of Liechtenstein with the court, in part said:

The naturalization of notable was an act performed by licensed

I'm in the exercise of its domestic jurisdiction the question to be
decided is whether that act has the international effect here under
consideration.

When one state has conferred its nationality upon an individual and
another state has conferred its own nationality on the same person, it may
occur that each of these states considering itself to have acted in the exercise of
its domestic jurisdiction, adheres to its own view and bases itself there on
insofar as its own actions are concerned. In so doing each state remains within
the limits of its domestic jurisdiction.

At the time of his naturalization, does Nottebohm appeared to have

been more closely attached to this tradition, his establishment, his interest, his
activities, his family ties, his intentions for the near future to Liechtenstein than
to any other states?

At the date when he applied for naturalization Nottebohm had been a

German national from the time of his birth he had always retained his
connections with members of his family who had remained in Germany and had
always had business connections with that country. His country had been at war
for more than a month and there is nothing to indicate that the application for
naturalization then made by Nottebohm was motivated by any desire to
disassociate himself from the government of this country.

He had been settled in Guatemala for 34 years. He had carried on his

activities there. It was the main seat of his interests. He returned there shortly
after his naturalization and it remained the center of his interest and of his
business activities. He stayed there until his removal as a result of war
measures. In 1943, he subsequently attempted to return there and he now
complains of Guatemala's refusal to admit him. There, too, were several
members of his family who sought to safeguard his interests.

These facts clearly establish, on the other hand the absence of any bond
of attachment between Nottebohm and Leichtenstein and, on the other hand,
the existence of a longstanding and closed connection between him and
Guatemala, a linked which his naturalization in no way weakened. That
naturalization was not based on any real prior connection with Liechtenstein nor
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did it in any way alter the manner of life of the person upon whom it was
conferred in exceptional circumstances of speed and accommodation. In both
respects, it was lacking in the genuineness represent to an act of such
importance if it to be entitled to these respected by a State in the position of
Guatemala. It was granted without regard to the concept of nationality adopted
in international relations.

Guatemala is under no obligation to recognize a nationality granted in

such circumstances, Liechtenstein, consequently is not entitled to extend its
protection to Nottebohm vis-a-vis Guatemala in its claim must, for this reason,
be inadmissible.

2.Barcelona Traction, Light and Power Company, Ltd.

The Barcelona Traction, Light and Power Company Limited is a holding

company incorporated in Toronto Canada in 1911 where it had its head office for
the purpose of developing an electric power and distribution system in Cataluña,
Spain, it formed the number of concession holding subsidiary companies. Three of
these companies were incorporated in Canada and the other were incorporated in
Spain and had their registered offices in Spain.

After the First World War, Barcelona Traction;s shared capital came to be
largely held by Belgian Nationals particularly the SOFINAS Company which
controlled Belgian interests.

Barcelona Traction issued several series of bonds, some in Sterling and

others in pesetas. In 1936, the servicing of the Barcelona Traction bonds were
suspended on account of the Spanish civil war. In 1940 payment of interest on the
peseta bonds was resumed with authorization of the Spanish exchange control
authorities required because the debt was owed by a foreign country. The
authorization for the transfer of the foreign currency necessary for the servicing of
the Sterling bonds was, however, refused and those interest payments were never
resumed.

Eventually, bankruptcy proceedings were instituted wherein the

Barcelona Traction Company was declared bankrupt. In its Memorial of June 15,
1959, the Belgian government asked the International Court of Justice to decide
that the behavior of the organs of the Spanish state in declaring the Barcelona
Traction Company in bankruptcy in seizing then liquidated its assets was contrary
to international law, and that the Spanish state was responsible for the resulting
injury.

The court ruled that Belgium had claims of the Belgian stockholders.

Rejecting the claim of Belgium, the Court said in part:

… the claim is presented on behalf of natural and juristic persons alleged

to be Belgian Nationals and shareholders in the Barcelona Traction, Light and
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Power Company, Limited. The submissions of the Belgian government make it

clear that the object of its application is requiring action for damage allegedly
caused to these persons by the conduct, said to be contrary to international law,
of various organs of the Spanish state, towards at that company and various other
companies in the same group.

… the States which the present case principally concerns are Belgium, the
national state of the alleged shareholders, Spain, the state whose organs are
alleged to have committed the unlawful acts complaint of, and Canada the state
under whose loss Barcelona traction was incorporated and in whose territory it
has its registered office. Thus, the court has to deal with a series of problems
arising out of a triangular relationship involving the state whose Nationals are
shareholders in a company incorporated under the loss of another state, in whose
territory it has its registered office, the state his organs are alleged to have
committed against the company unlawful acts prejudicial to both it and its
shareholders; and the state under whose laws with the company is incorporated
and whose territory it has its registered office.

When a State admits into its territory foreign investments or foreign

Nationals, whether natural or juridical persons, it is bound to extend to them the
protection of the law and assumed obligations concerning the treatment to be
afforded them. These obligations, however, are neither absolute nor unqualified.
In particular, an essential distinction should be drawn between the obligations of
a state towards the international community as a whole, and those arising vis-a-
vis another state in the field of diplomatic protection. By their very nature of the
former or the concern of all states. In view of the importance of the rights
involved, all states can be held to have legal interest in their protection they are
obligations erga omnes.

Such obligations derive for example in contemporary international law

from the outlawing of acts of aggression and of genocide as also from the
principles and rules concerning the basic rights of the human person including
protection from slavery in racial discrimination some of the corresponding rights
of protection have entered into the body of general international law others are
conferred by international instruments over universal or quasi-universal
character.

Obligations the performance of which is the subject of diplomatic

protection are not of the same category. It cannot be held, when one such
obligation in particular is in question, in a specific case, that all states have legal
interest in its observation in order to bring a claim in respect of the bridge of such
an obligation, a state must first establish its right to do so for the rules on the
subject pressed on two suppositions:

“the first is that the defendant state has broken an obligation towards the
national state in respect of its Nationals. The second is that only the party to
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whom an international obligation is due can bring a claim in respect of its breach.
(Reparation for Injuries Suffered in the Service of the UN, Advisory opinion, ICJ
Reports 1949, pp. 181-182.)

In the present case, it is therefore essential to establish whether the

losses allegedly suffered by Belgian shareholders in Barcelona Traction were the
consequence of the violation of obligations of which they are the beneficiaries. In
other words, has a right of Belgium been violated on account of its nationals
having suffered infringement of their rights as shareholders in a company not of
Belgian nationality?

Since the general rule on the subject does not entitle the Belgian
government to put forward the claim in its case, the question remains to be
considered whether, nonetheless, as the Belgian government has contended
during the proceedings, considerations of equity did not require that it be held to
possess right of protection... a theory has been developed to the effect that the
state of the shareholders has a right of diplomatic protection with the state whose
responsibility is invoked is the national state of the company. Whatever the
validity of this theory may be, it is certainly not applicable to the present case,
since Spain is not the national state of Barcelona Traction.

On the other hand, the Court considers that in the field of diplomatic
protection, as in all other fields of international law, it is necessary that the law be
applied reasonably. It has been suggested that if in a given case it is not possible
to apply the general rule, that the right of the diplomatic protection of a company
belongs to each national state, considerations of equity might call for the
possibility of protection of the shareholders in question by their own national
state. This hypothesis does not correspond to the circumstances of the present
case.

For the above reasons the court is not of the opinion at that in the
particular circumstances of the present case jus standi is conferred on the Belgian
government by considerations of equity.

3. Eritrea-Ethiopia Claims Commission, Partial Award, Civilian Claims (PCA, 2004)

Following the breakout of armed conflict between the Federal Democratic
Republic of Ethiopia (“Ethiopia”) and the State of Eritrea (“Eritrea”) in May 1998, the
governments of Ethiopia and Eritrea “permanently terminate[d] military hostilities
between themselves” pursuant to an agreement signed in Algiers on 12 December 2000
(the “Algiers Agreement”).

Two commissions were established under the Algiers Agreement. Article 4

provided for the establishment of a Boundary Commission and Article 5 provided for the
establishment of a Claims Commission.

The Claims Commission was established to “decide through binding arbitration all
claims for loss, damage or injury by one Government against the other” related to the
armed conflict and resulting from “violations of international humanitarian law, including
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the 1949 Geneva Conventions, or other violations of international law.” The Parties were
entitled to submit claims on their own behalf and on behalf of their nationals (including
both natural and legal persons), or in appropriate circumstances, persons of Ethiopian or
Eritrean origin who were not nationals.

The Commission was seated in The Hague with the Permanent Court of
Arbitration serving as registry.

Between July 2001 and August 2001, the Commission held hearings on significant
questions related to jurisdiction, procedure and possible remedies. The Commission
addressed these issues in Decisions 1-5, issued in August 2001.

In October 2001, the Commission adopted its Rules of Procedure following

consultation with the Parties. These rules were based on the Permanent Court of
Arbitration Optional Rules for Arbitration Disputes Between Two States.

The Parties filed their claims by 12 December 2001, addressing matters including
the conduct of military operations in the front zones, treatment of prisoners of war,
treatment of civilians and their property, diplomatic immunities and the economic impact
of certain government actions during the conflict.

The Commission decided to bifurcate proceedings, dealing first with issues of

liability and reserving the determination of damages for a later stage. The Commission
heard: the prisoner of war claims in December 2002; the Central Front claims in November
2003; the Home Front claims in March 2004; and the remaining liability claims in April
2005. The Commission held two rounds of hearings on damages in April 2007 and May
2008.

In total, the Commission delivered 15 partial and final awards on liability and
concluded its work on 17 August 2009, when it delivered its final awards on damages.

Convention Relating to the Status of Stateless Persons (1954)

Article 1. - Definition of the term "stateless person" 1. For the purpose of this
Convention, the term "stateless person" means a person who is not considered
as a national by any State under the operation of its law. 2. This Convention shall
not apply:
(i) To persons who are at present receiving from organs or agencies of the United
Nations other than the United Nations High Commissioner for Refugees
protection or assistance so long as they are receiving such protection or
assistance;
(ii) To persons who are recognized by the competent authorities of the country
in which they have taken residence as having the rights and obligations which
are attached to the possession of the nationality of that country;
(iii) To persons with respect to whom there are serious reasons for considering
that:
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( a ) They have committed a crime against peace, a war crime, or a crime

against humanity, as defined in the international instruments drawn up
to make provisions in respect of such crimes;
( b ) They have committed a serious non-political crime outside the
country of their residence prior to their admission to that country;
( c ) They have been guilty of acts contrary to the purposes and principles
of the United Nations.
Article 2. - General obligations. Every stateless person has duties to the country
in which he finds himself, which require in particular that he conform to its laws
and regulations as well as to measures taken for the maintenance of public
order.
Article 3. - Non-discrimination. The Contracting States shall apply the provisions
of this Convention to stateless persons without discrimination as to race, religion
or country of origin.
Article 4. - Religion. The Contracting States shall accord to stateless persons
within their territories treatment at least as favourable as that accorded to their
nationals with respect to freedom to practise their religion and freedom as
regards the religious education of their children.
Article 5. - Rights granted apart from this Convention. Nothing in this Convention
shall be deemed to impair any rights and benefits granted by a Contracting State
to stateless persons apart from this Convention.
Article 7. - Exemption from reciprocity.
1. Except where this Convention contains more favourable provisions, a
Contracting State shall accord to stateless persons the same treatment as is
accorded to aliens generally.
2. After a period of three years' residence, all stateless persons shall enjoy
exemption from legislative reciprocity in the territory of the Contracting States.
3. Each Contracting State shall continue to accord to stateless persons the rights
and benefits to which they were already entitled, in the absence of reciprocity,
at the date of entry into force of this Convention for that State.
4. The Contracting States shall consider favourably the possibility of according to
stateless persons, in the absence of reciprocity, rights and benefits beyond those
to which they are entitled according to paragraphs 2 and 3, and to extending
exemption from reciprocity to stateless persons who do not fulfil the conditions
provided for in paragraphs 2 and 3.
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5. The provisions of paragraphs 2 and 3 apply both to the rights and benefits
referred to in articles 13, 18, 19, 21 and 22 of this Convention and to rights and
benefits for which this Convention does not provide.
Article 8. - Exemption from exceptional measures.
With regard to exceptional measures which may be taken against the person,
property or interests of nationals or former nationals of a foreign State, the
Contracting States shall not apply such measures to a stateless person solely on
account of his having previously possessed the nationality of the foreign State in
question. Contracting States which, under their legislation, are prevented from
applying the general principle expressed in this article shall, in appropriate cases,
grant exemptions in favour of such stateless persons.
Article 11. - Stateless seamen. In the case of stateless persons regularly serving
as crew members on board a ship flying the flag of a Contracting State, that State
shall give sympathetic consideration to their establishment on its territory and
the issue of travel documents to them or their temporary admission to its
territory particularly with a view to facilitating their establishment in another
country.
Article 12. - Personal status
1. The personal status of a stateless person shall be governed by the law of the
country of his domicile or, if he has no domicile, by the law of the country of his
residence.
2. Rights previously acquired by a stateless person and dependent on personal
status, more particularly rights attaching to marriage, shall be respected by a
Contracting State, subject to compliance, if this be necessary, with the
formalities required by the law of that State, provided that the right in question
is one which would have been recognized by the law of that State had he not
become stateless.
Article 13. - Movable and immovable property.
The Contracting States shall accord to a stateless person treatment as favourable
as possible and, in any event, not less favourable than that accorded to aliens
generally in the same circumstances, as regards the acquisition of movable and
immovable property and other rights pertaining thereto, and to leases and other
contracts relating to movable and immovable property.
Article 15. - Right of Association.
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As regards non-political and non-profit-making associations and trade unions the

Contracting States shall accord to stateless persons lawfully staying in their
territory treatment as favourable as possible, and in any event, not less
favourable than that accorded to aliens generally in the same circumstances.
Article 16. - Access to courts
1. A stateless person shall have free access to the courts of law on the territory
of all Contracting States.
2. A stateless person shall enjoy in the Contracting State in which he has his
habitual residence the same treatment as a national in matters pertaining to
access to the courts, including legal assistance and exemption from cautio
judicatum solvi .
3. A stateless person shall be accorded in the matters referred to in paragraph 2
in countries other than that in which he has his habitual residence the treatment
granted to a national of the country of his habitual residence.
Article 42. - Notifications by the Secretary-General of the United Nations.
The Secretary-General of the United Nations shall inform all Members of the
United Nations and nonmember States referred to in article 35:
( a ) Of signatures, ratifications and accessions in accordance with article 35;
( b ) Of declarations and notifications in accordance with article 36;
( c ) Of reservations and withdrawals in accordance with article 38;
( d ) Of the date on which this Convention will come into force in accordance
with article 39;
( e ) Of denunciations and notifications in accordance with article 40;
( f ) Of request for revision in accordance with article 41.
In faith whereof the undersigned, duly authorized, have signed this Convention
on behalf of their respective Governments. Done at New York, this twenty-eighth
day of September, one thousand nine hundred and fifty-four, in a single copy, of
which the English, French and Spanish texts are equally authentic and which shall
remain deposited in the archives of the United Nations, and certified true copies
of which shall be delivered to all Members of the United Nations and to the non-
member States referred to in article 35.
Convention on the Reduction of Statelessness (1961)
Article 1
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1. A Contracting State shall grant its nationality to a person born in its territory
who would otherwise be stateless. Such nationality shall be granted:
(a) at birth, by operation of law, or
(b) upon an application being lodged with the appropriate authority, by or on
behalf of the person concerned, in the manner prescribed by the national law.
Subject to the provisions of paragraph 2 of this article, no such application may
be rejected.
A Contracting State which provides for the grant of its nationality in accordance
with subparagraph (b) of this paragraph may also provide for the grant of its
nationality by operation of law at such age and subject to such conditions as may
be prescribed by the national law.
2. A Contracting State may make the grant of its nationality in accordance with
subparagraph (b) of paragraph 1 of this article subject to one or more of the
following conditions:
(a) that the application is lodged during a period, fixed by the Contracting State,
beginning not later than at the age of eighteen years and ending not earlier than
at the age of twenty-one years, so, however, that the person concerned shall be
allowed at least one year during which he may himself make the application
without having to obtain legal authorization to do so;
(b) that the person concerned has habitually resided in the territory of the
Contracting State for such period as may be fixed by that State, not exceeding
five years immediately preceding the lodging of the application nor ten years in
all;
(c) that the person concerned has neither been convicted of an offence against
national security nor has been sentenced to imprisonment for a term of five
years or more on a criminal charge;
(d) that the person concerned has always been stateless.
3.Notwithstanding the provisions of paragraphs 1 (b) and 2 of this article, a child
born in wedlock in the territory of a Contracting State, whose mother has the
nationality of that State, shall acquire at birth that nationality if it otherwise
would be stateless.
4. A Contracting State shall grant its nationality to a person who would otherwise
be stateless and who is unable to acquire the nationality of the Contracting State
in whose territory he was born because he had passed the age for lodging his
application or has not fulfilled the required residence conditions, if the
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nationality of one of his parents at the time of the person’s birth was that of the
Contracting State first above mentioned.
If his parents did not possess the same nationality at the time of his birth, the
question whether the nationality of the person concerned should follow that of
the father or that of the mother shall be determined by the national law of such
Contracting State.
If application for such nationality is required, the application shall be made to
the appropriate authority by or on behalf of the applicant in the manner
prescribed by the national law. Subject to the provisions of paragraph 5 of this
article, such application shall not be refused.
5.The Contracting State may make the grant of its nationality in accordance with
the provisions of paragraph 4 of this article subject to one or more of the
following conditions:
(a) that the application is lodged before the applicant reaches an age, being not
less than twenty-three years, fixed by the Contracting State;
(b) that the person concerned has habitually resided in the territory of the
Contracting State for such period immediately preceding the lodging of the
application, not exceeding three years, as may be fixed by that State;
(c) that the person concerned has always been stateless.

IV . STATE JURISDICTION
JURISDICTION means the authority to affect legal interests. Corresponding to the
powers of government, jurisdiction can be:
1. Jurisdiction to prescribe norms of conduct (legislative jurisdiction)
2. Jurisdiction to enforce the norms prescribed (executive jurisdiction)
3. Jurisdiction to adjudicate (judicial jurisdiction)
The scope of a state's jurisdiction over a person, thing, or event depends on the interest
of the state in affecting the subject in question. Where there are competing interests among
various states, there may be a need to establish priorities on the basis of the quality and
quantity of the linkages the various states have. For that matter, it is possible for more than one
sovereignty to have jurisdiction over the same subject matter.
International law limits itself to criminal rather than civil jurisdiction. Civil jurisdiction is a
subject for a private international law or conflicts of law.
Uanan, Claudine S. SPECIAL ISSUES IN Atty. Daniel S. Lising
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Writers of come up with five principles as follows:

1. the territoriality principle;
2. the nationality principle;
3. the protective principle;
4. the universality principle; and
5. the passive personality principle.
The first three are generally supported in customary law; the fourth finds application in
special circumstances but the fifth does not enjoy wide acceptance of course jurisdiction may
also be acquired through treaty.
TERRITORIALITY PRINCIPLE
This is the primary basis of jurisdiction and it provides that a state is free
to legislate and enforce that legislation within its territory. A state can also apply
its laws to ships flying its flag or aircraft registered with it, and persons on board.
Officials of a foreign state cannot take evidence or exercise other jurisdiction
without consent of the territorial state.
NATIONALITY PRINCIPLE
The state has jurisdiction over its Nationals anywhere in the world, based
on the theory that a national is entitled to the protection of the state wherever
he may be and thus is bound to it by duty of obedience and allegiance unless he
is prepared to renounce his nationality. To varying degrees, states have
legislation and provides that their Nationals who commit offenses abroad may
be prosecuted at home and for this purpose extradition may be available.
PROTECTIVE PRINCIPLE
The state had been excited over acts committed abroad by Nationals or
foreigners which are prejudicial to its national security or vital interest.
UNIVERSALITY PRINCIPLE
The state has jurisdiction over offense is considered as universal crimes
regardless of where committed and who committed them. Examples of such
crimes are piracy, war crimes, crimes against peace, and crimes against
humanity.
PASSIVE PERSONALITY PRINCIPLE
a state may claim jurisdiction to try an individual for offenses committed
abroad which have affected or will affect nationals of the state. The principle is
now found on various counter-terrorism conventions.
Uanan, Claudine S. SPECIAL ISSUES IN Atty. Daniel S. Lising
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CASES
1. The SS Lotus Case

Background

On August 2, 1926, just before midnight, a French mail steamer Lotus on the way to Constantinople
collided with the Turkish cutter Boz-Kourt on the high seas. The Boz- Kourt sank with the loss of 8 sailors, all
Turkish Nationals. The Lotus subsequently arrived in Constantinople which point Turkish authorities arrested
the Lieutenant Demons, the French officer in charge of the Lotus at the time of the condition, and Hassan Bey,
the captain of the Boz-Kourt, both were charged with manslaughter.

Lietenant Demons argued that the Turkish courts had no jurisdiction. This argument was rejected and
he was sentenced to 80 days imprisonment and a fine of £22.00 Hudson Bay received a slightly heavier
sentence.

The French government objected to the actions of the Turkish court the French and the Turks agreed
to submit the dispute to the Permanent Court of International Justice and submitting the dispute to the PCIJ
an agreement was drawn up according to which the court had to decide to decide:

1. Has Turkey, by instituting criminal proceedings in pursuance of Turkish law against M. Demons,
officer of the watch on board the Lotus at the time of the collision, in consequence of the loss of
the boys court having involved the death of eight Turkish sailors and passengers violated
international law?

Judgment

The court having to consider whether there are any rules of international law which may
have been violated by the prosecution in pursuance of Turkish law of Lieutenant Demons, is
confronted in the first place by a question of principle which... has proved to be a fundamental one.
The French government contends that the Turkish court, in order to have jurisdiction, should be able
to point to some title to jurisdiction recognized by international law in favor of Turkey. On the other
hand, the Turkish government takes the view that Turkey has jurisdiction whenever such jurisdiction
does not come into conflict with the principle of international law.

Though it is true that in all systems of law, the principle of the territorial character of
criminal law is fundamental, it is equally true that all or nearly all these systems of law extend their
action to offences committed outside the territory of the state which adopts them and they do so in
ways which vary from state to state. The territoriality of criminal law, therefore, is not an absolute
principle of international law and by no means coincides with territorial sovereignty.

The court therefore must a certain whether or not there exists a rule of international law
limiting the freedom of states to extend the criminal jurisdiction of their courts to a situation uniting
the circumstances of the present case.

The characteristic features of the situation of facts are as follows there has been a collision
on the high seas between two vessels flying different flags on one of which was one of the persons
alleged to be guilty of the offence, whilst the victims were on board the other.

It is certainly true that apart from special cases which are defined by international law--
vessels on the high seas are subject to no authority, except out of the state whose flag they fly. In
virtue of the principle of the freedom of the seas, that is to say, the absence of any territorial
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sovereignty up on the high seas, no state may exercise any kind of jurisdiction over foreign vessels
upon them.

But it by no means follows after a state can never, in its own territory, exercise jurisdiction
over acts which have occurred on board a foreign ship on the high seas, a corollary of the principle of
the freedom of the Seas, is that a ship on the high seas is assimilated to the territory of the State the
flag of which it flies, for, just as in its own territory, that state exercises its authority upon it and no
other state may do so. All that can be said is that by virtue of the principle of the freedom of the Seas,
the ship is placed in the same position as national territory but there is nothing to support the claim
according to which the rights of the state under whose flag the vessels sails may go farther than the
rights which it exercises within its territory properly so called. It follows at that, what occurs on the
board a vessel upon the high seas must be regarded as if it occurred on the territory of the state
whose flag the ship flies. If, therefore, a guilty act committed on the high seas produces its effects on
a vessel flying another flag, or in foreign territory, the same principles must be applied as if the
territories of two different states were concerned, and the conclusion must therefore be drawn that
there is no rule of international law prohibiting the state to which the ship on which the effects of the
offence have taken place belongs, from regarding offense as having been committed in its territory in
prosecuting, accordingly, the delinquent.

This conclusion could only be overcome if it were shown that there was a rule of customary
international law which going further that the principle stated above establish exclusive jurisdiction of
the state's flag was flown. The French government has endeavored to prove the existence of such a
rule, having recourse for this purpose to the teachings of publicist, to decisions of municipal and
international tribunals, and especially to conventions which, whilst creating exceptions to the
principle of the freedom of the Seas by permitting the war and police vessels of a state to exercise a
more or less extensive control over the merchant vessels of another state, reserved jurisdiction to the
courts of the country as is flown by the vessel proceeded against it.

In the court's opinion the existence of such a rule has not been conclusively proved.

In the first place as regards teaching of publicists and apart from the question as to what
their value may be from the point of view of establishing the existence over rule of customary law
there is no doubt true that all or nearly all writers teach that ships on the high seas are subject
exclusively to the jurisdiction of the state whose flag they fly. But the important point is the
significance attached to them to this principle; now it does not appear that in general writers bestow
upon this principle a scope differing from or wider than that explained above and which is equivalent
to saying that the jurisdiction of a state over vessels of more high seas is the same in extent as its
jurisdiction in its own territory. On the other hand, there is no lack of writers who, upon close study
of the special question, whether a state can prosecute for offenses committed on board a foreign ship
on the high seas, definitely come to the conclusion that such offenses must be regarded as if they had
been committed in the territory of the state whose flag the ship, and that consequently, the general
rules of each legal system is regard to offenses committed abroad or applicable.

In regard to precedents it should first be observed that leaving aside the collision cases none
of them relates to offences affecting two ships flying the flags of different countries and consequently
they are not of much importance in the case before the court on the other hand there is no lack of
cases in which state has claimed a right to prosecute for an offence committed on board of foreign
vessel which it regarded as punishable under its legislation.
Uanan, Claudine S. SPECIAL ISSUES IN Atty. Daniel S. Lising
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The conclusion at which the court has therefore arrived is that there is no rule of
international law in regard to collision cases to the effect that criminal proceedings are exclusively
within the jurisdiction of the state whose flag is flown.

The offense for which Lieutenant Demons appears to have been prosecuted was an act of
negligence or imprudence-- having its origin on board the Lotus, while its effects made themselves
felt on board the Boz-Kourt. These two elements are, legally, entirely inseparable so much, so that
their separation renders defense nonexistent. Neither the exclusive jurisdiction of either state, nor
the limitations of the jurisdiction of each occurrences which took place on the respective ships would
appear calculated to satisfy the requirements of justice and effectively the protect the interests of
two states. It is only natural that each should be able to exercise jurisdiction. To do so, in respect of
the incident as the whole it is, therefore, a case of concurrent jurisdiction.

V . STATE RESPONSIBILITY AND IMMUNITY

CASES ON STATE RESPONSIBILITY:
1. Chorzow Factory (PCIJ, 1927)

(The case concerned the expropriation by Poland of a factory at Chorzow contrary, as the
court held to the Geneva Convention of 1922 between Germany and Poland on upper Silesia. In this
judgment of the court ruled upon a clean by Germany have an indemnity for the damage caused by
the illegal expropriation.)

The action of Poland which the court has judged to be contrary to the Geneva Convention is
not an expropriation, to render which lawful only the payment of fair compensation, would have
been wanting, it is a seizure of property, rights and interests which could not be expropriated even
against compensation, save under the exemption of condition fixed by Article 7 of the said
convention.

It follows that the compensation due to the German government is not necessarily limited to
the value of the undertaking at the moment of dispossession, plus interest to the day of payment.
This limitation would only be admissible if the Polish government had the right to expropriate, and if
its wrongful act consisted merely in not having paid to the two companies that just price of what was
expropriated; in the present case, such limitation might result in placing Germany and interests
protected by the Geneva Convention, on behalf of which interests, the German government is acting
in a situation more unfavorable than that in which Germany and this interest would have been if
Poland had respected the said convention. Such a consequence would not only be unjust but also in
above all incompatible with the aim of Article 6 and following articles of the convention. That is to say
the prohibition in principle of the liquidation of the property rights, and interests of German
Nationals and of companies controlled by German Nationals in upper Silesia since it would be
tantamount to rendering lawful liquidation an unlawful dispossession distinguishable insofar as their
financial results are concerned.

The essential principle contained in the actual notion of an illegal act-- a principle which
seems to be established by international practice and in particular by the decisions of arbitral
tribunals is that reparation must, as far as possible, wipe out all the consequences of the illegal act,
and re establish the situation which, would in all probability, have exited if that act had not been
committed. Restitution in kind or, if this is not possible, payment over some corresponding to the
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value which restitution in kind with bear; the award, if need be, of damages for loss sustained which
would be covered by restitution in kind or payment in place of it. Such are the principles which should
serve to determine the amount of compensation due to an act contrary to international law.

This conclusion particularly applies as regards the Geneva Convention, the object of which it
to provide for the maintenance of economic life in Upper Silesia on the basis of respect for the status
quo. The dispossession of an industrial undertaking-- the expropriation of which is prohibited by
Geneva Convention then involves the obligation to restore the undertaking and, if this be not
possible, to pay its value at the time of the indemnification which value is designed to take the place
of restitution, which has become impossible. To this obligation, in virtue of the general principles of
international law, must be added that of compensating loss sustained as a result of the seizure, the
impossibility on which the parties are agreed of restoring the Chorzow Factory could therefore have
no other effect but that of substituting payment of the value of the undertaking; for restitution, it
would not be in conformity either with principles of law or with the wish of the parties to infer from
the agreement that the question of compensation must henceforth be dealt with as though an
expropriation properly so called was involved.

2. Trail Smelter Arbitration (United States v. Canada) (U.N.R.I.A.A., vol. III) (1938,1941)

The president of the United States of America and His Majesty the king of Great Britain
Ireland and the British dominions beyond the seas emperor of India in respect of the Dominion of
Canada.

Considering that the government of the United States has complained to the Government of
Canada that fumes discharged from smelter of the consolidated mining and smelting company of trail
BC have been causing damage in the state of Washington and recognizing the desirability and
necessity of effecting a permanent settlement have decided to conclude a convention for the
purposes of aforesaid...

The government of the United States and of Canada hereinafter referred to as The
Governments mutually agreed to constitute a tribunal for the purpose of deciding the questions
referred to it...

The tribunal shall finally decide the questions hereinafter referred to as The Questions set
forth here under namely:

1. weather damage caused by the trail smelter in the state of Washington has occurred
since the first day of January 1932 and if So what indemnity should be paid therefore?
2. in the event of the answer to the first part of the preceding question being in the
affirmative whether the trail smelter should be required to refrain from causing damage
in the state of Washington in the future and if so to what extent?
3. in the light of the answer to the preceding question what measures or regime if any
should be adopted or maintained by the trail smelter?
4. What indemnity or compensation if any should be paid on account of any decision or
decisions rendered by the tribunal person wanted the next two preceding questions?

The controversy is between two governments involving damage occurring in the

territory of one of them an alleged to be due to an agency situated in the territory of the other
for which damage the latter has assumed with the convention on international responsibility...

In conclusion the tribunal answers question number one in Article 3 as follows damaged
cause by the trail smelter in the state of Washington has occurred since the first day of January
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1932 and October 1 1937 and the indemnity to be paid therefore is $78,000 and it should be
complete and final indemnity and compensation for all damage which occurred between such
dates.

As Professor Eagleton puts it Responsibility of States in International Law, 1928, “A state

owes at all times a duty to protect other states against injurious acts by individuals from within
its jurisdiction”. A great number of such general pronouncements by leading authorities
concerning the Judy over state to respect other States and their territory have been presented to
the tribunal this principle as such has not been questioned by Canada but the real difficulty often
arises rather than when it comes to determine what is deemed to constitute an injurious acts.

Considering the circumstances of the case, the Tribunal holds that the Dominion of
Canada is responsible in international law for the conduct of the Trail Smelter. It is, therefore, the
duty of the government of the Dominion of Canada to see to it that this conduct should be in
conformity with the application of the Dominion under the international law as here in
determined.

Tribunal, therefore, answers question #2 as follows, so long as the present conditions in

the Columbia River Valley prevail the trail smelter shall be required to refrain from causing any
damage through fumes in the state of Washington.

CASE IN IMMUNITY:
1. The Schooner Exchange v. McFaddon (supra.)

Immunity ratione personae

Diplomatic Immunity
Immunity ratione materia
Foreign State Immunity
Consular Immunity
Immunity of other official
Act of State Doctrine
Immunity of International Organizations
Sovereign Immunity of Warship
Immunity of other Government Property

VI . PH PRACTICE IN INTERNATIONAL LAW

Theories concerning the relationship between IL and ML
MONISM DUALISM
There is no substantial distinction between IL and ML are independent of each other and
international and municipal law. It supposes both systems are regarded as mutually
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that IL and ML are simply two components of exclusive and independent. They exist side by
a single body called “law" side within different spheres of action—the
international plane and domestic plane
Where municipal legislations permit the NATURALIST VIEW: The primary function
exercise of OL rules, this is on the sufferance of all laws is concerned with the well-being of
as it were and is an example of the supreme individuals, and advocates the supremacy of
authority of the state within its own domestic IL as the best method available of attaining
jurisdiction, rather than any influence this.
maintained by IL within the internal sphere. HIERARCHICAL VIEW: Since the same
definition of “law” appertains within both the
internal sphere and the international sphere, a
logical unity is forged, and because states owe
their legal relationship to another to the rules
of IL, it follows that the IL is superior to or
more basic than ML.
a. TREATIES
A treaty is an international agreement concluded between states in written form
and governed by international law, whether embodied in a single instrument or in two or
more related instruments whatever its particular designation.
TREATY MAKING, IN GENERAL
Accession
Accession is the process whereby a non signatory state later becomes a party to
a treaty.
Kinds:
Accession proper
Adhesion/ Adherence
Ratification
Act by which the state formally accepts the provisions of a treaty concluded by
its representative.
General Rule on Interpretation of Treaties (ANIE-SC)
1. Actuality
2. Natural and Obligatory
3. Integration
4. Effectiveness
5. Subsequent Practice
6. Contemporaneity
Uanan, Claudine S. SPECIAL ISSUES IN Atty. Daniel S. Lising
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THE TREATY POWER

1987 Constitution
Art. II, Sec. 2: The Philippines renounces war as an instrument of national policy,
adopts the generally accepted principles of international law as part of the law of
the land and adheres to the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations.
Art. VII, Sec. 21: SECTION 21. No treaty or international agreement shall be valid
and effective unless concurred in by at least two-thirds of all the Members of the
Senate.
Art. VIII, Sec. 5(2)(a): All cases in which the constitutionality or validity of any
treaty, international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation is in question.
Vienna Convention on Law of Treaties
Article 27 Internal law and observance of treaties A party may not invoke the
provisions of its internal law as justification for its failure to perform a treaty.
This rule is without prejudice to article 46.
Exec. Order No. 459, Guidelines in the Negotiation of International Agreements
and Its Ratification (1997)
Extradition and Deportation
Extradition the removal of one accused from the requested state with the object
of placing him at the disposal of foreign authorities to enable the requesting state or
government action with any criminal investigation directed against him or the execution
of a penalty imposed on him under the penal or criminal law of the requesting state or
government.
It is a sui generis proceeding tracing its existence wholly treaty obligations
between different nations. It is not a criminal proceeding ,it is not a trial to determine the
guilt or innocence of the potential extraditee, nor is it a full blown civil action but one
that is merely administrative in character. (Government of HK v. Olalai Jr., GR No.
153675, April 19, 2007.)
EXTRADITION DEPORTATION
Surrender by force of a wanted person by the expulsion of an unwanted or undesirable alien
requested state with the requesting state
Pursuant to a treaty made by the requesting exercise of sovereignty and a decision made
state and the requested state by the state
For the benefit of the requesting state order of a state acting on its own and
according to its law interest in processes
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VII . THE USE OF FORCE

a. Jus in bello defines standards by which a country can conduct war and the actions
during the war should be just and fair. It is a group of principles intended as
guidelines for the just prosecution of war. Jus in bello includes two principles of
discrimination and proportionality.
The Principles of Jus Ad Bellum. The other principles central to jus ad bellum
are right authority, right intention, reasonable hope, proportionality, and last
resort. ... For example, if the only way to secure peace is to annex a belligerent
neighbor's territory, proper intention is linked to pursuing self-interest.
b. Self-defense in international law refers to the inherent right of a State to use of
force in response to an armed attack. Self-defense is one of the exceptions to the
prohibition against use of force under article 2(4) of the UN Charter and
customary international law.
c. Intervention is another form of self-help, an attempt to settle a dispute by
interference in the affairs of another State. Intervention is basically illegal, as it
violates the sovereignty of the state.
Usually, a State interferes in the affairs of another State in order to settle a dispute
in such a manner as to result in advantage to the intervenor. There were several
instances when the US and other States intervened in the affairs of other States.
d. That review Sam is the latest and most dreadful threat to international peace most
people around the world or a loss of the seemingly senseless killing of innocent
victims and reckless destruction of property terrorism has been defined as a
dramatic and life threatening violence for including a political change.
The said definition, the 9/11 destruction of the World Trade Center, killing
several thousands of office workers in New York city and the Pentagon at
Washington DC. The almost daily bombings mostly suicidal because by
Palestinian Fundamentalists in Israel, the railway station is in Madrid, and the
killing of children in Russia, the bombing in front of the Australian embassy in
Jakarta, may be motivated by the antagonism against the Western powers by
Muslim extremists.
But the more bombings over resort in Bali, Indonesia, and hotel in Jakarta, in Iraq,
Saudi Arabia, all predominantly Muslim countries many not be motivated by
political and ideological change. More puzzling, however, are the bombings of
Muslim mosques in Muslim countries.

VIII . DISPUTE SETTLEMENT UNDER INTERNATIONAL

LAW
a. Diplomatic Means
Uanan, Claudine S. SPECIAL ISSUES IN Atty. Daniel S. Lising
INTERNATIONAL LAW

The key provisions in the UN charter or the following:

Article 33
1. The parties to any dispute, the continuance of which is likely to
endanger the maintenance of international peace and security shall, first of
all seek solution by negotiation, enquiry, mediation, conciliation,
arbitration, judicial settlement, resort to regional agencies or
arrangements, or other peaceful means of their own choice.
2. The Security Council shall when it deems necessary call upon the
parties to settle their dispute by such means.
Article 36
1. The Security Council may, at any stage of a dispute of the nature
referred to in article 33, or over situation of like nature, recommend
appropriate procedures or methods of adjustment.
2. The Security Council should take into consideration any
procedures for the settlement of the dispute which have already been
adopted by the parties.
3. When making recommendations under this article the Security
Council should also take into consideration that legal disputes should as a
general rule be referred by the parties to the International Court of Justice
in accordance with the provisions of the statute of the court.
Article 37
1. Should the parties to a dispute of the nature referred to in article 33
failed to settle it by the means indicated in that article, they shall refer it to
the Security Council.
2. If the Security Council deems that the continuance of the dispute
is in fact likely to endanger the maintenance of international peace and
security, it shall decide whether to take action under article 36 or to
recommend such terms of settlement as it may consider appropriate.
Article 38
Without prejudice to the provisions of articles 33 to 37 the Security Council
may, if all the parties to any disputes or request make recommendations to
the parties with a view to a pacific settlement of the dispute.
The peaceful means of settling disputes mentioned in the charter may be
classified into: a. non judicial methods; b. quasi judicial method arbitration; and c.
judicial method. Another way of classifying them is into diplomatic and judicial
methods.
b. Compulsory Binding Settlement Procedures
Uanan, Claudine S. SPECIAL ISSUES IN Atty. Daniel S. Lising
INTERNATIONAL LAW

i. Jurisdiction
i. Competence-competence
ii. Instruments conferring Jurisdiction
iii. Existence of Legal Dispute
ii. Admissibility
i. Legal Interest
ii. Non-exhaustion of Local Remedies
iii. Non-liquet
c) Provisional Measures
Article 41
1. The Court shall have the power to indicate, if it considers that circumstances so
require, any provisional measures which ought to be taken to preserve the respective
rights of either party.
2 . Pending the final decision notice all the measures suggested shall forthwith be given
to the parties enter the Security Council.

REFERENCES:
Jorge R. Coquia & Miriam Defensor-Santiago, International Law and World Organization,
(2005).
Joaquin G. Bernas, Introduction to Public International Law, (2009).
San Beda Memory Aid in Political Law, (2015)
Escra
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