Cha's Typewritten Pil Notes

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notes Mendoza

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JUN E 16 Most Important Facts Covered Today: International Law No longer limited but a viable field of practice: We live in an ever interconnected world When a state enters into a contract with another state, it derogates its rights as a state and becomes a mere contracting party (can't raise domestic law rights) Opportunities present with WTO or International Criminal Law Universal Jurisdiction: any court has jurisdiction to try criminal cases deemed as criminal under international law (any court in the planet!) e.g. At Present, Spain is trying war crimes against Americans in Iraq and Palestine It's an interesting field of study

-as Apartheid was not yet prohibited by the existing set of rules then existing, then ICJ did not rule on the issue -the issue was WON there was a norm of discrimination

Overview of Relevant Topics Why are int'l norms binding? What is international law? Who makes international law? Why is it binding? Who enforces international law?

Binding nature: states accept IL as a means to achieve what is best for us

Why is the ruling on South West Africa flawed? It is flawed because it just evades the issue and it doesn't deal with the issue just because it is deemed political This shows that IL should still look into the humanitarian, moral, social purposes of law -the legal issue: you should not discriminate on the basis of color …but at the time the decision was made, discrimination is the norm! ...so if IL = RULES, would be stuck to discrimination as acceptable! …should consider instead what is good for us (policy-consideration)

HIGGINS: IL as a PROCESS and not the mere application of rules WHO MAKES DECISIONS? Those who are in authority in the states (competent authority, not just 1 branch)

Examine Actors Before, the State is deemed the only actor in International Law. Now, even Individuals and International Organizations are subjected to International Law Elements of a State Territory Population Sovereignty (Capacity to enter into a treaty, international agreements) Government

IL is a process of decision-making made by competent authorities as part of a normative system wherein the goal is to determine how to achieve what is best for us 1.

In case of conflict, what applies? International law or domestic law? On Territory: Base Line Law UNCLOS New Legal Regimes (Continental Shelf) Concepts Peculiar to States Sovereignty Jurisdiction: exercise of legal competence

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Make IL more dynamic, not stuck with old rules -more reflective of IL -less vacuum (lacunae): existing rules may not be applicable to new phenomena

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Narrows the gap between Lex Lata and Lex Ferenda Lex Lata: law as it is Lex Ferenda: law as it might be -the lex lata (which is what formalists use to interpret IL) may be the Lex Ferenda when IL is considered as a decision-making process, as we make lex ferenda the lex lata

Treaty: one entered into by parties e.g. NBN-ZTE Project Other Actors International Organizations: Are they at par with States? e.g. Can the WHO enter into a treaty with another state? JUN E 18 Law why is it there was already law since time immemorial? Even indigenous communities have laws, showing it is not related to the development of the States Why there are laws *social order and regulation -is it always the case that without law, there would be chaos? -Law = norms + values -it's a normative conduct Normative Conduct vs. Normative Sstem CONDUCT: sense of obligatory norms SYSTEM: the WHY: We have normative conduct because it is prescribed by a normative system Why traditional definition of IL as rules should be disregarded IL should be seen as a decision-making process Seeing IL as Rules follow the positivist approach wherein law is set by a sovereign power SOUTH WEST AFRICA CASES (1962) -judge Fitzmaurice refused to rule on the issue of Apartheid because it is a political issue; instead, Fitzmaurice used the traditional definition of IL as rules to rule on the issue

ADVANTAGES of looking at IL as a Decision-making process It restates why we have law in the first place: achievement of societal ends Same sex marriage -decision on who to marry is a personal choice, private decision, and the state should not interfere/limit this decision to respect personal claim -if apply rule = IL: same sex marriage is not allowed

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Criticisms Difficult to know what to apply Vs. you'll know what to apply based on desired goals Less legal (banishes the image of the judge as cold and impartial) Vs. in making choices to achieve what is best for us, consider what is humanitarian, political, economical… Basic problem with this critic: it isolates IL from politics e.g. we can't avoid considering political issues in decision making NATURE of IL Domestic law: Vertical: there's a sovereign from which the law emanates and enforces the law IL: Horizontal: sovereign states are treated as equals and thus the law emanates from all of them and there is no central sovereign which imposes a norm which should be followed SO WHERE DO WE FIND RULES? Breach of a criminal law in the Philippines vs. in other international community -enforcing body: present in domestic law, non in IL So why is IL still binding even if there is no enforcing body? Law is not always for sanctions. It prescribes conduct. It is not the function of laws to provide penalties and no requirement of an enforcing power for a law to be binding. Civil code of the Philippines: it does not require an enforcing body for it to be enforced!

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But there are sanctions in IL: *principle of universal jurisdiction: an international crime may be prosecuted in any state *prescription not applicable: an international crime may be prosecuted even after several years *UN enforcement pressures *immunity from suits not applicable as a defense in IL

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conventions, and such, the said violations are not considered crimes in the Philippines so he cannot be charged with it H: Art II, Section 3 of the Constitution at that time (incorporation clause) makes generally accepted principles of IL (GAPIL) part of the law of the land. Since the provisions of the Geneva and Hague Conventions merely restated the GAPIL on war crimes at that time, these provisions are deemed part of the law of the Philippines -protection of civilians is part of GAPIL -but sabi ni sir: the incorporation clause is really not needed to make GAPIL binding as GAPIl is accepted as binding by civilized nations (Perfecto, separate opinion in Yamashita vs. Styer) JUN E 23 YAMASHITA VS. STYER CASE F: Yamashita, previously a POW, is now being charged with War Crimes. He filed a petition for prohibition and habeas corpus, requesting that he be reinstated as a POW and assailing the jurisdiction of the Military Commission to try his case on the ff grounds: a. No notice to Spain, his protective state b. MC has no jurisdiction as RP is not anymore an occupied state c. Not war anymore. SO MC cannot claim that it was constituted in pursuance to war

WHO ARE THE SUBJECTS OF IL? Subject: the doer of the action In IL: States: in conventional (meaning treaty) IL WHY: ICJ statute only recognize States as parties in ICJ -Individuals are not considered parties though they are affected by the actions of their states International Organizations Green peace international, MNCs Individuals Directly: who files suits/ are sued? Indirectly: affected by treaties entered by the states SUBJ: one capable of rights and ascertaining them

H: petition not granted (but sir merely noted Perfecto's dissenting opinion, as follows): What is the binding nature of Humanitarian law? It has been practiced by civilized nations and accepted as binding

IN DECIDING A CASE e.g. of Breach of Contract DOMESTIC: look at the contractual relationship and determine who is right and who is wrong IL: Lauterpacht: Will base decision on claims which have varying degrees of legal merit; who presented a superior claim, not who is right vs wrong

War Crimes Penalized: accepted by all civilized states YAMASHITA & KURODA CASES COMPARED Kuroda derives binding nature of the charges from the incorporation clause while in Yamashita, the petitioner himself uses the IL Conventions to argue his case. Yamashita highlights that IL is binding because it is practiced and accepted by all civilized states

In the absence of International rules, where do you find Int'l rules? Art. 38, ICJ Statute: 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. But what is ICJ Statute? Are we saying that IL is contained only in ICJ Statute? Why is it that Art 38 is usually cited as a source of law, is IL limited to those enumerated in Art 38? NO. ICJ Statute itself recognizes that there are other sources Is one source superior to another (HIERARCHY in the SOURCES OF IL)? YES. Letters a to c are deemed equals, and are deemed more superior than subsidiary sources under letter d. TREATY -voluntary act entered into by a state -pacta sunct servanda

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CUSTOM -norm -binding WON a party consented to it -but before it is considered binding, should prove its elements first: State practice Opinio juris *it is easier to prove a treaty: it's either there or not

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CUSTOMARY LAW Elements of Customs General practice -according to North Sea Case: it should be a. extensive b. virtually uniform c. (though not highlighted by sir) practiced by states which are affected Opinio Juris: psychological belief that it is binding On Article 38 (1)(b): "International Customs as evidence of a general practice accepted as law" Source: General Practice Evidence: customs Baligtad! Customs are the concepts and it should be evidenced (or seen) through the practice of states Dapat: "International customs as evidenced by a general practice accepted as law" What to take into consideration in determining CuSTOMS? Considering states as actors, acts should be extensive, virtually uniform (not required to be identical), and these acts are performed by COMPETENT authorities of the state (who form part of the recognized state organs) NATURE of CUSTOMARY LAW in a normative system If acts contrary to norm, is the law not binding anymore? Breach of a norm could lead to a birth of a new norm IF a treaty is not a restatement of a norm, could it morph into a norm? YES. North Sea. A Conventional IL which is binding at first on the state privy to the treaty may evolve into a norm, provided it comply with the elements of a custom (general practice of affected states and opinio juris)

COULD the sources of law concur, or are they mutually exclusive? They may concur

NORTH SEA CONTINENTAL SHELF CASE What is the continental shelf? It is the natural prolongation of the land mass.

KURODA VS. JALANDONI F: Kuroda was charged with crimes based on violations of Geneva and Hague Conventions (war crimes). Kuroda then assailed the charges against him, arguing that the Philippines is not a signatory to the said

Truman Proclamation: US Claimed the continental shelf. (before, State territory is limited to the land and the sea, not the land under the sea (continental shelf)

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Shell: it's a Dutch Company which first made its killing in exploiting the North Sea Continental Shelf!

recognizing EP as an International Norm) and as to states who are not parties to the Geneva Convention, there is no proof shown that these states though EP as binding, as opinio juris (Note: this is what Dean Magi was telling his IPL class: the ICJ requires a separate proof for Opinio Juris to prove Customs when state practice itself could be the proof itself!)

So This is what the case is all about! Resources! *Denmark and Netherlands are Just Small Countries, compared to Germany which has a big land mass (and thus, territory) 1.

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Problem: shorelines of Denmark and Netherlands are Convex vs. Germany: Concave If the equidistance principle (henceforth EP) is applied, Germany would have only a small portion of the continental shelf compared to its shoreline and territory Netherlands and Denmark base their arguments on the 1958 Geneva Convention on Continental Shelf which recommends the use of EP: however, Germany is a mere signatory to the said Convention and has not ratified said convention yet Ruling of the ICJ: The 1958 Geneva Convention is not binding on Germany as Germany has not ratified it. Even if Germany has ratified the convention, it may still enter a reservation as to Article 6 which contains the application of the EP Denmark and Netherlands argue that previous conduct of Germany (public statements, proclamations) show that Germany is estopped from claiming that it does not recognize EP; however, no proof of said unilateral acts were shown by Denmark and Netherlands so it cannot estop Germany + Germany made it clear that it wanted an Agreed Division (which is the primary mode provided in the 1958 Geneva Convention) and not the EP EP is not a norm just restated in the 1958 Geneva Convention: It was just used in the convention because it was convenient. It was not even considered by the International Law Commission in drafting the 1958 Geneva Convention. It was merely recommended by the Committee of Experts which is an almost impromptu and contingent manner of propounding EP as method of delimitation (par60 2nd to the last sentence!) The 1958 Convention is not a norm-creating treaty: a. it allows reservations "…[reservations] 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" (paragraph 63) a. Article 6 puts primary obligation to delimitation by agreement, and not by EP: "such a primary obligation constitutes an unusual preface to what is claimed to be a potential general rule of law" a. Special Circumstances are also considered in the application of EP 1. EP is not a norm which was crystallized from the 1958 Geneva Convention a. Art6 is not a norm-creating provision a. General practice: lacking …"even without the passage of any considerable period of time, a very widespread and representative participation in the convention might suffice of itself, provided it included that of States whose interests were specially affected" (but in this case, the states who participated in the 1958 Geneva Convention did not use EP because most of them are "land-locked" states. (paragraph 73) …only 3 years has passed since the creation of the convention? "Although the passage of only a short period of time 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 more over have occurred in such a way as to show a general recognition (opinio juris) that a rule of law or legal obligation is involved." (paragraph 74)! …only 15 cases used the EP in delimiting continental shelf (out of the many states then existing!) but these states may just be practicing EP because of the 1958 Geneva Convention (and not

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SO, PRETEND YOU ARE A COUNSEL IN FRONT OF THE ICJ: Has to argue in the active voice Address Sir as "Your excellencies" Counsel has to call himself, "Applicant" Argument = "Submissions" In presenting evidence: "We cite the following evidence"

Denmark and Netherlands

Germany

ICJ

EP to be applied: leave parties concerned to all portions of the continental shelf that are nearer to a point on its own coast than they are to any point on the coast of the other party

Coastline front method: base the share in the continental shelf on the length of the shoreline -just and equitable share

Agreement of parties, subject to special circumstances

The Geneva Convention was formed by the International Law Convention The ILC's acts can be considered evidence of State practice as the concurrence of the states to the conventions made by the ILC show opinio juris and state practice …Nomination process to ILC: elected on perception that nominees are experts in Customary IL …ILC Codify customary norms of IL ! Their opinions are considered subsidiary sources under Article 38 (1) (d) - so should be the last argument

ILC never considered EP during its deliberations to form the 1958 Geneva Convention. Rather, it was only 1 of the 4 methods considered by the Committee on Experts and it was chosen out of convenience.

(actually, German submission is the deci of ICJ)

Germany has recognized the 1958 Convention as binding through its unilateral acts, though it has not ratified it

Germany would only be bound if it has ratified the Convention

No evidence was shown of the alleged unilateral acts of Germany which is evidence that it has accepted to be bound by the said convention

The # does not evidence virtual uniformity of the EP (as 39 out of the many number of states is just minimal)

No discussion as to status of ratification of the Geneva Convention. It was merely an introduction to the argument of Netherlands and Denmark that

Argues that EP has become an IL Custom citing the following evidence:

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# of stat es wh o ratif ied the 195

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Cha 8 Ge nev a Co nve ntio n (39) sho ws that this con ven tion is beli eve d by Stat es to be bin din g

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15 Stat es hav e app lied EP in deli miti ng thei r sha re in the Co ntin ent al she lf

Germany is bound by the 1958 Geneva Convention even if it was a mere signatory

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-initially, US contested ICJ's jurisdiction over them (they filed a multilateral treaty reservation) -since in deciding the case, ICJ cannot apply Multilateral treaties such as the UN Charter, the ICJ needed to determine WON the provisions of the multilateral treaties applicable could be equivalent to customary IL • • • • • 15 is just a minimal number of states

Article 6 can be reserved! Can't be opinio juris if states can excuse themselves from applying a norm

There is no proof that those 15 states have applied EP have recognized EP as a binding norm (no evidence of Opinio Juris)

Germany submission actually an explanation of ICJ (see above)

NICARAGUA VS. US 1986: Reagan was president of US Overt Acts of US alleged by Nicaragua Laying of mines Assistance of contras who sought to overthrow Nicaraguan Government Infringement of airspace Joint military maneuvers w/ Honduras Economic Strikes Assassination Attempts on Nicaraguan leaders Justification of US

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Collective Self-Defense: merely protecting El Salvador and other nearby Central American Countries from the offensive of Nicaraguan Government Nicaraguan Gov't is EVIL!!!! …leftist leanings, communist! (from Case: acts made as justifications by US): a. supply arms to armed groups in El Salvador b. Cross-border military attacks on Honduras and Costa Rica c. Failure to follow "Plan to secure peace" Nicaragua filed an Application against US for US to cease and desist the overt acts it has been doing

RATIO: EP is not a customary norm; No evidence of state practice and opinio juris

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What are the norms recognized in the decision? Prohibition of use of force Right of self-defense (collective Self-Defense) Principle of non-intervention State Sovereignty Why are treaties evidence of Customary IL? Status of ratification -evidence of widespread norms States agreed to be bound even if no compelling reason to do so (evidence of opinio juris) GA Resolutions -legality of use by a state of nuclear weapons would discuss the binding nature of GA resolutions UN Convention is ratified by 191 States!!! JUN E 29 *take note of evidence relied on by ICJ in providing existence of GPIL in Nicaragua Case *On Collective Self-Defense WON there is such a customary norm? >NONE. No state practice, no opinion juris …But there is an INHERENT RIGHT TO SELF-DEFENSE (A51, UN Charter) …but what is the ultimate requirement? AN ARMED ATTACK – par 195 of the case 1. Action by REGULAR ARMED FORCES across an international border 2. Sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, carries out acts of armed forces *SIR: No # required for armed forces sent to qualify it as an armed attack …can also send PRIVATE Armed forces, not necessarily that it be state’s armed forces *Concept of PROPORTIONALITY and NECESSITY Contras: Mercenaries, funded and trained by US (this became an issue) TEST: WON the contras were DEPENDENT on the support of US (EFFECTIVE CONTROL TEST) -such degree of control that contras were acting… (par109) SIR: DOESN’T AGREE: There was still evidence saying that US intervened in the sovereignty of Nicaragua *On principle of Humanitarian Law (See par 216): Laying of mines > did not warn CUSTOM IL: Why customary? Hague convention: allegedly just codified customary law ---no one wants to question IHL: unanimity in state practice JUL Y 2 No customary norm… *no state – uniform and consistent practice *no opinion juris NUCLEAR WEAPONS CASE

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notes Mendoza For 1. A51 & A42 of UN Convention allows use of force through self-defense -and this does not prohibit use of nuclear weapons 2. Principle of deterrence practiced 3. No convention entered w/c prohibits nuclear weapons >> no evidence of opinion juris 4. No prohibition in customary IL WHAT ABOUT THE HAVANA CONVENTION prohibiting the use of weapons which are unable to distinguish between civilians and combatants? >>>this does not prohibit use of nuclear weapons

Cha Against Against: Prohibition of use of nuclear weapons is custom law 1. UN Charter: prohibition on use of force 2. Hague Convention prohibiting weapons which distinguish between civilians, combatants 3. Based on character of nuclear weapons, plus principle of proportionality, it is prohibited 4. States already entered treaties which limit use of nukes

International Humanitarian Law (IHL) -should not make civilians as targets -no undue suffering to combatants *Martens clause in Hague Convention *Principle of Neutrality *What about when it is not time of war? NUCLEAR WEAPONS have adverse effects which may be contrary to IHL ICJ’s argument? I. UN Charter II. Treaties III. Customs IV. Primciples On Customs -the mere fact that you have it acts as a deterrent SO NO NEED TO USE IT! No real evidence of Opinio Juris COUNTER: You just made the Use of Nukes Legal!!! And say that it is only prohibited during armed conflict 1997: India vs. Pakistan (Nuke Arms race) -just store and process nukes…never mind if it accidentally get fired IHL applies only during armed conflict Why not made a treaty: *UN CHARTER *PROHIBITION ON BIOLOGICAL WEAPONS Biological: Organic organisms Chemical: doesn’t result from mix of chemicals… Ashpyxiating: destroys lungs first Nuclear: atomic, energy released through fusion of atoms NO ESTABLISHED TREATY On PUBLIC HEALTH ISSUE: Query is not related to discharge of official functions -not w/n competence of WHO WHO: Only concerned with public health issues PERO IF YOU DIE, ISN’T YOUR HEALTH AFFECTED???? Long term damage on Environment What about nuclear free zones treaties???? ICJ: Not evidence 1. Not an express prohibition 2. They still possess nukes 3. Only binding upon parties to the treaty 4. Reservation GA Assembly resolutions -conditions of adoptions >Voting

>series of resolutions SOM ET IM E… I DON’T KN OW WH EN JUL Y 14?? ? (Oh no! kulang ako ng pages… ) CONTINUATION OF SAUDI ARAMCO DISCUSSION 1. WON ARB can have jurisdiction vs. Saudi? YES. When it entered into a contract to Arbitrate, it went down to the level of a contracting party and gave its consent to be sued 2. What law applies? IL. The fact that you want to arbitrate, this meant that parties did not want to be subject to the domestic law of the other -follow Concession Agreement: >not the law of the investor >not law of domestic state 3. What issues to address on the basis of GPIL? What is the nature of the concession agreement? SAUDI: Admin Contract -exercise of state sovereignty -was a franchise – privilege bestowed on foreign investor which can be revoked at will ARAMCO: Contract between 2 parties -breach of contract = SP + damages ***PROBLEM: how to FORCE a state to follow the grant of relief? Agreement to arbitrate = agreement to comply with the decision How to convince Saudi Arabia? Used Koran to show to show that a Concession Agreement = Contract 4.

Since a Contract: BOC SP: can’t compel State = Impossibility to perform So damages na lang! Saudi have to pay the COST OF Pregone income

BP VS. LIBYA F: Similar to Texaco vs. Saudi Arabia (Saudi Arabia nationalized the oil extraction churva…which was initially granted through a franchise to Texaco) H: Clause 28 – Applicable Law Libya principles of law Common to GPIL Then CIL *Apply IL, but for remedies, apply Libyan Law. Libya initially refused to arbitrate, but arbitral tribunal proceeded. But for Libya to comply with the award, it used Libyan Law for remedy… ------------------------------------------------------------------------------------------------x RECOGNITION. Elements of statehood? Not an element of statehood, but an aspect of statehood Textbooks – 2 school of thought: 1. It’s an element! 2. Merely declaratory of a state of fact, not an element of statehood -but if applied in existing controversies, not clear cut Mindanao: Recognition~ self-determination When no established relations w/ other states, what makes it a state? 4 elements of statehood – definition Gives people right to become a state e.g. Western Sahara --------------------------------------x Cultural minority right ~ self-determination -there can be a violation of this w/o violation of right to selfdetermination --------------------------------------x SIR: Mindanao not proper for self-determination -but now, it’s not mostly Muslim -But Muslims have right to live as muslims – cultural minority rights -but right of self-determination accrues to all Filipinos = can’t ignore majority ---------------------------------------------x SUBJECTS OF IL -not just states: also non-governmental orgs, IOs -but states continue to be more active participants

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-STATE: 4 elements in the MONTEVIDEO CONVENTION *note that recognition is not an element as enumerated in the Montevideo convention. However, it is essential GENERAL FEATURES (4 elements of statehood, as stated in the Montevideo Convention) 1. TERRITORY: not metes and bounds e.g. Palestine – no agreed metes and bounds but have general idea where it is 2. Permanent Population -not required to be in state all the time -intent to return -right to regulate citizenship -sociological group of people: Share common history, common values 3. Government -formal structure -not needed to function e.g. Somalia -diplomatic functions 4. Capacity to enter treaties -need not be formal -willingness to enter relationships with other states -----------------------x TERRITORY -sovereignty in a territory -jurisdiction Sovereignty SOVEREIGNTY: Totality of all functions of state e.g. Administration over taxes -what states do

Jurisdiction Legal competence -power to prescribe conduct -power to enforce conduct

1 state exercising sovereignty and jurisdiction -may be regulated by treaty …but construed strictly TITLE TO TERRITORY -to the exclusion of whole world -how exercise: analogous, not identical to exercise of individual Analogous = exclusive -powers over territory: power of dominion How acquire title to territory? ISLANDS OF LAS PALMAS CASE US: Treaty of Paris = cession (Discovery of spain) Netherlands/Indonesia: Treaty/Contract of Suzerainty wherein the people in las palmas were vassals of Netherlands -Taxation -defense WHO PROVED SUPERIOD CLAIM? 1. Effective occupation 2. Discovery alone is an inchoate title –should be perfected through effective occupation -establish government in the territory – appended it to existing government SIR’s CRITICISM to the case: 1. Why did US relied on DISCOVERY??? -it is easy for it to prove effective occupation by showing Churches – Spain ruled through the Churches, as there was still unity of the Church and State 2. Successors state ha right to choose which obligations they want to inherit – so we are not bound by the treaty of Paris 3. Act a party to PCC -RP is not a party to regulation which made Permanent Court (so not bound by this decision in Islands of Las Palmas Case) 4. Spain cannot transfer rights which it didn’t have -so would not bind Philippines as Spain has no title to RP 5. Gen Wood = Governor Gneeral -discovered Dutch flag hoisted on the islands. US was not interested in occupying the islands, it was just instigated when the US flag was burned in the territory!

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Legal adviser to American Panel = Philip Jessup -believed that proximity/nearness is not a title so RP doesn’t have automatic title -BUT constructive possession of islands: Archipelago possessed as a whole 7. Max Huber – President of PCIJ -decided the Eastern Greenland case where Constructive Possession was upheld. BUT HE HATED THE AMERICANS! So did not use this principle in deciding for US August 2003: Indonesia deposited their baselines… CASE CONCERNING SOVEREIGNTY OVER PULAU LIGITAN & PULAO SIPAADAN Indonesia claims title on the islands vs. Malaysia H: For Malaysia – the Turtle Eggs did it! Light Houses -significance: construction of light houses is to help maintain safety of the seas, which is a duty/obligation arising from sovereignty -it help guides vessels -also in Las Palmas Case: Keep people safe… *not much evidence is needed for small islands. Small exercise of sovereignty for small islands -------------------------------x MINQUERS & ECRECHOS CASE – CHANNEL ISLANDS UK: 1. Ancient title + effective possession 2. Effective possession alone FRANCE: 1. Original title 2. Effective exercise of sovereignty 3. Fishery zone: islands w/n their part of the fishery zone ------------------------------(T_T) ON ANCIENT MAPS & TREATIES -insufficient, in essence, effective occupation -------------------------------------x UK WON! Criminal proceedings instituted in Jersey over a resident of the Channel Islands, Jersey is a territory of UK WESTERN SAHARA CASE Now: part of it voted to be part of Morocco 2 claims of Colonial States SPAIN: Territory is part of Spanish Colonial Rule >ICJ: Just protectorate, not occupation *on Discovery: ICJ: You can’t “discover” a territory which has inhabitants already! MOROCCO v. Mauritius >Are they Islamic? No. They were nomadic people, moving from one place to another in search of water >they look up to the Tribal Chief, no concept of sovereignty or any colonial power H: NONE Had superior claim >What happened to the inhabitants? …they have right to self-determination, so they could establish OWN …government …decide how they want to be independent ERITREA VS. YEMEN ERITREA: Succession from Italy Why? Defeat of Italy by Allied Powers Allied Powers transferred Italian territories in Africa it became TERRA Nullus as Italy did not specify to whom it has transferred the territory, when Ethiopia got it, it successfully exercised sovereignty over the territory YEMEN: Historic Title – Ancient w/ reversion ON MAPS: Only referred to land – mainland, not the islands INSTEAD, they used: evidence of occupation and geography…. -share sila! PORTICO DOCTRINE: territory w/n 12 nautical miles to coastal miles -all islands w/n territorial seas belong to the coastal state …they started shooting at each other! Very poor people shooting at each other -so they were compelled to arbitrate *NO IL DOCTRINE w/c IMPOSES ALL OR NTOHING BASIS

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SOM ET IM E IN B ETW EEN… I’M NOT SU RE THOUGH… Spratlys China *discovery *effective occupation *recognition

RP *effective occupation after Japan’s renounciation

MODES OF ACQUIRING TERRITORY 1. Effective occupation 2. Acquisitive Prescription INSUFFICIENT CLAIMS 1. Estoppels 2. Discovery, inchoate title -dapat always with EFFECTIVE OCCUPATION [ISLANDS OF LAS PALMAS CASE] 3. Possession -dapat w/ animus possidendi -only evidence of title, but not basis of claim 4. Constructive possession -nearby territory of archipelago -occupied actually 5. Contiguity -only presumption of occupation 6. Conquest -illegal! UNCLOS INTERNAL WATERS MILITARY AND PARAMILITARY – NICARAGUA V. US F: Laying mines by alleged US personnel on internal waters of Nicaragua, w/o warning both to Nicaragua and to 3rd states H: Coastal state may regulate access to its ports -coastal states’ law apply in internal waters -internal waters subject to sovereignty of coastal state -subject to RIGHT TO INNOCENT PASSAGE IN TERRITORIAL WATERS (Custom IL) -with the laying of mines, freedom of navigation hampered …as guaranteed in *EEZ *High Seas *Contiguous Zones -interference with navigation, freedom of communication & maritime commerce SAUDI V. ARAMCO F: Saudi argues that Aramco can only transport oil w/n internal waters, not on high seas H: Ports of every state must be open to foreign vessels and can only be closed when vital interests of the state so requires Territorial Sea Length: 12 nautical miles beyond (from baseline) Withd: 12 miles X: overlap w/ neighboring litoral states: Use dividing median line equidistant from opposite baselines X to X: *historic title *Special circumstances BASELINE -low-water line along the coast …marked on largescale charts …officilallyrecognized by coastal states 2 ways of drawing: 1. Normal baseline -drawn from low-water line along the coast -follows curvatures of coast -normally not straight lines LOW-WATER MARK (ANGLO-NORWEGIAN FISHERIES CASE): mean between high and low tides 2. Straight baselines -for archipelagic states -drawn connecting selected points on the coast w/o appreciable departure from the general shape of the coast

-used in ANGLO-NORWEGIAN FISHERIES CASE (okay, ano ba talaga?) -guidelines: Art7, UNCLOS (4) (1) must not depart to any appreciable extent from the general shape or direction of the coast (2) internal waters: sea areas lying within the lines sufficiently shall not closely link to land domain (3) use low- tide elevations as baselines (so mas malawak kasi pag low-tide mas malayo ung land from the main land) X: lighthouses permanently built above sea level + baseline to and from a low-tide elevation received general recognition +A13(1), UNCLOS: If situated wholly or partly at a distance of not more than 12n.miles from mainland or an island (4) Economic interests peculiar to the region concerned, as evidenced by long usage + Can’t cut off the territorial sea of another state (from EEZ/High seas) Limits to sovereignty over territorial sea: subject to innocent passage Innocent passage: -continuous and expeditious navigation -not prejudicial to the *peace *good order *security …of the coastal state WHEN PREJUDICIAL 1. Threat/use of force 2. Use of weapons 3. Collect information to the prejudice of defense of other state 4. Propaganda 5. Defense, security 6. Aircraft launching, landing, taking on board 7. Military device 8. Loading/unloading -se page 193 of brownlie Criminal Jurisdiction GR: Flag state has jurisdiction over the vessels found in the territorial sea X: A29, Convention on Territorial Sea 1. Effects extend to coastal state 2. Disturbs peace of country 3. Ship’s master requested assistance of coastal state 4. Suppress illicit traffic of narcotic drugs Civil jurisdiction -can’t stop to exercise civil jurisdiction in re person on board -if against the vessel GR: Can’t levy X: obligation/liabilities assumed by ship itself in the course or for purpose of voyage through waters of the coastal state On anchoring/stoppage: GR: Not innocent passage – you’ve stopped eh X: 1. Incidental to navigation 2. necessary by force majeure 3. distress ANGLO-NORWEGIAN FISHERIES CASE F: Norway In 1935: Norway issued a decree which delimited certain fisheries zone exclusively reserved to its nationals -delimitation used straight baselines method HISTORY *British fisherman fished off Norwegian coast since 1906 1812: Norway decree: 4 mi fishery limit 1869, 1991, 1889 Norway decree: already used Straight lines drawn from certain outermost parts of the Skjaergaard (rampart of rocks and islands which fringes much of Norway’s coast) -UK protested: After series of incidents involving British fishing vessels: ayaw UK ng Straight baselines, gusto nya ung normal baselines H: For NORWAY *Acquiescence: UK did not protest straight baselines method used by Norway until 1933

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notes Mendoza *Historic Title *Acceptance: constant and sufficiently long practice *In accordance w/ IL (no IL rule prohibiting it) ICJ: Straight baseline -baseline could only be determined by means of geometric construction -HOW: selecting appropriate points on the low-water mark and drawing straight lines between them UK: Straight lines must not exceed 10mi ICJ: No GR that it must not exceed 10mi -coastal state in best position to appraise local condition dictating selection *BASIC CONSIDERATIONS: Now A7, UNCLOS (only 3 enumerated here, not 4) EL SALVADOR V. HONDURAS ISSUE: Island of Fonseca – dispute arose – tension between El Salvador and Honduras – led to 1969 armed conflict -here, UTI POSSIDENDI argued– but since ambiguous: possession and exercise of sovereignty used to rule instead HELD *RE ISLANDS: >El Tigre to Honduras: Honduras remained in Effective occupation and contemporary assumption >Meangueara & Meanguerita to El Salvador: as evidenced by *Circular letter w/ ES’s claim *1856 & 1879 ES Official journal reports of administrative acts over the islands *No protest of Honduras, only in 1991 *Post liberation: Administrative acts of ES intensified, w/o protest from Honduras *Testimony of a resident, which was not challenged by Honduras *RE: FONSECA BAY -3n. mile – territorial waters – 1917 central American Court of Justice -beyond: Condominium – shared among Honduras, ES, and Nicaragua US VS. CALIFORNIA F: History 1st case: US v. CALIF – 1945 US Claims dominion over Submerged lands Mineral rights …under 3 miles belt of sea off coast of California H: US has exclusive dominion over it; as for the 3 miles before it, it is considered inland water of California Then problem: US wantedto have award in greater degree Court appointed a SPECIAL MASTER to specify outer limit of inland waters SPECIAL MASTER: Use Boggs Formula to determine inland waters -only a bay having a closing line across its mouth of no more than10miles in lenth and enclosing a sufficient water area: draw belt around the shore of the indentation having width equal to ¼ the length of the closing line across entrance >compare area inside the closing line with area of a semicircle with the diameter of ½ length of the closing line >if enclosed area is greater than a semicircle = inland water -Submerged lands act: states granted title and ownership to lands beneath navigable waters w/n boundaries of respective state -include seaward boundaries of state as existed at the time they became members of the union Max: 3 geographical miles from the coast *coastline: composite line of low-water along portion of coast w/c is in direct contact with open sea Inland waters not defined so the issue was with regards the interpretation of what inland waters are -Outer Continental Shelf Lands Act 3 mi from coastline: State After that: US …natural problem: lumalalim ang Califoria coast -but when drilling techniques improved, go ulit! ISSUE: Interpretation ng Inland waters US: Lie used by special master = coastline CALIF: Use historic title

Cha H: Interpretation of inland waters, in accordance w/ intent of Congress, was to be elaborated by Courts >>>SPECIAL MASTER -no internationally accepted formula for inland waters so used US position in conduct of foreign affairs -used California Decree of 1947: bays only inland water if closing line could be drawn less than 10 mi long enclosing sufficient water area to satisfy the Boggs formula -but now, US Signatory to Convention on Territorial Sea & Contiguous Zone: used Semi-circle test + 24 mi closing line (which is deemed the stand of US in its foreign relations) *the court adopted the definition of the Convention on Territorial Sea: single coastline for SLA and International Relations Calif: Inland waters embraces all ocean areas w/n state’s historic seaward boundaries, re boundaries at the time they joined the union *Court: NO: undermine definiteness as it was vague Straight Baselines -CALIF: since Convention applicable to those which use straightbaseline and California coastline deeply indented, California free to use straight baseline *COURT: No. Choice of which method to use depends on the Federal state! 24 mi closing rule >Monteray bay = inland water >Santa Barbara Channel = not a bay, historically nor fictitiously so not inland HISTORIC inland water Calif: all are historic inland water *COURT: only federal state can claim Won a water is historic Straits -used to navigate between 1 high sea/EEZ to another High Sea/EEZ -allowed: exercise of Transit passage TUNISIA VS. LIBYA -can’t use natural prolongation since they share same continental shelf (they are adjacent states, with share to continental shelf thatoverlaps -2 lines 1st line: de facto, employed by each party in dividing petroleum concessions 2nd line: take into account change in direction of coast -extend outer limit of territorial sea until intersect with parallel of latitude of the point on the coast of Gulf of Gabes? -Kerkennah Islands surrounded by islets and low-tide elevations >use Half-effect …1 line give full effect ….2nd line no effect …bisector line would be the line to be applied Anglo-French Arbitration F: Delimitation of continental shelves of France and UK in North Sea H: Geological features >same conventionof 1958 But can’t apply equidistance principle, dapat by agreement SOM ET IM E ULIT… Notes on Map Cases FRONTIER DISPUTE (BURKINA FASO V. MALI) 2 colonies of France: applied Uti Possidendi Juris -French Effectivities >several orders >several decrees making territorial boundaries *on estoppels of Mali: Head of Mali agreed to Map ICJ: Mali not stopped. Map-making not finished, just draft *Effectivities *ORAL PETITION? ICJ Appoint 3 experts to delimit SIR: Court only ascertain colonial boundaries, they were not the ones to delimit LIBYA VS. CHAD -there was a treaty whereby the boundary between the two countries were agreed: TREATY OF 1955: Between Italy(Chad) and France(Libya) LIBYA: No boundary exist …the treaty was already expired

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notes Mendoza

Cha

…the treaty was entered by the colonial state, not by Libya CHAD: there is an existing boundary ICJ: Chad won, boundary existing from the treaty was used …the treaty, although expired, was still binding and has a life on its own ANGLO-NORWEGIAN FISHERIES CASE F: British incursions became bigger and more frequent on Norway’s fishing area Both agree 4 miles territorial waters, but does not agree on where to start baseline UK’s: baseline from the mainland Norway: Straight line: from the farthest point of the Skaarjaerd… COURT: Consider Geographical considerations Now: How long? 10 miles vs. longer? LONGER ON INDRELEIA UK: Straight ICJ: not a straight! Internal waters ON UNILATERAL DELIMITATION ICJ: It is necessarily a unilateral act. Basta sundin guidelines (A7, UNCLOS) SIR: This is the first time straight baselines method was used. Connected with the outermost points of the skaarjaerd ON USE OF LOW WATER MARK: unfair naaman kasi masyadong malayo ON ECONOMIC INTEREST: Fisherman of UK? Pano na? ICJ: still have right to Fish on it because of long usage Should not cut… Archipelagic States Include rocks Max length of baseline! 1:1 to 1:1 (water land) -must not have too much water naman, or else, din a kayo archipelago + to avoid using offshore islands from being base points

Straight Baseline Outermost points of the islands

CLIPPERTON ISLANDS (FRANCE VS. MEXICO) France won because of a Publication…in Hawaii pa! -Mexico failed to present evidence of historical right and Sovereignty over islands -terra nullus sha, so when France found it, France could claim it as theirs *there’s not much required to be proven when small island involved + uninhabited when found UNDER DOMESTIC LAW: notice to the whole world = exercise of ownership

High seas Deep sea - common heritage of mankind Internal waters - complete exercise of sovereignty Internal waters ( no ship can sail w/o consent) vs. territorial sovereignty (compromise)

1. 1. 1. 1.

Contiguous zone -not mandatory -4 different jurisdiction: Custom Health Pollution Sanitary EEZ -no sovereignty, just sovereign rights to exploit States can be entitled to additional 150 nautical miles if evidence presented that natural prolongation of land mass extends beyond the 200 miles Regime of straits -straits cnnect 2 high seas: state cannot prevent transit passage (no other route) Archipelagic regime -in PI: Territory is by Treaty of Paris -anything inside "box" is Internal waters, not Territorial waters BUT: UNCLOS came up with archipelagic waters (internal passage allowed) Archipelagic waters: innocent passage and overflight

JUL Y 28 , TU ESDA Y UNCLOS and maritime territory Dutch East Indies - the sea should belong to no one for purposes of navigation and international trade Coastal states (maximum sovereignty) vs. non-coastal (limit sovereignty) UNCLOS -adopted each provision on the basis of consensus and not through voting -division into maritime zones

Archipelagic transit passage State parties cannot extend into reservation in UNCLOS Baseline petition: Inter-temporal law: law applicable when right accrued and when right enforced Uti possidentis - to achieve stability, colonial boundaries conclusive Libya vs. Chad: continental boundaries survive treaty Uti possidenti: applies in PI because of Treaty of paris thus other states estopped Kalayaan - now regime of islands not be made part of archipelago though archipelagic baselines. AU GU ST 11 What can be used as base points: What are BAYS? If bay, internal water? BAY: A body of water surrpounded by land SEMI-CIRCLE TEST: 24 nautical miles ung distance between two point sof the mouth -if with islands: if total distance between islands equal to 24 mi, bay pa rin!

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notes Mendoza Gulf of Conseca – historic Bay Gulf of sidra Importance of baselines –See UNCLOS Low water mark Rivers: marks Harbor facilities – permanent – outermost workds constituting part of harbor Bays Islands – if permanently above water [Norway] Archipelagos – From rocks Coral reefs – seaward waterline from coasts -low waterline Deltas – not underwater for extended period of time – from futherest seaward point Irregular coastlines vs. Archipelagic Coastlines No departure from direction of coast No draw from low tide elevations X:light houses Don’t cut territorial sea of another (relevant in the case of Malaysia or Signapore?) 100 nautical miles excess allowed: 3% *9:1 = water: land For Skaargard – Art 7 English Rule: Territorial State has Jurisdiction French Rule: Flagstate UNCLOS: French But if couse disturbance: Territorial State has jurisdiction e.g. if murder in Contiguous zone: Coastal state has jurisdiction [Art4] (1) customs (2) Fiscal (3) Immigration (4) Sanitary HOT PURSUIT [A11] -only exercised for matters enumerated above, murder not included INNOCENT PASSAGE [A19] -expeditious & continuous maner -not prejudicial to peace, good order, security NOT INNOCENT – 12 instances! *Basically… 1. anything which has nothing to do with innocent – continuous passage *what if drop and pickup passengers & goods? STILL INNOCENT PASSAGE *What about scuba diving? You’ll be stopping if you scuba dive so NO What if you still want to scuba dive? Get the consent of the coaqstal state 2. Threaten security of coastal state -what can coastal state do in violation of innocent passage ART 25: Suspend innocent passage -coastal state could insist that ship leave its territorial waters *exercise of jurisdiction over ships exercising innocent >cannot acquire double-hull >what about payment of Pilotage and other fees? Pede! (*Pilotage: guides with specialized information with the conditions of the territorial waters) …a. right to levy charges for specific services …b. jurisdiction, iff adverse effect on good order …c. adopt laws for safety of navigation …A21, UNCLOS Archipelagic vs. territorial sea on innocent passage Archipelagic: only 1 ground Territorial Sea: 12 grounds High Seas: A88 _peaceful Purpose _protect high seas from pollution Freedom of navigation -can board: Reasonable ground for suspecting (A109-110) a. piracy b. slave trade c. unauthorized broadcast

Cha d. w/o nationality e. fly foreign flag/refused to show flag f. drug trade -when will states incur responsibility? Liable for loss/damage if did not find grounds for boarding; but can be exempted from liability if the boarding is supported by probable cause STRAITS: Narrow -connect 2 High seas EEZ Legal regime: Transit passage Right of navigation and over flight for purpose of … Diff: Right to overflight No suspension of transit passage and innocent passage No requirement w/ submarines 3 exceptions to transit passage {a38?] …there is another route of similar convenience…. SEA BED -governed by common heritage of mankind -enforced by authorities CONTINENTAL SHELF -A77(4): Only includes sedentary natural resources -so if not moving: No sovereign rights over it -only Sovereign rights, NOT jurisdiction LIBYA V. MALTA: Determined by distance, not geology TUNISIA V. LIBYA: half-effect method US V. CALIFORNIA: not appropriate to RP: We were not a federal government SIR’s ARGUMENT: Continental shelf principle in Constitution: Insular shelf = continental shelf so the continental shelf is now included in the definition of Philippine Territory AU GU ST 25 On extradition GR: No obligation unless there’s extradition treaty X: Unilateral treaty e.g. Torture Convention EXTRADITION -conventional and Customary IL recognizes it Requirements: 1. DCR 2. Right to seek asylum -refugee status -political offenses – not covered, or else might affect right to seek asylum RIGHTS 1. To be not deported back to own state 2. no prosecution from illegal entry Asylum: process by which a person applies to seek refugee status but has not yet succeeded: undergo Administrative demonstration first WHY IMPORTANT? Jocjoc Bolante -intervention: Not fall w/n exception 1. genuine fear of execution 2. Part of group 3. fleeing armed conflict 4. Fear to be subject to torture Refugee status -B4: individual determination But because of the Africa conflict, many people seek refugee status so for practical purposes, by Group na: UN High Commission on Refugees – Declaration that People entitled to refugee status MARK JIMENEZ CASES -procedure 1. request extradition by competent agency …if sufficient… 2. Petition for extradition

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notes Mendoza ISSUE: When entitled to know reason why he is indicted? Later decision overrule the 1st 1ST CASE: already entitled to notice when request for extradition given 2ND CASE: when the case is filed in court already, issued subpoena and warrant of arrest “power to extradite corrupts” -US and Japanese fond of extraditing De facto extradition: deportation - but not treaty, dapat may treaty *it there’s a well-grounded fear to be subjected to torture, can refuse EXTRADITION – Convention against torture *RP never extradited anyone for political offenses When can invoke sovereign immunity for International Crimes? When liable? EX PARTE PINOCHET -torture, murders, hostage-taking Former ruler of Chile UK…Pinochet in UK…Spain sought his extradition H: Torture recognized as International Crime -Pinochet is immune….materiae But since Torture is not an act of a sovereign, no immunity (functional immunity lang) A S F OR TH E PAR T ON IMMU NITIES… Sorry, no notes kasi naghahabol ng readings… SEPTEMB ER 15 Obligation of States when they breach IL -breach of states …but IL today, there are other actors …states re-defined IHR B4 only through State Responsibility Sources of OBLI 1. Conventional – pacta sunt servanda 2. customary NOW Individual responsibility with IHL When state entails responsibility [articles of International responsibility] -adopted 2001: now has to wait to be embodied in a treaty (a mere evidence of customary norm) Art2: 2 elements 1. attributable to the state 2. breach of an international obligation -2 elements must concur Do we need to prove intent, bf, fraud? NO. Strict liability -but relevant in determining REPARATION (but not really final) 2nd element 1st! International obligation 1st proved What kind of breach? *treaty? *customary? NONE REQUIRED, no distinction What would determine WON state is in breach of international law? Does Articles speak of when breach? NO. Deleted. Does not state when breach happens. -substantive IL separated! Only way these drafts were adopted is for it not to specify violations When does an individual act for or on behalf of a state (attribution)? 1. As an organ [A4] -if a lowly private of the state tortures a national of an enemy state, could the state of the national espouse the claim of the individual and claim violation of torture, even if …w/o orders …ultra vires YES. Can claim e.g. YOUMAN’S CLAIM F: 3 US Nationals (missionaries) were surrounded by Mob. Mayor ordered the dissipation of the mob. The troops sent, instead of

Cha dispersing the mob, joined it, opened fire against the Americans, all of whom died H: STATE LIABLE Even if …agents acted ultra vires …under supervision of authority How are aliens to be treated? -started in Los Palmas Claims >protection CORRECT TEST: Minimum standard, not subject to domestic law CHEVREAU CASE (FRANCE VS. GREAT BRITAIN) -the detained man must be treated in a manner fitting his station, and which conforms to the standard habitually practiced among civilized nations ASIAN AGRICULTURAL PRODUCTS CASE -Due diligence obligation under the minimum standard of customary IL ORGAN -exec, legis, judiciary What arises now? If breach + attributable to the state? Reparation + promise to stop whatever was done -restoration to the status quo ante Compensation: Chorzow Factory Case 3rd state’s duty: 1. not to recognize legal consequences of the breach 2. obligation to compel breaching state to stop breach Objective characterization of breach A8: Acting under DIRECT CONTROL NICARAGUA VS. US: Effective control test (dependence of the contras on the support by US) PROSECUTOR VS. TADIC: only over all control required Art11: Adoption/Acquiescence US VS. IRAN F: Iranian mob took over US Embassy. Later adopted by Iran 1st Phase: not attributable …violation of the Vienna Convention on Consular Relations Art22: Protect Consular embassy: by enabling the mob to take over US Embassy 2nd Phase: Iran Liable Statements of Ayatollah Komeini -made when they were not yet successful A10: Conduct of insurgents later successful A11: Adoption Nicaragua: Effective control UN Tribunal: IHL Specialists ICJ: Conflict Level of control determines liability of a state over acts of state OVERALL Control – lesser degree test vs. effective control -no need to show all elements of effective control -just show overall, military objective directed by other state: >subjugation of enemy >by nature of location… …destruction of enemy = victory Art 5 Persons exercising elements of government authority De Facto Art 5 Parastatal e.g. MNC = Shell Invest through a subsidiary company, majority owned by State 40% owned by shell What if utilize paramilitary forces in compelling IPs to forcibly work (UNOCAL) Is the state liable? Jessup: Usually involves state attribution SEPTEMB ER 16 PROSECUTOR VS. TADIC

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notes Mendoza F: Tadic indicted for 30 counts of murder? Yugoslavia – serbs -croatia -muslims 1993: Serbs powerful -murders, maullings, rape in concentration camps *Tadic is a Serbian! Tadic’s alibi: He was never present in the concentration camps, and he was only a traffic policeman! TRIAL CHAMBER: W directly identified him! He was directly liable, even if he alleged to be just coerced by party of SERBS On APPELLATE CHAMBER: xxx On Grave breaches of the Geneva Convention TC: Absolved: Non-international armed conflict (w/n Yugoslavia) …Geneva Convention applicable only to International Armed Conflict! AC: The State is responsible if it exercises control over the individual -not just sending forces to deal with breach of international peace? -effective Control applied in Nicaragua was too high a standard, so use OVER ALL CONTROLTEST: “the degree of control, may, however, vary according to the factual circumstances of each case” -responsible for Grave Breach of Geneva Convention! the conflict was INTERNATIONALIZED… 1) Bosnia declared independence 2) Belgrade, Capital of Serbia, Control forces of Bosnia – OVERALL CONTROL “case to case basis” What must be met:

1.

Coordinated w/ army …did not have to dictate evey method of warfare ➢ military objective ➢ Allow forces on how to achieve objective 1. Participated in general Manner VS. NICARAGUA CASE -should still dictate how the objective should be reached (the local troops in Nicaragua should be dependent on the US for orders…; as they were not proven to be such, they were deemed to have acted independently of US and thus, US is not liable for their acts) BOSNIA CASE (REVERTED TO NICARAGUA’S EFFECTIVE CONTROL TEST) -overall control wrong! Should still be effective control -burden of proof not met: no proof of nexus on Genocide But on EffectiveControl: -overall control test not enough -Attribution: law of state responsibility >so attribute acts to a state, should have high degree of control >should prove that the state dictated all that the agents were to do …pede siguro if criminal liability, but when you’re making a state liable, STRICTER TEST RAINBOW WARRIOR CASE F: France admitted that it was their Agents who planted explosives on the Rainbow Warrior -so France liable -Under Article 8? On control ulit: Dapat directing…. ISRAEL VS. PALESTINE WALL -Security Wall -has *electric sensors *Sandy loan *layered with barb wires ISRAEL: Build wall to protect it from Palestine’s Attack 4 Phases: when dispute came up, there where only 2 phases of the wall building done Palestinians: some left their houses because the wall would be built on where they live (displaced) -found it difficult to access some social service needs >>>violated their rights 1. self-determination

Cha 2. 3.

IHL: Civilian population dislocated HRL: Palestenians loss access to social

needs

a. b.

Freedom of movement Children court not to go to school – there’s now the wall c. Patients can’t go to the hospital ICJ: WALL VIOLATED IL -Consequences 1. Obligation to cease and desist breach 2. Repatriation: Destroy Wall 3. Compensate 4. 3rd states not to recognize the legal consequences of the breach 5. compel Israel to abide with their international responsibilities ZAFIRO CASE F: Chinese crew of the Zafiro, when docked in Cavite, looted the town which was not within the control of any one, as Spain already abandoned the town. What kind of attribution: ART8? Yes! -directly ordered by a State UNION BRIDGE COMPANY CLAIM -also Art 8 F: Neutral material removed under mistake and under instructions of Government *Seizure happened AFTER THE WAR *Materials seized belonged to US Co, not with UK and Africa *Property seized by Mr Harrison, the storekeeper of Care Governmetn Railways by UK *note that the war was between UK and Africa H: Act of Mr. Harrison makes UK Liable -for wrongful interference of taking Neutral property BOLIVAR …you can’t take property of an Alien w/o compensation STARETT HOUSING CORPORATION VS. IRAN -taking of effective use of their proerty -what is property for purpose of Expropriation? F: -Starett undertook housing project for the republic paid by the Shah of Iran -But Shah was deposed (See US vs. Iran: US embassy mobbed!) -as a result of the mobbing of the US Embassy, the US nationals of Starett fled from Iran -Government of Iran continued the project, but replaced the American officials -officious manager appointed IRAN argues: The project was abandoned, so Starett cannot claim that it’s property was expropriated without compensation ***Side story: US Freezed Iranian Assets in the US so Iran has to compensate the investments of US in Iran so that the freezing of their assets would be ceased… Shah = Marcos at that time H: There was taking >No abandonment: US nationals were forced to leave for fear for their lives > it was CREEPING EXPROPRIATION: The appointment of an officious manager is a way of indirect Taking of property AGAN…PIATCO CASE – not assigned, but what the heck, here it goes -there was taking here? YES Although the contract was NULL AND VOID, there was a taking of the RP Government so compensate expenses Other forms of expropriation: Taking: adequate and just compensation Taking: Basta take property rights UNOCAL CASE RTC: Dismissed CA: wala na. May agreement between parties *UNOCAL Not liable:

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notes Mendoza >2 other companies not impleaded were presumably enjoying sovereign immunity >does not fall under COMMERCIAL ACTIVITY EXEMPTION (3 in ACTA, none here) DOE: The effect in US > Lower gas costs (as they didn’t pay for labor, the IPs were enslaved to work for the extraction of gas) –however, this was not the one contemplated in the exemption… -as to acts of the subsidiary corporation: attributable to the state -Case was allowed to proceed -why hold Burma liable when private entity carried the enslavement? Can’t hold Burma liable because it was immune! But burma and Total jointly operated it! ART5: Para statal entitles! Q: Black water contracted by US Government to provide US Troops protection. Blackwater recruited Magdalos. Magdalos were ordered by Blackwater to walk on ground allegedly having landmines. Blackwater was also ordered to do other things. Can you sue US? Yes. Under Article 5 -but if so, can Blackwater now claim that as they are exercising governmental authority elements (they are parastatal entities), they are immune….sovereign immunity? Sovereign immunity: unless a state agrees to be sued, you can’t sue a state Can you also hold US liable for torture conducted by private individuals contracted by them YES. Under orders Article 98 VIENNA CONVENTION ON TREATIES -restatement of customary norms -what is a treaty >Capacity to enter a treaty: element of statehood -steps in treaty-making: preconditions that must be complied with *in Vienna, no ratification definition -pacta sunt servanda -but can’t stipulate vs. jus cogens norm -provisions when treaty norm subsequently becomes illegal, void ab initio On cases *Simplistic if Vienna convention alone >Contracts – pampagulo -no bidding: Exempt because it’s an Executive Agreement - treaty ABAYA VS. DBM: Executive agreements = Treaty SEC4, RA 9184 TIPS sa finals: SIR WOULD ASK CASES WHERE HE USUALLY PARTICIPATED…uhm…okay…

SEPTEMB ER 22 Treaty Vienna Convention: an international agreement …concluded between STATES …in written form …governed by IL (article 2(4)) -aspect of statehood: capacity to enter into treaties Agents ngayon are allowed to enter into treaties in behalf of their states though FULL POWERS When Treaty Binding? -when signed -when need ratification: when ratified *Can states agree to hurt each other? NO. Article 53. Should not conflict with other jus cogens norm, PEREMPTORY norm What if agent w/o full powers? VOID What are other grounds that make a treaty VOID? 1. Error 2 Fraud 3. Coercion of the agent and of the state

Cha Principle of Autonomy GR: Treaty applies to parties therein X: A35: Treaties providing for Obligation and rights for 3rd party states (if obligation, States should accept it) – PACTA TERTIS -even if w/o consent, 3rd states are still bound by an obligation if under Customary IL A36: Rights to 3rd states: presumes assent to State (it’s for their benefit, so they are presumed to be agreeable to it) A38: Customary IL Rebus Sic Stantibus – A62 -Fundamental Change of Circumstances = Novationin Civil law -has it ever happened that a state would be relieved from its obligation RIVER CASE: Possibility explored (not sure though if the state has been relieved of obligation in this case. Again, not assigned) Grounds for Voiding Treaties: Section … Professorial Chair Lecture ni Sir Roque: NBN-ZTE -China offered to lend P3T to RP provided they would choose the contractor How GMA Rationalized tis: Section 4, RA 9184 -no bidding required! -China is a socialist country so if dealt with a GOCC, you already dealt with the state It would be a treaty, whatever its designation is (art2(1)(a)) Problems 1. overpriced 2. You won’t see the materials (no bill of materials) 3. obsolete by the time you use it 4. no prior MB concurrence 5. Consti NORTHRAIL CONTRACT -forerunner -still with China -no bidding >UP Law Center: No finalized design, output, so can’t say it’s overpriced RA 9184, Section 4 -it should apply to ALL GOVERNEMNT PROJECTS -regardless of where the funding came X: Treaty, Gov’t is a signatory BAYAN VS. ZAMORA -Constitutionality of VFA *Why unconstitutional? Article VII, Section 21 vs Article XVIII, Section 25 (just an executive agreement, not a treaty – no senate concurrence) H: However it is designated, it is a treaty. If treated as such by the states >already recognized by AN Hubbard Dissent, PUno: 1. only a treaty if concurred in by US Senate 2. Not “Visiting” > basing na > we adopted definition of a treaty Are all such loan agreements = EA = excluded from RA 9184? ABAYA VS. EBDANE F: involves contractor China Road and Bridge Corporation which was blacklisted by the World Bank H: No retroactive application of RA 9184 -even if applicable, las part of Section 4(giving exemption to treaties) provides an exemption: here, there was an EXCHANGE OF NOTES even before the effectivity of the law VIBAL PUBLISHING VS. KOLONWELL -cited ABaya even when it was not yet fina and executory F: there was conflict in interest -Vibal used 4 companies to bid -dapat disqualified -failure of bidding But WB overruled

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notes Mendoza DECS PROCUREMENT TC: panalo si Sir SC: bayad Vibal -di na GAD of Fernandez Ang tinignan Nature of Loan Agreement: P608: Cited Abaya which does not say anything that international agreement on loans = Treaty -case which would verify – if decided correctly by SC: Northrail OCTOBER 8 Ratification PIMENTEL CASE -executive act …in VCLOT: Just an evidence that a sate wants to be found Brownlie: 2 acts 1. Act of appropriate organ of a state – as required by internal law 2. Deposit instrument of ratification PIMENTEL CASE -Rome statute sought to be ratified -evening class of sir roque wanted Executive to ratify the Rome Statute SC: Does not compel executive, quoting Isagani Cruz’s Book on Treaty-making process Then the court says that by ratifying, we are bound SIR: they missed the whole point! Ratification merely gives the proper state organ the review -Ratification is not purely an executive act, it needs concurrence of the Senate! SALONGA CASE -majority opinion refutes the minority opinion Grounds: VFA Agreement beyond BAYAN >unequal agreement between parties >w/o fixed period, not visitation >EPC: only American soldiers treated differently when they are arrested and convicted SC Uhpeld EPC argument >violative of VFA: May subject to renegotiation: but RP Still has custody over US Serviceman -can’t put outside RP Jurisdiction As to Constitutionality: Still stands 1. Self-executing 2. covered by implementing legislation 3. RP-US treaty was consented by Senate of US (so implied mali ang BAYAN Case -why important to discuss all these? Rebut minority opinion that this is not a treaty! MEDELIN VS. TEXAS: Not all agreements entered into by US are treaties + not all decision of ICJ, even if US is a party to the statute, are executory in US X: Ung 3: 1. self-executory 2. Implementing legislation 3. US consented *Medelin not implemented because US did not consent to the treaty? Majority: 1. self-executory daw ang VFA – pero wala naman sa VFA na ganun 2. It’s anchored on Mutual Defense Treaty -but hellurh, it was only mentioned in the preamble Mutual Defense Treaty: can only be invoked if there is an Armed Attack ---but this will never happen now because it is prohibited under IL -bawal din collective self-defense 3. Zublacky Act – implementing legis daw eh… -executive agreements lang implements nya -if mere executive agreement, it doesn’t have the effect of Law ADVISORY OPINION ON RESERVATIONS IN CONVENTION VS GENOCIDE -reservation made which goes against the purpose of the convention – you’re not a party to the convention

Cha -if other provisions, pede MILITARY AND PARAMILITARY -on withdrawal of US from ICJ Jurisdiction ICJ: Notice must first be given w/n reasonable time before a state can withdraw from a treaty VIENNA CONVENTION -how to send Ambassadors SIR: By sending ambassadors, you’re establishing diplomatic relations with that country 1. Note Verbal to be sent to RS, Agrement hereby requested -give chance to RS to check you out because as soon as they give the agreement, immunity from jurisdiction attaches 2. Agrement given: -when immunity attaches? Receive credentials first to RS, but this may be delayed -so present credentials first to the Minister of FA 3. If accepted credentials, … Problems *Gino wanted you to deliver package to Timbuktu. Before going to Timbuktu, you went to Monocco first for a vacation. It turns out that the package contained contraband. Does immunity attach? NO. Immunity attaches only when you’re performing your functions – you have immunity only whey you’re in transit. *If you hire services of contractor to renovate, can’t pay Ambassador. Immune or not from collection suit? -this is specific services rendered -ambassadorial residences *what if just rent Ambassadorial residence, the owner of the leased premises, property to be attached. Annotation of the attachment done. Can this be done? SIR: IF annotation lang (no effect on possession of ambassadorial residence) okay lang *Driver brought from the country of the ambassador to Timbuktu (to serve as a driver). Driver, while in Timbuktu, figured into a stabbing incident. (note that Driver is same nationality as the ambassador) SIR: No. Functional immunity. Should be in the course of official duty Diplomatic staff: immune from criminal jurisdiction But if service staff: functional immunity *If the diplomatic mission is in Forbes Park, and Forbes park has a rule that 1 premises should only contain 1 family. Can Forbes park now enforce the restriction on the use of diplomatic premises when the diplomatic premises was used not only as the diplomatic embassy but also for the quarters of the diplomatic staff? SIR: Exempt. Regardless if Head of Mission or diplomatic agent (refers to the Premises of the Mission) *In RP: Multiple accreditation kasi we’re so poor Consular vs. diplomatic Consular: more on commercial transactions – functional immunity only Diplomatic: more on governmental functions OCTOBER 13 US VS. AVENA F: US failed to give notice, failed to grant visitation rights to the consular staff of Mexico -here, the Mexicans were sentenced to death C: US court did not acquire jurisdiction Effect: Failure to comply with this provision in Vienna Convention would result to the divestment of the court’s jurisdiction -gave rise to Mendelin ICJ: gave provisional measures SIR: This case would seem to say that failure to notify the consular offices deprives it jurisdiction MINUCHER VS. CA F: Drug agent in RP was said to have framed a consular officer of Pakistan (?). When the latter was found innocent, he sued the Drug agent

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notes Mendoza 1st ruling: not immune On MR: Acted for US, so immune SIR: the 2nd ruling violated RP Sovereignty!!! UN -treaty -promote peace and stability -prevent another war As a treaty, what is provided in UN Charter to achieve goal in avoiding another war? Jus ad bellum – use of force = legal Jus in bellum – IHL = not validly of use of force but WON combatants are liable under IHL Art2(3) and (4) prohibit use of force GR: Prohibited X: Art51: Self-defense Art42: SC (Security Council) Authorizes it NICARAGUA VS. US -justified if there’s an armed conflict -subject to necessity and proportionality -when Chapter VIII may be invoked …implementing collective security measures 1. Who implements? Which forces must act? ---military force? 2. How to implement? Obligatory on member states UN Forces -manned by volunteers of the UN members, pursuant to an agreement -under the administration and authority of the qMilitary Staff Committee (combined Chiefs of Staffs of permanent members of the UNSC) *note: UN Peace Keeping Force not provided in the UN Charter Is there a blanket authority for UN SC to issue Military Sanctions? Or is there an order? Art 41: Non-military sanctions first >economic embargo >severance of diplomatic relations …exhaust non-military sanctions first before resorting to Military sanctions DID UN MEMBERS ever have such UN Force? No. No Agreement, no UN Force But UN SC not prevented from implementing through UN Peacekeeping Force -from states volunteering manpower (in pursuance to UN Convention) How do these troops ENTER sovereignties? Supposedly, states REQUEST presence of UN Security Forces -but sometimes, even w/o Request basta to enforce UN SC Resolutions e.g. Operation Desert storm -All peacekeeping forces – not pursuant to IL because not in accordance with UN Charter ILLEGAL: NO compliance with UN Charter LEGAL : If allowed by GPIL + There’s UN SC Authority MURASE: Not a matter of illegality but opposability …UN SC has duty to preserve peace ISSUS 1. Use of force: Illegal? 2. UN SC: primary jurisdiction, not exclusive GA also can deal with threats to International Peace as well + UN SC permanent members have veto powers Are all use of force -not authorized -not self-defense …legal? Use of force by Humanitarian Intervention is deemed legal

Cha e.g. In Africa and Cambodia -Genocide wherein many died Chapter 7 used to create to prosecute the masterminds …BUT GENOCIDE. Just 1 country. But many nations – how will it be an int’l peace problem? ….Because it’s difficult to prosecute genocide in local courts!!! *UN SC only conducted recently 1 trial Why is it that this seems to be selective? Yugoslavia, Rwanda, Cambodia – they only entered Yugoslavia SIR: Racist ang UN! If you’re not white, magpatayan muna kayo Opinio Juris: 3rd exception YUGOSLAVIA VS. US -just preliminary objection -Yugoslavia not continuation of Bosnia + US and Spain did not consent to ICJ Jurisdiction KOSOVO-NATO Arguments of NATO mems 1. Implied Consent of UN SC Principle of GPIL: Necessity to protect humanitarian law -genocide: Erga Omnes Position: even if not victim state, can claim that there’s genocide 2. Erga omnes 3. Being Parties to Genocide Convention, should take steps to prevent genocide (lex specialis vs. Lex generalis – UN Charter) 4. Purpose of Self-defense – from threat or actual use of force -now “threat” invokable, with the development of nukes 5. International humanitarian agency Sir: Sympathetic to the justifications BUT one can’t invoke exceptions on an ad hoc basis SOLUTION: Democratize UN SC -violates sovereign immunity of states (this issue is actually gasgas) OIL PLATFORMS CASE F: US bombed offshore oil production complexes allegedly as a defense for 2 instances when its vessels were bombed 1.Sea isle city attack: hit by a missile near Kuwait Harbour 2.Warship struck a mine in International waters near Bahrain -Reprisal! Illegal! You want to get even! SALONGA: VFA not relevant anymore because armed attacks are now illegal ICJ: 1. US did not prove self-defense 2. Self-defense should be justified But 1955 Treaty between Iran and US, which was invoked by Iran as basis for its COA, would only apply if the breach done by US involves the violation of Iran’s Freedom of Commerce -in this case, Iran’s Freedom of Commerce NOT BREACHED because: 1. the Oil platforms hit were not functioning anymore 2. There was already an Oil Embargo on UN before the attacks, so no effect on the freedom of Iran to Commerce ICJ JURISDICTION Can PLO …US, through a law, made PLO a terrorist group UN HEADQUARTERS CASE -defines what a DISPUTE is SIR: By way of subject matter jurisdiction, ICJ can take cognizance of ANY DISPUTE, including interpretation of treaties JURISDICTION OVER PARTIES Consent Given a.Compulsory consent b.Reservations allowed Types of Reservations i. Rationae personae: relating other parties ii. Rationae tempore: time iii.Ratione materiae: subject matter

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notes Mendoza *RP applies this kind of reservation e.g. as to national territory If with reservation, not compulsory Where state consent to be bound? Any treaty! WHO may avail of jurisdiction of court? ONLY STATES a. Member of UN b. Non-member, should apply Steps 1. application 2. Approval of UN Qualifications of a UN State 1. Peace loving 2. Can carry out the functions as a member UN SC recommend, GA authorize > is UN SC recommendation necessary? Indispensable. Required to have both! [ADMISSION CASE] *If new state from former state, new state allowed to fly their flag, take seat in UN GA assembly, is this enough? No. Objective Criteria Criteria Continuation State: Inherent majority of a. Territory b. Population c. Capital d. Government e. Land area f. Public property * But rule in state succession: successor state can choose what it want to inherit Contesting Jurisdiction _inthe Preliminary Objections I. Parties II. Subject Matter III. It affects a party who has interest but not party, ICJ can’t exercise jurisdiction (a59) e.g. Nauru v. Aus Portugal vs. Aus PORTUGAL VS. AUS Indonesia affected -Indonesia only occupied East Timor by conquest -Aus entered continental delimitation of shelf with Indonesia over the area of shelf of East Timor -Portugal (previous occupant of East Timor) objected: can’t enter treaty with conquestor Is exhaustion of remedies required before icj can have jurisdiction {ELSI CASE} -if claim in behalf of Nationals: exhaust domestic remedies -if harm to state itself: not required to exhaust NAURU VS. AUS Aus mined away Nauru’s territory and other states -even if only Australia impleaded (NZ and UK not impleaded), ICJ still has jurisdiction over the issue -but Nauru not precluded from claiming vs NZ and UK MILITARY AND PARAMILITARY ACTIVITIES -Withdrawal : should be within reasonable period LOCKERBIE CASE Libya didn’t want to surrender…

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