Public International Law Conspectus

8/9/2019 Public International Law Conspectus

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Unofficial Quick Reference Conspectus on Public International Law

Earl Louie M. Masacayan, Section 3AA (2010-2011); UST Faculty of Civil Law

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Note: This Document does not ensure correct answers. Use at your own risk.

I. Nature of International law

1. Is International law a law?

In the ultimate analysis, although the final enforcer

is power, fundamentally, there is a general respectfor law because of the possible consequences of

defiance either to oneself or the larger society.

2. Bases of international law

The basis for the authority of international law is

the same as the basis for early laws of every

character, namely, the general consent of those to

be bound thereby, strengthened by custom and

continued acquiescence. There is no common

superior among nations to promulgate principles of

international law, and on the other hand, no single

nation can introduce a new principle into this

system. Cornelius van Bynkershoek asserted that

the bases of international law were customs and

treaties commonly consented to by various states,

while John Jacob Moser emphasized the importance

of state practice in international law. The positivism

school narrowed the range of international practice

that might qualify as law,

favoring rationality over morality and ethics. The

1815 Congress of Vienna marked the formal

recognition of the political and international legalsystem based on the conditions of Europe.

3. Jus Cogens

Jus Cogens is a fundamental principle

of international law which is accepted by the

international community of states as a norm from

which no derogation is ever permitted. "Latin

meaning "compelling law." This "higher law" may

not be violated by any country. For example,

genocide or slave trade may be considered to goagainst jus cogens. There is no clear agreement

regarding precisely which norms are jus cogens nor

how a norm reaches that status, but it is generally

accepted that jus cogens includes the prohibition

ofgenocide, maritime piracy, slaving in general (to

include slavery as well as the slave trade), torture,

and wars of aggression and territorial

aggrandizement. Unlike ordinary customary law,

which has traditionally required consent and allows

the alteration of its obligations between states

through treaties, peremptory norms cannot be

violated by any state "through international treatiesor local or special customs or even general

customary rules not endowed with the same

normative force". Under the Vienna Convention on

the Law of Treaties, any treaty that conflicts with a

peremptory norm is void.[4] The treaty allows for the

emergence of new peremptory norms, but does not

specify any peremptory norms. It does mention the

prohibition on the threat of use of force and on the

use of coercion to conclude an agreement:

"A treaty is void if, at the time of its

conclusion, it conflicts with a peremptory

norm of general international law. For the

purposes of the present Convention, a

peremptory norm of general international

law is a norm accepted and recognized by

the international community of states as a

whole as a norm from which no derogation

is permitted and which can be modified

only by a subsequent norm of general

international law having the same character

4. Erga Omnes (in relation to everyone)

In international law it has been used as a legal term

describing obligations owed by states towards the

community of states as a whole. An erga

omnes obligation exists because of the universal

and undeniable interest in the perpetuation of

critical rights (and the prevention of their breach).

Consequently, any state has the right to complain of

a breach. Examples of erga omnes norms

include piracy, genocide, slavery, and racial

discrimination.

5. Opinio Juris (Opinion of law)

In international law, opinio juris is the subjective

element which is used to judge whether the

practice of a state is due to a belief that it is legally

obliged to do a particular act. [1] It can sometimes be

difficult to establish opinio juris, but where there is

consistent practice over a length of time, the need

for opinio juris is lessened. Where there is more





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sporadic state practice, the presence of opinio

juris becomes more important. In addition, the

existence of custom in general need not be

worldwide, but can also be restrained to the region.

Customary international law has been deemed a

source of international law under Article 38(1)(b) of the Statute of the International Court of Justice.

Although the ICJ has frequently referred to opinio

juris as being an equal footing with state

practice, the role of the psychological element in

the creation of customary law is uncertain...

6. Sources of international law

Formal – e.g. Legislations

Material – e.g. Treaties

7. Soft law vs. Hard law

Soft law means commitments made by negotiating

parties that are not legally binding. Hard law means

binding laws. To constitute law, a rule, instrument

or decision must be authoritative and prescriptive.

In international law, hard law includes self-

executing treaties or international agreements, as

well as customary laws. These instruments result in

legally enforceable commitments for countries(states) and other international subjects.

8. Private international law vs. Public

international law

Public international law, which governs the

relationship between provinces and international

entities, either as an individual or as a group. It

includes the following specific legal field such as

the treaty law, law of sea, international criminal

law and the international humanitarian law.

Private international law, or conflict of laws, which

addresses the questions of (1) in which legal

jurisdiction may a case be heard; and (2) the law

concerning which jurisdiction(s) apply to the issues

in the case.

9. Monist vs. Dualist

Monists assume that the internal and international

legal systems form a unity. Both national legal rules

and international rules that a state has accepted,

for example by way of a treaty, determine whetheractions are legal or illegal. [1] In most monist states,

a distinction between international law in the form

of treaties, and other international law, e.g. jus

cogens is made. International law does not need to

be translated into national law. The act of ratifying

the international law immediately incorporates the

law into national law. International law can be

directly applied by a national judge, and can be

directly invoked by citizens, just as if it were

national law. A judge can declare a national rule

invalid if it contradicts international rules because,

in some states, the latter have priority. In other

states, like in Germany, treaties have the same

effect as legislation, and by the principle of lex

posterior, only take precedence over national

legislation enacted prior to their ratification. In its

most pure form, monism dictates that national law

that contradicts international law is null and void,

even if it predates international law, and even if it is

the constitution. From a human rights point of view,

for example, this has some advantages. Suppose a

country has accepted a human rights treaty -

the International Covenant on Civil and PoliticalRights for instance - but some of its national laws

limit the freedom of the press. A citizen of that

country, who is being prosecuted by his state for

violating this national law, can invoke the human

rights treaty in a national courtroom and can ask

the judge to apply this treaty and to decide that the

national law is invalid. He or she does not have to

wait for national law that translates international

law. His or her government can, after all, be

negligent or even unwilling to translate. The treaty

was perhaps only accepted for political reasons, inorder to please donor-countries for example.

Dualists emphasize the difference between national

and international law, and require the translation of

the latter into the former. Without this translation,

international law does not exist as law.

International law has to be national law as well, or it

is no law at all. If a state accepts a treaty but does





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not adapt its national law in order to conform to the

treaty or does not create a national law explicitly

incorporating the treaty, then it violates

international law. But one cannot claim that the

treaty has become part of national law. Citizens

cannot rely on it and judges cannot apply it.National laws that contradict it remain in force.

According to dualists, national judges never apply

international law, only international law that has

been translated into national law. The supremacy of

international law is a rule in dualist systems as it is

in monist systems. If international law is not directly

applicable, as is the case in dualist systems, then it

must be translated into national law, and existing

national law that contradicts international law must

be "translated away". It must be modified or

eliminated in order to conform to international law.

Again, from a human rights point of view, if a

human rights treaty is accepted for purely political

reasons, and states do not intend to fully translate it

into national law or to take a monist view on

international law, then the implementation of the

treaty is very uncertain.

10. Doctrine of Transformation vs. Doctrine of

Incorporation

Doctrine of Transformation is the

Legal principle that the provisions of internationallaw are enforceable in a jurisdictions if they are

adopted through

customary use, court decisions (precedence),

or legislation.

Doctrine of Incorporation is the Legal principle that,

in general, the provisions of international law are

enforceable in a jurisdiction so far as they

are consistent with the provisions of

its domestic law.

11. Municipal law vs. international law; what shall

prevail?

Article 27 of the Vienna Convention on the Law of

Treaties provides that, where a treaty conflicts with

a state's municipal law (including the state's

constitution), the state is still obliged to meet its

obligations under the treaty. The only exception to

this rule is provided by Article 46 of the Vienna

Convention, where a state's expression of consent

to be bound by a treaty was a manifest violation of

a "rule of its internal law of fundamental

importance

12. Calvo and Drago doctrine

The Drago Doctrine was announced in 1902 by

the Argentine Minister of Foreign Affairs Luis María

Drago. Extending the Monroe Doctrine, it set forth

the policy that no foreign power, including

the United States, could use force against

an American nation to collect debt. It was

supplanted in 1904 by the Roosevelt Corollary. It

grew from the ideas expressed by Carlos

Calvo in Derecho internacional teórico y práctico de

Europa y América, commonly known as the Calvo

Doctrine. The Calvo Doctrine proposed to prohibit

diplomatic intervention before local resources were

exhausted. The Drago Doctrine itself was a response

to the actions of Britain, Germany, and Italy, who

had blockaded and shelled ports in response

to Venezuela's massive debt, acquired under

president Cipriano Castro. A modified version

by Horace Porter was adopted at the Hague in 1907,

adding that arbitration and litigation should always

be used first.

The Calvo Doctrine is a foreign policy doctrine which

holds that jurisdiction in

international investment disputes lies with the

country in which the investment is located. The

Calvo Doctrine thus proposed to prohibit diplomatic

protection or (armed) intervention before local

resources were exhausted. An investor, under this

doctrine, has no recourse but to use the

local courts, rather than those of their home

country. The principle, named after Carlos Calvo,an Argentine jurist, has been applied

throughout Latin America and other areas of the

world. The doctrine arose from Calvos's ideas,

expressed in his Derecho internacional teórico y

práctico de Europa y América (Paris, 1868; greatly

expanded in subsequent editions, which were

published in French). Calvo justified his doctrine as





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necessary to prevent the abuse of the jurisdiction of

weak nations by more powerful nations. It has since

been incorporated as a part of several Latin

American constitutions, as well as many

other treaties, statutes, and contracts. The doctrine

is used chiefly in concession contracts,the clause attempting to give local courts final

jurisdiction and to obviate any appeal to diplomatic

intervention.

13. Doctrine of Equality of states

It says that one state cannot assert jurisdiction over

another in violation of the maxim par in parem non

habet imperium (an equal has no power over an

equal).

14. Doctrine of non-intervention

The principle of non-intervention involves the right

of every sovereign State to conduct its affairs

without outside interference. A prohibited

interference must accordingly be one bearing on

matters in which each State is permitted, by the

principle of State sovereignty, to decide freely. The

element of coercion, which defines, and indeed

forms the very essence of prohibited intervention, is

particularly obvious in the case of an intervention

which uses force, either in the direct from of military action, or in the indirect form of support to

subversive or terrorist armed activities within

another State. These are therefore wrongful in the

light of both the principle of non-use of force, and

that of intervention.

15. Self determination

Self-determination is the free choice of one’s own

acts without external compulsion. In politics it is

seen as the freedom of the people of a given

territory or national grouping to determine their

own political status and how they will be governed

without undue influence from any other country.

There are conflicting definitions and legal criteria

for determining which groups may legitimately

claim the right to self-determination.

II. Subjects of International law

1. Elements of states

people

land government

sovereignty

2. Is recognition an element of state? 2 theories

Constitutive theory – recognition constitutes a

state & it confers legal personality on the entity

Declaratory theory – recognition is merely

regulatory & being a state depends upon

possession of required elements. (favored

authoritatively)

3. Tobar/Wilson, Stimpson and Estrada Doctrine

TOBAR / WILSON DOCTRINE : Precludes recognition

of any government established by revolutionary

means until constitutional reorganization by free

election of representatives.The doctrine was first

expressed in a treaty concluded in 1907 by Central

American republics at the suggestion of Foreign

Minister Tobar of Ecuador and was reiterated by

President Woodrow Wilson of the United States in a

public statement made 1913. Example: Coup d'etat

during Marcos Regime constituting internal

violence,revolution,civil war

Stimson doctrine - No recognition of a govt

established through external aggression. Example :

Members of the League of Nations not to recognize

any situation, treaty or agreement which may be

brought about by means of contrary to the

Convention of the League of Nations or to Pact of

Paris.

Estrada Doctrine- Since recognition has been

construed as approval (and non-

recognition,disapproval) of a govt established

through political upheaval, a state may not issue a

declaration giving recognition to such govt, but

merely accept whatever govt is in effective control

without raising the issue of recognition. Dealing or





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not dealing with the govt is not a judgement on the

legitimacy of the said govt.

4. Is Holy See a state?

The Lateran Treaty in 1929, which brought the city-state into existence, spoke of it as a new creation

(Preamble and Article III), not as a vestige of the

much larger Papal States (756-1870) that had

previously encompassed central Italy. Most of this

territory was absorbed into the Kingdom of Italy in

1860, and the final portion, namely the city of Rome

with a small area close to it, ten years later, in 1870.

5. Sui generis entities

It’s literally meaning of its own kind/genus or

unique in its characteristics.

Taiwan, classified by most commentators as an

“unrecognized state” or an “entity Sui generis”, has

been excluded from most of the major international

organizations.

The legal status of the Holy See has been described

as a sui generis entity possessing a international

personality.

Principle of succession of states/governments

6. State succession

State succession is defined as change or transfer of

sovereignty over a territory.

7. Belligerency

It is the state of being at war or being engaged in a

warlike conflict.

8. Uti Possidetis

Uti possidetis (Latin for "as you possess") is a

principle in international law that territory and

other property remains with its possessor at the

end of a conflict, unless provided for bytreaty.

Originating in Roman law, the phrase is derived

from the Latin expression uti possidetis, ita

possideatis, meaning "as you possessed, you shall

possess henceforth". This principle enables a

belligerent party to claim territory that it has

acquired by war. The term has historically been

used to legally formalize territorial conquests, such

as the annexation ofAlsace-Lorraine by the GermanEmpire in 1871.

The principle was affirmed by the International

Court of Justice in the 1986 Case Burkina-Faso v

Mali:

[Uti possidetis] is a general principle, which

is logically connected with the phenomenon

of obtaining independence, wherever it

occurs. Its obvious purpose is to prevent the

independence and stability of new states

being endangered by fratricidal struggles

provoked by the changing of frontiersfollowing the withdrawal of the

administering power.

9. Sovereign immunity

Sovereign immunity, or crown immunity, is a type

of immunity that in common law jurisdictions traces

its origins from early English law. Generally speaking

it is the doctrine that the sovereign or state cannot

commit a legal wrong and is immune from civil

suit or criminal prosecution; hence the saying, "the

king (or queen) can do no wrong". In many cases,states have waived this immunity to allow for suits;

in some cases, an individual may technically appear

as defendant on the state's behalf. Sovereign

immunity is available to countries in international

court but if they are acting more as a contracting

body (example: making agreements in regards to

extracting oil and selling it), then sovereign

immunity may not be available to them. Under

international law, and subject to some conditions,

countries are immune from legal proceedings in

another state.

10. Act of state doctrine

The Act of State Doctrine says that a nation

is sovereign within its own borders, and its domestic

actions may not be questioned in the courts of

another nation. The doctrine is not required

by international law, but it is a principle recognized





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and adhered to by United States federal courts. Its

aim is not to protect other nations' sovereignty by

intervention from the U.S but rather to protect the

US Executive's prerogatives in foreign affairs from

being frustrated by a decision issuing from U.S.

courts. The Act of State Doctrine entersconsideration most often in cases where a foreign

sovereign has expropriated the property of a U.S.

national located in that foreign territory (e.g.

through nationalization). Rather than pursuing

recourse through the courts, United States

nationals are to take their claims against foreign

sovereign governments to the Executive so that the

government can either espouse the claims of all U.S.

nationals as a group or seek recourse through

diplomatic channels. The United States employs the

Act of State Doctrine more broadly and with more

frequency than other countries.

III. The Law of Treaties

1. Treaty vs. Executive Agreement

The Constitution specifically grants the president

the power to broker treaties. These agreements are

like contracts. After the president brokers the

treaty, the Senate must ratify the treaty by a two-

thirds majority. Treaties carry over to succeeding

presidents. Executive agreements are the secondtool of foreign policy used by the president to form

agreements with foreign powers. Unlike treaties,

executive agreements are less formal, compel but

do not bind the president to take actions and do not

bind succeeding presidents to follow the

agreement. Succeeding presidents must renegotiate

such agreements.

2. Peremptory norm

That body of peremptory principles or norms fromwhich no derogation is permitted; those norms

recognized by the international community as a

whole as being fundamental to the maintenance of

an international legal order. It is the elementary

rules that concern the safeguarding of peace and

notably those that prohibit recourse to force or the

threat of force. Jus cogens may, therefore, operate

to invalidate a treaty or agreement between states

to the extent of the inconsistency with any such

principles or norms. A treaty is null and void if it is in

violation of a peremptory norm. These norms,

unlike other principles of customary law, are

recognized as permitting no violations and socannot be altered through treaty obligations. These

are limited to such universally accepted prohibitions

as those against genocide, slavery, torture, and

piracy, meaning that no state can legally assume an

obligation to commit or permit such acts.

3. Process of treaty making

Negotiation

Signature of the agreed text

Consent to be bound Ratification or accession made by treaty-making

organs of states concerned

Exchange or deposit of the instruments of

ratification or accession

4. Essential requisites of a valid treaty

Capacity of parties

Competence of particular organs concluding the

treaty

Reality of Consent

Legality of Object

5. Legal effects of reservations and of objections

to reservations

A reservation established with regard to another

party in accordance with articles 19, 20 and 23:

a. Modifies for the reserving State in its relations

with that other party the provisions of the treaty to

which the reservation relates to the extent of the

reservation; and Modifies those provisions to the

same extent for that other party in its relations withthe reserving State. The reservation does not

modify the provisions of the treaty for the other

parties to the treaty inter se. When a State

objecting to a reservation has not opposed the

entry into force of the treaty between itself and the

reserving State, the provisions to which the





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reservation relates do not apply as between the

two States to the extent of the reservation.

6. Protocol de cloture

A final act, sometimes called protocol de clôture, isan instrument which records the winding up of the

proceedings of a diplomatic conference and usually

includes a reproduction of the texts of treaties,

conventions, recommendations and other acts

agreed upon and signed by the plenipotentiaries

attending the conference.”[54] It is not the treaty

itself. It is rather a summary of the proceedings of a

protracted conference which may have taken place

over several years.

7. When does a treaty take effect?

Treaties may be seen as 'self-executing', in that

merely becoming a party puts the treaty and all of

its obligations in action. Other treaties may be non-

self-executing and require 'implementing

legislation'—a change in the domestic law of a state

party that will direct or enable it to fulfil treaty

obligations. An example of a treaty requiring such

legislation would be one mandating local

prosecution by a party for particular crimes.

The division between the two is often not clear and

is often politicized in disagreements within agovernment over a treaty, since a non-self-

executing treaty cannot be acted on without the

proper change in domestic law. If a treaty requires

implementing legislation, a state may be in default

of its obligations by the failure of its legislature to

pass the necessary domestic laws.

8. Instances when a non signatory may be bound

by a treaty

Mere formal expression of customaryinternational law

UN 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.

Expressly extend its benefits to non signatories

Parties to apparently unrelated treaties may

also be linked by the most-favored nation

clause

9. Effect of non-ratification of treaty

Section 4., Article XVIII of the Constitution provides

All existing treaties or international agreements

which have not been ratified shall not be renewed

or extended without the concurrence of at least

two-thirds of all the Members of the Senate.

10. Principle of maximum effectiveness

The Vienna Convention states that treaties are to be

interpreted “in good faith” according to the

“ordinary meaning given to the terms of the treatyin their context and in the light of its object and

purpose.” International legal experts also often

invoke the 'principle of maximum effectiveness,'

which interprets treaty language as having the

fullest force and effect possible to establish

obligations between the parties.

11. Pacta sunt servanda

With reference to international agreements,

"every treaty in force is binding upon the parties to

it and must be performed by them in good faith."Pacta sunt servanda is based on good faith. This

entitles states to require that obligations be

respected and to rely upon the obligations being

respected. This good faith basis of treaties implies

that a party to the treaty cannot invoke provisions

of its municipal (domestic) law as justification for a

failure to perform. The only limit to pacta sunt

servanda are the peremptory norms of general

international law, called jus cogens(compelling

law). The legal principle clausula rebus sic stantibus,

part ofcustomary international law, also allows fortreaty obligations to be unfulfilled due to a

compelling change in circumstances.





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12. clausula rebus sic stantibus

In public international law, clausula rebus sic

stantibus (Latin for "things thus standing") is

the legal doctrine allowing for treaties to becomeinapplicable because of a fundamental change of

circumstances. It is essentially an "escape clause"

that makes an exception to the general rule

of pacta sunt servanda (promises must be kept).

Because the doctrine poses a risk to the security of

treaties as its scope is relatively unconfined, it

requires strict regulations as to the conditions in

which it may be invoked. The doctrine is part

of customary international law, but is also provided

for in the 1969 Vienna Convention on the Law of

Treaties under Article 62 (Fundamental Change of

Circumstance), although the doctrine is never

mentioned by name. Article 62 provides the only

two justifications of the invocation of rebus sic

stantibus: first, that the circumstances existing at

the time of the conclusion of the treaty were indeed

objectively essential to the obligations of treaty

(sub-paragraph A) and the instance wherein the

change of circumstances has had a radical effect on

the obligations of the treaty (sub-paragraph B). If

the parties to a treaty had contemplated for the

occurrence of the changed circumstance the

doctrine does not apply and the provision remainsin effect. Clausula rebus sic stantibusonly relates to

changed circumstances that were never

contemplated by the parties.

13. Breach of treaty

If a party has materially violated or breached its

treaty obligations, the other parties may invoke this

breach as grounds for temporarily suspending their

obligations to that party under the treaty. A

material breach may also be invoked as grounds for

permanently terminating the treaty itself. A treaty

breach does not automatically suspend or

terminate treaty relations, however. The issue must

be presented to an international tribunal or arbiter

(usually specified in the treaty itself) to legally

establish that a sufficiently serious breach has in

fact occurred. Otherwise, a party that prematurely

and perhaps wrongfully suspends or terminates its

own obligations due to an alleged breach itself runs

the risk of being held liable for breach. Additionally,

parties may choose to overlook treaty breaches

while still maintaining their own obligations towards

the party in breach. Treaties sometimes includeprovisions for self-termination, meaning that the

treaty is automatically terminated if certain defined

conditions are met. Some treaties are intended by

the parties to be only temporarily binding and are

set to expire on a given date. Other treaties may

self-terminate if the treaty is meant to exist only

under certain conditions. A party may claim that a

treaty should be terminated, even absent an

express provision, if there has been a fundamental

change in circumstances. Such a change is sufficient

if unforeseen, if it undermined the “essential basis”

of consent by a party, if it radically transforms the

extent of obligations between the parties, and if the

obligations are still to be performed. A party cannot

base this claim on change brought about by its own

breach of the treaty. This claim also cannot be used

to invalidate treaties that established or redrew

political boundaries.

14. Invalidity of treaties

Provisions of internal law regarding competence

to conclude treaties Specific restrictions on authority to express the

consent of a State

Error

Fraud

Corruption of a representative of a State

Coercion of a representative of a State

Coercion of a State by the threat or use of force

Treaties conflicting with a peremptory norm of

general international law " jus cogens"

15. The termination of a treaty or the withdrawalof a party may take place:

In conformity with the provisions of the treaty;

or

At any time by consent of all the parties after

consultation with the other contracting States.





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IV. Jurisdiction of States

1. Modes of acquiring territory

by accretion by cession

by conquest

by discovery

by treaty

2. Discovery and Occupation

‘Occupation’ is the intentional acquisition by a State

of sovereignty over a territory which is at the time

not under the sovereignty of another State (terra

nullius). There are two basic requirements: (1) Theterritory in question must be terra nullius; (2) The

occupation must be ‘effective’ in the sense that

there must be an intention to occupy (animus

occupandi), followed by the actual exercise of State

functions over the territory (corpus occupandi).

3. Doctrine of effective occupation

Occupation to be valid must be ‘effective’. The

requirements of ‘effective occupation’ have become

increasingly strict in international law. Mere

‘discovery’ gave a State an ‘inchoate title’, that is,

an option to occupy the territory within a

reasonable time, during which time other States

were not allowed to occupy the territory. According

to the present law, there are two elements of

effective occupation: (1) The intention and will to

act as sovereign (animus); and (2) The peaceful and

continuous display of State authority (factum).

4. Basis of the claim for Kalayaan Island

The Philippines base their claims of sovereignty overthe Spratly’s on the issues of res nullius and

geography. The Philippines contend Kalayaan was

res nullius as there was no effective sovereignty

over the islands until the 1930s when France and

then Japan acquired the islands. When Japan

renounced their sovereignty over the islands in the

San Francisco Peace Treaty in 1951, there was a

relinquishment of the right to the islands without

any special beneficiary. Therefore, argue the

Philippines, the islands became res nullius and

available for annexation. Philippine businessman

Tomas Cloma did exactly that in 1956 and while the

Philippines never officially supported Cloma’s claim,upon transference of the islands’ sovereignty from

Cloma to the Philippines, the Philippines used the

same sovereignty argument as Cloma did. The

Philippine claim to Kalayaan on geographical bases

can be summarized using the assertion that

Kalayaan is distinct from other island groups in the

South China Sea because: It is a generally accepted

practice in oceanography to refer to a chain of

islands through the name of the biggest island in

the group or through the use of a collective name.

Note that Spratly (island) has an area of only 13

hectares compared to the 22 hectare area of the

Pag-asa Island. Distance-wise, Spratly Island is some

210nm off Pag-asa Islands. This further stresses the

argument that they are not part of the same island

chain. The Paracels being much further (34.5nm

northwest of Pag-asa Island) is definitely a different

group of islands. A second argument used by the

Philippines regarding their geographical claim over

the Spratly’s is that all the islands claimed by the

Philippines lie within their archipelagic baselines,

the only claimant who can make such a statement.

The 1982 United Nations Convention on the Law of the Sea (UNCLOS) stated that a coastal state could

claim two hundred nautical miles of jurisdiction

beyond its land boundaries. It is perhaps telling that

while the Philippines is a signatory to UNCLOS, the

PRC and Vietnam are not. The Philippines also

argue, under Law of the Sea provisions, that the PRC

cannot extend its baseline claims to the Spratly’s

because the PRC is not an archipelagic state.

Whether this argument (or any other used by the

Philippines) would hold up in court is debatable but

possibly moot, as the PRC and Vietnam seemunwilling to legally substantiate their claims and

have rejected Philippine challenges to take the

dispute to the World Maritime Tribunal in Hamburg.

5. Archipelago Doctrine





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The archipelago doctrine defines and elucidates the

archipelago as a body of water studded with islands

and the outermost portion of the archipelago are

connected with straight baselines and consider all

waters covered therein as internal waters thereof.

6. Thalweg Doctrine

The thalweg principle is the principle which defines

the boundary between two states separated by a

watercourse when and if those two states have

agreed to use the thalweg definition. Various states

have also defined their watercourse international

boundaries by a median line, left bank, right bank,

etc. The precise drawing of river boundaries has

been important on countless occasions; notable

examples include the Shatt al-Arab known as

Arvand Rud in Iran between Iraq and Iran,

the Danube in central Europe,

theKasikili/Sedudu Island dispute

between Namibia and Botswana, settled by

the International Court of Justice in 1999 external

link, and the 2004 dispute settlement under the

UN Law of the Sea concerning the offshore

boundary between Guyana and Suriname, in which

the thalweg of the Courantyne River played a role in

the ruling.

7. Territorial sea vs. High sea

In International Law the term territorial

waters refers to that part of the ocean immediately

adjacent to the shores of a state and subject to its

territorial jurisdiction. The state possesses both the

jurisdictional right to regulate, police, and

adjudicate the territorial waters and the proprietary

right to control and exploit natural resources in

those waters and exclude others from them.

Territorial waters differ from the high seas, which

are common to all nations and are governed by theprinciple of freedom of the seas. The high seas are

not subject to appropriation by persons or states

but are available to everyone for navigation,

exploitation of resources, and other lawful uses.

The legal status of territorial waters also extends to

the seabed and subsoil under them and to the

airspace above them.

8. Innocent passage

The right of all ships to engage in continuous and

expeditious surface passage through the territorial

sea and archipelagic waters of foreign coastal statesin a manner not prejudicial to its peace, good order,

or security. Passage includes stopping and

anchoring, but only if incidental to ordinary

navigation or necessary by force majeure or

distress, or for the purpose of rendering assistance

to persons, ships, or aircraft in danger or distress.

9. Five freedoms on states aerial domain

freedom to fly across the territory without

landing

freedom to land for nontraffic purposes

freedom to put down passengers, mails, and

cargo on the territory of the state whose the

nationality of the aircraft possesses.

freedom to take on passengers, mail, and cargo

destined for territory of any other contracting

state

freedom to put down passengers, mail and

cargo coming from any such territory.

10. Principle of State Continuity

The doctrine by which a state’s identity as an

international legal person persists notwithstanding

unconstitutional or even violent changes in its

government. As a result, a state generally continues

to owe and accrue international legal obligations

notwithstanding such changes.

11. Recognition of States

The recognition of states must be distinguished

from the recognition of governments. New statesare generally recognized as such by other states if

their origin is considered legitimate and irreversible.

However, there is no obligation under international

law to recognize other states. Although the

conditions for recognition may differ from state to

state, they are based on what is known as the

three-element doctrine: state territory, state





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people, state power. Where the recognition of

governments is concerned, the central element is

the exercise of sovereign power over the state. A

change of government makes no difference to

statehood or to the recognition of the state as such.

Switzerland is in favour of the widest-possiblerecognition of states, but it is extremely reticent

about recognizing governments.

12. Effects of Recognition of States/Theories

The question of the legal effect of recognition of

new entities claiming to be “States” has been

characterized for over a century by the “great

debate” between the “constitutive” and

“declaratory” schools of thought. While the former

contends that a State only becomes a State by

virtue of recognition, the latter – which is now

widely accepted – argues that a State is a State

because it is a State, that is, because it meets all the

international legal criteria for statehood. In the first

case recognition is status-creating; in the latter it is

merely status-confirming. International lawyers and

States do not always distinguish clearly between the

requirements for recognition of an entity as a State

(the criteria for statehood) and the requirements

for recognition of a State, that is, the preconditions

for entering into optional or discretionary –

diplomatic, political, cultural or economic –relations with the entity (the conditions for

recognition). While the former are prescribed by

international law, the latter may vary from State to

State.

13. Recognition of Government

The question of recognition of government normally

arises only with regard to recognized States. When

a State recognizes a new “government,” it usually

acknowledges a person or group of persons ascompetent to act as the organ of the State and to

represent it in its international relations. The only

criterion in international law for the recognition of

an authority as the government of a State is its

exercise of effective control over the State’s

territory. States may, however, continue to

recognize a government-in-exile if an incumbent

government is forced into exile by foreign

occupation or the de facto government in situ has

been created in violation of international law.

Despite a trend in the literature to the contrary,

there is still no rule of general or regional customary

international law that a de facto government, to bea government in the sense of international law,

must be democratically elected. Attempts to

introduce such a requirement either by treaty

(Central American Treaties of Peace and Amity of

1907 and 1923) or as a matter of national (Tobar,

Wilson and Betancourt doctrines) or regional

policies (Santiago Commitment to Democracy and

the Renewal of the Inter-American System, OAS

General Assembly Resolution 1080 of 5 June 1991)

have failed. States may be roughly divided into

three groups according to their recognition policy:

States (such as the United Kingdom before 1980)

that formally recognize governments; States (such

as the United States) that generally do not formally

recognize governments but do so in exceptional

circumstances for political reasons; and States (such

as the United Kingdom since 1980, and other

member States of the European Union) that

formally recognize only States, not governments.

That policy is reminiscent of the “Estrada doctrine”

according to which States issue no declarations in

the sense of grants of recognition in cases of change

of regime but confine themselves to themaintenance or withdrawal, as they may deem

advisable, of their diplomatic agents. Those States

have not completely abolished the recognition of

governments, only the making of official statements

of recognition. They still have to decide whether a

person or group of persons qualifies as the

government of another State, especially where

there are competing “governments” in the same

recognized State or when there is an attempted

secession and issues of governmental status and

statehood are linked. In the case of the Britishgovernment, its opinion on the legal status of a

claimant may be determined on the basis of the

nature of the dealings (non-existent, limited or

government-to-government dealings) which it has

with a claimant.





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14. Tobar/Wilson, Stimpson and Estrada

Doctrine

TOBAR / WILSON DOCTRINE : Precludes recognition

of any government established by revolutionary

means until constitutional reorganization by freeelection of representatives.The doctrine was first

expressed in a treaty concluded in 1907 by Central

American republics at the suggestion of Foreign

Minister Tobar of Ecuador and was reiterated by

President Woodrow Wilson of the United States in a

public statement made 1913. Example: Coup d'etat

during Marcos Regime constituting internal

violence,revolution,civil war

Stimson doctrine - No recognition of a govt

established through external aggression. Example :

Members of the League of Nations not to recognize

any situation, treaty or agreement which may be

brought about by means of contrary to the

Convention of the League of Nations or to Pact of

Paris.

Estrada Doctrine- Since recognition has been

construed as approval (and non-

recognition,disapproval) of a govt established

through political upheaval, a state may not issue a

declaration giving recognition to such govt, but

merely accept whatever govt is in effective controlwithout raising the issue of recognition. Dealing or

not dealing with the govt is not a judgement on the

legitimacy of the said govt.

15. Belligerency

Belligerency is a term used in international law to

indicate the status of two or more entities,

generally sovereign states, being engaged in a war.

Wars are often fought with one or both parties to a

conflict invoking the right to self defence

under Article 51 of the United Nations Charterorunder the auspices of a United Nations Security

Council resolution. A state of belligerency may also

exist between one or more sovereign states on one

side, and rebel forces, if such rebel forces are

recognised as belligerents. If there is a rebellion

against a constituted and those taking part in the

rebellion are not recognised as belligerents then the

rebellion is an insurgency.

16. Requisites in recognizing Belligerency

a provisional government

occupation of a substantial portion of state’s

territory

seriousness of struggle

willingness on the part of the rebel to observe

rules and customs of war

17. Insurgency

An insurgency is an armed rebellion against a

constituted authority (for example, an authority

recognized as such by the United Nations) when

those taking part in the rebellion are not recognizedas belligerents. An insurgency can be fought

via counter-insurgency warfare.

18. Deportation vs. Extradition

In the case of deportation, the state of residence

will initiate the action, often for administrative

reasons and not for criminal behaviour, and eject

the person from their territory. The person is never

a citizen of the state of residence. In other words,

you can't deport your own citizen (unless you cansomehow strip the person of his or her citizenship,

which might be possible for someone with dual

citizenship). If the person has committed a criminal

act instead of merely overstaying his or her visa, the

state of residence will generally prefer to prosecute

and punish that person, in order to ensure justice is

done. The state of citizenship is not likely to pursue

criminal prosecution of a crime committed out of its

jurisdiction. Once the punishment is served, the

criminal is deported. In the case of extradition, the

person has committed a crime in one state and has

evaded prosecution or punishment by fleeing to

take up residence in another state. The state in

which the crime has occurred requests that the

state of residence apprehend the person and force

his return. Note that if the person is a citizen of the

state of residence, that state might refuse to

extradite. Many countries refuse to extradite their





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own citizens on principle. Foreigners legally in the

country, however, are fair game for extradition.

19. Refusal of a state of a request for grant of

extradition

Double Criminality

Nos bis in idem

Capital Punishment

20. Attentat clause

In French, it means successful or unsuccessful

attempt on someone’s life. Under that clause, an

attempt on the life of a head of a foreign state or a

member of the family is not considered a politicaloffense and consequently, the perpetrator is

subject to extradition.

21. Nationality Doctrine

It says that every state has jurisdiction over its

nationals even when those nationals are outside the

state.

22. Principle of Universality of Jurisdiction

Universal jurisdiction or universality principle is aprinciple in public international

law whereby states claim criminal jurisdiction over

persons whose alleged crimes were committed

outside the boundaries of the prosecuting state,

regardless of nationality, country of residence, or

any other relation with the prosecuting country.

The state backs its claim on the grounds that the

crime committed is considered a crime against all,

which any state is authorized to punish, as it is too

serious to tolerate jurisdictional arbitrage. The

concept of universal jurisdiction is therefore closely

linked to the idea that certain international normsare erga omnes, or owed to the entire world

community, as well as the concept of jus cogens-

that certain international law obligations are

binding on all states and cannot be modified

by treaty.

23. Principle of territoriality and extra-

territoriality

Territoriality principle is a principle of public

international law under which sovereign state can

prosecute criminal offences that are committedwithin their borders. The principle also bars states

from exercising jurisdiction beyond its borders,

unless they has jurisdiction under other principles

such as the principle of nationality, the passive

personality principle, the protective principle, and

possibly the universal jurisdiction.

Extra-territoriality is the state of being exempt from

the jurisdiction of local law, usually as the result of

diplomatic negotiations. Extraterritoriality can also

be applied to physical places, such as military

bases of foreign countries, or offices of the United

Nations. The three most common cases recognized

today internationally relate to the persons and

belongings of foreign heads of state, the persons

and belongings of ambassadors and certain other

diplomatic agents, and public ships in foreign

waters.

24. Protective Principle

It says that a state may exercise jurisdiction over

conduct outside its territory that threatens itsecurity, as long as that conduct is generally

recognized as criminal by states in the international

community.

25. Statelessness

It is the legal and social concept of a person lacking

belonging (or a legally enforceable claim) to any

recognised state. Statelessness is not always the

same as lack of citizenship. De jure statelessness is

where there exists no recognised state in respect of

which the subject has a legally meritorious basis toclaim nationality. De facto statelessness is where

the subject may have a legally meritorious claim but

is precluded from asserting it because of practical

considerations such as cost, circumstances of civil

disorder, or the fear of persecution.





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26. Repatriation vs. Naturalization

Repatraition is the process of returning a person

back to one's place of origin or citizenship. This

includes the process of

returning refugees or soldiers to their place of origin

following a war. The term may also refer to theprocess of converting a foreign currency into the

currency of one's own country. The act of forced

repatriation against the will of those concerned is

also known as refoulement.

Naturalization is the acquisition

of citizenship and nationality by somebody who was

not a citizen or national of that country when he or

she was born. is the acquisition

of citizenship and nationality by somebody who was

not a citizen or national of that country when he or

she was born.

27. Doctrine of Specialty

U.S. law has five substantive requirements that

must be satisfied for extradition to and from the

United States: (1) reciprocity; (2) double criminality;

(3) an extraditable offense; (4) non-inquiry; and (5)

specialty.(59) The first, reciprocity, essentially

requires that either (a) the states involved in an

extradition reciprocally recognize their respective

judicial processes, or (b) symmetry exists between

the judicial processes of each state. This element is

typically addressed in U.S. courts prior to the

extradition of a person to the United States.

28. Doctrine of Double criminality

It requires the offenses for which extradition is

requested be a crime in both the requested and

requesting states.(61) This requirement may be

interpreted in one of three ways: In order to qualify,

the crime must be (1) chargeable, (2) chargeable

and prosecutable, or (3) chargeable, prosecutable,and likely to result in a conviction. Unlike

reciprocity, double criminality is often asserted by

defendants who are either contesting their

extradition from the United States or challenging

their extradition to the United States (usually after

they have arrived).

29. Restrictive doctrine of immunity

The restrictive theory of state immunity provided

that foreign states were immune from jurisdiction

relating to their “public acts” (acta jure imperii) but

were not immune from jurisdiction for their“private acts” (acta jure gestionis) including

commercial activities.

30. Asylum

Political asylum is similar, but not identical, to

modern refugee law, which deals with massive

influx of population, while the right of asylum

concerns individuals and is usually delivered in a

case-to-case basis. There is overlap between the

two because each refugee may demand political

asylum on an individual basis.

31. Right of Legation

The right of legation; also known as the right of

diplomatic intercourse, this refers to the right of the

State to send and receive diplomatic missions,

which enables States to carry on friendly

intercourse. It is not a natural or inherent right, but

exists only by common consent. No legal liability is

incurred by the State for refusing to send or receive

diplomatic representatives.

32. Diplomatic vs. Consular Immunity

Consular immunity privileges are described in the

Vienna Convention on Consular Relations of 1963

(VCCR). Consular immunity offers protections

similar to diplomatic immunity, but these

protections are not as extensive, given the

functional differences between consular and

diplomatic officers. For example, consular officers

are not accorded absolute immunity from a hostcountry’s criminal jurisdiction (they may be tried for

certain local crimes upon action by a local court)

and are immune from local jurisdiction only in cases

directly relating to consular functions. Diplomatic

immunity is a form of legal immunity and a policy

held between governments, which ensures

that diplomats are given safe passage and are





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considered not susceptible to

lawsuit or prosecution under the host country's

laws (although they can be expelled). It was agreed

as international law in the Vienna Convention on

Diplomatic Relations (1961), though the concept

and custom have a much longer history. Manyprinciples of diplomatic immunity are now

considered to be customary law. Diplomatic

immunity as an institution developed to allow for

the maintenance of government relations, including

during periods of difficulties and even armed

conflict. When receiving diplomats — who are,

formally, representatives of the sovereign — the

receiving head of state grants certain privileges and

immunities to ensure that they may effectively carry

out their duties, on the understanding that these

will be provided on a reciprocal basis.

V. State Responsibility

1. State’s responsibility for injury to aliens

The general rule is no state is under obligation to

admit aliens. This flows from sovereignty except if

there is a treaty stipulation imposing that duty like

quota system.

2. Extent of state responsibility for the acts of

its officials

The conduct of any State organ shall be considered

an act of that State under international law,

whether the organ exercises legislative, executive,

judicial or any other functions, whatever position it

holds in the organization of the State, and whatever

its character as an organ of the central Government

or of a territorial unit of the State. The conduct of

an organ of a State or of a person or entity

empowered to exercise elements of the

governmental authority shall be considered an actof the State under international law if the organ,

person or entity acts in that capacity, even if it

exceeds its authority or contravenes instructions.

The conduct of a person or group of persons shall

be considered an act of a State under international

law if the person or group of persons is in fact

acting on the instructions of, or under the direction

or control of, that State in carrying out the conduct.

The conduct of a person or group of persons shall

be considered an act of a State under international

law if the person or group of persons is in fact

exercising elements of the governmental authority

in the absence or default of the official authoritiesand in circumstances such as to call for the exercise

of those elements of authority.

3. Internationally wrongful act

There is an internationally wrongful act of a State

when conduct consisting of an action or omission:

(a) Is attributable to the State under international

law; and (b) Constitutes a breach of an international

obligation of the State. The characterization of an

act of a State as internationally wrongful is

governed by international law. Such

characterization is not affected by the

characterization of the same act as lawful by

internal law.

4. Injured State

A State is entitled as an injured State to invoke the

responsibility of another State if the obligation

breached is owed to: (a) That State individually; or

(b) A group of States including that State, or the

international community as a whole, and the breachof the obligation: (i) Specially affects that State; or

(ii) Is of such a character as radically to change the

position of all the other States to which the

obligation is owed with respect to the further

performance of the obligation.

5. Reparation vs. Restitution

In Reparation, the responsible State is under an

obligation to make full reparation for the injury

caused by the internationally wrongful act. Also,injury includes any damage, whether material or

moral, caused by the internationally wrongful act of

a State. Restitution is just a form of reparation

wherein a State responsible for an internationally

wrongful act is under an obligation to make

restitution, that is, to re-establish the situation

which existed before the wrongful act was





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committed, provided and to the extent that

restitution: (a) Is not materially impossible; (b) Does

not involve a burden out of all proportion to the

benefit deriving from restitution instead of

compensation.

6. Remedies for internationally wrongful act

An injured State which invokes the responsibility of

another State shall give notice of its claim to that

State. The injured State may specify in particular the

conduct that the responsible State should take in

order to cease the wrongful act, if it is continuing,

what form reparation should take. The

responsibility of a State may not be invoked if: The

claim is not brought in accordance with any

applicable rule relating to the nationality of claims

or the claim is one to which the rule of exhaustion

of local remedies applies and any available and

effective local remedy has not been exhausted.

7. Circumstances Precluding Wrongfulness

Consent

Self-defence

Force majeure

Distress

Necessity

8. May a state be made to damages for

violation of Human Rights?

States shall, with respect to claims by victims,

enforce domestic judgements for reparation against

individuals or entities liable for the harm suffered

and endeavour to enforce valid foreign legal

judgements for reparation in accordance with

domestic law and international legal obligations. To

that end, States should provide under their

domestic laws effective mechanisms for theenforcement of reparation judgements. In

accordance with domestic law and international

law, and taking account of individual circumstances,

victims of gross violations of international human

rights law and serious violations of international

humanitarian law should, as appropriate and

proportional to the gravity of the violation and the

circumstances of each case, be provided with full

and effective reparation which include the following

forms: restitution, compensation, rehabilitation,

satisfaction and guarantees of non-repetition.

Compensation should be provided for any

economically assessable damage, as appropriateand proportional to the gravity of the violation and

the circumstances of each case, resulting from gross

violations of international human rights law and

serious violations of international humanitarian law,

such as: (a) Physical or mental harm; (b) Lost

opportunities, including employment, education

and social benefits; (c) Material damages and loss of

earnings, including loss of earning potential; (d)

Moral damage; (e) Costs required for legal or expert

assistance, medicine and medical services, and

psychological and social services.

9. Terrorism

Terrorism sprouts from the existence of aggrieved

groups. These aggrieved groups share two essential

characteristics: they have specific political

objectives, and they believe that violence is an

inevitable means to achieve their political ends. The

political dimension of terrorist violence is the key

factor that distinguishes it from other crimes

10. Human rights law applied to terrorists

The promotion and protection of human rights

while countering terrorism is an obligation of States

and an integral part of the fight against terrorism.

National counter-terrorism strategies should, above

all, seek to prevent acts of terrorism, prosecute

those responsible for such criminal acts, and

promote and protect human rights and the rule of

law. At the outset, it is important to highlight that

the vast majority of counterterrorism measures are

adopted on the basis of ordinary legislation. In alimited set of exceptional national circumstances,

some restrictions on the enjoyment of certain

human rights may be permissible. Ensuring both the

promotion and protection of human rights and

effective counter-terrorism measures nonetheless

raises serious practical challenges for States. One

such example is the dilemma faced by States in





P a g e | 17


protecting intelligence sources, which may require

limiting the disclosure of evidence at hearings

related to terrorism, while at the same time

respecting the right to a fair trial and the right to a

fair hearing for the individual. These challenges are

not insurmountable. States can effectively meettheir obligations under international law by using

the flexibilities built into the international human

rights law framework. Human rights law allows for

limitations on certain rights and, in a very limited

set of exceptional circumstances, for derogations

from certain human rights provisions. These two

types of restrictions are specifically conceived to

provide States with the necessary flexibility to deal

with exceptional circumstances, while at the same

time—provided a number of conditions are

fulfilled—complying with their obligations under

international human rights law.

11. Torture

It is any act by which severe pain or suffering,

whether physical or mental, is intentionally inflicted

on a person for such purposes as obtaining from

him, or a third person, information or a confession,

punishing him for an act he or a third person has

committed or is suspected of having committed,

or intimidating or coercing him or a third person, or

for any reason based on discrimination of any kind,when such pain or suffering is inflicted by or at the

instigation of or with the consent or acquiescence

of a public official or other person acting in an

official capacity. It does not include pain or suffering

arising only from, inherent in, or incidental to,

lawful sanctions.

12. Torture vs. inhuman or degrading

treatment or punishment.

Inhuman or degrading treatment or punishmentmeant "the cruel, unusual and inhumane treatment

or punishment prohibited by the Fifth, Eighth,

and/or Fourteenth Amendments to the Constitution

of the United States. Inhuman or degrading

treatment or punishments are acts that do not

amount to torture.

13. Torture as legitimate policy by state

Torture in all forms is banned by the 1948 Universal

Declaration of Human Rights (UDHR) which provides

No one shall be subjected to torture or to cruel,

inhuman or degrading treatment or punishment.

VI. International Organizations

1. Extent of immunity granted to

international organizations

Because they enjoy international personality, they

can also be given the immunities and privileges of

international persons. Their immunity however

have for the basis not sovereignty, as it is for states,

but the need for the effective exercise of their

functions.

2. Powers of Security Council

to maintain international peace and security in

accordance with the principles and purposes of

the UN;

to investigate any dispute or situation that

might lead to international friction and to

recommend methods of adjusting such disputes

or the terms of settlement; to determine the existence of a threat to the

peace or an act of aggression and to

recommend what action should be taken;

to call on members to apply economic sanctions

and other measures not involving the use of

force in order to prevent or stop aggression;

to take military action against an aggressor; and

to formulate plans for the establishment of a

system to regulate armaments.

3. International Court of Justice

The function of the ICJ is to resolve disputes

between sovereign states. Disputes may be placed

before the court by parties upon conditions

prescribed by the U.N. Security Council. No state,

however, may be subject to the jurisdiction of the

court without the state's consent. Consent may be





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given by express agreement at the time the dispute

is presented to the court, by prior agreement to

accept the jurisdiction of the court in particular

categories of cases, or by treaty provisions with

respect to disputes arising from matters covered by

the treaty.

4. ICSID

ICSID provides facilities for the conciliation and

arbitration of disputes between member countries

and investors who qualify as nationals of other

member countries. Recourse to ICSID conciliation

and arbitration is entirely voluntary. However, once

the parties have consented to arbitration under the

ICSID Convention, neither can unilaterally withdraw

its consent. Moreover, all ICSID Contracting States,

whether or not parties to the dispute, are requiredby the Convention to recognize and enforce ICSID

arbitral awards. Besides this original role, the Centre

has since 1978 had a set of Additional Facility Rules

authorizing the ICSID Secretariat to administer

certain types of proceedings between States and

foreign nationals which fall outside the scope of the

Convention. These include conciliation and

arbitration proceedings where either the State

party or the home State of the foreign national is

not a member of ICSID. Additional Facility

conciliation and arbitration are also available for

cases where the dispute is not an investment

dispute provided it relates to a transaction which

has "features that distinguishes it from an ordinary

commercial transaction." The Additional Facility

Rules further allow ICSID to administer a type of

proceedings not provided for in the Convention,

namely fact-finding proceedings to which any State

and foreign national may have recourse if they wish

to institute an inquiry "to examine and report on

facts

5. Individual Suing a State

A state can be sued when the dispute arises from acommercial transaction entered into by a state orsome other non-sovereign activity of a state. TheUnited Nations Convention on JurisdictionalImmunities of States and their Property 2004, whichis not yet in force, formulates the rules and theexceptions to them

6. World Bank and BSP

The World Bank is a vital source of financial and

technical assistance to developing countries around

the world. Our mission is to fight poverty with

passion and professionalism for lasting results andto help people help themselves and their

environment by providing resources, sharing

knowledge, building capacity and forging

partnerships in the public and private sectors.

The Bangko Sentral ng Pilipinas (BSP) is the central

bank of the Republic of the Philippines. It was

established on 3 July 1993 pursuant to the

provisions of the 1987 Philippine Constitution and

the New Central Bank Act of 1993. The BSP took

over from the Central Bank of Philippines, which

was established on 3 January 1949, as the country’s

central monetary authority. The BSP enjoys fiscal

and administrative autonomy from the National

Government in the pursuit of its mandated

responsibilities.

7. Economic Integration

Economic integration refers to trade unificationbetween different states by the partial or fullabolishing of customs tariffs on trade taking placewithin the borders of each state. This is meant in

turn to lead to lower prices for distributors andconsumers (as no customs duties are paid within theintegrated area) and the goal is to increase trade.The trade stimulation effects intended by means ofeconomic integration are part of the contemporaryeconomic Theory of the Second Best: where, intheory, the best option is free trade, with freecompetition and no trade barriers whatsoever. Freetrade is treated as an idealistic option, and althoughrealized within certain developed states, economicintegration has been thought of as the "second best"option for global trade where barriers to full freetrade exist.

8. EU and ASEAN

The European Union (EU) is an economic and

political union of 27 member states, located

primarily in Europe. Committed to regional

integration, the EU was established by the Treaty of

Maastricht in 1993 upon the foundations of

the European Communities. With over 500 million





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citizens, the EU combined generated an estimated

28% share (US$ 16.5 trillion) of the nominal and

about 21% (US$14.8 trillion) of the PPP gross world

product in 2009.

The Association of Southeast Asian Nations is a geo-political and economic organization of 10 countries

located in Southeast Asia, which was formed on 8

August 1967 by Indonesia, Malaysia,

the Philippines, Singapore and Thailand. Since then,

membership has expanded to

include Brunei, Burma (Myanmar), Cambodia, Laos,

and Vietnam. Its aims include the acceleration

of economic growth, social progress, cultural

development among its members, the protection of

the peace and stability of the region, and to provide

opportunities for member countries to discuss

differences peacefully. ASEAN spans over an area of 4.46 million km2 with a population of approximately

580 million people, 8.7% of the world population. In

2009, its combined nominal GDP had grown to

more than USD $1.5 trillion. If ASEAN was a single

country, it would rank as the 9th largest economy in

the world in terms of nominal GDP.

VII. War and Peace

1. Peaceful means of settling international

disputes

Negotiation

Good Offices

Mediation

Arbitration

Enquiry

Conciliation

2. Principle of non-intervention

The principle of non-intervention involves the right

of every sovereign State to conduct its affairswithout outside interference. A prohibited

interference must accordingly be one bearing on

matters in which each State is permitted, by the

principle of State sovereignty, to decide freely. The

element of coercion, which defines, and indeed

forms the very essence of prohibited intervention, is

particularly obvious in the case of an intervention

which uses force, either in the direct from of

military action, or in the indirect form of support to

subversive or terrorist armed activities within

another State. These are therefore wrongful in the

light of both the principle of non-use of force, and

that of intervention.

3. Optional Jurisdiction Clause vs. Domestic

Jurisdiction Clause in the UN Charter

Optional Jurisdiction Clause provides that The

Security Council should take into consideration any

procedures for the settlement of the dispute which

have already been adopted by the parties.

Domestic Jurisdiction Clause provides that 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 (Action

with respect to Threats to the Peace, Breaches of

the Peace, and Acts of Aggression)

4. Doctrine of Humanitarian Intervention

Humanitarian intervention refers to armed

interference in one state by another state(s) with

the objective of ending or reducing the suffering of

the population within the first state. That suffering

may be the result of civil war, humanitarian crisis,

or crimes committed by the occupied nation (such

as genocide). The goal of humanitarian intervention

is neither annex ation nor interference with

territorial integrity, but minimization of thesuffering of civilians in that state.

5. Use of Force

The term use of force describes a right of an

individual or authority to settle conflicts or prevent

certain actions by applying measures to either: a)

dissuade another party from a particular course of





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action, or b) physically intervene to stop them. In

nations of the developed world and the developing

world, citizens allow police, corrections, or

other security personnel to employ force to actively

prevent imminent commission of crime, or even for

deterrence. It may also be exercised bythe executive branch (i.e., through the president,

prime minister, premier, governor or mayor) of a

political jurisdiction, deploying the police

or military to maintain public order. The use of force

is governed by statute and is usually authorized in a

progressive series of actions, referred to as a "use of

force continuum.

6. Procedure in ICJ

CHAPTER III - PROCEDURE

Article 39

1. The official languages of the Court shall be French

and English. If the parties agree that the case shall

be conducted in French, the judgment shall be

delivered in French. If the parties agree that the

case shall be conducted in English, the judgment

shall be delivered in English.

2. In the absence of an agreement as to which

language shall be employed, each party may, in the

pleadings, use the language which it prefers; thedecision of the Court shall be given in French and

English. In this case the Court shall at the same time

determine which of the two texts shall be

considered as authoritative.

3. The Court shall, at the request of any party,

authorize a language other than French or English

to be used by that party.

Article 40

1. Cases are brought before the Court, as the case

may be, either by the notification of the specialagreement or by a written application addressed to

the Registrar. In either case the subject of the

dispute and the parties shall be indicated.

2. The Registrar shall forthwith communicate the

application to all concerned.

3. He shall also notify the Members of the United

Nations through the Secretary-General, and also

any other states entitled to appear before the

Court.

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 of the measures

suggested shall forthwith be given to the parties

and to the Security Council.

Article 42

1. The parties shall be represented by agents.

2. They may have the assistance of counsel or

advocates before the Court.

3. The agents, counsel, and advocates of parties

before the Court shall enjoy the privileges and

immunities necessary to the independent exercise

of their duties.

Article 43

1. The procedure shall consist of two parts: written

and oral.

2. The written proceedings shall consist of the

communication to the Court and to the parties of

memorials, counter-memorials and, if necessary,

replies; also all papers and documents in support.

3. These communications shall be made through the

Registrar, in the order and within the time fixed by

the Court.

4. A certified copy of every document produced by

one party shall be communicated to the other

party.

5. The oral proceedings shall consist of the hearing

by the Court of witnesses, experts, agents, counsel,

and advocates.

Article 44

1. For the service of all notices upon persons other

than the agents, counsel, and advocates, the Court





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shall apply direct to the government of the state

upon whose territory the notice has to be served.

2. The same provision shall apply whenever steps

are to be taken to procure evidence on the spot.

Article 45

The hearing shall be under the control of the

President or, if he is unable to preside, of the Vice-

President; if neither is able to preside, the senior

judge present shall preside.

Article 46

The hearing in Court shall be public, unless the

Court shall decide otherwise, or unless the parties

demand that the public be not admitted .

Article 47

1. Minutes shall be made at each hearing and

signed by the Registrar and the President.

2. These minutes alone shall be authentic.

Article 48

The Court shall make orders for the conduct of the

case, shall decide the form and time in which each

party must conclude its arguments, and make all

arrangements connected with the taking of

evidence.

Article 49

The Court may, even before the hearing begins, call

upon the agents to produce any document or to

supply any explanations. Formal note shall be taken

of any refusal.

Article 50

The Court may, at any time, entrust any individual,

body, bureau, commission, or other organization

that it may select, with the task of carrying out anenquiry or giving an expert opinion.

Article 51

During the hearing any relevant questions are to be

put to the witnesses and experts under the

conditions laid down by the Court in the rules of

procedure referred to in Article 30.

Article 52

After the Court has received the proofs and

evidence within the time specified for the purpose,

it may refuse to accept any further oral or written

evidence that one party may desire to present

unless the other side consents.

Article 53

1. Whenever one of the parties does not appear

before the Court, or fails to defend its case, the

other party may call upon the Court to decide in

favour of its claim.

2. The Court must, before doing so, satisfy itself, not

only that it has jurisdiction in accordance with

Articles 36 and 37, but also that the claim is well

founded in fact and law.

Article 54

1. When, subject to the control of the Court, the

agents, counsel, and advocates have completed

their presentation of the case, the President shall

declare the hearing closed.

2. The Court shall withdraw to consider the

judgment.

3. The deliberations of the Court shall take place in

private and remain secret.Article 55

1. All questions shall be decided by a majority of the

judges present.

2. In the event of an equality of votes, the President

or the judge who acts in his place shall have a

casting vote.

Article 56

1. The judgment shall state the reasons on which it

is based.

2. It shall contain the names of the judges who have

taken part in the decision.





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Article 57

If the judgment does not represent in whole or in

part the unanimous opinion of the judges, any judge

shall be entitled to deliver a separate opinion.

Article 58

The judgment shall be signed by the President and

by the Registrar. It shall be read in open court, due

notice having been given to the agents.

Article 59

The decision of the Court has no binding force

except between the parties and in respect of that

particular case.

Article 60

The judgment is final and without appeal. In the

event of dispute as to the meaning or scope of the

judgment, the Court shall construe it upon the

request of any party.

Article 61

1. An application for revision of a judgment may be

made only when it is based upon the discovery of

some fact of such a nature as to be a decisive factor,

which fact was, when the judgment was given,

unknown to the Court and also to the party claimingrevision, always provided that such ignorance was

not due to negligence.

2. The proceedings for revision shall be opened by a

judgment of the Court expressly recording the

existence of the new fact, recognizing that it has

such a character as to lay the case open to revision,

and declaring the application admissible on this

ground.

3. The Court may require previous compliance with

the terms of the judgment before it admits

proceedings in revision.

4. The application for revision must be made at

latest within six months of the discovery of the new

fact.

5. No application for revision may be made after the

lapse of ten years from the date of the judgment.

Article 62

l. Should a state consider that it has an interest of a

legal nature which may be affected by the decision

in the case, it may submit a request to the Court to

be permitted to intervene.

2 It shall be for the Court to decide upon this

request.

Article 63

1. Whenever the construction of a convention to

which states other than those concerned in the case

are parties is in question, the Registrar shall notify

all such states forthwith.

2. Every state so notified has the right to intervene

in the proceedings; but if it uses this right, the

construction given by the judgment will be equally

binding upon it.

Article 64

Unless otherwise decided by the Court, each party

shall bear its own costs.

7. Basis of ICJ Jurisdiction

The jurisdiction of the Court in contentious

proceedings is based on the consent of the States to

which it is open1. The form in which this consent is

expressed determines the manner in which a case

may be brought before the Court.

(a) Special agreement

Article 36, paragraph 1, of the Statute provides that

the jurisdiction of the Court comprises all cases

which the parties refer to it. Such cases normally

come before the Court by notification to the

Registry of an agreement known as a special

agreement and concluded by the parties specially

for this purpose2. The subject of the dispute and theparties must be indicated (Statute, Art. 40, para. 1;

Rules, Art. 39).

(b) Cases provided for in treaties and conventions

Article 36, paragraph 1, of the Statute provides also

that the jurisdiction of the Court comprises all





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matters specially provided for in treaties and

conventions in force. In such cases a matter is

normally brought before the Court by means of a

written application instituting proceedings3; this is a

unilateral document which must indicate the

subject of the dispute and the parties (Statute,Art. 40, para. 1) and, as far as possible, specify the

provision on which the applicant founds the

jurisdiction of the Court (Rules, Art. 38).

A list of treaties and conventions governing the

jurisdiction of the International Court of Justice in

contentious cases is given in the "Treaties and

Other Documents" section.

To these instruments must be added other treaties

and conventions concluded earlier and conferring

jurisdiction upon thePermanent Court of

International Justice, for Article 37 of the Statute of the International Court of Justice stipulates that

whenever a treaty or convention in force provides

for reference of a matter to a tribunal to have been

instituted by the League of Nations, or to

the Permanent Court of International Justice, the

matter shall, as between the parties to the Statute,

be referred to the International Court of Justice.

The Permanent Court reproduced, in 1932, in

its Collection of Texts governing the Jurisdiction of

the Court (P.C.I.J., Series D, No. 6, fourth edition)

and subsequently in Chapter X of its Annual Reports

(P.C.I.J., Series E, Nos. 8-16) the relevant provisions

of the instruments governing its jurisdiction. By

virtue of the Article referred to above, some of

these provisions now govern the jurisdiction of the

International Court of Justice.

(c) Compulsory jurisdiction in legal disputes

The Statute provides that a State may recognize as

compulsory, in relation to any other State accepting

the same obligation, the jurisdiction of the Court in

legal disputes. These cases are brought before the

Court by means of written applications. Theconditions on which such compulsory jurisdiction

may be recognized are stated in paragraphs 2-5 of

Article 36 of the Statute, which read as follows:

"2. The States parties to the present Statute may at

any time declare that they recognize as

compulsory ipso factoand without special

agreement, in relation to any other State accepting

the same obligation, the jurisdiction of the Court in

all legal disputes concerning:

(a) the interpretation of a treaty;

(b) any question of international law;

(c) the existence of any fact which, if established,would constitute a breach of an international

obligation;

(d) the nature or extent of the reparation to be

made for the breach of an international obligation.

3. The declarations referred to above may be made

unconditionally or on condition of reciprocity on the

part of several or certain States, or for a certain

time.

4. Such declarations shall be deposited with the

Secretary-General of the United Nations, who shalltransmit copies thereof to the parties to the Statute

and to the Registrar of the Court.

5. Declarations made under Article 36 of the Statute

of the Permanent Court of International Justice and

which are still in force shall be deemed, as between

the parties to the present Statute, to be

acceptances of the compulsory jurisdiction of the

International Court of Justice for the period which

they still have to run and in accordance with their

terms."

Texts of those declarations are given in the

"Declarations Recognizing as Compulsory the

Jurisdiction of the Court" section.

(d) Forum prorogatum

If a State has not recognized the jurisdiction of the

Court at the time when an application instituting

proceedings is filed against it, that State has the

possibility of accepting such jurisdiction

subsequently to enable the Court to entertain the

case: the Court thus has jurisdiction as of the date

of acceptance in virtue of the rule of forumprorogatum.

(e) The Court itself decides any questions as to its

jurisdiction

Article 36, paragraph 6, of the Statute provides that

in the event of a dispute as to whether the Court

has jurisdiction, the matter shall be settled by the





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decision of the Court. Article 79 of the Rules lays

down the conditions which govern the filing of

preliminary objections.

(f) Interpretation of a judgment

Article 60 of the Statute provides that in the event

of dispute as to the meaning or scope of a

judgment, the Court shall construe it upon the

request of any party. The request for interpretation

may be made either by means of a special

agreement between the parties or of an application

by one or more of the parties (Rules, Art. 98)5.

(g) Revision of a judgment

An application for revision of a judgment may be

made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor,

which fact was, when the judgment was given,

unknown to the Court and also to the party claiming

revision, always provided that such party's

ignorance was not due to negligence (Statute,

Art. 61, para. 1). A request for revision is made by

means of an application (Rules, Art. 99).

8. Enforcement of Judgments by the ICJ

Each Member of the United Nations undertakes tocomply with the decision of the International Court

of Justice in any case to which it is a party. If any

party to a case fails to perform the obligations

incumbent upon it under a judgment rendered by

the Court, the other party may have recourse to the

Security Council, which may, if it deems necessary,

make recommendations or decide upon measures

to be taken to give effect to the judgment.

However, it is subject to the veto powers of the

permanent members.

9. Pre-emptive Strike

It is a surprise attack that is launched in order to

prevent the enemy from doing it to you.

10. Collective Self Defense

Collective self-defense is the act of defending other

designated non-US forces. Only the National

Command Authorities may authorize US forces to

exercise the right of collective self-defense.

11. Unilateralism

Unilateralism is any doctrine or agenda that supportsone-sided action. Such action may be in disregardfor other parties, or as an expression of acommitment toward a direction which other partiesmay find agreeable.

12. Retortion vs. Reprisal

Retortion consists of an unfriendly, but not

international illegal act of one State against anotherin retaliation for the latter’s unfriendly or

inequitable conduct. It does not involve the use of

force. States resorting to retorsion retaliate by acts

of the same or similar kind as those complained of.

It is resorted by States usually in cases of unfair

treatment of their citizens abroad.

Reprisal is any kind of forcible or coercive measures

whereby one state seeks to exercise a deterrent

effect or to obtain redress or satisfaction, directly or

indirectly, for the consequences of the illegal acts of

another state, which has refused to make amendsfor such illegal conduct.

13. Economic Embargo

An embargo is the partial or complete prohibition of

the movement of merchant ships into or out of a

country's ports, in order to isolate it. Embargoes are

considered strong diplomatic measures imposed in

an effort, by the embargo-imposing-country, to

elicit a given national-interest result from the

country on which it is imposed. Embargoes aresimilar to economic sanctions and are generally

considered legal barriers to trade, not to be

confused with blockades, which are often

considered to be acts of war.





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14. Non-intercourse vs. Boycott

Non-intercourse consists of suspension of all

commercial intercourse with a state. It is also a

complete or partial interruption of economic

relations with the offending state as a form of enforcement measure.

Boycott is a comparatively modern form of reprisal

which consists of a concerted suspension of trade

and business relations with the nationals of the

offending state.

15. War

It is a sustained struggle by armed forces of a

certain intensity between groups of certain size,

consisting of individuals who are armed, who wear

distinctive insigna and who are subjected to military

discipline under responsible command.

16. Doctrine of Military Necessity

An attack or action must be intended to help in the

military defeat of the enemy, it must be an attack

on a military objective, and the harm caused to

civilians or civilian property must be proportional

and not excessive in relation to the concrete and

direct military advantage anticipated.

17. The Principle of Postliminium,

It is a specific version of the maxim ex injuria jus non

oritur, providing for the invalidity of all illegitimate

acts that an occupant may have performed on a

given territory after its recapture by the legitimate

sovereign. Therefore, if the occupant has

appropriated and sold public or private property as

may not legitimately be appropriated by a military

occupant, the original owner may reclaim thatproperty without payment of compensation. It

derives from the jus posiliminii, of Roman law. The

codification of large areas of international law have

made postliminium to a great extent superfluous

though. It may either be seen as a historical

concept, or a term generally describing the

consequences to legal acts of an occupant after the

termination of occupation

18. Mercenary vs. Spy

A mercenary is a person who takes part in an armed

conflict, who is not a national or a party to the

conflict, and is "motivated to take part in thehostilities essentially by the desire for private gain

and, in fact, is promised, by or on behalf of a party

to the conflict, material compensation substantially

in excess of that promised or paid to combatants of

similar ranks and functions in the armed forces of

that Party"

A spy is an agent employed by a state to obtain

secret information, especially of a military nature,

concerning its potential or actual enemies.

19. Neutrality vs. Neutralization

Neutrality is a status only obtained during war

created under international law, by means of stand

on the part of the state not to side with any of the

parties at war brought about by a unilateral

declaration by neutral state.

Neutralization is a status that applies in peace and

war which is created by means of a treaty and

cannot be effected by unilateral act only but must

be recognized by other states.

Public International Law Conspectus

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